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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) CRIMINAL ACTIONS
)
LAWRENCE ANTHONY FRANKLIN, ) 1:05-cr-225
) 1:05-cr-421
Defendant. )
__)
REPORTER'S TRANSCRIPT
MOTIONS HEARING
(Reduction of Sentence)
(PROCEEDINGS HELD IN OPEN COURT)
Thursday, June 11, 2009
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BEFORE: THE HONORABLE T.S. ELLIS, III
Presiding
APPEARANCES: OFFICE OF THE UNITED STATES ATTORNEY
BY: NEIL HAMMERSTROM, AUSA
THOMAS REILLY, AUSA
For the Government
PLATO CACHERIS, ESQ.
JOHN HUNDLEY, ESQ.
For the Defendant
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MICHAEL A. RODRIQUEZ, RPR/CM/RMR
Official Court Reporter
USDC, Eastern District of Virginia
Alexandria, Virginia
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 INDEX
2
3 PRELIMINARY MATTER RE: SEALING 4
4 (Portion under seal under separate transcript)
5 RECAPITULATION BY THE COURT 8
6 ARGUMENT BY THE GOVERNMENT 8
7 ARGUMENT BY THE DEFENDANT 14
8 ALLOCUTION BY THE DEFENDANT 23
9 RULING AND IMPOSITION OF SENTENCE BY THE COURT 31
10
(Court adjourned)
11
12 ---
13
14
15
16
17
18
19
20
21
22
23
24
25
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 PROCEEDINGS
2
3 (Court called to order at 5:45 p.m. in USA v.
4 Franklin.)
5 THE COURT: All right. This is United States
6 against Franklin.
7 What is the number of the case?
8 THE CLERK: Case number 05 criminal 225, and
9 case number 05 criminal 421.
10 THE COURT: All right.
11 Who is here on behalf of the government?
12 ATTORNEY HAMMERSTROM: Good afternoon, your
13 Honor. Neil Hammerstrom and Thomas Reilly for the United
14 States.
15 THE COURT: All right. Good afternoon.
16 Mr. Cacheris, you are here on --
17 ATTORNEY CACHERIS: And John Hundley, your
18 Honor.
19 THE COURT: And John Hundley, on behalf of --
20 ATTORNEY HUNDLEY: Good afternoon.
21 ATTORNEY CACHERIS: On behalf of Mr. Franklin,
22 who is also present.
23 THE COURT: -- of Mr. Franklin.
24 Good afternoon, Mr. Franklin.
25 THE DEFENDANT: Good afternoon.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 PRELIMINARY MATTER RE: SEALING
2 THE COURT: The first order of business is that
3 I want to be sure this hearing is open. I saw everything
4 filed under seal, but I see no reason for these pleadings to
5 be under seal, Mr. Hammerstrom.
6 ATTORNEY HAMMERSTROM: There very much is a
7 reason for ours to be under seal, your Honor.
8 THE COURT: All of it?
9 ATTORNEY HAMMERSTROM: Virtually all of it.
10 THE COURT: Why?
11 ATTORNEY HAMMERSTROM: Well, I can tell you,
12 but I can't tell you in open court. I am happy to come up
13 to the bench.
14 THE COURT: All right. We will do it in that
15 fashion.
16 ATTORNEY HAMMERSTROM: And I also would like to
17 address a few points in Mr. Cacheris' pleading, and that, of
18 course, is under seal. And what I want to address is a
19 sealed matter, as well.
20 ATTORNEY CACHERIS: Our position is it should
21 be unsealed, and the hearing should be open, your Honor.
22 That's our position.
23 THE COURT: All right.
24 Mr. Lowell, you are here.
25 ATTORNEY LOWELL: I am, sir.
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1 THE COURT: You were counsel in this case.
2 ATTORNEY LOWELL: I was.
3 THE COURT: All right.
4 I will consider at the bench whether it should
5 be closed.
6 I also want to hear from Mr. Hammerstrom
7 whether you should be excluded. You will be excluded from
8 the bench conference, but I have in mind that you are here
9 and that you wish to be here.
10 And who are the other gentlemen with you?
11 ATTORNEY CACHERIS: David Charney (phonetics);
12 he is a local psychiatrist that I have asked to be here,
13 your Honor.
14 THE COURT: All right.
15 And?
16 The other gentlemen?
17 UNIDENTIFIED SPEAKER: I am a friend of
18 Mr. Franklin.
19 THE COURT: All right, sir. That's fine.
20 That's fine.
21 Well, let's have counsel come to the bench. I
22 need to consider first whether it's an open or a closed
23 hearing.
24 (Sidebar conference held as follows:)
25 THE COURT: Actually, let's exclude everybody,
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 so I can sit down, and do it that way.
2 ATTORNEY HAMMERSTROM: Okay.
3 THE COURT: All right.
4 (End of sidebar conference, open court as
5 follows:)
6 THE COURT: Let me ask Mr. Lowell, would you
7 and the other gentleman leave.
8 And the other two gentlemen seated here are
9 interns in my chambers, and they may remain. And we will
10 deal with this in open court.
11 We will get back to you just as quickly as we
12 can --
13 ATTORNEY LOWELL: Thank you, Judge.
14 THE COURT: -- on the result.
15 (Courtroom closed in USA v Franklin.)
16 ---
17 (Proceedings held under seal under separate
18 transcript.)
19 ---
20 (Proceedings resume in open court at 6:08 p.m.
21 in USA v. Franklin.)
22 THE COURT: We have added a body here.
23 All right. The hearing is now public. It's
24 open to the public.
25 For the public, I should advise the public that
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1 the pleadings in this matter were filed under seal. I
2 issued an order today requiring the parties, when they
3 arrived today, to give me reasons why the pleadings should
4 remain under seal, or why this hearing should be under seal.
5 We have now had a closed hearing about that.
6 And as a result of that, I have ordered that the government
7 file its pleading redacted for certain matters. And the
8 redactions will be noted in the public record as to what --
9 where the redactions are. The rest of it will be, will be
10 in the public record. It is important that as much as
11 possible of anything any court does should be open to the
12 public.
