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
MOTIONS HEARING
Friday, April 21, 2006
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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.
KEITH ROSEN, ESQ.
3 ERICA PAULSON, ESQ.
4 For Defendant Rosen
5 JOHN NASSIKAS, ESQ.
KARITHA BABU, ESQ.
6 KATE BRISCOE, ESQ.
BARUCH WEISS, ESQ.
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For Defendant Weissman
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9 ---
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12
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14
15
16
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18
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20
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25
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 INDEX
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3 COURT QUESTIONS / ARGUMENT BY THE DEFENDANTS 6
4 COURT QUESTIONS / ARGUMENT BY THE GOVERNMENT 23
5 COURT QUESTIONS / ARGUMENT BY THE DEFENDANTS 39
6 RULING BY THE COURT 46
7 FURTHER PROCEEDINGS 48
8
(Court recessed)
9
10 ---
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12
13
14
15
16
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20
21
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25
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 PROCEEDINGS
2
3 (Court called to order at 4:30 p.m. in USA v.
4 Rosen, Weissman)
5 THE COURT: Good afternoon. This is United
6 States against Rosen and Weissman 05-225. And the record
7 will reflect that counsel and the parties are present and
8 prepared to succeed -- or prepared -- to succeed, yes, both
9 sides -- but prepared to proceed.
10 First, I want to thank counsel for convening on
11 such short notice. It was necessary, however. I have an
12 agenda that I wish to pass out to you in a moment.
13 But, in essence, we're going to proceed in the
14 following way.
15 Mr. Wood, hand them each a copy of this brief
16 agenda.
17 THE MARSHAL: (Complied)
18 THE COURT: We may not reach everything in
19 this. I doubt we will. But this is the order in which I'm
20 going to address them, and I'll be more explicit. One for
21 each party. One for each party.
22 All right. The first thing we're going to do
23 is to hear the requested further oral argument.
24 Mr. Lowell requested additional oral argument
25 on the motion to dismiss. And I think I forecasted this in
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 the order setting this schedule.
2 That's correct, am I not, Mr. Lowell?
3 ATTORNEY LOWELL: Yes, sir.
4 THE COURT: I'll come back to that in just a
5 minute.
6 Then I list a series of motions that remain
7 outstanding. We're not going to have further oral argument.
8 I may ask a question or two about one or two of these
9 motions, and I may dispose of one or two of them.
10 Then there is a necessity to revise the SIPA
11 schedule. And I will go into that in greater detail in just
12 a few minutes. But we -- it is not possible to hold the
13 currently scheduled SIPA hearing next week the Court
14 scheduled.
15 My caseload is not heavier than it's been in
16 the last 19 or so years. But since January, I have had
17 trials almost consistently, almost continually. In fact,
18 oddly enough, I think I have between January and the end of
19 mid-April somewhere on the order of 200 or more hours on the
20 bench, which is a lot of time on the bench for this. So
21 we're going to have to revise the schedule.
22 So we'll proceed in that fashion.
23 Let's begin, Mr. Lowell. You asked for further
24 opportunity to address the motion to dismiss. I have been
25 engaged in reviewing that motion and in reviewing the FISA
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 materials. I've completed my FISA document review, and I
2 will be resolving the existing matters relating to FISA in
3 the not -- in the very, very near future with one exception.
4 But the motion to dismiss is a challenging issue. And so if
5 you need further time, Mr. Lowell, I'll give it to you now.
6 Do you have focused further argument?
7 ATTORNEY LOWELL: Your Honor, I had requested
8 it because in light of the supplementary briefs that you had
9 requested and in the reply brief that we had requested to
10 follow -- to file, I thought that with all that, I might
11 take one last stab at summarizing down to the core five
12 points that we're making so that they are sorted out in a
13 properly stepped-up fashion.
14 THE COURT: All right. Do so -- see if you can
15 do so in about 15 minutes.
16 ATTORNEY LOWELL: I think less, but I will try.
17 COURT QUESTIONS / ARGUMENT BY THE DEFENDANTS
18 ATTORNEY LOWELL: As I have now read everything
19 that has been written and reread the transcript of our last
20 hearing to understand the Court's concerns, I think what can
21 be said at this late date is still as follows: The
22 government has now still not provided any guidance to these
23 defendants, to the Court, or to the world at large
24 indicating what conduct of the kind that they want to sweep
25 into 793 runs afoul of the lines the due process clause
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 requires that people in this country have notice of prior to
2 undertaking the conduct that the government, after the fact,
3 can declare to be illegal.
4 In looking at the arguments that we have put
5 forward to you, the Court, I think there is a staircase of
6 infirmities of a constitutional nature. The first step of
7 that staircase is that as to these two defendants and
8 anybody who stood in their shoes in August of 2004 when the
9 search of their offices were executed, there was no proper
10 notice that Section 9- -- 793 in any form could be used
11 against non-government officials, could be used against
12 non-government officials for engaging in oral conversations,
13 could be used against nongovernment officials engaged in
14 oral conversations when their conduct was in the mainstream
15 of First Amendment protected activity, could be used with
16 those three criteria in that context and have the government
17 say, as they have now said in answer to your hypotheticals,
18 that certain information can be classified and yet not fall
19 victim to 793 because it's not information related to the
20 national defense and/or vice versa.
21 Or, in other words, to one of your
22 hypotheticals, your Honor, if it was, as the government has
23 conceded, that information about the sputnik program of 1957
24 that was contained in classified documents put into the
25 hands of these two or any other individuals would not run
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 afoul of 793 because it wouldn't necessarily be information
2 related to the national defense with a mark of
3 classification, with a mark of secret, with a mark of top
4 secret.
5 But at the same time, these individuals can be
6 at a restaurant in public and have a conversation orally
7 about foreign policy, where there is no markings of any kind
8 and nothing to indicate that it's of the nature of the same
9 kinds of information, and yet that's the crime? Then that
10 defines the vagueness of this.
11 So the first step still and is that these two
12 people and nobody in August had proper notice under the laws
13 of proper notice, the Lanier kinds of cases. A ruling in
14 that regard now disposes of this case.
15 Now, the government will say after that:
16 Everybody now does have notice. From now on we are telling
17 you, because we have brought these charges for the first
18 time in 90 years, that everybody should be on notice.
19 Well, the next defendants who come along will
20 not be able to argue notice, I suspect. They will be able
21 to argue the next step in the staircase.
22 The next step in the staircase is the
23 constitutional infirmity of the First Amendment as applied.
24 And that is, as we have pointed out to you in the other
25 pleadings and with the other questions you've raised, that
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 when you are engaged in something that becomes illegal
2 because of what you are saying and not what you are doing --
3 and I understand the government will, with whatever
4 contortions possible, try to equate what the defendants here
5 did as being some form of conduct as opposed to some form of
6 speech.
7 But the case law is so clear, including the
8 Bartnicki case, that you cannot call something conduct by
9 calling it disclosure when it is speech.
10 When the government is going to criminalize
11 speech based on its content, in other words, what these
12 group of prosecutors today determine to be information
13 related to the national defense, where that crosses the line
14 in as vague an area as it exists, when it is
15 content-oriented, then to make it criminal has to go through
16 the highest standard of review that this country allows for
17 a very protected right called free speech.
18 And if it weren't just for free speech, we also
19 have the concomitant clause in the First Amendment of the
20 right to petition the government. And when you apply that
21 standard to the context of this case, of the oral arguments
22 or the oral discussions and the banter that goes on in
23 foreign policy exchanges with people that are engaged in
24 foreign policy advocacy, it doesn't survive that strict
25 scrutiny.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 THE COURT: Remember I asked you before -- I'm
2 sure you can weave this into what you're saying and respond
3 to it. But I said I think this would be an easier case for
4 you if what these persons were doing, these defendants were
5 doing, was taking information they received that might be
6 national defense information and calling up their local
7 congressman, senator, or somebody else rather than going to
8 someone who might be characterized as an agent of a foreign
9 nation.
10 ATTORNEY LOWELL: I do remember that. And I
11 guess I would answer it with the names of cases where I was
12 unable to do so the last time you asked me that question.
13 If you look at the Knorr case and the other
14 cases, there are two things to be answered.
15 First, there is no distinction in our
16 government, protection of petitioning the government -- and
17 I want to come back to the free speech -- but to whether you
18 are petitioning the Congress or the Executive Branch, number
19 one. And the case law we cite says that.
20 THE COURT: Yes. I quite agree with that
21 proposition, but I didn't give you that option. I said not
22 the -- not Congress or the Executive Branch, but an agent of
23 a foreign government. That's not petitioning the government
24 at all.
25 ATTORNEY LOWELL: The case law does not say
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1 that individuals are only protected in the narrowest
2 straitjacket in which you would put them, which is the
3 conversation they are literally having at the moment they
4 are having it with the individual and the government.
5 When they're going out to acquire facts so that
6 they will come back and petition the government, then they
7 are in the process of their right to petition the
8 government.
9 When they sit around and they are acquiring
10 information from the newspapers, which, by the way,
11 according to the government, the newspapers every day --
12 well, that's a slight exaggeration -- certainly, the
13 newspapers every week have classified information in it, the
14 possession of which and retransmittal by these individuals,
15 according to the government's theory of the case, would
16 violate 793.
17 When they inquire that information and then
18 they go and try to check it out and then they go to the
19 government, you're suggesting, by your question -- I don't
20 know what your answer is -- that it's only the moment where
21 they take the information and are having the oral
22 conversation with the government official for which they are
23 protected.
24 But the breathing space of Knorr makes it clear
25 that they can be in the acquisition of that information.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 And when they're checking it to see if it's correct or if
2 it's known by others, they are in the same mode as if they
3 are talking to the government official.
4 And so you're right that it would be an easier
5 case -- that's the literal question you said. "Wouldn't it
6 be easier, Mr. Lowell, if this was a moment that the tapes
7 captured in their conversations petitioning the government?"
8 And the answer to that is clearly yes, but it
9 begs the issue of whether or not --
10 THE COURT: Suppose an individual in the
11 government disagreed with this country's policy, let's say,
12 with respect to sharing nuclear technology with India and
13 there were some secret aspects or protected information that
14 somebody received, and they passed that on to Pakistan,
15 agents for Pakistan.
16 Is that protected under petitioning the
17 government?
18 ATTORNEY LOWELL: Let's divide it up, if we
19 can.
20 The answer is no and yes. The individual
21 government person in possession of the information that you
22 were just telling me is prosecutable on any number of
23 statutes or theories at the source. No problem.
24 The individual to whom that government official
25 either told or gave may be prosecuted, depending on which
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 statute we are talking about.
2 When the government says that our vagueness or
3 Constitutional First Amendment arguments don't have muster
4 because they cite to a Gorin case or to another case, what
5 they've done is they're picking and choosing lines from a
6 case without application because we have to distinguish the
7 government official from the recipient, 794 from 793,
8 putting it in the hands of somebody who the government
9 alleges is an agent of a foreign government versus talking
10 about it with people in the United States in the same mode.
