1
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) CRIMINAL ACTION
)
STEVEN J. ROSEN, ) 1:05 CR 225
KEITH WEISSMAN, )
)
Defendants. )
)
REPORTER'S TRANSCRIPT
STATUS HEARING
Thursday, April 19, 2007
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BEFORE: THE HONORABLE T.S. ELLIS, III
Presiding
APPEARANCES: OFFICE OF THE UNITED STATES ATTORNEY
BY: KEVIN DIGREGORY, AUSA
NEIL HAMMERSTROM, AUSA
THOMAS REILLY, SAUSA (DOJ)
MICHAEL MARTIN, SAUSA (DOJ)
For the Government
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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 APPEARANCES (Continued):
2 ABBE LOWELL, ESQ.
ERICA PAULSON, ESQ.
3
For Defendant Rosen
4
JOHN NASSIKAS, ESQ.
5 KAVITHA BABU, ESQ.
KATE BRISCOE, ESQ.
6 BARUCH WEISS, ESQ.
7 For Defendant Weissman
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MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 INDEX
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3 COMMENTS BY THE COURT 4
4 COURT QUESTIONS OF THE PARTIES 8
5 RECAPITULATION BY THE COURT 27
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7 (Court recessed)
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9 ---
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MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 PROCEEDINGS
2
3 (Court called to order at 2:50 p.m. in USA v.
4 Rosen, Weissman)
5 THE COURT: All right, you may call the case.
6 THE CLERK: 1:05 Criminal 225, United States
7 versus Steven J. Rosen and Keith Weissman.
8 Would counsel please note your appearances.
9 THE COURT: All right, I will just note for the
10 record, Mr. Reilly, I see all counsel, the usual suspects,
11 ready to proceed.
12 COMMENTS BY THE COURT
13 THE COURT: I have some thoughts since I last
14 met with you on Tuesday, and, indeed, I have some new-found
15 sympathy for Mr. Reilly's claim to have to need to study
16 what I said. So, I worked particularly hard to take my
17 notes and put them into the memorandum opinion quickly, and
18 I have that for you today, although I may take a little more
19 time this afternoon, before I sign the final version, to see
20 if I can catch the grossest of the stylistic infelicities.
21 The rest will be merely offspring of my limitations in that
22 capacity. So, I will have it for you here shortly. I have
23 it in right now. And I think that it would be helpful for
24 both the government and the defendants to have it, to look
25 at it.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 The big thing for Mr. -- for the government is
2 to figure out whether they want to appeal what I said, if it
3 fits into the appeal -- which I indicated I didn't think it
4 does -- or whether they want to proceed in the iterative
5 process that I think 6(c) in practice permits, which is to
6 give the government an opportunity to think about whether
7 they want to submit conventional 6(c) substitutions, or more
8 modest versions of what they have, or declassify
9 everything -- which seems to me also a possibility -- and
10 then proceed.
11 But I think it would be useful to give the
12 parties an opportunity to see what I have ruled. I haven't
13 issued an order yet, but I will do so in due course.
14 Now, given -- it's 30 pages. So I can either
15 give you ten minutes to rifle through it to see if there is
16 something particularly shocking -- I think it's essentially
17 what I said on Tuesday, because I had pretty much outlined
18 it and written out a lot of it in my mind, as well -- or we
19 can take a few minutes and I'll hear preliminarily where the
20 parties are now.
21 Let me ask, Mr. Reilly, have you conferred with
22 the defendants since Tuesday?
23 ATTORNEY REILLY: No, we have not, your Honor.
24 THE COURT: And I take it you are delighted
25 that I have put it down, although I just learned from the
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1 court reporter that you asked for a transcript, too. So you
2 did have that.
3 ATTORNEY REILLY: That's correct, your Honor.
4 THE COURT: All right. Well, that, the
5 transcript won't be quite exactly like this, but it will be
6 reasonably close.
7 What -- would it be useful if I gave you ten
8 minutes to read it?
9 ATTORNEY REILLY: Actually I think at this
10 point, your Honor, we were prepared to ask you to stay the
11 entry of any order for Monday, pending what the government
12 will come back to you, hopefully in two weeks, to tell you
13 what we want to do, based upon what you stated from the
14 bench, so that we are not presented at this point with --
15 excuse me -- the memorandum opinion and order, such that we
16 have to act on that.
17 Instead, we take what the bench has advised us
18 it is thinking, and incorporate that into our decision- --
19 THE COURT: All right.
20 ATTORNEY REILLY: -- -making process --
21 THE COURT: Well, let met think about that.
22 That's an understandable suggestion.
23 But what I intend to do is listen to Mr. Lowell
24 and Mr. Nassikas as to what they think. But then I'm going
25 to recess, give you the memorandum opinion, let you look at
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 it, and then we will reconvene. I have another matter at
2 3:00.