13 Now -- and the defendant's brief also had a
14 short piece that I concluded, after hearing argument, should
15 be under seal. And the defendant will file a redacted
16 public version.
17 And I have also heard brief -- well, at least I
18 have had some statement of it. It's fairly well explicated
19 in the briefs. So I have heard information about that.
20 And I have also indicated that if, in the
21 course of the argument that I hear on this matter, that it
22 becomes necessary in either party's view to get into these
23 sensitive matters, to let me know, and I will consider
24 whether I agree that they are, or are not, sensitive.
25 So, as of now, the hearing is open.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 RECAPITULATION BY THE COURT
2 THE COURT: This matter is before the Court on
3 a motion for reduction of sentence pursuant to Rule 35. The
4 parties have filed their memoranda.
5 And I did receive, Mr. Cacheris, the additional
6 memorandum, which I think you sent just to include the
7 additional letter.
8 ATTORNEY CACHERIS: That's correct; just one
9 letter.
10 THE COURT: Yes. And I have reviewed that
11 letter, as I have the other attachments.
12 None of the attachments to your memoranda are
13 anything I have required to be sealed.
14 All right. Now, I am prepared to hear any
15 argument the parties want to offer on this, legal or
16 factual. And if you feel that you do have to get into
17 sensitive matters, either because I ask a question or
18 because you feel it's necessary, don't hesitates to let me
19 know.
20 All right. It's your motion, Mr. Hammerstrom.
21 You may go first.
22 ARGUMENT BY THE GOVERNMENT
23 ATTORNEY HAMMERSTROM: Your Honor, we have
24 pretty much laid out all of the cooperation, the full extent
25 of Mr. Franklin's cooperation. And certainly, had he not
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1 proactively cooperated early on in the investigation, we
2 would not have been able to go forward on another
3 significant case.
4 That said, Mr. Franklin was not what you would
5 say is an ideal cooperator. I know the Court has had
6 hundreds and hundreds of Rule 35 motions brought before it.
7 In many cases you see a cooperator, from day one, cooperate
8 fully, a hundred percent, give everything they've got, and
9 never look back.
10 And there were problems with Mr. Franklin.
11 From the day that he entered his plea, we went through -- as
12 you will recall from the extensive hearings in the Rosen and
13 Weissman case, we had something that's called the
14 Jakooz (phonetics) list. And that was something that was a
15 subject of overt acts in the indictment.
16 And we went through that with Mr. Franklin in
17 preparation --
18 THE COURT: Is that referred to by name in the
19 indictment? I don't recall.
20 ATTORNEY HAMMERSTROM: I don't recall, either.
21 THE COURT: So I think even referring to it in
22 that fashion probably isn't -- is that classified?
23 ATTORNEY HAMMERSTROM: I don't think that name
24 is. It's certainly not going to --
25 THE COURT: Well, Emile Zola's use of it
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1 probably isn't. But this was not Emile Zola that you are
2 referring to. So -- (laughs).
3 And, of course, we don't reach today whether
4 any of this should have been classified. That's not the
5 Court's task, or it's not my prerogative to say what should
6 be classified or not.
7 But go ahead.
8 ATTORNEY HAMMERSTROM: Well, in discussing that
9 particular incident with Mr. Franklin in preparation for the
10 plea, and during debriefings, we pointed out to him that of
11 that information, some of those bullets, were classified.
12 And, in fact, he had gotten that information over a secure
13 system from a colleague of his in the intelligence
14 community.
15 And when we told him that this classification
16 authority had looked at this list and determined that a
17 couple of these bullets were, in fact, classified,
18 Mr. Franklin immediately said, "Well, if he" -- knowing this
19 person very well -- "if he says they are classified, they
20 are classified." And he signed a statement of facts to that
21 effect.
22 And then he appeared up in open court when we
23 entered the plea. And when I was reciting the -- or
24 summarizing the statement of facts, when I got to that
25 portion and I said the government would prove that this
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 information was classified, Mr. Franklin audibly spoke up,
2 "Not a chance."
3 And then I said, trying to -- try to get him to
4 come around, I said, "Well, the government would prove
5 that," you know, for some reason, if he didn't agree with
6 this.
7 And he said, "It's not classified."
8 And I went to the website the other day, to a
9 Google website, and that statement he made and that whole
10 recitation appeared in numerous articles around -- around
11 that time.
12 That's not an ideal cooperator, to make a
13 statement like that after he has already agreed that the
14 information is, in fact, classified, and that he has signed
15 a statement of facts to that -- to that effect.
16 My point of bringing this all up is that
17 it's -- you have to balance those things against the good he
18 did. And there are a number of good things he did. There
19 is no question about it.
20 And you have to keep that separated from the
21 hardships he has endured. I think the hardships, the
22 financial strain, the condition of his wife, those are
23 factors the Court should consider under 3553. We don't
24 dispute that.
25 Our recommendation is based solely on the
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1 extent of the cooperation, and that and other -- the factors
2 that we outlined in the memorandum.
3 THE COURT: Yes.
4 ATTORNEY HAMMERSTROM: And I --
5 THE COURT: I take it, however, the Court can
6 consider the 3553(a) factors?
7 ATTORNEY HAMMERSTROM: Certainly. Certainly.
8 And we don't dispute that. And we told Mr. -- I told
9 Mr. Cacheris that when we met, when we discussed this
10 recommendation.
11 Obviously, he was very upset that our
12 recommendation wasn't higher, and rightfully so. I can
13 understand that, because of Mr. Franklin's background.
14 We have had four years of litigation, in which
15 Mr. Franklin has worked a number of odd jobs, as
16 Mr. Cacheris points out in his pleading.
17 But obviously, if he had been in jail during
18 this time, he would have had no income coming in. And there
19 are a lot of cooperators who wait their time sitting in jail
20 or federal prison before any Rule 35 is filed.
21 I also ask the Court to keep -- to put
22 something in perspective here, in the last four years there
23 has been a lot of emphasis on the Rosen and Weissman case.