11 THE COURT: That is what my hypothetical was
12 intended to have you answer.
13 Let's suppose that the individual to whom --
14 private individual --
15 ATTORNEY LOWELL: The middle.
16 THE COURT: The middle. Call it a lobbyist.
17 Call him a newspaper man. Call him whatever you want to
18 call him.
19 -- then gives it to an agent of a foreign
20 government. Let's say Pakistan, Indonesia -- Iran, let's
21 say Iran -- gives it to someone from Iran because he
22 believes that this country is wrong in its position in
23 trying to stop Iran from developing nuclear energy and
24 nuclear power, and he feels this information might be
25 helpful to the government of Iran in arguing against the
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 United States' position in sharing information and
2 technology with India on nuclear power.
3 Isn't that a violation?
4 ATTORNEY LOWELL: Theoretically, it violates
5 794. They're not charged with 794 here. Theoretically --
6 THE COURT: Why would it not be 793?
7 ATTORNEY LOWELL: Because you would have to go
8 through the analysis. What saves 794 from 793 is the two
9 elements: One is the foreign agent that you've put in your
10 hypothetical and that 794 and the Gorin case would speak
11 about.
12 The other one is the phrase that it has clear
13 evidence that it does have or will be transmitted to injure
14 the United States as opposed to the vague phrase "could be."
15 So the differences between 793 and 794 in your
16 hypothesis --
17 THE COURT: Let's focus only on the statute
18 that's at issue here.
19 Would the person I described in my hypothetical
20 be subject to prosecution?
21 ATTORNEY LOWELL: Maybe. I can't do more than
22 that, your Honor, and I'm trying.
23 Was he authorized to hear that?
24 How would he know?
25 Because -- how would he know?
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 When Lewis Libby --
2 THE COURT: (Inaudible) --
3 ATTORNEY LOWELL: -- sat with Judy Miller --
4 THE COURT: -- the protected information.
5 ATTORNEY LOWELL: But when Judy -- we've read
6 that Lewis Libby, the chief of staff of the vice president
7 of the United States, took a reporter in the room --
8 THE COURT: I'm not -- I'm not interested in
9 what some other individual may have done in a nonadjudicated
10 case. You asked in my hypothetical for some clarification,
11 and I gave it to you. I said he's told that it's protected
12 information.
13 So what else?
14 ATTORNEY LOWELL: Okay.
15 THE COURT: Is he prosecutable or not?
16 ATTORNEY LOWELL: If he was not authorized to
17 receive it because that's enough, what you said, "I am
18 telling you this about India, and it's protected
19 information," now, the person has to decide, why is he being
20 told, anyway?
21 But if he's not authorized to have received
22 that information and then he has received it with a clear
23 understanding of that and if that person has then provided
24 him with it, he now takes the step of willfully passing it
25 on with the mens rea and he's -- which is to injure the
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1 United States or help another country. And if it's
2 something that he recognizes and can be forewarned as
3 national defense information, then perhaps all that is
4 possible.
5 THE COURT: All of those are issues of fact.
6 ATTORNEY LOWELL: No, they're not. Because
7 what makes your hypothetical hypothetical is the fact that
8 because you and I can ask the question, we have already
9 proven the constitutional infirmity.
10 Before -- because you can ask Mr. DiGregory,
11 "What about the Sputnik example?" and he can respond the
12 way he did, we have proved the very infirmity by a
13 hypothetical that this is an infirm statute.
14 Because it doesn't give that warning to the
15 person who heard that that because he's being told it's
16 protected, what does "protected" mean?
17 Does it mean it's classified?
18 If it's classified, does it mean it's national
19 defense?
20 And if it's national defense, is he still
21 authorized to hear it, or why the heck would the government
22 official be meeting and telling it to him anyway, unless the
23 government official is wearing a little armband that says,
24 "Today I'm acting as a traitor," as opposed to, "Today I'm
25 acting as the vice president's chief of staff"?
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 How do you know that when you're sitting at the
2 table?
3 So the fact that we can have this hypothetical
4 shows us that this is a statute, when applied to
5 nongovernment officials in oral information doing their
6 First Amendment protected job, it is infirm. And that is
7 why we have had this problem.
8 THE COURT: All right.
9 ATTORNEY LOWELL: As to the First Amendment
10 aspect, I would also like to conclude that part of it, other
11 than the due process notice, by saying that when scrutiny is
12 applied to the penumbra of the First Amendment, remember,
13 your Honor, we are saying that we have a two-fer going on
14 here.
15 We have the right to petition government that
16 protects the work of these foreign policy advocates, but
17 they have the same rights to free speech as advocated in the
18 Bartnicki case and the other cases. The Court doesn't
19 distinguish between those rights and the First Amendment.
20 And their oral conversations were protected speech.
21 And the fact that what makes it illegal in the
22 hands of the government is that it's content-oriented. I
23 don't even have to get to the petition of the government
24 clause. We win on the free speech part of it. Strict
25 scrutiny as well.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 And then as to the last argument, as to the
2 issue of its last step up the staircase, the first step
3 being it's not noticed to them, the second is as applied,
4 the third is to whether or not it's overbroad completely,
5 look at what has been swept into the government's theory of
6 the case so unnecessarily, what they've done; oral,
7 nongovernment officials, lobbyists, members of the press,
8 the First Amendment.
9 All that news-gathering has been swept up into
10 the government's theory. Retransmitters have been swept up
11 into the government.
12 As you asked last week, where does it end?
13 It doesn't end. Because if somebody who they
14 spoke to said the same words that they heard to the next
15 person down the line, 793 is the gift that keeps on giving,
16 according to the government. And it is way overbroad.
17 For them to say in their briefs that this is a
18 limited application is wishful thinking on their part. They
19 don't distinguish between when you get the information and
20 you use it to tell the foreign government agent?
21 Or, by the way, if Dr. Rosen heard something
22 like you said about India and wanted to -- and he was upset
23 about it and said, "I can't believe we're doing it," the
24 government would say that if he took that and went to a
25 member of Congress, which he knew was contained in national
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 defense information, he knew it, he took it, he heard it,
2 it's in his possession, and he went to speak to a member of
3 Congress, there's nothing in the government's theory that
4 saves that. That's how overbroad the application of 793 the
5 way the government has done.
6 So it's all transmittals. It doesn't matter to
7 the government whether the source was a government official
8 who should not have leaked it or they acquired it in the
9 press and then later found out that it was national defense
10 information.
11 If they pass it on, when the government says
12 they should have known it was national defense, whether they
13 got it from Larry Franklin or U.S. Government Official 1,
14 U.S. Government Official 2, James Risen of the New York
15 Times, Walter Pincus of the Washington Post, if they get
16 that and they pass it on --
17 THE COURT: Are these people whose names I
18 should know?
19 ATTORNEY LOWELL: Well, one of them got the
20 Pulitzer Prize this week for doing what my client has been
21 indicted for. And the other one is in the audience, so I
22 thought I would use his name.
23 THE COURT: I've never heard of either of them,
24 and they've never heard of me, and I hope it continues that
25 way.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 ATTORNEY LOWELL: The significance of my using
2 the names is to show that we're not talking about
3 theoretical problems here. We're talking about real
4 overbreadths of taking a statute and stretching it to
5 conduct that it was not intended to cover, which is my last
6 point.
7 The government then says, "Look, I can
8 distinguish this."
9 When we say, your Honor, that this is an
10 unprecedented case, we're not saying it hyperbolically the
11 way people use "unprecedented." We literally mean it's
12 unprecedented. There is not a case like it.
13 So what the government does is they create a
14 sort of Frankenstein monster. They take one piece of Gorin
15 and they attach it to another piece of Pelton and then they
16 attach it to a part of Chong and another piece of Morrison
17 and they say, "Look it."
18 But if you take that apart, what you've found
19 is that none of them apply.
20 THE COURT: You've made that point, and I think
21 it's a substantial point. But you've made it twice.
22 There's no reason --
23 ATTORNEY LOWELL: I won't make it again.
24 THE COURT: -- to make it again.
25 ATTORNEY LOWELL: So in the time that I said I
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1 could do this in, which was under the 15 minutes, let me
2 conclude, other than answering your questions, by saying
3 that the government wants, as it should, to protect national
4 secrets and important secrets and things which will impair
5 the government's ability to go forward. We're living in a
6 time of great peril, and so we care about the national
7 security.
8 But they would take that concern and legitimate
9 government interest and wave it around to cover all of their
10 faults in the statute's application. They don't have to
11 worry. There are plenty of laws that apply to cover the
12 kinds of things that they are saying they're trying to do.
13 There's not a government official on this
14 planet, in the United States, that doesn't know, when he or
15 she is in possession of information, that it was and is
16 classified and can look at, to determine the contours of
17 national defense, "Don't give it away." "Don't disclose it
18 improperly."
19 That's another story. Because when is it a
20 proper disclosure of national defense information and when
21 is it not, I can't quite figure out any more, given what
22 we've heard about the President and all the others.
23 But at least they know what --
24 THE COURT: That doesn't help your case,
25 either.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 ATTORNEY LOWELL: Well, it should to a point of
2 putting yourself in the position of the recipient of never
3 knowing whether or not they're sitting in the room with
4 somebody who's allowed to tell them or somebody who's not
5 allowed to tell them, because somebody doesn't come into the
6 room and distinguish it.
7 I can guarantee you, your Honor, should this
8 case -- I hope not -- ever go to trial, when U.S. Government
9 Official Number 1 takes the stand, he's not going to say, "I
10 warned these people that what I had was bad stuff and not do
11 it."
12 When U.S. Government Official Number 2 takes
13 the stand, he's not going to say it.
14 We'll see what Larry Franklin says when he
15 finally comes to trial. So it does matter.
16 But putting that aside, they've got plenty of
17 ways to go after the real issues of national defense without
18 stretching a statute and contorting it beyond recognition,
19 when it's pretty clear Congress may not have even intended
20 it to apply in this situation, let alone one where they're
21 now trying to excuse all the vagaries and Constitutional
22 violations. We tell you that and the others in our brief as
23 to why they have not lost a weapon here.
24 And so we would ask that when the Court
25 scrutinizes, it is the highest level of scrutiny under the
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1 vagueness statute, which is informed by the First
2 Amendment's heightened scrutiny criteria. When it's the
3 First Amendment, it's strict scrutiny. And at the end of
4 that scrutiny, the application to the statute does not
5 survive.
6 THE COURT: All right.
7 Mr. Nassikas, do you wish to add anything?
8 ATTORNEY NASSIKAS: No, your Honor. We just
9 coordinated the comments. Thank you.
10 THE COURT: All right.
11 Mr. DiGregory.
12 ARGUMENT BY THE GOVERNMENT
13 ATTORNEY DIGREGORY: Thank you, your Honor. I
14 will try to be brief.
15 I keep hearing this word "recipient." The use
16 of that word "recipient" consistently by counsel for
17 defendants in their pleadings and before this Court is
18 misleading. It is a mischaracterization of these
19 defendants. They are not mere recipients and mere
20 retransmitters of classified information.