3 Mr. Lieser, you are here for that.
4 ATTORNEY LIESER: The plea at 3:00 o'clock,
5 your Honor.
6 THE COURT: I will do that plea while they read
7 this opinion.
8 And then I will take this matter back up with
9 counsel in this case, and you can tell me what you think of
10 Mr. Reilly's suggestion.
11 In other words, he wants to go back to his
12 clients, all of whom are very cooperative --
13 (Laughter)
14 THE COURT: -- and see if they want to try
15 something else, or tell me that they want an order entered.
16 And whether or not it's appealable is not for me to
17 determine.
18 Is that -- anything at this time, Mr. Lowell or
19 Mr. Nassikas, or does that sound like --
20 ATTORNEY LOWELL: Sounds like a good way to
21 proceed, your Honor.
22 THE COURT: All right.
23 I will recess this matter now.
24 Is defense counsel here, Mr. Lieser?
25 ATTORNEY LIESER: No, your Honor.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 THE COURT: All right.
2 I will recess until 3:00 o'clock. As soon as I
3 recess, the court security officer will distribute to
4 counsel this memorandum opinion. Unfortunately, I only have
5 one copy for each of the parties, rather than multiple
6 copies.
7 Court stands in recess.
8 (Court recessed at 2:55 p.m. in USA v. Rosen,
9 Weissman)
10 (Court called to order at 4:35 p.m. in USA v.
11 Rosen, Weissman)
12 THE COURT: We are back on the record in United
13 States against Rosen and Weissman.
14 Well, had I known that I was going to have to
15 do these other items before getting back to this, I would
16 have written another 30 pages.
17 (Laughter)
18 THE COURT: Because you had plenty of time. I
19 could have been even more repetitive than I was.
20 COURT QUESTIONS OF PARTIES
21 THE COURT: All right, Mr. Reilly, you
22 indicated previously that you would like to have an
23 opportunity to consult at greater length with your clients,
24 and that you would request not entering or order until you
25 have had an opportunity to do so, and I would set a hearing
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 for a date to do that, or to have a further 6(c) hearing.
2 Is that right?
3 ATTORNEY REILLY: That's correct, your Honor.
4 THE COURT: Mr. -- well, Mr. Lowell, what's
5 your view?
6 ATTORNEY LOWELL: The first part of our view,
7 your Honor, is that you had asked us from Monday to today to
8 look at whether your instinct or your first impression about
9 where things stood at the end of Monday was correct, as to
10 whether we proceed to a 6(c), or whether they have an
11 appealable order, or where.
12 So we have done what you have asked. We have
13 looked.
14 We are confused in one sense, because whether
15 they take 14 days -- and I assume they want 14 days because
16 they don't want the CIPA appeals clock to start running, I
17 assume. I don't understand why else they would want the
18 time.
19 We don't think that what you have ordered, or
20 yet to order, is appealable at this stage, whether they take
21 fourteen days to ponder it or day days to ponder it or two
22 days to ponder it. So we start off with the premise that
23 there has still not been an order that is recognized as an
24 appealable order under Section 7.
25 If that's the case, I guess they can take
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1 another, you know, ten days, because I don't think the clock
2 is running, because I don't think there is an appealable
3 issue yet. So --
4 THE COURT: Refresh my recollection: How much
5 time do they get under Seven?
6 ATTORNEY LOWELL: Ten after -- ten days after
7 the order. And we had thought that you had issued the order
8 from the bench on Monday. I'm not sure if that's right or
9 not.
10 THE COURT: Suppose they said, Mr. Lowell,
11 "Okay, what you have in our submission and our desire to use
12 the Silent Witness Rule across the board this way, is the
13 way it's going to be. Take it or leave it."
14 Then I would enter an order consistent with the
15 memorandum opinion I already have, that included my
16 assessment of what an appropriate remedy would be.
17 Although I might want to include in that order,
18 I would want an under seal part of it to say explicitly and
19 clearly, using the classified information, why you can't
20 adequately cross-examine.
21 ATTORNEY LOWELL: And then I think there would
22 be an appealable order at that moment.
23 THE COURT: Right.
24 ATTORNEY LOWELL: If they were to say to you,
25 "What we had heretofore said would have been the redactions
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 and substitutions that we were prepared to show the public,
2 is now what we will go to trial with to the jury" -- I think
3 they would lose their case then, but I think they can do
4 that -- and say, "that is our 6(c) submission, final word,"
5 or "final answer," as the television show would say.
6 So I think if they do that, then you have a
7 6(c) order, and then the clock starts ticking.
8 Or they could go another route, where, with
9 that, they could get the attorney general to issue the
10 affidavit that an attorney general has to, and then we would
11 be in a 6(e) sanctions mode, and then that's appealable.