24 But you have to really look at that case and look at
25 Mr. Franklin's role to see how critical his role was in the
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 scheme of things.
2 In many ways he was a more significant violator
3 than Rosen and Weissman ever were alleged to be, because he
4 was the government employee who signed nondisclosure
5 agreements, who was tasked and held responsible for keeping
6 the secrets of the United States, or the intelligence
7 community, and he is the one that violated it.
8 And if you don't have people like Mr. Franklin
9 in government doing that, you don't have people passing
10 classified information. It all starts with the people that
11 have the classified information and have the responsibility
12 to hold it secure and not reveal it to people not entitled
13 to receive it.
14 And I think that's a very important factor in
15 this case, because -- we can't lose sight of that.
16 Mr. Franklin doesn't come before the Court with
17 clean hands, too. If you recall from the presentence
18 report -- in fact, I think it was paragraph 56 -- in 1997,
19 when he was an employee of the DIA, he was investigated and
20 admitted approximately 16 times taking classified documents
21 home. And he got a reprimand. He got censured, and
22 something was put in his personnel file.
23 But look what happened -- fast-forward to the
24 time he was charged in this case: He had 80-some classified
25 documents at his home out in West Virginia, and 30-some of
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 those were top secret.
2 So, this is -- this is -- and again, we
3 appreciate the cooperation he gave the government, but this
4 needs to be balanced with the fact that you have before you
5 an individual that just can't seem to follow the law when it
6 comes to protecting classified information.
7 So I think the Court needs to balance that with
8 the good that he has done and the cooperation that he has
9 provided.
10 Thank you.
11 THE COURT: All right.
12 Mr. Cacheris.
13 ARGUMENT BY THE DEFENDANT
14 ATTORNEY CACHERIS: Well, your Honor, I am very
15 surprised at the position that the government has taken on
16 Mr. Franklin.
17 In their motion to reduce the sentence, they
18 say he was, quote, "a substantial factor into bringing the
19 case against Rosen and Weissman." That's their words.
20 They say that the best evidence in the case
21 involving false statements by the other defendants came from
22 Mr. Franklin.
23 He was proactive. He wore a wire. He did
24 everything the government wanted him to do for a period of
25 four (sic) months, from July through September '04.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 Everything they wanted him to do, he did.
2 They didn't complain then that he had
3 classified documents in his house, or that he had previously
4 been reprimanded for having classified documents. No. They
5 didn't complain then. They used him. They used him over
6 and over and over. And he was without counsel during that
7 period of time, your Honor.
8 Other cases he gave them -- and we won't go
9 into the sensitive cases that the Court has excluded, but he
10 has given them other cases involving people who cannot come
11 into this country.
12 He has given them criminal cases. He was also
13 approached --
14 THE COURT: You are referring to the West
15 Virginia matter.
16 ATTORNEY CACHERIS: That's one; and another one
17 about somebody that came to tamper with Mr. Franklin, to
18 have him, in effect, disappear, and he immediately reported
19 that to the government.
20 The complaints --
21 THE COURT: Let me ask, while we are on it -- I
22 need to ask Mr. Hammerstrom.
23 What has come of the West Virginia one, if you
24 know?
25 ATTORNEY HAMMERSTROM: Are you talking, your
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 Honor, about the -- when he was approached right before
2 entering his plea?
3 THE COURT: No, sir.
4 ATTORNEY CACHERIS: No.
5 THE COURT: I am talking about the information
6 he provided with respect to drug trafficking, based on
7 people coming to him for help.
8 He wasn't involved in it at all, but he, in
9 effect, was the person who managed to get somebody to pay
10 attention to this problem, is, I think, what it was.
11 Is that right, Mr. Cacheris?
12 ATTORNEY CACHERIS: That's correct, your Honor.
13 ATTORNEY HAMMERSTROM: The Court's indulgence.
14 THE COURT: But that matter is not under seal
15 in any way.
16 ATTORNEY CACHERIS: No.
17 ATTORNEY HAMMERSTROM: No, that is not. There
18 was no federal involvement in that case.
19 THE COURT: Right.
20 But you may not -- and I can understand why you
21 may not know.
22 Maybe Mr. Cacheris knows.
23 ATTORNEY CACHERIS: We just gave them the
24 information, your Honor. We don't know what they did with
25 it. Mr. Franklin was not involved in the case in the sense
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 that he was a participant. But he was a -- gave them the
2 information.
3 (Counsel conferring.)
4 ATTORNEY CACHERIS: I am told by Mr. Hundley
5 that he knows there were arrests, but we do not know the
6 outcome of the case.
7 THE COURT: And just so that we are very clear
8 about this, Mr. Franklin was not involved in the activity in
9 any way.
10 ATTORNEY CACHERIS: That's correct.
11 THE COURT: It was just people who came to him
12 and asked him for help.
13 ATTORNEY CACHERIS: Right.
14 ATTORNEY HAMMERSTROM: Your Honor, it's our
15 understanding that a search was conducted based on the
16 information and drugs were recovered. But we don't know
17 what the outcome of the case was.
18 THE COURT: Thank you. That's helpful.
19 Go ahead, Mr. Cacheris.
20 ATTORNEY CACHERIS: So, your Honor, he has done
21 a substantial amount of cooperation.
22 Now, the government has seen fit to drop the
23 case against Rosen and Weissman, and that's their right.
24 But it smacks of vengeance to try to ask this Court to
25 impose an eight-year sentence on Mr. Franklin, because it's
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1 just not justified, in my opinion.
2 In fact, as I say, their complaints, I think,
3 are nit-picking: The off-the-script comment, the "no way"
4 statement, the fact that he refused, at the end of the day,
5 to plead to 794, having been four months without counsel,
6 and they confronted him for the first time and said, "Now,
7 Mr. Franklin, we are going to give you a lawyer and you're
8 going to plead guilty to 794," the more serious of the
9 espionage charges.