21 These defendants are charged as coconspirators
22 with government employee Lawrence Franklin and with others
23 known and unknown to the grand jury, conspirators with whom
24 they agreed to gather and disseminate national defense
25 information.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 This distinction between conspirator and mere
2 recipient is significant. It's significant because their
3 status as conspirators ultimately places them in the same
4 shoes in which Samuel Morrison stood in the case decided by
5 the Fourth Circuit.
6 In the Morrison case, in analyzing Morrison's
7 claim that 793 should not apply to him and that the First
8 Amendment protected him from the application of 793 to him,
9 the Court refused to do so. And the Court refused to do so
10 because it characterized Samuel Morrison for what he was, a
11 thief. He was a thief because he stole classified
12 information.
13 This case isn't about the First Amendment.
14 THE COURT: That's not this case, either, is
15 it?
16 There's no allegations that they stole
17 anything. What happened here is that an official of the
18 government, who disagreed with the lack of emphasis that the
19 government was placing on a certain country and position
20 they were taking, gave certain information. They didn't
21 steal it. They gave it -- he gave it to them. And that
22 information you characterize as national defense
23 information.
24 And I grant you they didn't call up the senator
25 or they didn't call up an Executive Branch person. They
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 shared that information with other persons who were not in
2 the U.S. Government. But they didn't steal it. There's
3 nothing about having stolen it.
4 The real -- focus on the First Amendment. I
5 think Mr. Lowell is absolutely right. It is an
6 unprecedented, it's a novel case.
7 The case that you cite, if you cite Morrison,
8 is that what you think is the case most closely apposite to
9 this?
10 ATTORNEY DIGREGORY: I think if you look at
11 Morrison, your Honor, and you consider --
12 THE COURT: Is that the case you think is most
13 apposite to this case?
14 ATTORNEY DIGREGORY: I think you have to
15 consider Morrison, as well as Gorin, and as well as the
16 cases which follow Morrison because of other distinctions,
17 untenable distinctions, that are made by the defense between
18 their clients and those persons who were brought to justice
19 in those cases.
20 THE COURT: Well, Morrison clearly was a person
21 who took the information, as you put it, as a thief; right?
22 ATTORNEY DIGREGORY: Yes, sir.
23 THE COURT: These people didn't do that.
24 ATTORNEY DIGREGORY: Except, your Honor --
25 except that they are charged with conspiring with government
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 employees.
2 And if one of those government employees, as
3 the government has alleged, misappropriated, stole
4 classified information, and shared it with them as a result
5 of their agreement and in furtherance of their agreement to
6 gather and disseminate classified information, they stand in
7 the shoes of a thief.
8 THE COURT: You certainly don't intend to try
9 to prove that Mr. Franklin stole the information. He had
10 it. He had it as a part of his job. And they certainly --
11 these defendants -- you're not going to attempt to prove,
12 and it isn't alleged in the indictment, that these
13 defendants in some way conspired with him to do -- to steal
14 it.
15 They didn't, for example, gather in a room and
16 suggest to him that he go to a particular part in the
17 Pentagon and open a safe and secrete some documents and give
18 them the information.
19 I don't think you gain much from an analogy
20 that doesn't fit. I have suggested to you a number of
21 times, and to Mr. Lowell, that Mr. Lowell's case would be a
22 lot easier if they had petitioned the government. And he's
23 responded to that, pointed out to me other reasons why it
24 doesn't matter.
25 It is unprecedented. It is novel.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 Let's go back and start at the beginning with
2 his first point.
3 He says there isn't adequate due process
4 notice. If you get to First Amendment or anything else, he
5 says, "Look, the whole thing doesn't give notice that if --
6 what happens in Washington on a daily basis, their
7 back-channeled sharing of information for all sorts of
8 ulterior motives" -- by "ulterior," I don't mean that that's
9 a pejorative term, but everyone has an ax to grind. There's
10 a lot of back-channel sharing of information.
11 And where is the notice in this statute that
12 the kind of activity that they would be engaging in, namely,
13 accepting this information from a government official and
14 passing it on to somebody else who might be characterized as
15 an agent of a foreign government, is engaging in activity
16 that violates this statute?
17 ATTORNEY DIGREGORY: Fair notice can be
18 provided by both the language of the statute and court
19 decisions interpreting the language.
20 THE COURT: That's right.
21 ATTORNEY DIGREGORY: And in this particular
22 case, we would rely first and foremost on the language of
23 the statute. We don't think that there should be any
24 discussion over the word "whoever." I think it's pretty
25 clear what the meaning of that word is.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 I think it's pretty clear what the meaning of
2 the word "communicates" is.
3 I think it's pretty clear, though there would
4 be an argument to the contrary, I'm sure, from the defense,
5 the word "information" is a broad term, which includes not
6 only written disclosures of information, but oral
7 disclosures of information.
8 The word "national" -- or "information
9 related" -- the phrase "information related to the national
10 defense" was found by the Gorin court to be a
11 well-understood concept or a well-developed concept with
12 respect to national preparedness.
13 And further, your Honor --
14 THE COURT: Gorin was the -- that was, what,
15 the troop movement case, the 18 --
16 ATTORNEY DIGREGORY: No, your Honor.
17 THE COURT: Which one was that?
18 ATTORNEY DIGREGORY: Gorin was the case where
19 Mr. Salitch, who was an investigator, a civilian
20 investigator for the Naval Intelligence Service --
21 THE COURT: That's right.
22 ATTORNEY DIGREGORY: -- just prior to the
23 Second World War, got together with a Mr. Gorin, who was a
24 Soviet citizen running a travel agency on the West Coast of
25 the United States.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 What Mr. Salitch did was review, read reports
2 that were being made by fellow investigators in the Naval
3 Intelligence Service concerning the movements of Japanese
4 nationals on the West Coast of the United States.
5 And what Mr. Salitch did was then communicate
6 the contents of those reports -- the contents of those
7 reports to Mr. Gorin, both as the Ninth Circuit noted in its
8 opinion, orally and verbally (sic) -- never turned over the
9 reports to Mr. Gorin, but turned over the contents of those
10 reports in two different ways.
11 THE COURT: What do you mean, "orally and
12 verbally"?
13 ATTORNEY DIGREGORY: Excuse me. Orally and in
14 writing. My apologies, your Honor. Thank you.
15 THE COURT: All right.
16 ATTORNEY DIGREGORY: And the information in
17 those cases was information which, on its face, appeared to
18 be relatively innocuous because it involved the movements of
19 these nationals.
20 Nevertheless, because of the time in which the
21 information was being collected and the value of the
22 information to the United States Navy and the value of the
23 information to the United States Government, the Gorin court
24 had no problem in finding that that information was national
25 defense information and had no problem in finding that that
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 concept was not vague as it applied to both Mr. Salitch, the
2 United States Government employee, and Mr. Gorin, the
3 nongovernment employee.
4 THE COURT: All right. Let's move to the First
5 Amendment.
6 ATTORNEY DIGREGORY: May I get a little water?
7 THE COURT: Yes, you may.
8 Let's move to the First Amendment argument.
9 You can respond now to that. He argues that
10 the First Amendment --
11 ATTORNEY DIGREGORY: If I may, your Honor.
12 THE COURT: You want to finish something?
13 ATTORNEY DIGREGORY: Just to finish up on
14 Gorin.
15 THE COURT: All right.
16 ATTORNEY DIGREGORY: And if that kind of
17 information that the Court described as probably even
18 innocuous, appeared innocuous on its face, was not -- and
19 given to Gorin was not -- would not suffer a vagueness
20 challenge or would not be undermined by a vagueness
21 challenge, that national defense information, then most
22 assuredly when you're talking about the information that was
23 provided to the defendants in this case, the information
24 provided to them most assuredly meets that test.
25 And even beyond that, when you're talking about
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 the Fourth Circuit precedent, the Fourth Circuit precedent
2 went beyond Gorin and further elucidated on the concept of
3 national defense and said not only is it information related
4 to the national preparedness, but it is information that is
5 closely held by the United States Government and information
6 that is not -- that has not been made officially publicly
7 available.
8 THE COURT: Well, you would, also, I think, as
9 you've alleged in the indictment, point out that there were
10 other aspects of it -- of the passage of the information
11 that would suggest that they knew that it was protected in
12 some way.
13 ATTORNEY DIGREGORY: Including the information
14 that you mentioned earlier, your Honor, that they were told
15 that it was of a protected nature, and they acknowledged
16 that they knew it was protected.
17 THE COURT: Let's move to the First Amendment.
18 The hour is late. It's Friday afternoon.
19 As you can tell, because I have wrestled with
20 this problem, I find this a very, very, hard problem.
21 Mr. Lowell put it exactly right when he said -- well, not
22 quite exactly right because he's an advocate, but he's put
23 his finger on what bothers anybody who looks at this.
24 Of course Congress should have the power to
25 enact statutes that protect the national security by
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 criminalizing trafficking in national defense information.
2 But, Mr. Lowell says, you've got to be careful
3 when you do that, because we have other rights that need to
4 be acknowledged; namely, the First Amendment right.
5 Now, he's focused a lot on petitioning the
6 government. And I've suggested to him a number of
7 hypotheticals that -- I would have more sympathy for that if
8 it -- if that's really what was -- what happened to some of
9 this information. And perhaps, in due course, that would
10 come out.
11 But Mr. Lowell goes on to say: Look, that
12 doesn't end the matter. Simply the fact that it may not be
13 used to petition the government doesn't mean that there is
14 not a First Amendment aspect here that would require the
15 Congress to make this statute narrowly tailored.
16 And he would point out: Look, this statute was
17 passed back in -- what -- 1917 or thereabouts. And what may
18 have been narrowly tailored there insofar as what was
19 brought before it is not what happens today and in this
20 context.
21 And he would say that: This statute has the
22 potential, in this case and others, for infringing First
23 Amendment rights in its application. And there -- it's not
24 narrowly tailored for that purpose.
25 And then he points out, which, of course, is
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1 not necessarily dispositive, but to make -- he's clever
2 enough as an advocate to know that there's concern about
3 this. And he tells me: Don't worry about it. There are
4 other statutes that can handle this --
5 And this sort of thing. And that's not an
6 inappropriate thing to argue. And, to some extent, it's, of
7 course, quite true.
8 What I'm interested in is this statute, not
9 whether or not you could have used another statute or should
10 use. I have to focus on your use of this statute.
11 So tell me as succinctly as you can why you
12 think either, A, the First Amendment is not implicated so
13 that strict scrutiny is not required; or B, if it is
14 required, why does this statute pass muster under the strict
15 scrutiny test?
16 ATTORNEY DIGREGORY: First of all, the First
17 Amendment isn't implicated. I'll go back to an argument
18 that you don't like first, and I'll mention Morrison again.
19 Because in Morrison's situation, the First Amendment was not
20 implicated, said the Court.