12 But right now, they are going to carve an
13 interlocutory appellate possibility that we --
14 (Simultaneous discussion)
15 THE COURT: Well, I think --
16 ATTORNEY LOWELL: -- don't see exists.
17 THE COURT: -- though, to be fair to
18 Mr. Reilly, they are not trying to do anything except to get
19 their bearings.
20 ATTORNEY LOWELL: Fairly said.
21 THE COURT: To be fair.
22 ATTORNEY LOWELL: Fairly said.
23 THE COURT: What he's got to do now is to go
24 back to his clients and say, "Look, at least this judge
25 doesn't want -- won't allow this, the use of the Silent
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 Witness Rule, across all of this material, and so we have
2 got to think about whether we want to go back to specific
3 substitutions that everybody sees and hears, or something
4 else."
5 And that would be the 6(c) hearing, from which
6 I would enter an order that would be appealable, or go to
7 sanctions.
8 If they were to come back, for example, and
9 say -- if the government were to say, "The proposal we have
10 made and the substitutions we have" -- or they really aren't
11 substitutions, but -- "The procedure we have said and the
12 Silent Witness Rule is our substitutions," then -- then I
13 would want to supplement the order with an under seal order
14 that has the specifics in it.
15 And I might put you and Mr. Nassikas to work to
16 give me specific examples out of the classified record to do
17 that. And I would -- because that's what I think the Court
18 of Appeals would expect.
19 ATTORNEY LOWELL: Obviously, we -- you know, we
20 want the process, like you and even the government does, to
21 move, and we understand that they are contemplating, and
22 it's not wrong -- they have constituent agencies, and they
23 have others.
24 So what we thought of, besides telling you that
25 we thought that your opinion on Monday about whether you
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 would get to issue an appealable order, we think you are
2 right, we also thought that the next thing is: So then if
3 they do need this time, why can't we have a parallel track?
4 Why can't -- if they need two weeks -- and we
5 will take them at their word, that they do, of course -- but
6 then why can't we, at that same time or shortly thereafter,
7 have them working in parallel tracks, both to determine
8 whether they do want to appeal, or something based on what's
9 happened, but also then be readying what might be a 6(c)
10 different submission that would then click in at some point
11 around that time, that will then trigger our response, that
12 can have a hearing date set.
13 That, at least, would put us on parallel
14 tracks, and we thought --
15 THE COURT: All right.
16 ATTORNEY LOWELL: -- maybe that would be an
17 idea.
18 THE COURT: I think that's a good suggestion.
19 Mr. Nassikas, do you concur, or Mr. Weiss?
20 Who is going to do it.
21 ATTORNEY NASSIKAS: Mr. Weiss.
22 ATTORNEY WEISS: (Not at microphone) Because we
23 are of the view -- (inaudible) --
24 THE COURT REPORTER: Your Honor.
25 THE COURT: You will to speak up, Mr. -- yes.
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1 ATTORNEY WEISS: We share the view that this is
2 not likely to be appealable. And the likelihood, we think,
3 is that we are going to have to move on from here to a
4 conventional set of 6(c) substitutions.
5 And we also would not like -- we would like not
6 to lose any time, and would also ask the Court to set a
7 schedule as to when the government would have its
8 conventional set of 6(c) substitutions.
9 We could then respond to that, and then we
10 could have a hearing, as contemplated by CIPA -- at least as
11 we understood it -- thereafter. We don't want to lose any
12 more time.
13 THE COURT: All right.
14 And Mr. Nassikas, you all agree.
15 ATTORNEY NASSIKAS: Yes, your Honor.
16 THE COURT: All right.
17 Well, Mr. Reilly, you asked for two weeks. At
18 the end of that two weeks, what specifically would you be
19 doing?
20 Give me the alternatives.
21 ATTORNEY REILLY: At --
22 (Simultaneous discussion)
23 THE COURT: Would you --
24 ATTORNEY REILLY: -- the end --
25 THE COURT: -- would you submit at the end
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 of -- for example, one alternative is that at the end of two
2 weeks, you would submit conventional 6(c) substitutions.
3 ATTORNEY REILLY: That's --
4 THE COURT: Possibly.
5 ATTORNEY REILLY: That's not a possible
6 alternative.
7 THE COURT: All right.
8 What are the possible alternative?
9 ATTORNEY REILLY: The possible alternatives, as
10 we see them, are, we come back to the Court and tell you we
11 have a -- we are going to submit a new 6(c) motion. And
12 that new 6(c) motion will incorporate your statements from
13 the bench.
14 THE COURT: I have a memorandum now, that's
15 better.