10 It was at that point that he decided that he
11 should seek other counsel. And we advised him not to plead
12 to 794, your Honor. It was our advice. And for that
13 reason, he stopped --
14 THE COURT: Well, I'm not sure any of this is
15 really important --
16 ATTORNEY CACHERIS: Well --
17 THE COURT: -- but let me be sure the facts are
18 right.
19 Is that your view, Mr. Hammerstrom, as to what
20 happened? Briefly.
21 ATTORNEY HAMMERSTROM: It is not, your Honor.
22 I mean, it's close, but it's not exactly right.
23 THE COURT: What's the only distinction?
24 ATTORNEY HAMMERSTROM: The distinction is that
25 he had previous counsel, and we he had proposed a 794 plea.
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1 He turned that down. He retained Mr. Cacheris. We met with
2 Mr. Cacheris. We ended up modifying our plea offer to 793,
3 and he rejected that and took us through two indictments, a
4 first indictment and a superseding indictment.
5 THE COURT: All right.
6 ATTORNEY HAMMERSTROM: That was after we had
7 offered the 793 plea.
8 THE COURT: All right.
9 Go ahead, Mr. Cacheris.
10 ATTORNEY CACHERIS: And it was because of
11 counsel advising Mr. Franklin what position he should take,
12 again remembering that for four months he was without
13 counsel and he was guideless in this whole situation.
14 He has had -- and, your Honor, the government
15 has agreed that you should consider his exemplary life. He
16 has served his country both as a civilian in the Department
17 of Defense and as a military man, as a colonel.
18 He has, since 2006, when this 12-year sentence
19 was imposed, I suggest to the Court he has been essentially
20 under home detention. He has paid his penalty, and he has
21 suffered greatly.
22 He brought the case. The government rejected
23 the case after a while, but it was not because of anything
24 Mr. Franklin did.
25 They can talk all they want to about they may
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1 not call him as a witness, but I suspect Mr. Franklin would
2 have been a witness, and would have been entitled to the
3 benefits of that.
4 So, for four and a half years, essentially,
5 with some modifications, he has been cooperating.
6 The generosity that the government has shown to
7 Rosen and Weissman is not being shared with Mr. Franklin.
8 And we think that's wrong. So --
9 THE COURT: I don't think the government would
10 characterize what they did as an act of generosity.
11 ATTORNEY CACHERIS: I characterize it as an act
12 of generosity. Whatever they did, they did. But they were
13 the principals that they were asking Franklin to bring.
14 Franklin brought them.
15 And then Franklin had nothing to do with the
16 government's -- if I may use the word again -- generosity
17 with regard to Rosen and Weissman. He had nothing to do
18 with that.
19 So we suggest to the Court, the fact that he
20 has lived under this eight-year -- eleven-year sentence,
21 twelve-year sentence since January 2006, over three and a
22 half years now, is punishment enough. We don't think any
23 further punishment is warranted.
24 And for the Court -- we are beseeching the
25 Court, asking the Court to consider giving him no sentence
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 at all, or at least a halfway house or something --
2 THE COURT: Well, let me ask you this,
3 Mr. Cacheris. I don't usually listen to allocution by a
4 Defendant on Rule 35 --
5 ATTORNEY CACHERIS: I understand.
6 THE COURT: -- but I would do so, if he
7 requests it.
8 ATTORNEY CACHERIS: He does.
9 THE COURT: All right.
10 I want to be clear, because I have clearly in
11 mind what he did. And I understand your argument that he
12 did he it out of a strong feeling of patriotism for his
13 country.
14 ATTORNEY CACHERIS: That's correct.
15 THE COURT: Namely, he had a strong view about
16 the position that the government should take with respect to
17 Iran, and that failure to take that position would be
18 harmful, detrimental, dangerous to the United States; and
19 that the essential way to do this is to leak information to
20 individuals who would pass it on to people who could do
21 battle with those forces within the United States Government
22 that had a different view.
23 ATTORNEY CACHERIS: Correct.
24 THE COURT: Now, I am going to ask him in a few
25 minutes, does he understand why that's wrong?
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 ATTORNEY CACHERIS: Well, that's why he entered
2 his plea, your Honor. He does understand it's wrong.
3 THE COURT: Well, the fact you think you are
4 doing the best thing for your country doesn't give you a
5 license to violate the law.
6 ATTORNEY CACHERIS: That's correct. We don't
7 disagree with that.
8 On the other hand, the fact that he has done so
9 much for the United States Government should be a factor
10 that grants him more than a mere --
11 THE COURT: I understand that.
12 ATTORNEY CACHERIS: -- 35 percent reduction.
13 That's where we come from.
14 THE COURT: So, I take it when he allocutes, he
15 would respond that however well-established some people
16 might feel this back-channel process is, that he now
17 understands in spades that it's a violation of the law.
18 ATTORNEY CACHERIS: Yes, your Honor. He will
19 say that to you.
20 And of course, as you know, as a result of this
21 conviction he will never have a security clearance again.
22 He will never be in a position to do anything like this
23 again, ever.
24 Because look at what he has been doing. He has
25 been unable to find a meaningful job. He has been digging
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
23
1 ditches. He has been cleaning cesspools, et cetera, et
2 cetera. We have detailed all that in our motion.
3 So if you want to hear from him, your Honor, we
4 will have Mr. Franklin answer the question.
5 THE COURT: Well, that's not -- if I have a
6 request, I will think about it. But I don't typically hear
7 from defendants on Rule 35.
8 I'm going to give Mr. Hammerstrom an
9 opportunity, of course, to respond what you and --
10 ATTORNEY CACHERIS: Very good.
11 THE COURT: -- what Mr. Franklin have said.
12 Mr. Franklin, do you wish to be heard? You are
13 not required to say anything, if you don't wish to.
14 THE DEFENDANT: Yes, your Honor, I do.
15 THE COURT: All right. Come to the podium.
16 THE DEFENDANT: (Complied.) Okay to go?
17 THE COURT: Yes, you may proceed.
18 ALLOCUTION BY THE DEFENDANT
19 THE DEFENDANT: God is present in the
20 conscience of everyone in this courtroom, and, your Honor,
21 God is my witness that what I say here is true, is simple
22 truth.
