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


                  BEFORE:       THE HONORABLE T.S. ELLIS, III

                                BY:  KEVIN DIGREGORY, AUSA
                                     NEIL HAMMERSTROM, AUSA
                                     THOMAS REILLY, SAUSA (DOJ)
                                     MICHAEL MARTIN, SAUSA (DOJ)

                                   For the Government


                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR
                                     Official Court Reporter
                               USDC, Eastern District of Virginia
                                       Alexandria, Virginia

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     APPEARANCES (Continued):

            2                  ABBE LOWELL, ESQ.
                               ERICA PAULSON, ESQ.
                                  For Defendant Rosen
                               JOHN NASSIKAS, ESQ.
            5                  KAVITHA BABU, ESQ.
                               KATE BRISCOE, ESQ.
            6                  BARUCH WEISS, ESQ.

            7                     For Defendant Weissman


















                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                                 INDEX


            3     COMMENTS BY THE COURT                                    4

            4     COURT QUESTIONS OF THE PARTIES                           8

            5     RECAPITULATION BY THE COURT                             27


            7           (Court recessed)


            9                                  ---

















                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                              PROCEEDINGS


            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

            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

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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

            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

            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

            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

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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

            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

            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

            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.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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

            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

            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

            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

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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.

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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)

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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

            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 --

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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

            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

            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

            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

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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?

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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

            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

            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

            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

                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            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

            1                  This matter is recessed.  I thank counsel for

            2     your cooperation.

            3                  (Court recessed in USA v. Rosen, Weissman)


            5                                  ---





















                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR



            3                        CERTIFICATE OF REPORTER


            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.


           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.


           19                  IN WITNESS WHEREOF, I have hereto subscribed my

           20     name this        day of                    , 2007.



           23                              Michael A. Rodriquez, RPR/CM/RMR
                                                Official Court Reporter


                                 MICHAEL A. RODRIQUEZ, RPR/CM/RMR