16 ATTORNEY REILLY: Well, we would ask that the
17 memorandum and any order be stayed, because --
18 THE COURT: Well, I am not staying the
19 memorandum. It's issued. I did it from the bench and I'm
20 going to issue it. But I might -- I'm going to stay the
21 order, probably, but not the memorandum.
22 Go ahead.
23 ATTORNEY REILLY: We would come back in two
24 weeks and advise you whether we were going for submit a new
25 6(c) and withdraw our original one, or proceed on our
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 original 6(c) as it is written, including the Silent Witness
2 Rule, which would require the Court to go through each
3 proposal as it is; or we are still examining whether -- what
4 our options are as far as whether this is an order
5 compelling a disclosure.
6 But I believe it's the first two that the Court
7 will hear when we come back in two weeks. We will be able
8 to tell the Court: We are working on a new 6(c). Give us
9 time to finish that --
10 THE COURT: How much time do you think that
11 would take, in addition to the two weeks you will already be
12 getting?
13 ATTORNEY REILLY: I can't be too specific,
14 because --
15 (Simultaneous discussion)
16 THE COURT: This would --
17 ATTORNEY REILLY: -- I need to consult --
18 THE COURT: -- knock the trial into a cocked
19 hat, the trial date.
20 ATTORNEY REILLY: Your Honor, under either of
21 these proposals, the trial date is going to be thrown off,
22 in our view, because both of them require time to deal with.
23 As you point out in your memor- -- draft -- the
24 memorandum -- I don't know if it's a draft, the version you
25 gave us --
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 THE COURT: That -- well, I -- that is the
2 correct version. I'm just eliminating now some typos, that
3 I have signed, typos and some other things, but there is no
4 change to what you have. But you need to get the final
5 final, that I actually put in the record.
6 ATTORNEY REILLY: Under either of the options,
7 if we proceed on the motion that we have submitted, and the
8 Court will have to hold the 6(c) hearing and go through each
9 proposal. Based upon your ruling from the bench, you will
10 reject a substantial portion of that. And then the
11 government is in the same portion we are in now, where we
12 decide whether to appeal that, or, as you point out in the
13 memorandum opinion, come back to you, as they did in Libby,
14 although --
15 THE COURT: This would be Libby squared.
16 ATTORNEY REILLY: It would be Libby in the
17 sense -- Libby, they didn't actually issue the orders
18 rejecting the substitutions. The judge did what you did
19 from the bench, saying, "I don't think that's going to work.
20 I don't like that. Can't you do this?"
21 Then the government went back to the
22 intelligence community, and hen went back to the judge with,
23 "We heard you. Here is a counterproposal."
24 Then we are still in the same situation if we
25 go forward with the one we have, versus a new proposal which
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1 will take time to prepare. Either way, we are pushing into
2 June, under either option.
3 THE COURT: I am afraid, Mr. Nassikas and
4 Mr. Lowell, that that's correct. But you have already drawn
5 that conclusion.
6 You see, if we get into June, get into July,
7 then you interfere with Mr. Nassikas' week in the Greek
8 Islands and Mr. Lowell's week in the South of France.
9 (Laughter)
10 ATTORNEY DIGREGORY: My week in Pittsburgh,
11 your Honor.
12 (Laughter)
13 THE COURT: That beats Phoebus, Virginia, I can
14 tell you that.
15 (Laughter)
16 THE COURT: I don't know, Pittsburgh, Phoebus,
17 close.
18 (Laughter)
19 THE COURT: At least it isn't Detroit or
20 Newark.
21 But I'm surprised you would have any time off,
22 Mr. DiGregory. I thought the government worked all the
23 time. The government never sleeps, does it?
24 ATTORNEY DIGREGORY: We try to be ever
25 vigilant, sir.
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1 (Laughter)
2 THE COURT: All right.
3 ATTORNEY REILLY: We will have a better idea on
4 how long it will take in two weeks, and -- or whether that's
5 going to --
6 (Simultaneous discussion)
7 THE COURT: But I want --
8 ATTORNEY REILLY: -- be necessary.
9 THE COURT: -- to be clear about what to expect
10 in two weeks. If I, for example, postpone this to Friday,
11 May -- when would it be?
12 Two weeks from today would be May 3rd, wouldn't
13 it?
14 ATTORNEY LOWELL: Yes. That's a Thursday.
15 THE COURT: That's a -- but today is a
16 Thursday.
17 ATTORNEY LOWELL: Right.
18 THE COURT: So two weeks from today would be
19 May 3rd.
20 At 2:00 o'clock, if -- when is the
21 LaBarr (phonetics) trial continued to? What date?
22 ATTORNEY WEISS: Your Honor, would the 4th be
23 possible?