23 I want to just say that I am grateful to be in
24 such a court in a country where the rule of law and the
25 respect for human rights is (sic) vibrant, because I have
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
24
1 been in many countries around the world many needs where
2 neither respect for law -- there is neither respect for law
3 or rights.
4 I just want to express so gratitude --
5 THE COURT: You feel the rule of law is
6 important.
7 THE DEFENDANT: Yes, sir.
8 THE COURT: You are right. And what follows
9 from that?
10 THE DEFENDANT: Well, sir, I -- can I --
11 THE COURT: You want to do it in your order.
12 THE DEFENDANT: Is that all right?
13 THE COURT: That's all right. But you --
14 (Simultaneous discussion.)
15 THE DEFENDANT: I will answer --
16 THE COURT: -- know what --
17 THE DEFENDANT: -- that question.
18 THE COURT: -- I'm getting at. I have lived in
19 countries where there isn't rule of law. I was born in one.
20 THE DEFENDANT: Okay.
21 THE COURT: And what really matters is that
22 government officials obey the law.
23 THE DEFENDANT: That is correct, sir.
24 THE COURT: All right. Go on.
25 THE DEFENDANT: I want to just --
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
25
1 THE COURT: Now --
2 THE DEFENDANT: -- just thank --
3 THE COURT: -- I think this individual is a
4 member of the press, and pretty soon I will get letters from
5 everywhere, angry letters from several countries I have
6 lived in, complaining --
7 (Laughter.)
8 THE COURT: -- that I have said they don't have
9 rule of law. And I suppose that's all right. And it's
10 true.
11 Go ahead.
12 THE DEFENDANT: I want --
13 THE COURT: You don't live in a country where
14 la mordida is what really matters. That's "the bite."
15 Go ahead, sir.
16 THE DEFENDANT: I want to thank --
17 THE COURT: But I will get angry letters.
18 (Laughter.)
19 THE DEFENDANT: I just want to express my
20 gratitude for the generosity that beats in the heart of
21 Plato Cacheris. And it's through his efforts and the
22 efforts of John Hundley and others in the firm of Trout and
23 Cacheris, who gave me the full measure of their assistance
24 and never asked for a dime.
25 His assistance and that of Dr. Charney helped
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
26
1 me maintain my internal equilibrium so that I could
2 discharge, during these five years, my duties to -- as a
3 husband and a father.
4 I also want to thank those who stood by me who
5 are not here, whose strength of character and commitment to
6 friendship and, in some cases, acts of courage, were like
7 oxygen for me.
8 Now, Judge Ellis, I fully admit to serious
9 errors in judgment, and accept full responsibility --
10 (Simultaneous discussion.)
11 THE COURT: Well, let's --
12 THE DEFENDANT: -- for violations --
13 THE COURT: -- be clear --
14 THE DEFENDANT: -- of the law --
15 THE COURT: Let's be clear, Mr. Franklin,
16 because words are important.
17 THE DEFENDANT: Yes, your Honor.
18 THE COURT: "Errors," and "errors in judgment"
19 are somewhat euphemistic. You know, an error is like
20 putting on the wrong color tie. Or an error in judgment is
21 like throwing something in the washing machine that should
22 only be dry cleaned. Those are all within "errors" and
23 "errors in judgment."
24 We are talking about crimes.
25 THE DEFENDANT: And I accept full
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
27
1 responsibility.
2 THE COURT: All right. I just want you to be
3 clear. Sometimes we use euphemisms to disguise the full
4 weight, and I don't want that to be lost on you.
5 THE DEFENDANT: It is not, sir.
6 THE COURT: All right. Go on.
7 THE DEFENDANT: And neither have the
8 consequences for my action s been lost on me, sir.
9 I especially apologize to those colleagues who
10 were subjected to unwarranted and unwanted scrutiny. And
11 the fact that I acted with incredible naiveté does not
12 negate my culpability, for which I have contrition.
13 However, I want to inform the Court and my
14 fellow citizens who are not present that my intentions were
15 always motivated by love for our republic and for the safety
16 of our military personnel that were about to go into Iraq.
17 And it is because of that love of our American
18 republic, fostered by my own upbringing and admiration for
19 the uniqueness in the annals of history that America is,
20 that I foolishly and wrongfully entrusted sensitive
21 information to people who were not authorized to receive it.
22 Once I illegally uttered those few sentences, I
23 lost control over where that information might go. It no
24 longer mattered that my intentions were pure.
25 And ironically, I didn't know that Mr. Rosen
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
28
1 and Mr. Weissman were with AIPAC until I had met them. I
2 had never been to AIPAC. I didn't even know where it was
3 located. I thought that this information would only go to a
4 particular NSC source, who had responsibility for that
5 action. And I was wrong.
6 THE COURT: The meeting was arranged by
7 Mr. McCoskey?
8 THE DEFENDANT: Yes, sir.
9 THE COURT: All right. Go on.
10 THE DEFENDANT: And I had rationalized at that
11 time that it was the right thing to do, even though I knew
12 it was illegal.
13 Earlier, I said that I have accepted and
14 endured the consequences of my rash actions. The most
15 painful consequences of my behavior involve the erosion of
16 integrity in my own family, the emotional impact on our
17 youngest son, and the precipitous decline in my own beloved
18 wife's health.
19 And there is one other consequence that I will
20 regret until the day I die, sir, and that is my father, the
21 hero, veteran of World War II, patriarch of the family, died
22 perplexed as to my status. This is the most unsettling
23 consequence of all for me.
24 And so I am asking you, Judge Ellis, to temper
25 justice with mercy, and not for my sake, but for the sake of
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
29
1 my wife. That is why I am begging your indulgence.
2 In closing, I profoundly regret, every day in
3 these past years, that I have not been permitted, because of
4 my actions, to employ my expertise to help our country.
5 Even if I could have saved one life, it would
6 have worth it. As in my study at home, all the walls are
7 filled with the faces of our fallen. I want to help prevent
8 other American families from enduring the loss of a loved
9 one.