21 Secondly, no -- no espionage act case ever,
22 ever has suggested that the First Amendment has -- is
23 implicated by the conduct the defendants engaged in. And
24 the solution that the defense proposes to you is one which
25 is completely untenable.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 It's a solution which suggests -- which relies
2 upon the -- and I'll use the word again because I can't
3 think of another one -- untenable distinction when you're
4 talking about the application of the First Amendment between
5 documents and oral information.
6 THE COURT: Well, put that to one side. I take
7 your point that information includes both. At one point,
8 Mr. Lowell suggested, I think imaginatively, that if I
9 construed it as restricted to written information, I can
10 save the statute and his clients. But I don't think a fair
11 reading of that term really allows that. I think
12 information is oral and written.
13 But I still don't see -- and you need to
14 explain more vividly to me -- why the First Amendment is not
15 implicated.
16 ATTORNEY DIGREGORY: Well --
17 THE COURT: What I heard you say is no case has
18 ever said it is implicated. Well, no case has ever been
19 like this one.
20 ATTORNEY DIGREGORY: Because, your Honor, if,
21 for no other reason, this statute is not -- is not --
22 despite defense assertions to the contrary, this is not a
23 content-based regulation.
24 THE COURT: All right. Elaborate. Elucidate
25 on that.
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1 ATTORNEY DIGREGORY: I'm sorry, sir?
2 THE COURT: Elucidate on that.
3 What do you mean?
4 ATTORNEY DIGREGORY: It's not a content-based
5 regulation because this statute is not designed, your
6 Honor -- Your Honor, is not designed or aimed at any sort of
7 protected speech or expression.
8 All it's designed to do is to protect the
9 intellectual property of the United States of America, which
10 is national defense information, period. And it doesn't
11 restrict in any way the ability of these defendants to
12 engage in foreign policy advocacy.
13 They just can't use classified information or
14 national defense information that the government has chosen
15 for reasons of national preparedness to hold closely and to
16 not make officially publicly available to engage in their
17 discussions.
18 THE COURT: So that's your reason why it isn't
19 strict scrutiny, because it's not content-based.
20 What else?
21 ATTORNEY DIGREGORY: Well, this is also not a
22 case that implicates the First Amendment because, as I --
23 and I probably said this earlier -- it's not protected
24 speech. It's not protected conduct.
25 THE COURT: Why?
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 ATTORNEY DIGREGORY: It goes back to the fact
2 that this information is information that is information
3 that is vital to the national security of the United States.
4 And I'm searching, your Honor, for which opinion it was. It
5 was either in Bransburg or it was either in the New York
6 Times case where one of the justices cautioned against the
7 application of the First Amendment in a situation such as
8 this because "in an effort to protect our freedoms, we may
9 ultimately destroy them" or words to that effect, because of
10 the national security implications related to the protection
11 of this information.
12 THE COURT: All right. Continue.
13 ATTORNEY DIGREGORY: There is one other point I
14 would like to address with respect to First Amendment, your
15 Honor. And that is the reliance of the defense upon the
16 Bartnicki case.
17 Bartnicki is not applicable to this case. The
18 defendants are afforded no First Amendment protection by
19 Bartnicki for a number of reasons. The facts of Bartnicki
20 are different than the facts in this case. The facts in
21 this case are more closely related to the facts in the Baner
22 case.
23 And, in fact, if you look at the Baner case and
24 the opinion of the District of Columbia Circuit Court of
25 Appeals in that case and look at the facts in that case and
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1 the holding, the Court held that someone who has mere
2 knowledge, mere knowledge of the illegal interception of a
3 communication, as Congressman McDermott did, shall not be
4 granted the protection of the First Amendment.
5 THE COURT: Say that again now.
6 ATTORNEY DIGREGORY: Someone who has mere
7 knowledge of the illegality of the interception shall not be
8 granted protection of the First Amendment or that protection
9 which he claims if he later discloses that information.
10 In this case, your Honor, the defendants are
11 charged with not merely having knowledge of the illegality
12 of the information, but they're charged with participating
13 in the illegality itself and can be likened more to the
14 persons in the Baner case who intercepted the communication
15 than Congressman McDermott who merely disclosed it.
16 May I have a moment with cocounsel, your Honor?
17 THE COURT: Yes, you may.
18 As a concession to the shortness of life,
19 Mr. Lowell, I'll give you about two minutes to respond.
20 ATTORNEY LOWELL: Thank you.
21 (Pause)
22 ATTORNEY DIGREGORY: Counsel reminded me that
23 there was one final point I wanted to make, when you asked
24 about the vagueness issue, your Honor, and I failed to make
25 it.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 As the Court had -- as the Court knows and as
2 the Court has written, a requirement of willfulness in the
3 statute vitiates any vagueness challenge. If I may be
4 permitted to quote the Court from the Walker Lindh case:
5 It is well-settled that a requirement of
6 willfulness makes a vagueness challenge especially
7 difficult to sustain because a mind intent on
8 willful evasion is inconsistent with surprised
9 innocence.
10 THE COURT: All right. I don't know that
11 that's very elegant language, but I should point out it's
12 not an original thought. It is a well-settled principle in
13 the law.
14 So I despise the computer. It's come to the
15 point where nothing I've said -- I've now been on the bench
16 for nearly 20 years, and every day my words are repeated
17 back to me. And I scratch my head and say, "How could I
18 have said something like that?" But it forces me to be
19 rigorous in my thinking and to respond, and that's entirely
20 appropriate.
21 But I do envy those judges in years past when
22 that couldn't be done. In fact, I remember going to an
23 argument at the House of Lords in London now 40 years ago.
24 They not only did not have computers then. They didn't have
25 shepherds. They didn't have much of anything.
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 What did they use? The barrister's
2 recollection. And they actually accepted the barrister's
3 recollection on what was said in some case five years ago.
4 It was astonishing to me.
5 I don't know which regime is ultimately the
6 worst, but this one does require me to be more rigorous.
7 But I take your point about the importance of
8 the addition of willfulness. It does make it more
9 difficult.
10 All right. Mr. Lowell.
11 ATTORNEY LOWELL: Thank you, your Honor, for
12 the two minutes.
13 ARGUMENT BY THE DEFENDANT
14 ATTORNEY LOWELL: Let me start with the last
15 one first, then.
16 Again, it's the government citing a word or a
17 phrase, in this case, from one of your opinions and asking
18 it to do its logic for it without taking it to its next
19 point. Willful what?
20 Dr. Rosen willfully met with government
21 officials, no doubt. Willfully, he listened to what they
22 had to say, no doubt.
23 So what is the willfulness?
24 What did he willfully do that makes this less
25 vague?
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 The only thing he knew that he was willful
2 about was his meeting with government officials doing what
3 he always did; talked to his colleagues, the media, foreign
4 officials, other governments.
5 The willfulness is better seen through the
6 visage of 794 where you're willfully giving it to an agent
7 of a foreign government, where you're willfully doing
8 something that you know will injure the interests of the
9 United States.
10 Throwing about willful, taking it out of the
11 air, slapping it down is not going to make this vague
12 statute unvague without understanding what "willful" means
13 in this context.
14 Second, I think the government has admitted the
15 case is unconstitutional. Because they are fighting so hard
16 to say this is not speech, it's not content-oriented, it's
17 not protected speech, it's not protected content that I
18 think the government doth protest too much, methinks.
19 I think once the court analyzes the case
20 through the case law, of Playboy Enterprises, of the other
21 cases we've cited, it is no doubt -- Turner versus the FCC
22 -- it is precisely a content-oriented criminal prosecution
23 because it's only -- these defendants are only guilty if
24 they fall into one category of what they say.
25 In other words, they can't say something that
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 the government has declared they can't say or, in this case,
2 they can't say what the government says is information
3 related to the national defense.
4 If they had gone up to that line and said
5 something about foreign policy, they haven't. These
6 prosecutors say they went over the line. And therefore, it
7 depends on what they said. And that is the definition of
8 content. And that's not my words. That's the Supreme
9 Court's.
10 THE COURT: So is 794 also a content-based
11 restriction on speech?
12 ATTORNEY LOWELL: Depending on its application,
13 it could be. Luckily, we're not at that juncture, as you
14 would tell me quickly back. I'm having a hard enough time
15 trying to make the words of 793 make sense. I spent some
16 time on 794. But that would be my third point.
17 The government raises again Gorin and says it
18 saves their prosecution. Let me remind the government that
19 Gorin is a 794 statute. It is not a 793 statute. And
20 that's the piecemeal cutting-and-pasting that I'm asking the
21 Court not to allow them to do.
22 They throw up Morrison. Morrison is a document
23 case. It's at thievery case. Their argument is: Wait a
24 second. Anybody who's charged with a conspiracy with
25 somebody in the government is, therefore, guilty as the
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 person in the government.
2 That is not the law. They have to have their
3 elements of 793. In fact, 793 has a (d) and an (e) for the
4 very same purpose.
5 Consequently, Morrison, a document case of the
6 government official who was well on notice of what was the
7 national defense material, who knew it was classified, was
8 doing it for his profit motive, et cetera, is not this case,
9 nor is Gorin, which is a 794 case.
10 Lastly, as to the issue of notice and then
11 Bartnicki, I will leave the Court to read the Baner decision
12 of the D.C. Circuit and Judge Sentell's dissent against the
13 cases that have been filed after Bartnicki and Bartnicki
14 itself.
15 This is a Bartnicki case, and it is a Bowley
16 (phonetic) case of the Third Circuit. But I'll tell you
17 what it really is. It's a landmark case. It's a Florida
18 State case. And the government is saying that these people
19 should have known better.
20 Well, all the people that were protected by the
21 First Amendment who received the information about the rape
22 victim's name, all the people who received the information
23 about what was going on behind closed doors of a judicial
24 conference, all the people who received the information
25 about the minor juvenile knew that they were in possession
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 of something they weren't supposed to be.
2 Their retransmittal by the Supreme Court was
3 deemed to be protected by the First Amendment. So if you
4 take all these together, I end where I began.
5 How can we have what has taken 150 pages of
6 briefing, many hours of argument, let alone how many hours
7 you have considered this with your staff, that we have, and
8 the government, and we still bandy about how does this
9 apply?
10 Where are the contours --
11 THE COURT: "Staff" -- let me stop you there.
12 Do you think I run some kind of bureaucracy
13 here?
14 You know, there are --
15 ATTORNEY LOWELL: Your trusted legal clerk.
16 THE COURT: I have one clerk who helps me with
17 these matters.
18 ATTORNEY LOWELL: But he's a particularly good
19 one, we hear. So --
20 THE COURT: I don't have anything but good
21 clerks. I hire no one who's not in the top five percent of
22 their classes at first-rate law schools. But I don't have a
23 staff, as such. And this isn't a collegial decision. I do
24 it alone.
25 ATTORNEY LOWELL: And that --
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1 THE COURT: That's why there's a Court of
2 Appeals, to check and get me -- and correct me when I'm
3 wrong. And that's why there is a Supreme Court to check
4 them when they're wrong. And that's why Congress can change
5 things when it sees that it's wrong or if it ever -- strike
6 that -- if it sees a better way of doing things.