24 I'm committed to be in New York on the 3rd.
25 ATTORNEY NASSIKAS: I requested a federal judge
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1 to set a hearing on May 3rd. I have not heard from the
2 government. It may be set for May 3rd. I'm available on
3 May 4th.
4 THE COURT: I'm not. May 4th is already fully
5 booked.
6 You know what? I'll do it at 3:00 o'clock on
7 May 4th.
8 ATTORNEY WEISS: Three o'clock on May 4th?
9 THE COURT: Yes.
10 ATTORNEY WEISS: Excuse me.
11 THE COURT: I will do that because I'm paid
12 such munificent sums --
13 (Laughter)
14 THE COURT: -- that I need to --
15 ATTORNEY LOWELL: Your Honor, may I confer with
16 counsel?
17 THE COURT: Yes, you may.
18 (Counsel conferring)
19 THE CLERK: May 9th.
20 THE COURT: May 9th. Thank you.
21 ATTORNEY NASSIKAS: Your Honor, if possible,
22 May 2nd, the Wednesday, we would all be available. There is
23 a conflict on May 4th, on Friday. I propose we can do it on
24 May 2nd. It gives the government 18 hours less than they
25 wanted.
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1 THE COURT: All right. May 2nd at 3:00 p.m.
2 ATTORNEY WEISS: Thank you, your Honor.
3 THE COURT: May 2nd at 3:00 p.m.
4 ATTORNEY NASSIKAS: Thank you, your Honor.
5 THE COURT: Now, Mr. Reilly, can you enumerate
6 or list for us again what it is that you'll come in on
7 May 2nd with, what are the alternatives, so that I know what
8 to expect?
9 You have already told me what not to expect,
10 which is you are not going to give us substitutions for each
11 and every -- that is, substitutions in the form of statement
12 of facts or summaries for each of the NDI, alleged NDI.
13 ATTORNEY REILLY: We will not be giving you on
14 that date any new proposals.
15 THE COURT: Right.
16 What will you be giving us on that date?
17 ATTORNEY REILLY: We will tell you whether we
18 want to proceed to a 6(c) hearing on our current 6(c)
19 motion, or we will tell you we need X period of time to file
20 a new 6(c) motion, which will incorporate the guidance from
21 the bench.
22 THE COURT: All right.
23 Now, Mr. Reilly, suppose for a moment, let's
24 suppose that you say, "Okay, we hear what you say in this
25 memorandum opinion, but we want to go ahead with the 6(c)
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1 motion we currently have." Now -- and at that time you
2 would bring affidavits or whatever else, you would have
3 those, as well.
4 ATTORNEY REILLY: That's correct, your Honor.
5 We would explain the government's overriding interest in
6 protecting --
7 THE COURT: Right.
8 ATTORNEY REILLY: -- the information.
9 THE COURT: And then I would rule on that.
10 And I take it you might even say, "And we want
11 the Silent Witness Rule for everything we said we do."
12 ATTORNEY REILLY: If we stick to our current
13 motion, that's -- the whole scheme is the Silent --
14 THE COURT: Right.
15 ATTORNEY REILLY: -- Witness Rule.
16 THE COURT: Well, remember, you know what to
17 expect. It's like spitting into the wind. You can do it if
18 you want to, but you may not like the result.
19 Because if that occurs, Mr. Lowell and Mr.
20 Nassikas, what I then would want to do is a very quick
21 turn-around from you, under seal, not ex parte, but
22 classified, filing in which you can go in to excruciating
23 detail to give me examples on specific NDI, the specific
24 ones, and say, "This is why we can't do it under 6(c)."
25 And then I would have to see whether I agree
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1 with that or not.
2 So -- and that will be done, have to be done
3 fairly quickly.
4 So as soon -- if you decide before May 2nd or
5 May 3rd, let them know, so they can start working on that
6 right away.
7 On the other hand, you could come in with a
8 modified motion under 6(c).
9 Those are the two possibilities, right?
10 ATTORNEY REILLY: Well, we would tell you that
11 we will come in with a new --
12 THE COURT: Right.
13 ATTORNEY REILLY: -- modified motion.
14 THE COURT: And then I'll set -- on the 2nd,
15 I'll set a short time for that, so you will have to move
16 briskly with that.
17 And then we will have -- then you all will
18 respond to that. And then I want under seal from you, in
19 excruciating detail, how you -- whether or not you can
20 cross-examine or argue to the jury.
21 ATTORNEY LOWELL: Your Honor, I have two
22 questions, if this is a timely point.
23 The first is, I heard them -- I would like to
24 be ready. I thought there was a third alternative that may
25 occur on May 2nd, which is that they will fashion how they
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1 believe that this is, in its presence sense, something that
2 they could take on appeal in the present sense.