10 Whatever the outcome of this hearing, I am
11 ready to contribute, and will, all my professional skills to
12 that end.
13 So I am asking you, Judge Ellis, not to make my
14 sentence too lengthy, so that I can spend the rest of my
15 days attending to my wife's medical needs, but also to
16 instructing our nation 's youth as to the danger that our
17 civilization faces from those who would replace us.
18 THE COURT: You are no longer teaching at
19 Shepherd, are you?
20 THE DEFENDANT: No, sir, I am not. But I --
21 THE COURT: Well, I am very interested -- go
22 ahead.
23 THE DEFENDANT: I -- when -- the president of
24 Shepherd said that upon completion of my obligation with the
25 government, they would rehire me. And I have written a
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
30
1 book, which is not published yet, which is directed to the
2 American youth, as to the threat of radical Islam and
3 terrorism. And everything I say in there is based upon my
4 own experience.
5 THE COURT: I am much more interested,
6 Mr. Franklin, not in your views about the threat of radical
7 Islam, but in your understanding now of the importance of
8 the rule of law insofar as it applies to government
9 officials obeying the law.
10 Don't you think that's important to tell the
11 youth about?
12 THE DEFENDANT: Absolutely, sir. And I have
13 told my class about that, the one, when I did teach at
14 Shepherd, that what I had done was wrong.
15 THE COURT: All right, sir.
16 Do you have anything else?
17 THE DEFENDANT: No, sir.
18 THE COURT: All right.
19 Mr. Cacheris, do you have anything you want to
20 add?
21 And I will --
22 ATTORNEY CACHERIS: Nothing further --
23 THE COURT: -- ask Mr. --
24 ATTORNEY CACHERIS: -- your Honor.
25 THE COURT: All right.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
31
1 Mr. Hammerstrom?
2 ATTORNEY HAMMERSTROM: We will rest on the
3 papers, your Honor.
4 THE COURT: I am going to take a few minutes
5 more to reflect on this, but I want to make some remarks.
6 (Pause.)
7 RULING ON MOTION AND
8 IMPOSITION OF SENTENCE BY THE COURT
9 THE COURT: I have been reflecting on this for
10 weeks. Indeed, I issued an order that said -- after I
11 dismissed the charges against Rosen and Weissman, I issued
12 an order requiring the government to let me know what --
13 whether there were any motions with respect to Mr. Franklin.
14 I didn't limit it to Rule 35. I said "any motions," I
15 think.
16 So this has long been in my thoughts. And when
17 I received your briefs, I read those carefully and thought
18 about them. And I have heard your arguments.
19 It's a very difficult unusual situation.
20 Mr. Hammerstrom is absolutely right. I have seen hundreds
21 of these things over the past 20-plus years, going into my
22 23rd. But this one is unique in many respects, chiefly, of
23 course, because of the context and because of the fact that
24 the government, for its own reasons, decided to discontinue
25 the case against Rosen and Weissman.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
32
1 It is not the judiciary's business whom to
2 prosecute and what they should be prosecuted for. It is not
3 the judiciary's business to decide when to proceed and to
4 continue with a prosecution and when not to do so. Those
5 issues are entirely up to the discretion of the Executive
6 Branch, and I express no view about that.
7 The only time I have expressed views about that
8 is when the Executive Branch makes decisions to use judicial
9 resources in a way that, really, I cannot stand by. And
10 that's only happened once, and that was in connection with
11 Lorton.
12 If some of you may recall, I thought Lorton was
13 a disgrace, and said so on the front page of one of these
14 newspapers. The only solution to Lorton is what occurred:
15 to close. It was a disgrace.
16 But we would receive a ton of cases over here
17 involving assaults within Lorton, on inmate on inmate. And
18 there is an internal grievance proceeding. So I sat on
19 several cases, case after case after case, in which one
20 inmate -- they would prosecute one inmate for an assault by
21 another.
22 And so you had groups of inmates who would come
23 in and testify. And the jury would scratch their heads and
24 say: How can we determine whom to believe when they are all
25 felons, and they don't look like very reputable folks.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
33
1 And after a while, that seemed to me to be a
2 waste of judicial resources. That's the only time that the
3 judiciary -- that I have, as a judge, interfered with the
4 government's decision of whom to prosecute, whom not to
5 prosecute, when to continue or not to continue.
6 So I don't express any view about the
7 discontinuing of the Rosen and Weissman case.
8 However, it is significant, in the context of
9 Mr. Franklin, that it was discontinued.
10 Having said that, however, I don't have any
11 doubt -- and Mr. Franklin has made clear that he doesn't
12 doubt, and Mr. Cacheris does not contest, that Mr. Franklin,
13 in what he did, violated the law.
14 Whether it was specifically 792 or something
15 else is something maybe for dispute.
16 The main issue in Rosen and Weissman -- well,
17 not the main -- we have an expert here -- or we have the
18 experts here, Mr. Reilly, Mr. Hammerstrom, Mr. Lowell. But
19 a principal issue in that case, and something that I don't
20 think is well-understood, is that the information had to be
21 national defense information. It wasn't enough that it be
22 classified. It had to be NDI for there to be a violation.
23 And that was a very disputable issue.
24 And as I said, I don't have a view on whether
25 something should be classified or not. That's only part of
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
34
1 the NDI equation. That's the closely held part.
2 It isn't the judge, the judge's view, it isn't
3 the judiciary's task or obligation to determine what should
4 or shouldn't be classified. That's, again, an Executive
5 Branch decision.
6 It is, however, the province of the
7 judiciary -- and in this case it would have been the
8 province of the jury -- to decide whether or not the
9 information was NDI. That's really what a major dispute was
10 about.
11 Am I correct, Mr. Reilly; there was a major or
12 dispute about that?
13 There may have been others, but that was a
14 major dispute.
15 ATTORNEY REILLY: I believe that's correct,
16 your Honor.
17 THE COURT: And I see Mr. Lowell smiling, and
18 so I think it was.
