U.S. v. Lee

• Citation: 90 F.Supp.2d 1324
• Decision Date: 29 March 2000
• Docket Number: No. CR99-1417 JC.,CR99-1417 JC.
• Parties: UNITED STATES of America, Plaintiff, v. Wen Ho LEE, Defendant.
• Court: U.S. District Court — District of New Mexico

90 F.Supp.2d 1324

UNITED STATES of America, Plaintiff, v. Wen Ho LEE, Defendant.

No. CR99-1417 JC.

United States District Court, D. New Mexico.

March 29, 2000.

Robert J. Gorence, Assistant U.S. Attorney, Paula G. Burnett, Supervisory Assistant U.S. Attorney, Laura Fashing, Assistant U.S. Attorney, U.S. Attorney's Office, Albuquerque, NM, Michael C. Liebman, Trial Attorney, Internal Security Section, U.S. Department of Justice, Washington, DC, for plaintiff.

Mark Holscher, O'Melveny & Myers, L.L.P., Los Angeles, CA, John D. Cline, Nancy Hollander, Freedman, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Albuquerque, NM, for defendant.

MEMORANDUM OPINION AND ORDER

CONWAY, Chief Judge.

THIS MATTER came on for consideration of the Motion of Dr. Wen Ho Lee for a Declaration that Sections 5 and 6 of the Classified Information Procedures Act (CIPA) are Unconstitutional as Applied, filed January 26, 2000 (Doc. 38) ("Defendant's Motion"). The Court has reviewed the motion, the memoranda submitted by the parties, and the relevant authorities. Oral argument would not assist the Court in its disposition of this matter and therefore will not be heard. The Court finds that Defendant's motion is not well taken and will be denied.

I. CIPA FRAMEWORK

The Classified Information Procedures Act (CIPA), 18 U.S.C. app. III §§ 1-16 (1988), provides for pretrial procedures to resolve questions of admissibility of classified information in advance of its use in open court.¹ Under CIPA procedures, the defense must file a notice briefly describing any classified information that it "reasonably expects to disclose or to cause the disclosure of" at trial. 18 U.S.C. app. III § 5(a). Thereafter, the prosecution may request an in camera hearing for a determination of the "use, relevance and admissibility" of the proposed defense evidence. Id. at § 6(a). If the Court finds the evidence admissible, the government may move for, and the Court may authorize, the substitution of unclassified facts or a summary of the information in the form of an admission by the government.² See id. at § 6(c)(1). Such a motion may be granted if the Court finds that the statement or summary will provide the defendant with "substantially the same ability to make his defense as would disclosure of the specific classified information." Id. If the Court does not authorize the substitution, the government can require that the defendant not disclose classified information. See id. at § 6(e). However, under § 6(e)(2), if the government prevents a defendant from disclosing classified information at trial, the court may: (A) dismiss the entire indictment or specific counts, (B) find against the prosecution on any issue to which the excluded information relates, or (C) strike or preclude the testimony of particular government witnesses. See 18 U.S.C. app. III § 6(e)(2). Finally, CIPA requires that the government provide the defendant with any evidence it will use to rebut the defendant's revealed classified information evidence. See id. at § 6(f).

II. CONSTITUTIONALITY OF CIPA

Defendant Lee contends that, as applied to him, the notice and hearing requirements of § 5 and § 6 of CIPA are unconstitutional. Specifically, Lee argues that § 5 and § 6 violate (1) his Fifth Amendment privilege against self-incrimination by requiring him to disclose his anticipated trial testimony to the government pretrial; (2) his Fifth Amendment right to remain silent unless and until he decides to testify; (3) his Fifth and Sixth Amendment rights to testify in his own defense; (4) his Fifth Amendment right to due process of law by requiring him to disclose significant aspects of his case without imposing a mandatory reciprocal duty on the prosecution and imposing vastly greater discovery burdens on the defense than on the government; and (5) his Sixth Amendment right to cross examine witnesses. Although I find Defendant's claims unjustified, I will nevertheless address them in turn.³

A. Defendant's Privilege Against Self-Incrimination

Defendant Lee's first contention is that the notice and hearing requirements of § 5 and § 6 violate his Fifth Amendment privilege against self-incrimination because they force him to reveal classified aspects of his own trial testimony. Defendant argues that by forcing him to reveal portions of his potential testimony, CIPA unconstitutionally infringes upon his right to remain silent until and unless he decides to testify. Similarly, Defendant argues that if he chooses not to comply with the notice requirements, under the penalty of not being able to offer such testimony at trial, CIPA unconstitutionally denies him the right to testify on his own behalf. In either case, Defendant contends that CIPA forces him to pay a price in the form of a costly pretrial decision in order to preserve his constitutional rights at trial.