3 THE COURT: Well --
4 ATTORNEY LOWELL: Is that not an option?
5 THE COURT: -- no, here is what I think I hear
6 Mr. Reilly saying.
7 And tell me if I've got it right.
8 One, they could come in on the 2nd and say, "We
9 have considered this carefully, and it is our view that the
10 motion that we have with all the Silent Witness Rule,
11 everything is fine the way it is. The only thing we want to
12 give you" -- because they now know they have to do that --
13 "is these additional affidavits."
14 That's one possibility; in which case, if that
15 were to occur, I would then want you all to turn to,
16 quickly, to give me specific things that I could look at and
17 make a specific determination with respect to each piece of
18 NDI, about how it affects your right to cross-examine, your
19 right to make arguments, your right to make your case.
20 And I think I'm already pretty clear about
21 that, but I want to give the Court of Appeals what they
22 expect, which is the specificity under seal.
23 Now, that's one possibility.
24 The second possibility is that Mr. Reilly will
25 appear and say, "We've thought about it, we have heard about
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 what you have said, and now what we are going to do is give
2 you an amended Section 6(c) motion, that may have some
3 characteristics of the old one, but some new
4 characteristics."
5 And then I'll set or date for that, I'll set a
6 date for you to respond, and a hearing. And at that
7 hearing, that's going to be the end. I mean, I agree with
8 this iterative process, but I have gone to a lot of trouble
9 to make clear where I stand on it. So we are not going to
10 fine tune this any more that it is going to be fine tuned
11 this next time.
12 ATTORNEY LOWELL: I then do understand that the
13 vehicle that they might use to get to an appeal, if that's
14 what they want to do, is the first of the two options.
15 If they do that, your Honor --
16 THE COURT: Even the second option might lead
17 to an order that would cause them to appeal.
18 ATTORNEY LOWELL: With more time, a little bit
19 more time after that.
20 THE COURT: Yes.
21 ATTORNEY LOWELL: But I -- and then my second
22 question is sort of mooted, but I wanted to remind --
23 (Simultaneous discussion)
24 THE COURT: So you can --
25 ATTORNEY LOWELL: -- the Court --
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1 THE COURT: -- you can be working now on those
2 specific examples for each set of NDI.
3 ATTORNEY LOWELL: And we already have.
4 If you --
5 THE COURT: Why am I not surprised?
6 ATTORNEY LOWELL: But we have also actually
7 submitted already.
8 THE COURT: Yes, I --
9 ATTORNEY LOWELL: So I want you to remember
10 that we have a pleading under seal that was based on --
11 (Simultaneous discussion)
12 THE COURT: But you --
13 ATTORNEY LOWELL: -- the premise --
14 THE COURT: -- didn't cover every -- I'm --
15 ATTORNEY LOWELL: No, we --
16 THE COURT: -- going to --
17 ATTORNEY LOWELL: -- did not.
18 THE COURT: -- cover every one.
19 ATTORNEY LOWELL: At least we started.
20 THE COURT: I mean, the ones you submitted are
21 part of the reason why I said what I said in this memorandum
22 opinion.
23 ATTORNEY LOWELL: We will be able for at least
24 use that as a starting point.
25 THE COURT: All right.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 I will refrain, then, from entering an order at
2 this time. In fact, the order that I will enter will simply
3 say what I have said here, which is, I am going to refrain
4 from entering an order at this time to allow the government
5 further time to consider whether to amend their Section 6(c)
6 motion or not; and then set the May 2nd hearing, and we'll
7 see what happens on May 2nd.
8 This gives you enough time to take stock of
9 where you all are.
10 I'm pretty clear now about what to expect.
11 RECAPITULATION BY THE COURT
12 THE COURT: Let me recapitulate. There are two
13 possibilities. On May 2nd at 3:00 o'clock -- and it will be
14 in this courtroom, although there will be a swearing in, in
15 this courtroom, of the new public defender at 2:00 o'clock,
16 but that should be over by 3:00 or shortly after 3:00,
17 depending on how long-winded people are.
18 And, in fact, if it goes -- if I'm apprised
19 that it's going to go a long time, I may have it in another
20 courtroom. And now that I am senior, I don't really matter
21 very much, so I don't know that I need to be here.
22 But I expect one of two things. Mr. Reilly
23 will tell us that: On further consideration, the government
24 wishes to stand with its current motion, unchanged. Here
25 are some affidavits which make clear the government's view
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 about its compelling and overriding interest in keeping the
2 matters confidential or classified or from the public.
3 And at that point, I will want to enter an
4 order. And I want that order to deal not only with the
5 closure of the trial, which I have already dealt with, but
6 also, I want to be specific with respect to each piece of
7 NDI, as to why the government's proposal precludes proper or
8 adequate cross-examination and making the case, argument to
9 the jury, and the like.