19 And I don't know whether that's the reason.
20 There were a lot of witnesses that the defense
21 had lined up. There were rulings that I made. Those were
22 referred to in the media.
23 I don't know. It doesn't matter. I don't know
24 and don't care. That's a matter for others to write about,
25 think about.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
35
1 I do want to say that the lawyers in that case
2 on both sides, both the government and the defendant, were
3 exemplary and did an exemplary job.
4 Now -- but it has some relevance to this case,
5 and I'll come to that in just a moment.
6 In deciding on a Rule 35, I do consider the
7 3553(a) factors, but it's not a resentencing. And I
8 considered the factors under 5K. They are all advisory.
9 The Guidelines are advisory. The factors there are not
10 binding. But I consider those and 3553(a).
11 And my task at the end of the day is to
12 evaluate his cooperation, to make a decision about the
13 importance of it, the substance of it, to evaluate the other
14 3553(a) factors, which, of course, are his personal history
15 characteristics, the nature of the offense, the need to
16 insure that there -- whatever is done is just -- and I'll
17 come back to that -- promotes respect for the law, does not
18 involve unwarranted disparities in on sentences imposed on
19 this defendant. In this case, it wouldn't be unwarranted
20 disparities in the sentencing. It really would be
21 unwarranted disparities, also, in the reductions.
22 And also, I have already mentioned, or should
23 mention, deterrent effect. Mr. Hammerstrom made a very
24 important point. He said that this case is different from
25 Rosen and Weissman, in that Mr. Franklin was a government
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
36
1 official.
2 And I think the government's view -- correct me
3 if I am wrong, Mr. Hammerstrom -- is that these back-channel
4 efforts, insofar as they involve classified information, are
5 not justified, cannot be justified. And that had to be a
6 significant motivation in the government's originally
7 bringing the prosecution.
8 Would that be reasonably accurate?
9 ATTORNEY HAMMERSTROM: Yes, your Honor.
10 THE COURT: And so what I do today has to
11 continue to send that message. That's very important.
12 Now, it's true that there have been
13 disclosures, as Mr. Cacheris points out, in which people
14 have disclosed classified information to the press, when
15 they shouldn't have under the law, and they haven't been
16 pursued and prosecuted.
17 I don't have a problem with people doing that
18 if they are held accountable for it. To use the Jack Bauer
19 analogy, one might hope that, for example, someone might
20 have the courage to do something that would break the law if
21 it meant they're the savior of the country; but then one has
22 to take the consequences, because the rule of law is so
23 important.
24 So, if someone discloses an NIE about Iran,
25 which happened, and a day later it appears in the newspapers
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
37
1 because that was a very hot topic in those days; if one
2 discloses NSA surveillance -- that was -- because someone
3 clearly thought that that was wrong -- and I can understand
4 that feeling, but it was wrong to disclose it. There were
5 other ways to go about it.
6 Now, disclosing it was okay if the person is
7 willing to stand up and say, "I did it. Give me the
8 consequences."
9 So, what I do today -- what has happened to
10 Mr. Franklin and what will happen after I rule today has to
11 stand as a beacon to government officials, because
12 Mr. Hammerstrom is absolutely right, it is important that
13 government officials, more than anyone else, get this
14 message: You cannot engage in disclosure of classified
15 information, certainly not NDI -- I mean, it may turn out in
16 the end not to be NDI, under the statute. But you are
17 precluded by your agreement with the government and by
18 internal regulations from disclosing classified information,
19 which in all likelihood might well be NDI; and that if you
20 do so, there are consequences; and that noble motives don't
21 erase the violation.
22 And it's important that what I do today
23 reflects that.
24 It is also important to have what I do today
25 reflect the very substantial amount of cooperation that he
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
38
1 has provided in a range of areas that we reviewed, some of
2 which are under seal; and that I consider all of the other
3 factors that Mr. Cacheris has brought to my attention in his
4 submission, the bulk of which will not be under seal and be
5 publicly available.
6 This case has clearly had a very severe effect
7 on him, his family. But those -- that's a result of choices
8 that Mr. Franklin made. Life is making choices and living
9 with the consequences of the choices that you make.
10 We don't determine where we are born, to whom
11 we are born, or whether we are born with handicaps, but we
12 all determine how we respond to those. And what choices we
13 make, those choices shape our lives. He made a bad choice,
14 he made a criminal choice, and there must you be
15 consequences for that.
16 I also remember and take into account that
17 Mr. Franklin made a heartfelt, I think, sincere statement
18 about his feelings about our country and about our warriors
19 in uniform. I think those were sincere. And he can make
20 those because he was a warrior. He did serve. And he also
21 had very close friends who were killed as warriors.
22 This country cannot survive without its
23 warriors. Of course, it won't survive very well unless we
24 use our warriors well and carefully. But his heartfelt
25 statements, I think, are genuine and they have some basis.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
39
1 So I take all of that into account.
2 In the end, I grant the motion to reduce his
3 sentence. And I reduce his sentence on the three counts to
4 a sentence of probation with a special condition that he
5 serve ten months in community confinement.
6 As a further special condition of his
7 probation, I am going to require that he do a hundred hours
8 of community serve. And I want this hundred hours of
9 community service focused on giving talks to young people.
10 But I am not interested in giving -- in your
11 giving talks to young people about the Islamist threat to
12 our country -- not that I don't think there is one. We
13 might not agree on precisely what it is. It doesn't matter.
14 What I want you to do, Mr. Franklin -- come to
15 the podium.
16 THE DEFENDANT: (Complies.)
17 THE COURT: What I want you to do is I want you
18 to speak to these young people about the rule of law, the
19 importance of the rule of law insofar -- and how important
20 it is with respect to public officials, that public
21 officials must obey the law.
22 And simply because you believe that something
23 that's going on that's classified should be revealed to the
24 press and to the public, so that the public can know that
25 its government is doing something you think is wrong, that
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
40
1 doesn't justify it.
2 Now, you may want to go ahead and do it, but
3 you have to stand up and take the consequences.