7 ATTORNEY LOWELL: Your Honor, I dare say the
8 fact that you -- with all the things that you've just told
9 us about, how many hours you tell us -- over 200 hours on
10 the bench this year alone --
11 THE COURT: I've spent -- it's not a matter of
12 a heavy caseload. I'm not overworked. I don't mean to
13 suggest that. I just mean that an odd set of circumstances
14 this year has led to a lot of trials. And -- but I'm not at
15 all complaining. I enjoy the work. I'm not overworked.
16 And I don't complain about my pay.
17 ATTORNEY LOWELL: What I was going to say, your
18 Honor, is only this: We all --
19 THE COURT: My wife does.
20 ATTORNEY LOWELL: We all know how much time you
21 have given this particular item and how much we have and the
22 government has. The fact that so much has been able to have
23 been written, and concern (sic), I think proves the point --
24 and if it doesn't prove any other point, this is the point
25 it proves: People of this amount of --
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 THE COURT: It might prove that I'm obtuse and
2 that I don't understand things as quickly and as clearly as
3 I ought to.
4 But I know what point you're headed at, and I
5 don't think it's going -- I think the substantive points
6 you've made are far more powerful. I wouldn't bother
7 arguing that because we've devoted all this time to it, it
8 shows that there must be some flaw in the government's case.
9 ATTORNEY LOWELL: Would you give me the last
10 sentence to say as follows, then, so that this last point
11 that I make, at least I make sure that I'm understood.
12 If the Supreme Court and the Fourth Circuit's
13 definition of "vagueness" is that people of common
14 intelligence and knowledge can understand when their conduct
15 falls afoul so that can attenuate their conduct, if that is
16 the standard of when a person in this country is on fair
17 notice, haven't, by what we've done over the last weeks,
18 proven that nobody could have been on fair notice given
19 what -- the debate and the amount of scholarship that we are
20 trying to contain?
21 That's my only point.
22 Is it dispositive?
23 No.
24 But when you take words like "people of common
25 knowledge," how do you apply that to the real world?
MICHAEL A. RODRIQUEZ, RPR/CM/RMR
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1 My suggestion is, is that I think all these
2 things add up to the steps that I have said. And, your
3 Honor, I think you can take the first step, the second, and
4 the third. But I think all these steps are there, and we're
5 asking that you just at least stand on one of them.
6 Thank you.
7 THE COURT: All right. Mr. Nassikas, I take it
8 everything has still been said that you think needs to be
9 said?
10 ATTORNEY NASSIKAS: On this motion, yes, your
11 Honor.
12 Thank you.
13 THE COURT: Now, that's been helpful. And I
14 will continue to wrestle with this motion and the issues
15 that it raises.
16 RULING BY THE COURT
17 THE COURT: The motion to dismiss for
18 outrageous government conduct I have considered at some
19 length. Let me begin by the standard. The standard, of
20 course, finds its origin in Supreme Court authority; really,
21 dicta.
22 The Supreme Court has never affirmed or
23 required a dismissal of an indictment or reversed a
24 conviction on this ground. But I think the issue -- or the
25 principle is well established. And as the parties have both
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1 pointed out, I've written on it in the past myself in at
2 least two cases, and I have applied it in at least two
3 cases.
4 There can be circumstances where the behavior
5 of the government in investigating a case can be so
6 outrageous as to go beyond the bounds of due process, to be
7 so outrageous as to require the dismissal of an indictment
8 or the reversal of a conviction.
9 And in this case the defense calls the Court's
10 attention to a number of factors in that regard. I will not
11 review those in detail because some are under seal and some
12 are classified. They relate, in essence, to certain events
13 that occurred in the course of investigating this and in the
14 use of Mr. Franklin as part of this investigation. I won't
15 go into any detail beyond that because it would trespass on
16 what is under seal and classified.
17 In any event, the standard that must be met
18 before an indictment would be dismissed is very rigorous.
19 I'm not surprised that my own statement of the principle
20 doesn't seem to have surfaced, but there are very few
21 deathless words that I write.
22 In any event, it has to be so outrageous that
23 due process principles would absolutely bar the government
24 from invoking the judicial process, that sort of question
25 begging. But it has to be shocking, outrageous, clearly
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1 intolerable. And the cases are also clear that sting
2 operations and the like, of course, fall far short of
3 that -- of that standard.
4 I've reviewed this matter in some detail,
5 including a late addendum to the motion filed recently
6 involving the government's dealings with the widow of a
7 columnist and the allegations that the government tricked
8 this woman into agreeing to allow the government to look at
9 documents and search things.
10 Whether that has anything to do with this case,
11 there's some doubt. But even assuming that it did, I am not
12 convinced that that falls into that category or requires a
13 need for any hearing.
14 In my view, the motion to dismiss for
15 outrageous conduct must, therefore, be denied.
16 FURTHER PROCEEDINGS - SCHEDULING
17 THE COURT: Moving on to the motions for
18 subpoenas and the Rule 15 depositions, I asked Mr. Lowell
19 whether you had -- on the Rule 15 depositions, I believe you
20 informed the Court that the people in Israel were not
21 willing to be deposed; is that correct?
22 ATTORNEY LOWELL: I think you asked me a
23 two-part question, and the first was would they be willing
24 to do this voluntarily.
25 Their answer is no.
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1 I said, "What would you do if there were a
2 court order that allowed the depositions to occur?"
3 They said I was posing a hypothetical question
4 to them they would not be able to respond to.
5 THE COURT: A court order allowing the
6 depositions doesn't compel them to testify. It has no power
7 to do that.
8 ATTORNEY LOWELL: I understand that.
9 THE COURT: If they're not willing to do it,
10 that really answers the question. Now, if you want to get
11 back to me on that before the end of next week, I'll allow
12 you to renew it.
13 But it's a useless act to allow the depositions
14 if they won't agree to be deposed. The fact that I issue an
15 order allowing you to take the depositions imposes no
16 obligation on them to be deposed.
17 So I'm going to deny that, but let's go to the
18 subpoenas now.
19 You've asked for a subpoena of Franklin.
20 There's got to be no dispute about that. You'll get that.
21 You've asked for the subpoena of --
22 And these names can be revealed, can they not?
23 ATTORNEY LOWELL: Yes, your Honor.
24 THE COURT: There are three --
25 ATTORNEY LOWELL: There are three individuals
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1 that the local rules --
2 THE COURT: -- other than Franklin?
3 ATTORNEY LOWELL: Franklin we didn't have to
4 ask for permission.
5 THE COURT: So there are three; right?
6 ATTORNEY LOWELL: Right. Present, yes.
7 THE COURT: The three are General Zinny --
8 ATTORNEY LOWELL: Yes, former Special Envoy
9 Zinny.
10 THE COURT: Secretary Rice?
11 ATTORNEY LOWELL: For when she was national
12 secretary advisor.
13 THE COURT: And Satterfield or whatever the
14 name is?
15 ATTORNEY LOWELL: No. Mr. Burns.
16 THE COURT: Burns, former ambassador or
17 something.
18 And I take it what you would have these --
19 ATTORNEY LOWELL: I'm sorry, your Honor. Just
20 to be clear, I was confused myself. I think the 17(d)
21 requirements apply to General Zinny, Secretary Rice, also, I
22 think, Ambassador Satterfield.
23 THE COURT: Yes, I thought his name was there.
24 ATTORNEY LOWELL: And Burns.
25 THE COURT: And Burns.
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1 So there are four?
2 ATTORNEY LOWELL: Yes, sir.
3 THE COURT: I take it you think these people
4 are important because they would be able to testify as a
5 matter of fact that the dissemination of this information
6 would not injure the United States?
7 Is that what you think they would be --
8 ATTORNEY LOWELL: No, your Honor. Each of
9 these individuals have real-life experiences dealing with
10 the defendants in this case in ways which will inform the
11 Court and the jury as to the elements of the crime, which
12 include the government's acknowledge that they have to show
13 beyond reasonable doubt --
14 THE COURT: In other words, they'll tell us
15 that back-channel disclosures are an everyday common
16 practice?
17 ATTORNEY LOWELL: They'll do more than that.
18 They'll explain what they told Dr. Rosen in quite detail so
19 that Dr. Rosen, prior to the time he sat down with the
20 people he's alleged to have committed crimes with, will have
21 been informed as to what was allowed in his conduct and what
22 was disallowed, whether he was authorized or unauthorized,
23 whether he was being told something that he was supposed to
24 pass on --
25 THE COURT: So it goes to the element of the
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1 offense of authorization?
2 ATTORNEY LOWELL: And whether he was being told
3 to do something, to pass it on.
4 THE COURT: All right.
5 ATTORNEY LOWELL: And also to whether or not
6 something was national defense information.
7 If Day 1 Secretary of State Rice tells him
8 something, and Day 2 somebody he's alleged to be in a
9 conspiracy with tells him either the same thing or something
10 that is of less volatile nature, how does he know that the
11 first one was okay and the second one wasn't?
12 THE COURT: All right.
13 Now, the Court's granting you permission to
14 subpoena these people is, of course, just the first step.
15 You then have to proceed with the administrative process.
16 ATTORNEY LOWELL: Yes, sir.
17 THE COURT: All right.
18 Mr. DiGregory, does the government have any
19 objection to those four?
20 ATTORNEY DIGREGORY: We filed --
21 THE COURT: I read that.
22 ATTORNEY DIGREGORY: -- with respect to
23 Mr. Satterfield, your Honor. But with respect to the
24 others, we did have objections.
25 THE COURT: Satterfield you agreed because he
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1 appears in this matter?
2 ATTORNEY DIGREGORY: We agreed to
3 Mr. Satterfield, yes, sir -- Ambassador Satterfield.
4 THE COURT: Why aren't these other three people
5 appropriate witnesses for just the reasons Mr. Lowell has
6 stated?
7 ATTORNEY DIGREGORY: Well, we would submit to
8 the Court that Mr. Lowell has failed to sufficiently advise
9 the Court of the relevancy of their testimony. What he's
10 repeated in court is pretty much what they said in their
11 pleadings.
12 THE COURT: That's right.
13 ATTORNEY DIGREGORY: First of all, some of the
14 information --
15 THE COURT: Why isn't that enough?
16 ATTORNEY DIGREGORY: Because he's not specified
17 for Your Honor's benefit what information it is that is
18 implicated in this indictment --
19 THE COURT: You don't -- certainly, you don't
20 suggest that he's required to give me chapter and verse,
21 question and answer on everything that they're going to be
22 asked?
23 ATTORNEY DIGREGORY: We think he's required --
24 THE COURT: He's told me that there is
25 communication between these defendants or at least one of
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1 them and Secretary Rice about the issue of authorization and
2 about the issue of national defense information.
3 Now, why isn't that sufficient?
4 ATTORNEY DIGREGORY: If there's a communication
5 about the authorization of the disclosure of national
6 defense information specifically with respect to these
7 defendants, we haven't heard about it. And the point that
8 I'm making to the Court is --
9 THE COURT: I'm not sure that that is something
10 they're obligated to disclose to you.