10 I have looked at what you have submitted, and,
11 as I said, I found it persuasive, which is why I reached the
12 conclusion I did. But now I'm going to have to be very
13 specific in a classified, under seal, order that will say
14 it.
15 And the second possibility is that Mr. Reilly
16 will say: Well, we've thought about it, and we would like
17 an opportunity to submit an amended 6(c) motion.
18 And I will, of course, grant him that leave.
19 We'll set it. It will be a short turn-around. I can't say
20 for certain now how short, but we will try to do it as
21 quickly as possible.
22 And then when we have that -- and that will
23 have a time for him to file, you all to respond. Then we
24 will have the hearing. I will enter the order very quickly
25 after that. It will say something -- it will either approve
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 it or disapprove it, in part or in whole, and that will then
2 be the order.
3 And I'll consider whether -- if I rule
4 adversely to the government, I should consider at that time
5 what, if any, sanctions might be appropriate. And then
6 that's an order that would definitely be appealable.
7 On the other hand, the government may prevail.
8 The government may persuade me that everything in this
9 amended motion is right.
10 Now, I want to be clear, though, Mr. Reilly,
11 that will probably be the end of the iterative process that
12 it is arguable that the statute envisions. Because I'm not
13 going to sit around on the bench endlessly and say, "Well,
14 if you change this and if you change that, if you change
15 this" -- there is a limit to how much courts should
16 participate in this creative process to enable this to
17 happen.
18 ATTORNEY REILLY: But the Court correctly
19 points out, one of the key pieces for that iterative process
20 is specific objections from the defendant --
21 THE COURT: Yes.
22 ATTORNEY REILLY: -- so that we can go back and
23 say --
24 THE COURT: I agree.
25 ATTORNEY REILLY: -- "Oh, we didn't think you
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1 needed that. Here is a way to incorporate that."
2 THE COURT: I agree. And we will make -- I
3 will take account of that. We'll see.
4 So, I guess you are right, Mr. Reilly. I
5 shouldn't be so definitive about that being the end of the
6 iterative process. I should just say that I hope it's the
7 end, I contemplate that it's the end. But I'm not, I am not
8 insensitive to the need for maybe further process, because I
9 don't know what the landscape is right now. We will see
10 what it is.
11 And you are right to point out, it is possible
12 that it may need further refinement, if it's there; if it
13 needs to be.
14 All right. Are we clear, then? I think I'm
15 clear about what to expect on May the 2nd. All right.
16 And I will issue -- I will correct these nits
17 and issue it in the next 30 minutes. And I will also issue
18 an order that defers the entry of an order based on that, in
19 order to permit the government to consider the Court's
20 views, and to consider whether it wishes to -- how it wishes
21 to proceed in connection with CIPA Section 6(c). That's all
22 I will say.
23 And I'll see you on Monday at -- I'm sorry --
24 on Wednesday at 3:00 o'clock, May 3rd.
25 ATTORNEY REILLY: Your Honor?
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1 THE COURT: Yes, sir.
2 ATTORNEY REILLY: If I may raise the issue of
3 the trial date?
4 THE COURT: Yes -- yes, sir.
5 ATTORNEY REILLY: Subpoenas have been issued to
6 multiple government witnesses, whose schedules are -- some
7 of them are very significant.
8 THE COURT: Yes.
9 ATTORNEY REILLY: And for -- holding a date is
10 very difficult for some of these people.
11 THE COURT: I quite agree. What do you
12 suggest?
13 ATTORNEY REILLY: I suggest that we vacate the
14 June 4th trial date, and wait until we see what better
15 picture we have of what the process is going to be --
16 (Simultaneous discussion)
17 THE COURT: Can we wait --
18 ATTORNEY REILLY: -- the next --
19 THE COURT: -- until May 3rd to do that --
20 May 2nd, rather, to do that?
21 I think the point you are making is probably
22 sound.
23 ATTORNEY REILLY: We will have a better picture
24 then.
25 THE COURT: I think the picture will be better
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 on May 2nd. And you will also, between now and May 2nd,
2 have a chance to discuss with Mr. Lowell and Mr. Nassikas
3 your views in that regard. Maybe you'll come to me and say,
4 "We've got a date. Look at this date." And I will try to
5 accommodate you.
6 ATTORNEY WEISS: Your Honor, may I address that
7 for one moment?
8 THE COURT: Yes.
9 You have to come to the podium to do it,
10 because Mr. Rodriquez has become hard of hearing.
11 ATTORNEY WEISS: Thank you, your Honor.
12 I understand -- I understand the need to
13 consider a new trial date at this point in time. I just
14 want to point out one efficiency point, if I might. And
15 that is, we anticipate that there will be a great deal of
16 litigation over the Touhy affidavits, the motions to quash,
17 and the witnesses that we call.