4 And Mr. Cacheris, you asked for straight
5 probation, and largely because of two things: one, the case
6 against Rosen and Weissman abated, and therefore you would
7 think nothing worse could happen to Mr. Franklin. And
8 number two, you point out that there are other people in the
9 government who are doing this and not being prosecuted.
10 I agree with you. I think that's indisputable.
11 And it's sad.
12 The person who disclosed those things that you
13 refer to and that I refer to, probably thinks he or she is a
14 hero.
15 They are not a hero, not a hero at all. They
16 were a lawbreaker. And that's the point Mr. Hammerstrom
17 wants driven home.
18 Am I right, Mr. Hammerstrom?
19 ATTORNEY HAMMERSTROM: Yes, sir.
20 THE COURT: So what I want you to speak to
21 these young people about, Mr. Franklin, is the rule of law
22 and the obligation that public officials especially have,
23 and the importance of classified information. Secrets are
24 importance to a nation. If we couldn't keep our secrets, we
25 would be at greater risk.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
41
1 Don't you agree?
2 THE DEFENDANT: Yes, sir.
3 THE COURT: No, whether or not we overclassify
4 things is certainly open to great debate. In fact, Mr.
5 Lowell was ready to engage in that debate full bore in the
6 case.
7 Am I right, Mr. Lowell?
8 ATTORNEY LOWELL: May I say "yes" on the
9 record, sir?
10 THE COURT: (Laughs.) So, that is not
11 something -- that's true, we may overclassify some things.
12 But we need to protect our secrets with the law. Don't you
13 agree?
14 THE DEFENDANT: Yes, sir.
15 THE COURT: I want you to explain to young
16 people the importance of public service under the rule of
17 law.
18 And I am going to ask that a probation officer
19 send me copies of your lectures on this subject during
20 the -- and you can do it in high schools, you can do it at
21 Shepherd. You can do it at various places.
22 THE DEFENDANT: I would love to do it, sir.
23 THE COURT: Well, you will have an opportunity
24 to do it, and time to do it. And to the extent that there
25 are hours left over, I want you to go to veterans hospitals
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
42
1 and help with the veterans. And I know that is close to
2 your heart, and you have already done some of that.
3 THE DEFENDANT: Yes, sir.
4 THE COURT: But I want you to talk to your
5 people about that.
6 I am going to permit you to surrender
7 voluntarily, of course.
8 The reason that have kept some element of the
9 sentence that goes beyond what Rosen and Weissman have to
10 endure -- and we don't know whether a jury would have found
11 Rosen and Weissman innocent -- or not guilty or guilty. We
12 don't know that. Because there was a clear fight about
13 whether anything they did was illegal. We don't know why
14 the government -- and I don't want to know why the
15 government -- abated. It's none of my business.
16 The only thing I can say is that it made my
17 trial docket easier to manage.
18 (Laughter.)
19 THE COURT: That's about all I can say.
20 But it's important that you have a consequence
21 from this. It includes the papers you took home, after
22 being told not to.
23 Mr. Hammerstrom was dead right on that, and I
24 remembered it clearly. After being told not to, you did it.
25 You can't do that as a public official. You have a higher
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
43
1 obligation to the rule of law, not to your own estimate of
2 what you think is good or not.
3 The fact that you had these strong views about
4 the threat of Iran, I understand that. But you had a forum
5 in which to engage that within the Department of Defense.
6 THE DEFENDANT: Yes, I did.
7 THE COURT: And you arrogated to yourself the
8 power to do something more about it. You know, you could
9 have been wrong about that. Who knows? We don't. We
10 don't.
11 In fact, we will never know whether one
12 position or the other is right until one history takes
13 care -- or we take one route, history tells us about that.
14 But we will never know what would have happened if we had
15 taken the other route. We do the best we can, and we will
16 do better if we obey the rule of law.
17 Have I made myself clear?
18 THE DEFENDANT: Yes, you have, sir.
19 And one of the -- one of two principal
20 objectives of our adversaries is to force us to change
21 internally. And what I did was play into that objective by
22 my violations.
23 THE COURT: All right.
24 Anything further in this matter today?
25 Let me end on a positive note.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
44
1 You may be seated.
2 THE DEFENDANT: That you.
3 THE COURT: I have said this twice already
4 today, and I will say it again. I haven't seen lawyers on
5 the government side, and Mr. Lowell on your side -- that
6 includes Mr. Weiss and all the other folks -- work any
7 harder, any more diligently, any more honestly and
8 effectively than this group here.
9 I know I imposed a lot of burdens on you, but I
10 want to end on that positive note that you all did a very
11 good job as lawyers. I appreciate it.
12 And I think we are fortunate to have in our
13 Department of Justice such capable, conscientious, honest
14 lawyers; and on the defense side, Mr. Lowell, Mr. Weiss and
15 all of those who aren't here, such able lawyers, honest,
16 diligent and effective lawyers on the other side.
17 I'll enter an order accordingly.
18 Court stands in recess.
19 (Court adjourned at 7:03 p.m.)
20
21 ---
22
23
24
25
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
45
1
2 CERTIFICATE
3
4 I, MICHAEL A. RODRIQUEZ, an Official Court
5 Reporter for the United States District Court, in the
6 Eastern District of Virginia, Alexandria Division, do hereby
7 certify that I reported by machine shorthand, in my official
8 capacity, the proceedings had upon the motions hearing in
9 the case of UNITED STATES OF AMERICA v. LAWRENCE ANTHONY
10 FRANKLIN.
11
12 I further certify that I was authorized and did
13 report by stenotype the proceedings in said motions hearing,
14 and that the foregoing pages, numbered 1 to 45, inclusive,
15 constitute the official transcript, of said proceedings as
16 taken from my machine shorthand notes.
17
18 IN WITNESS WHEREOF, I have hereto subscribed my
19 name this day of , 2010.
20
21
22 Michael A. Rodriquez, RPR/CM/RMR
Official Court Reporter
23
24
25
MICHAEL A. RODRIQUEZ, RPR/CM/RMR