11 Can you tell me how they're obligated to
12 disclose that to you?
13 ATTORNEY DIGREGORY: I think that if the Court
14 looks at the regulations, at the Touhy regulations that
15 apply to the State Department --
16 THE COURT: That's another proceeding. That's
17 after I okay -- that's something they'll fight out in the
18 Touhy process.
19 That's not today, is it?
20 That's not on this motion. I merely decide at
21 this stage whether these folks have relevant information on
22 the representation of counsel.
23 Is the Touhy process accelerated to the
24 subpoena issuance stage of the District Court?
25 Don't they have to go through an administrative
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1 process?
2 ATTORNEY DIGREGORY: They do.
3 I hesitated, your Honor, because I didn't
4 anticipate you would bring this issue up today. I wanted to
5 take a look at at least one of our pleadings.
6 THE COURT: Well, I think that's fair. I
7 didn't give you warning about this situation. That's true.
8 That's fair.
9 So do you have -- what is the process that
10 Mr. Lowell has to follow, as you understand it?
11 ATTORNEY DIGREGORY: Well, as I understand it,
12 Mr. Lowell has to notify, which he did, I believe -- notify
13 the State Department of the witnesses that he wished to
14 subpoena and that he --
15 THE COURT: That begins the Touhy process,
16 doesn't it?
17 ATTORNEY DIGREGORY: I believe that's right.
18 THE COURT: And then he has to go through that,
19 but he has to get subpoenas from here to be -- as I
20 understand it.
21 Is that right, Mr. Lowell?
22 Is that your understanding?
23 ATTORNEY LOWELL: Your Honor, I think you have
24 it right on the two parts. And that is this Court happens
25 to have a local rule which says that to a certain level, I
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1 have to apply and get permission. That doesn't obviate the
2 Touhy process. It precedes the Touhy process. And so we
3 did that to the four individuals.
4 But we have provided the government and you
5 with the Touhy affidavits as part of the request for those
6 four individuals. And so they're aware -- we have provided
7 a lot more specificity than we think the rules require, but
8 it's there.
9 THE COURT: But if I approve the issuance of
10 the subpoenas, Mr. Lowell, don't you still have to complete
11 the Touhy process with the Executive Branch?
12 ATTORNEY LOWELL: Absolutely. We've started
13 that process. But then, as you have indicated, your Honor,
14 they have our Touhy affidavit and the subpoena. They
15 process it and make a determination.
16 They have the right to determine whether that
17 makes sense to us. "Sure, we're coming."
18 "No, we're not coming."
19 "We want to move to quash."
20 "We want to work out" --
21 THE COURT: Then they come back to court?
22 In other words --
23 ATTORNEY LOWELL: Correct.
24 THE COURT: -- if Secretary Rice says "I don't
25 have anything to offer, and I don't want to appear," then
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1 she must move to quash.
2 ATTORNEY LOWELL: Correct, your Honor. That's
3 exactly right.
4 THE COURT: That's the way I saw it,
5 Mr. DiGregory.
6 Do I miss something?
7 ATTORNEY DIGREGORY: Well, one thing I wanted
8 to point out, your Honor, a lot was said about what these
9 witnesses would testify to. And as I said, we didn't have
10 an opportunity to review the pleadings. And then I was not
11 present --
12 THE COURT: You mean a second time?
13 You've had them for weeks, and you've
14 responded --
15 ATTORNEY DIGREGORY: I'm talking about our own
16 pleadings in preparation for --
17 THE COURT: Yes. And that's fair. That's
18 true.
19 ATTORNEY DIGREGORY: But one of the things
20 that -- and I understand the Court is desirous of perhaps
21 ruling this afternoon.
22 But one of the things that one of my colleagues
23 pointed out to me, because he was present for the interview
24 of Secretary Rice, she never gave national defense
25 information to Mr. Rosen; doesn't even remember him.
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1 THE COURT: All right. Well, that's something
2 that she can -- that I'll hear about if it's necessary --
3 ATTORNEY LOWELL: I guess the quick answer is
4 that it's premature to make that fight now, your Honor.
5 I would -- first of all, I think that that
6 happens to be an incorrect fact. But putting that aside,
7 the issue is not what she did in this case. The issue is
8 what my client did.
9 And I dare say as this unfolds, this Court will
10 understand that what one government official told my client
11 on a day at which the indictment argues he committed a crime
12 will have been told to him by other government officials who
13 are not charged and who I believe the government is going to
14 say they didn't do anything wrong.
15 I'm sorry. One more thing for the record, and
16 I apologize. We did file a formal 12.3 notice in this case.
17 I just want the record to be clear about that, a public
18 authority defense.
19 THE COURT: I think what Mr. -- what
20 Mr. DiGregory was really referring to is that I didn't note
21 in the notice of this hearing that this was going to be
22 brought up, and it takes him a bit by surprise. And I
23 understand that.
24 But what you have to do in this business is
25 react, and you have reacted. As it happens, you have
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1 reacted in a way that causes me to do the following:
2 First, with respect to the Rule 15 depositions, Rule 15
3 depositions -- again, the parties call attention to some
4 opinion I wrote -- I really dislike that computer -- in
5 which I said that Rule 15 depositions are permitted only in
6 rare instances and that the testimony to be material has to
7 be exculpatory, not merely corroborative or cumulative and
8 has to be necessary to avoid an injustice.
9 Now, in this instance, it seems to me that
10 issuing these subpoenas is a useless act if these people
11 aren't going to be deposed.
12 And so unless the government -- unless the
13 defendants can tell me in a pleading promptly that these
14 folks are willing to be deposed, I will -- what I'll do
15 is this, because we need to dispose of these matters: I'm
16 going to deny it with leave for you to renew the motion if
17 you can tell me that it's not a futile gesture, they really
18 will appear and testify, and that they will give exculpatory
19 material that it would be an injustice not to hear it. Be
20 specific about what that is.
21 All right. With respect to the four subpoenas,
22 we'll start the process on that, and I'll grant the issuance
23 of those subpoenas.
24 Now -- and we'll see, Mr. DiGregory, as we
25 proceed with that, whether the motions to quash, if they're
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1 filed, will being granted.
2 Now, I need to revise the SIPA hearing
3 schedule. There will not be a SIPA hearing under Section 6
4 and 10 on the -- I think I had it for the 25th. I'm -- I
5 wonder whether we don't need a multiple hearing. There's a
6 request for a more definite statement. It may be that we
7 can do it all at one time.
8 Bring me the book, the docket book, as well,
9 please.
10 The motion that I have just granted with
11 respect to the issuance of subpoenas, Mr. Lowell, doesn't
12 that moot your motion for leave to file an ex parte reply to
13 the government's response?
14 ATTORNEY LOWELL: It does, your Honor.
15 THE COURT: Now, if there are motions to quash,
16 then we may have to confront the issues that you wanted to
17 raise in your ex parte submission. What you wanted to do is
18 give me a lot of juicy information that you didn't want the
19 government to know about yet.
20 ATTORNEY LOWELL: That's a good way of saying
21 it, your Honor.
22 THE COURT: Now, there is a motion to suppress
23 and a motion to compel Brady material. I'll come back to
24 that in a moment. Let's deal with SIPA.
25 Mr. DiGregory, Mr. Lowell, Mr. Nassikas, do you
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1 think we can do SIPA in one day?
2 ATTORNEY LOWELL: I don't think anybody thinks
3 it can be done in one day.
4 ATTORNEY NASSIKAS: Agreed.
5 THE COURT: Three?
6 ATTORNEY NASSIKAS: Three days?
7 THE COURT: No. You said, "Agreed."
8 Thank goodness.
9 Two days would do it; right?
10 ATTORNEY DIGREGORY: May I consult --
11 THE COURT: Yes.
12 ATTORNEY LOWELL: May we have the same moment?
13 THE COURT: Yes, do so.
14 (Pause)
15 ATTORNEY DIGREGORY: Your Honor, with the
16 Court's permission, may I ask Mr. Reilly to come to the
17 podium and go through the process that we need to go through
18 with the Court with respect to SIPA, and then maybe that
19 will inform the Court about scheduling.
20 THE COURT: Yes, go ahead, Mr. Reilly. That
21 would be helpful.
22 ATTORNEY REILLY: Thank you, your Honor.
23 With respect to the SIPA process, it all begins
24 in this case with the defendants' Section 5 notice which
25 puts the government on notice of the information it
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1 reasonably expects to disclose at trial.
2 We received their Section 5 notice, and we
3 would move this Court for a more definite Section 5 notice.
4 That's the only way we can work with our client intelligence
5 agencies to assess the risk to the national security posed
6 by the disclosures of information at trial. Once we get a
7 specific Section 5 notice --
8 THE COURT: So you do think that what we
9 need -- if I don't decide the motion for a more definite
10 statement on the papers, what we need is a bifurcated SIPA
11 hearing, one that resolves that issue and then one that
12 resolves the SIPA Section 6 and 10 matters?
13 ATTORNEY REILLY: Bifurcated in the sense that
14 you do have to first give them a more definite Section 5 --
15 we have to get a more definite Section 5 to go back to the
16 intelligence agencies to assess the disclosure.
17 Then we have a Section 6 hearing pursuant to
18 6(a) where the Court, pursuant to SIPA, makes written
19 findings concerning the use, relevance, and admissibility of
20 all the classified information that they say in their
21 Section 5 they're going to disclose.
22 Then we have to, again, go back to our client
23 intelligence agencies and say: Look, the Court has said all
24 of this information is going to be disclosed at trial. It's
25 admissible. What do you want to do about it?
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1 How are we going to use it?
2 Are we going to use certain procedures to
3 protect the information?
4 Are we going to propose substitutions,
5 stipulation, or summaries to the Court?
6 And that takes time for us to work with the
7 intelligence agencies, especially in this case where there
8 are so many involved and given the sensitivity of the
9 information in this case.
10 After we get that from the intelligence
11 community, we come back to the Court under 6(c) and we have
12 a hearing with the Court on our motion for substitutions,
13 use, and stipulations.
14 After the Court rules in writing on that, we go
15 back again to the intelligence community and say: This is
16 what the Court has proposed.
17 And that's where we have an opportunity to
18 either appeal the Court's order, change our plan as far as
19 what information is going to being offered by us, or to go
20 forward.
21 And again, we need time at each of those steps
22 to work with our client intelligence community.
23 THE COURT: All right. That's a helpful
24 summary. Let's go back to the beginning of it.
25 The beginning of it was the motion for a more
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1 definite statement.
2 ATTORNEY REILLY: Correct.
3 THE COURT: Now, as I recall, that's -- first
4 of all, the defendants have to give a statement of what they
5 intend to use.
6 ATTORNEY REILLY: Correct.
7 THE COURT: And you think that needs to be more
8 definitized, to use a coined modern term that I normally
9 avoid, so that you can have a more concrete way of dealing
10 with the problem.
11 Have you and defense counsel discussed so that
12 we might obviate a hearing on that and they might provide
13 what you want without the necessity for an order or a
14 hearing?