In support of his argument, Defendant cites Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), in which the Supreme Court struck down a Tennessee state statute which required the defendant to testify first, or not at all. In Brooks, the Supreme Court held that such a requirement, "cuts down the privilege to remain silent by making its assertion costly." 406 U.S. at 610-611, 92 S.Ct. 1891 (citing Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 14 L.Ed.2d 106, (1965)).

However, Defendant's reliance on Brooks is too far-reaching. "The leap from the requirement of disclosure—similar to the disclosure of an alibi or insanity defense—to a violation of a defendant's right to testify or not to testify is too wide to be justified." United States v. Poindexter, 725 F.Supp. 13, 34 (D.D.C.1989). CIPA does not require that a defendant specify whether or not he will testify or what he will testify about. See id. at 34; United States v. Ivy, 1993 WL 316215 at *3 (E.D.Pa. Aug.12, 1993). Instead, CIPA requires "merely a general disclosure as to what classified information the defense expects to use at trial, regardless of the witness or the document through which that information is to be revealed." Poindexter at 33. Therefore, Defendant's argument that if he discloses the classified information his right to remain silent has been compromised (or in the alternative that if he refuses to disclose the classified information his right to testify has been compromised) is misplaced. Despite CIPA's requirements, Defendant still has the option of not testifying. Similarly, if the defense does not disclose classified information as required by CIPA, the defendant retains the option of testifying, albeit with the preclusion of any classified information.

In addition, the pretrial disclosure of certain aspects of a criminal defense is hardly a novel concept. See Poindexter at 34. Examples of such requirements include FED.R.CRIM.P. 12.1 (alibi defense); FED. R.CRIM.P. 12.2 (insanity defense); FED. R.CRIM.P. 12.3 (public authority defense); and FED.R.CRIM.P. 16 (medical and scientific tests, and tangible objects and certain documents). Such provisions have consistently been held constitutional. See id. at 33 (citing Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988)). Defendant attempts to distinguish his case by arguing that unlike the pretrial disclosures mandated by the Federal Rules of Criminal Procedure, CIPA requires that a defendant reveal "the contents of his own mind" by placing an additional burden on a defendant to reveal the "use, admissibility and relevance" of the proposed evidence. Def.'s Reply Mem. at 5, filed Feb. 22, 2000 (Doc. 38). However, CIPA requires no more revelation of the defendant's thoughts or plans than do the notice of alibi and similar rules of federal criminal procedure. Defendant is free to seek admission of evidence to support a number of different defenses, which he may adopt or abandon later. Unlike Brooks, in which the defendant was required to decide whether or not to testify at the outset of his defense, the defendant in this case retains significant control over the presentation of his defense. CIPA merely provides a mechanism for determining the admissibility of classified information so that classified information is not inadvertently disclosed during open proceedings.⁴ Defendant still has the choice of presenting the evidence during trial or not, after it has been deemed admissible. "That the defendant faces ... a dilemma demanding a choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination." Williams v. Florida, 399 U.S. at 84, 90 S.Ct. 1893.

Defendant also argues that the burdens placed upon him by CIPA unconstitutionally violate his Fifth Amendment rights in that they do not advance any interests related to the fairness and accuracy of the criminal trial. See Mem. in Supp. of Def.'s Mot. at 12, filed Jan. 26, 2000 (Doc. 39). However, Defendant's argument is unconvincing. CIPA is designed to "assure the fairness and reliability of the criminal trial" while permitting the government to "ascertain the potential damage to national security of proceeding with a given prosecution before trial." See United States v. Ivy, 1993 WL 316215 at *4 (citations omitted). As the Supreme Court has noted, "it is obvious and unarguable that no governmental interest is more compelling than the security of the Nation." Poindexter, 725 F.Supp. at 34 (quoting Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981)). CIPA serves that interest "by providing a mechanism for protecting both the unnecessary disclosure of sensitive national security information and by helping to ensure that those with significant access to such information will not escape the sanctions of the law applicable to others by use of the greymail route."⁵ Id. at 34. Accordingly, I find that CIPA does not violate Defendant's privilege...