18 And we have been trying to issue subpoenas,
19 valid -- valid subpoenas, which need a trial date, to start
20 that. The agencies won't consider our Touhy requests, and
21 so on, as I think we've mentioned before, without a valid
22 subpoena --
23 (Simultaneous discussion)
24 THE COURT: Well, do you --
25 ATTORNEY WEISS: -- date.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 THE COURT: -- think, Mr. Weiss, that we could
2 prudently select a new date now?
3 ATTORNEY WEISS: Well, I think --
4 THE COURT: And do you want to?
5 ATTORNEY WEISS: I think if we formally leave
6 the June 4th in place until when we come back in May, even
7 understanding that will be put off, at least it will keep
8 the Touhy process in motion --
9 THE COURT: All right.
10 ATTORNEY WEISS: -- because it will be a valid
11 subpoena.
12 THE COURT: All right. I was inclined to keep
13 it in place anyway, until May 2nd.
14 Yes, Mr. Reilly?
15 ATTORNEY REILLY: Your Honor, they had
16 subpoenaed, among other people, the Secretary of State of
17 the United States of America. It is very difficult for her
18 to keep a date open when --
19 THE COURT: Well, fourteen days isn't going to
20 matter that much. Maybe she will run for president.
21 ATTORNEY REILLY: It makes --
22 THE COURT: If she runs for president, I might
23 excuse her.
24 ATTORNEY REILLY: It's a significant burden on,
25 on the people who have been subpoenaed, and triggers other
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 dates for other things that need to be done.
2 The Touhy process is going to go forward in any
3 event, when they do issue the subpoenas. We have gotten
4 their Touhy notices before. We have considered -- we have
5 even file motions under Rule 17 in response to notices of
6 subpoena.
7 I don't --
8 (Simultaneous discussion)
9 THE COURT: I think --
10 ATTORNEY REILLY: -- believe that's any --
11 THE COURT: -- you are right --
12 ATTORNEY REILLY: -- -- reason not to vacate --
13 THE COURT: I think --
14 ATTORNEY REILLY: -- the trial.
15 THE COURT: -- you are right, Mr. Reilly. I
16 understand your point. I think you are right.
17 I'm just viscerally disposed to wait until
18 May 2nd. But I accept the soundness of your point. I'm
19 just adamant about waiting until May 2nd. But I will do
20 something about it then.
21 And as I said, I acknowledge the soundness of
22 the points you are making. But we will do it on May 2nd.
23 That means you all need to confer, if it needs to be done.
24 Suppose -- I mean, take the two possibilities
25 and think about them. And I will be guided a lot by what
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1 you think you need in order to prepare, and what you think
2 you need in order to prepare.
3 And then we will pick it on May 2nd, or leave
4 it.
5 ATTORNEY LOWELL: Your Honor, I just want to be
6 clear with the government, that as soon as they can -- I
7 mean, we have done that in the 6(a), 6(a) process --
8 (Simultaneous discussion)
9 THE COURT: I'm sure they will tell you --
10 ATTORNEY LOWELL: -- need to know --
11 THE COURT: -- as soon as --
12 ATTORNEY LOWELL: -- how many weeks they are
13 going to need.
14 And remember, we are going to need multiple
15 days for a hearing --
16 THE COURT: Yes, well, I expect you fully to
17 confer before May the 2nd about where you stand and where
18 you think it ought to go, and see if you can possibly come
19 to some sort of agreement about it.
20 All right. Are the parties here in the 5:00
21 o'clock hearing?
22 THE PROBATION OFFICER: Yes, your Honor.
23 THE COURT: All right.
24 I thank counsel for your cooperation. I need
25 to continue to try to earn these munificent sums I am paid.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 This matter is recessed. I thank counsel for
2 your cooperation.
3 (Court recessed in USA v. Rosen, Weissman)
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MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1
2
3 CERTIFICATE OF REPORTER
4
5 I, MICHAEL a. RODRIQUEZ, an Official Court
6 Reporter for the United States District Court, in the
7 Eastern District of Virginia, Alexandria Division, do hereby
8 certify that I reported by machine shorthand, in my official
9 capacity, the proceedings had upon the status hearing in the
10 case of UNITED STATES OF AMERICA v. STEVEN J. ROSEN, KEITH
11 WEISSMAN.
12
13 I further certify that I was authorized and did
14 report by stenotype the proceedings in said status hearing,
15 and that the foregoing pages, numbered 1 to 37, inclusive,
16 constitute the official transcript of said proceedings as
17 taken from my machine shorthand notes.
18
19 IN WITNESS WHEREOF, I have hereto subscribed my
20 name this day of , 2007.
21
22
23 Michael A. Rodriquez, RPR/CM/RMR
Official Court Reporter
24
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MICHAEL A. RODRIQUEZ, RPR/CM/RMR