15 ATTORNEY REILLY: We have not done that, but we
16 could.
17 THE COURT: You will.
18 ATTORNEY REILLY: Understood.
19 THE COURT: Because that's something counsel
20 ought to be able to work out.
21 Now, once that occurs, the next step, you said,
22 is that you have to then consult with your clients.
23 ATTORNEY REILLY: Correct.
24 THE COURT: And then you file with the Court
25 the material in the form that you think it ought to be used;
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1 is that right?
2 ATTORNEY REILLY: No. The first step is the
3 Court has to make a ruling on their motion, basically --
4 THE COURT: And then you go back.
5 ATTORNEY REILLY: -- to disclose the classified
6 information. So take a specific classified document that
7 they want to use at trial. If you find that that document
8 is relevant and admissible, we have to go back to the
9 intelligence community.
10 THE COURT: Let's take this one bite at a time.
11 ATTORNEY REILLY: Sure.
12 THE COURT: At the moment, we were to have a
13 SIPA hearing on the 25th. So I'm going to direct counsel to
14 meet and confer on the 25th for the purpose of reaching an
15 agreement about a more definite statement. There's no
16 reason why you all can't do that.
17 Yes?
18 ATTORNEY LOWELL: Just so that we're doing as
19 much work as we can to smooth this along, your Honor, the
20 concomitant request that we have is for a more definite
21 SIPA 10 statement from the government.
22 THE COURT: I know. They're both more definite
23 statements. You should both be doing it. And I see no
24 reason why there can't be an agreement there.
25 I don't think this is a case that, if it is
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1 ever tried, there are going to be shocks or surprises on
2 either side about the nature of the evidence presented.
3 Ultimately, in any event.
4 All right. Then after that, Mr. Reilly, you
5 pointed out we then need a hearing at which the Court will
6 decide, based on these more definite statements, whether you
7 really get to have this information to use at trial; whether
8 it's really necessary, to put it colloquially.
9 ATTORNEY REILLY: It's the same as at trial a
10 ruling on the use, relevance, and admissibility of any
11 evidence at trial.
12 THE COURT: And that -- the Court will issue
13 findings and conclusions with respect to that.
14 ATTORNEY REILLY: With respect to each piece of
15 information.
16 THE COURT: I beg your pardon?
17 ATTORNEY REILLY: With respect to each piece of
18 classified information.
19 THE COURT: Yes, I understand that.
20 And that needs to be a hearing where you think
21 we ought to set aside a day; is that right?
22 ATTORNEY REILLY: Given the volume, at least a
23 day, yes. It will likely take more than a day.
24 THE COURT: All right. Let's set that, then --
25 and those, of course, are in camera classified hearings.
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1 ATTORNEY REILLY: We filed a motion and a
2 declaration by the --
3 THE COURT: I saw that.
4 ATTORNEY REILLY: -- deputy --
5 (Simultaneous discussion)
6 THE COURT: It will --
7 ATTORNEY REILLY: -- for a closed hearing.
8 THE COURT: -- be in camera, classified. So
9 we'll have to do the sweep and everything else.
10 ATTORNEY REILLY: Correct.
11 THE COURT: And the earliest I can accommodate
12 that is May 2nd at 10:00 a.m.
13 ATTORNEY LOWELL: Your Honor, I'm embarrassed
14 to tell you that I keep -- maybe it's too modern, as you
15 were saying about computers. My calendar is on the device
16 the security officer will not let me take into the
17 courtroom. I should know better than to bring something
18 else.
19 Let's pick the dates, but let me confirm them
20 as quickly as possible to make sure I'm not messing up
21 another court appearance. I'm sorry. I didn't know. I
22 should have known.
23 THE COURT: I'll accommodate another fixed
24 court appearance. But otherwise, I'll ask that you make
25 alternate arrangements and not go to your house on Martha's
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1 Vineyard or --
2 ATTORNEY LOWELL: You knew about that.
3 THE COURT: -- or your house in Vail or
4 anything like that, but attend this.
5 ATTORNEY LOWELL: The only thing it could be is
6 either a court-ordered deposition or a court-ordered
7 appearance. Everything else I will definitely move. So why
8 don't you give us -- I'll work with --
9 THE COURT: May 2nd at 10:00 a.m. Then we'll
10 do that until we finish it, although I have other matters on
11 the 3rd, and I will -- and the 4th. But we'll get it done.
12 Now, then, Mr. Reilly, that doesn't end the
13 process.
14 ATTORNEY REILLY: No.
15 THE COURT: Then you go back to your clients --
16 I've been through this three or four times before. I think
17 I wipe the slate clean each time in the hopes that I won't
18 have to repeat it.
19 Now, you then come back with a pleading that
20 you file that says what, what the government is -- whether
21 it's willing to declassify some material, whether other
22 material must remain classified, whether some material can't
23 be used at all.
24 ATTORNEY REILLY: Exactly right under
25 Section 6(c). We get to argue at that stage the
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1 admissibility versus the risk to the national security, the
2 ability of the government to substitute and stipulate or
3 make other use limitations upon the use of the classified
4 information.
5 THE COURT: Well, I start a class-action trial
6 soon thereafter. The earliest I can accommodate such a
7 hearing --
8 Is there any reason why we couldn't accomplish
9 such a hearing in two or three hours?
10 ATTORNEY REILLY: It all depends,
11 unfortunately, on the amount of information that the Court
12 deems is admissible. They usually do take quite a long
13 time. A full afternoon or even a day would be -- might be
14 needed.
15 THE COURT: Well, I will -- and, of course,
16 there should be some time allotted for that prior to the
17 hearing.
18 Would there be one further hearing after that?
19 ATTORNEY REILLY: There have been in the past
20 where the Court and the government and defense counsel
21 engage in a discussion -- continuing discussion about the
22 use and limitations or substitutions.
23 THE COURT: All right. Now, that I will direct
24 that you take up on the 15th of May and that you submit a
25 pleading to the Court by the 18th of May jointly or
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1 individually telling me what remains to be done. And I'll
2 set the SIPA hearing for the first day of what was the
3 trial. That is the 23rd of May.
4 Now, that necessarily requires rescheduling of
5 the trial. I have a capital case that begins not long after
6 that as well as some other jury matters. Some matters may
7 plead out.
8 But how long do you think, again, Mr. Reilly,
9 that it will take to try this matter were it to go to trial?
10 ATTORNEY REILLY: The government's case would
11 be four, four and a half, five days at the most.
12 THE COURT: And about the same if the
13 defendants choose to offer -- they're not required to offer
14 any evidence, but they may if they choose to if the matter
15 goes to trial.
16 ATTORNEY LOWELL: Your Honor, I'm positive that
17 there will be a defense unless the Court grants our Rule 29,
18 if it gets that far. And it will take longer than that, I
19 dare say. I can't imagine that this case would be done in
20 less than eight trial days from the defense point of view.
21 THE COURT: The earliest that I can
22 thereafter -- since I think the hearing on the 25th is going
23 to take at least a day and perhaps more and on each of these
24 occasions the Court has to prepare findings because all of
25 these rulings are immediately appealable and, therefore, I
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1 regret to say that --
2 Let me ask the deputy clerk.
3 (Discussion held off the record.)
4 THE COURT: The earliest that I can address the
5 matter after that may be July 11th. That seems to be a
6 realistic schedule in terms of the SIPA matters.
7 ATTORNEY REILLY: The most important parts of
8 the SIPA process where we need the time is between the
9 Court's ruling on admissibility to go back and have enough
10 time with the intelligence agencies.
11 THE COURT: What have I set so far?
12 ATTORNEY REILLY: Right now we have a
13 pleading -- or on May 15th, you, I think, directed us to
14 file our motion for --
15 THE COURT: First of all, let's go back again
16 and recapitulate.
17 ATTORNEY REILLY: Right.
18 THE COURT: This coming -- this coming Tuesday,
19 you are directed to meet and confer about more definite
20 statements.
21 Now, in the unlikely event that you are unable
22 to reach agreement about supplying each other with
23 sufficient information so that you can then file the SIPA
24 notices that you need to file, then I need to know that
25 right away, and I'm -- I will hear the parties under seal on
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1 Monday, May 1st at 3:00 and resolve that matter. But --
2 ATTORNEY REILLY: If there is --
3 THE COURT: If there is a dispute. I ask
4 counsel not to push me to that. I'm normally ill-tempered.
5 Don't exacerbate the normal -- my normal intemperateness. I
6 vacillate between the one on this side of the wall and the
7 one on that side of the wall. You don't want the one on
8 that side of the wall. For the others in the courtroom,
9 that's a mystery, and it should remain a mystery.
10 Then the next thing on the schedule is what,
11 Mr. Reilly?
12 ATTORNEY REILLY: Then there's a -- right now
13 you have a May 2nd hearing on the 6(a) hearing regarding
14 use, admissibility --
15 THE COURT: All right. Now, that may have to
16 change, but I'm not available before then. That may have to
17 change if -- in fact, why don't we not do the May 1st. And
18 if there is a failure to agree, I'll take it up on May 2nd.
19 And I set that for 10:00 a.m., did I not?
20 ATTORNEY REILLY: Correct.
21 THE COURT: 10:00 a.m. on May 2nd. But I would
22 hope that at 10:00 a.m. on May 2nd, that matter will have
23 been resolved on April 25th.
24 And then the purpose of May 2nd will be for the
25 Court to consider whether the parties' various motions to
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1 use classified information should be granted; is that right?
2 In other words, I will consider, just as I would at trial,
3 the materiality, the relevance, the admissibility of this
4 material, the necessity for it. And I've set aside and will
5 set aside two days, if that's necessary.
6 Then after that the parties -- that gives you
7 some time, doesn't it, Mr. Reilly?
8 ATTORNEY REILLY: Pardon?
9 THE COURT: That gives you time. In the
10 meantime, I'm not ignoring this case. I'm working on a
11 motion to dismiss and considering that with diligence.
12 ATTORNEY LOWELL: Your Honor, I'm sorry to
13 rise, but I want to make sure we're on the same page.
14 We had thought that you had set May the 23rd as
15 what we call the SIPA hearing, which, as I understood, after
16 we've tried our best and done the preliminaries and you've
17 ruled on the definitive statements or we've tried to work it
18 out and Mr. Reilly has gone and done his preliminary work
19 with the agency and come back, that's when we begin the
20 process of, to excuse the expression, "duking it out."
21 THE COURT: So May 2nd is merely to determine
22 what, then, Mr. Reilly?
23 ATTORNEY REILLY: Well, normally, it would
24 be -- originally, you would set that to determine use,
25 relevance, and admissibility.
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1 THE COURT: Yes. And then you go back to the
2 agency --
3 ATTORNEY REILLY: Correct.
4 THE COURT: -- because you may get stuck with
5 some rulings on relevance and admissibility on materials
6 that may stick in their craw to use.
7 ATTORNEY REILLY: Correct.
8 ATTORNEY LOWELL: My only point, your Honor, if
9 that's the case, given that you said you're pretty -- in the
10 middle of a May 3rd, May 4th, that's -- the first
11 opportunity that you get with the parties to sift through
12 what is ever left from our best efforts is likely, given
13 what I understand from the people working on it, to take
14 longer than a day.
15 THE COURT: All right. Yes, I will accommodate
16 more than a day, because then that gives Mr. Reilly from
17 then until the 15th of May to deal with his clients and to
18 sit down with Mr. Lowell and Mr. Nassikas on the 15th of
19 May; is that right?
20 ATTORNEY LOWELL: A meet-and-confer was
21 something you wanted on the 15th?
22 THE COURT: Meet and confer on the 15th of May.
23 ATTORNEY REILLY: That's not sufficient time
24 for us.
25 THE COURT: What would be sufficient time? As
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1 long as it's before the 25th, because on the 25th -- or is
2 it the --
3 ATTORNEY REILLY: 23rd.
4 THE COURT: -- 23rd, I will then have a further
5 hearing.
6 Will you have done it by the 19th, or do you
7 need until the 23rd?
8 ATTORNEY REILLY: In order -- depending on how
9 much information is actually going to be admissible --
10 THE COURT: Set the meet-and-confer on the 23rd
11 instead of the 15th. That should give you, then, from the
12 2nd, 3rd, or 4th, whenever we finish that, until the 23rd.
13 That should be 20 days. That should be sufficient time,
14 Mr. Reilly.
15 ATTORNEY REILLY: It's tight.
16 THE COURT: I beg your pardon?
17 ATTORNEY REILLY: It's tight.
18 THE COURT: Well, if you can persuade me that
19 you really need more time, you may let me know.
20 ATTORNEY REILLY: We'll approach the Court if
21 we need more time.
22 THE COURT: We need to move this thing along,
23 but at least have a schedule.
24 So the 23rd is when you will confer with
25 Mr. Nassikas and Mr. Lowell. And then a further hearing and
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1 really the last hearing on SIPA --
2 Now, this should be a shorter hearing,
3 shouldn't it?
4 ATTORNEY REILLY: The issues are less cut and
5 dry. So even if the volume is lower, the arguments are
6 longer.
7 THE COURT: All right. Well, there are two
8 trials set, but I think they may be resolved. I'll set this
9 for the 14th of June at 10:00 a.m. And I'll record this in
10 an order.
11 All right. There were other matters that I was
12 going to cover, but I --
13 ATTORNEY NASSIKAS: Your Honor, you had
14 mentioned a May 18th pleading.
15 THE COURT: Yes. That needs to be revised.
16 ATTORNEY NASSIKAS: Thank you.
17 THE COURT: You're right, Mr. Nassikas. That
18 needs to be revised because the May 15th date is gone for
19 the meet-and-confer.
20 That's now May 23rd, is it not?
21 ATTORNEY REILLY: Correct.
22 THE COURT: And then the next hearing after
23 May 23rd I just set is June what?
24 ATTORNEY LOWELL: 14th.
25 ATTORNEY REILLY: June 14th.
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1 THE COURT: 14th.
2 So any reason why the pleadings, then, could
3 not being filed by June the 9th?
4 ATTORNEY REILLY: What exactly is this
5 pleading?
6 THE COURT: This would tell me what's left to
7 be resolved. This should frame for me what I need to
8 consider, hear argument on, resolve. Because it is really
9 the results of this hearing and the conclusions I reach in
10 this hearing that may provoke an appeal. The earlier ones
11 are really predicates or preliminary. It's this one that's
12 going to lead a party to conclude that this matter needs to
13 be reviewed.
14 ATTORNEY REILLY: All right.
15 THE COURT: And then that occurs roughly
16 30 days before I fix the trial date.
17 Anything else to be done in this matter today?
18 ATTORNEY NASSIKAS: Your Honor, one helpful
19 additional date might be related to the government's plans,
20 as we understand from a recent SIPA filing, to declassify a
21 fair amount of material in this case. If they are given a
22 deadline for that declassification moment, it could
23 substantially reduce --
24 THE COURT: They already have a deadline. I'm
25 sure, Mr. Nassikas, if you did it when you were an AUSA, you
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1 know how painful these hearings are. So they have an
2 enormous incentive to persuade their clients to declassify.
3 I'm sure you would be shocked, as I would, if Mr. Reilly
4 hasn't already applied the thumbscrews to his clients.
5 Am I correct?
6 ATTORNEY REILLY: You are correct, sir.
7 THE COURT: I thought so.
8 ATTORNEY REILLY: Your Honor, the trial date,
9 as I understand it, is set for July 11th?
10 THE COURT: That's correct.
11 ATTORNEY REILLY: That's less than -- I have it
12 as less than 30 days after the 6(c) hearing. That may not
13 be enough time for us given that the Court has to make
14 written findings from the 6(c) hearing to be reviewed, and
15 then we have to make a decision going forward to trial.
16 THE COURT: Well, you'll just have to move with
17 alacrity in that regard.
18 ATTORNEY REILLY: I understand.
19 THE COURT: What have I set? I've set the
20 11th?
21 ATTORNEY REILLY: Correct.
22 THE COURT: Well, beyond that, I get quite busy
23 again. I have a patent infringement trial that begins
24 thereafter that may take a while. And I don't want to move
25 this trial date. If there's going to be a trial, I want it
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1 immutable and fixed. And it will -- as Sam Johnson said
2 about the man about to be hanged, it will wonderfully
3 concentrate everyone's minds.
4 How much time do you think would be needed, if
5 not July 11th?
6 ATTORNEY REILLY: Well, the appellate time is
7 ten days, and that's the time we have to take to review the
8 written opinion. So it's not from the date of the hearing.
9 It's from the date that the Court gets us a written opinion.
10 THE COURT: I may do that from the bench, that
11 Mr. Rodriquez here, in his fashion, can prepare pretty
12 promptly.
13 ATTORNEY REILLY: We generally like to build in
14 as much time as we can between the end of the SIPA process
15 and the trial date so that the trial date doesn't have to
16 move again if the government has to go back again to the
17 intelligence agencies and review what's going to be
18 disclosed and then go back to the Court. We want a fixed
19 trial date as well.
20 THE COURT: I don't have any more dates until
21 August 2nd. And here you get into -- we don't take
22 vacations on the bench. We're not allotted vacations. But
23 I suspect that lawyers who make munificent sums need time to
24 spend that money.
25 ATTORNEY REILLY: I wouldn't know.
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1 THE COURT: Good answer.
2 ATTORNEY REILLY: What about August 2nd,
3 Mr. Lowell and Mr. Nassikas?
4 ATTORNEY NASSIKAS: Your Honor --
5 THE COURT: Just do it from there. Let's get
6 it done.
7 ATTORNEY NASSIKAS: August 2nd works for me as
8 counsel. My concern is August is a month -- there are
9 multiple witnesses the defense --
10 THE COURT: That's why we have subpoenas.
11 ATTORNEY NASSIKAS: I understand. It is a
12 difficult -- it is a difficult time of year. Personal
13 preference would be September because it's the work mode,
14 the witnesses, and everybody else, your Honor. I know it's
15 not convenient for cocounsel.
16 THE COURT: It's really not convenient for the
17 Court either.
18 ATTORNEY LOWELL: Your Honor, all I want to say
19 is two things: One is that when we have been trying to get
20 this all scheduled, way long ago I accepted an assignment to
21 teach at Columbia Law School starting in September. We can
22 accommodate that if -- depending on my ability to tell the
23 folks at Columbia what day I might be able to move it.
24 THE COURT: No. We're going with August.
25 ATTORNEY LOWELL: The second is -- and this is
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1 a point of personal privilege -- August the 3rd, it's not
2 about making money or spending it. It's mom's 85th
3 birthday, and we're planning quite an event.
4 THE COURT: I'll accommodate that.
5 What date is it?
6 ATTORNEY LOWELL: August the 3rd is her
7 birthday.
8 THE COURT: All right.
9 ATTORNEY LOWELL: Was August the 2nd a Monday
10 or Tuesday?
11 THE COURT: It's a Tuesday. I'll give you
12 August the 7th. Don't miss your mother's birthday.
13 ATTORNEY LOWELL: I knew you would think that
14 way, your Honor, and she'll appreciate it.
15 Thank you.
16 ATTORNEY REILLY: Thank you, your Honor.
17 THE COURT: I thank counsel for your
18 cooperation today. It's been painful, but helpful.
19 And the court stands in recess until 9:00
20 Monday morning.
21 ATTORNEY NASSIKAS: Your Honor, are there any
22 other motions on the agenda that will be decided today?
23 THE COURT: No. I'm tired. They don't pay me
24 very much, but they do give me the power to say when it's
25 done. And it's done for the day. There are other things.
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1 I'm acutely sensitive to additional things that need to be
2 done in this case.
3 I'm especially -- I'm exquisitely sensitive to
4 the motion to dismiss that I'm continuing to consider. I've
5 about considered -- I've focused a lot of attention and time
6 on the FISA materials. There may be some issue that doesn't
7 relate to the FISA materials themselves, but I've also
8 looked at the motion for sanctions and a show cause hearing
9 with respect to the Rule 6.
10 At the moment, Mr. Lowell and Mr. Nassikas, I'm
11 not moved much by the Rule 6 matter, but there's another
12 little issue in there that I have do have in mind that I
13 can't go into now because it relates to classified
14 information. And I'm struggling with that, too.
15 So the answer to your question is I know that
16 there are things out there. I know that they're important.
17 This case is important just like every case is important.
18 I've had cases this morning involving people who were facing
19 either having a weekend in jail or not having a weekend in
20 jail. That's very important to them, too. And this is very
21 important to both sides, and I'm giving it as much attention
22 as I can as quickly as I can.
23 So never, never forget that I have in mind that
24 there are a lot of things out there. I haven't forgotten
25 anything about this case.
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1 Thank you. Court stands in recess.
2 In addition to which none of this material can
3 be taken home. But that's something you have to struggle
4 with, too.
5 (Court recessed at 6:14 p.m.)
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1
2 CERTIFICATE OF REPORTER
3
4 I, MICHAEL A. RODRIQUEZ, an Official Court
5 Reporter for the United States District Court, in the
6 Eastern District of Virginia, Alexandria Division, do hereby
7 certify that I reported by machine shorthand, in my official
8 capacity, the proceedings had upon the motions hearing in
9 the case of UNITED STATES OF AMERICA v. STEVEN J. ROSEN,
10 KEITH WEISSMAN.
11
12 I further certify that I was authorized and did
13 report by stenotype the proceedings in said motions hearing,
14 and that the foregoing pages, numbered 1 to 84, inclusive,
15 constitute the official transcript of said proceedings as
16 taken from my machine shorthand notes.
17
18 IN WITNESS WHEREOF, I have hereto subscribed my
19 name this day of , 2006.
20
21
22 Michael A. Rodriquez, RPR/CM/RMR
Official Court Reporter
23
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MICHAEL A. RODRIQUEZ, RPR/CM/RMR