U.S. v. Lee

• Decision Date: 30 December 1999
• Docket Number: No. CR. 99-141 JC.,CR. 99-141 JC.
• Citation: 79 F.Supp.2d 1280
• Parties: UNITED STATES of America, Plaintiff, v. Wen Ho LEE, Defendant.
• Court: U.S. District Court — District of New Mexico

79 F.Supp.2d 1280

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

No. CR. 99-141 JC.

United States District Court, D. New Mexico.

December 30, 1999.

Robert J. Gorence, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.

Nancy Hollander, John D. Cline, Freedman Boyd Daniels Hollander Goldberg & Cline, PA, Mark Holscher, O'Melveny & Myers LLP, Los Angeles, CA, for Defendant.

MEMORANDUM OPINION AND ORDER

PARKER, District Judge.

On December 17, 1999, Defendant Wen Ho Lee ("Dr.Lee") filed "Motion of Wen Ho Lee to Revoke Magistrate Judge's Detention Order," (Doc. No. 17). After conducting a three-day evidentiary hearing and carefully reviewing the applicable law, I conclude that at this time there is no condition or combination of conditions of pretrial release that will reasonably assure the appearance of Dr. Lee as required and the safety of any other person, the community, and the nation. Dr. Lee's motion will, therefore, be denied.

I. BACKGROUND

The Government alleges that in 1993 and 1994 Dr. Lee assembled a collection of nineteen files, called tape archive (TAR) files, containing secret and confidential restricted data relating to nuclear weapons research, design, construction, and testing. According to the Government, Dr. Lee gathered these files from the secure classified "red" partition computers at the Los Alamos National Laboratory ("LANL") and moved them to unclassified open "green" partition computers. The Government also alleges that Dr. Lee later down-loaded seventeen of the nineteen classified TAR files from the green partition computers to nine portable computer tapes and that in 1997 Dr. Lee downloaded from the red partition secured computers directly to a tenth portable computer tape a current nuclear weapons design code and its auxiliary libraries and utility codes. Seven of the ten portable computer tapes are unaccounted for; Dr. Lee's attorneys say they have been destroyed.

Although Dr. Lee began transferring and downloading classified files from the secure red partition during 1993, Government agents did not become aware of Dr. Lee's actions until 1998 when an investigation began. By late May or June 1999, the Government had developed probable cause to believe Dr. Lee committed the offenses for which he eventually was arrested and indicted more than half a year later on December 10, 1999. The Government could have sought a warrant to arrest Dr. Lee in May or June 1999 but chose not to do so even though, according to testimony of Government witnesses, Dr. Lee presented an enormous risk to the national security throughout the six to seven month period the Government chose to delay arresting Dr. Lee. The Government did place Dr. Lee under round-the-clock surveillance during that time in the hope that Dr. Lee would lead the Government to the seven missing portable computer tapes. Dr. Lee's movement within the United States was not restricted during this period, although he surrendered his passport to his attorney.

On October 14, 1999, CNN reported that law enforcement sources revealed that Dr. Lee had transferred secret "legacy codes" related to the United States nuclear weapons programs, described by a nuclear weapons expert as "the crown jewels of our nuclear weapon design effort," from a secure to a non-secure computer and next copied the codes on tape. CNN further said that investigators disclosed that they had been unable to account for some of the tapes and that Dr. Lee had failed to produce the tapes despite being asked to do so. Nevertheless, although this information involving missing tapes containing highly secret information about the United States nuclear weapons programs was put into the public domain by CNN during October 1999, Dr. Lee was not taken into custody until two months later.

On December 10, 1999, the grand jury returned a fifty-nine count indictment against Dr. Lee charging him with violations of the Atomic Energy Act, 42 U.S.C. § 2275, Pub.L. No. 106-65, § 3148(b), 113 Stat. 938 (1999) (Receipt of Restricted Data) and 42 U.S.C. § 2276 (Tampering with Restricted Data), and the Espionage Act, 18 U.S.C. § 793 (Gathering, transmitting or losing defense information). Although Pretrial Services recommended Dr. Lee's release on a $100,000 fully secured bond and electronic monitoring, at a December 13, 1999 detention hearing United States Magistrate Judge Don J. Svet ordered the pretrial detention of Dr. Lee under 18 U.S.C. § 3142 on the ground that Dr. Lee posed a danger to the community.

On December 17, 1999, Dr. Lee filed a motion under 18 U.S.C. § 3145(b) seeking an order revoking Magistrate Judge Svet's detention order and asking that conditions of release be set. Dr. Lee requested an expedited hearing and proposed the following conditions: 1.) that Dr. Lee's neighbor, Jean Marshall, serve as third-party custodian; 2.) that Dr. Lee consent to a search of his home before he returns to ensure that he does not have seven tapes that the Government claims are missing and that Dr. Lee claims were destroyed; and 3.) that Dr. Lee execute an irrevocable waiver of extradition surrendering his right to contest his return to the United States if he is found in a foreign country.¹ At a December 20, 1999 scheduling conference the parties agreed that I should hold the hearing because the judge to whom the case has been assigned, Chief Judge John Edwards Conway, was unavailable and would not be able to hold the hearing until January 12, 1999.² See Order of December 21, 1999, (Doc. No. 21). The hearing began on December 27, 1999³ and ended on December 29, 1999.

II. BAIL REFORM ACT OF 1984

In enacting the federal Bail Reform Act of 1984, Congress responded to criticism that the Bail Reform Act of 1966 did not afford judges appropriate authority to make decisions regarding the pretrial release of defendants who posed serious risks of flight or danger to the community. See S.Rep. No. 98-225 (1983), reprinted in 1984 U.S.C.A.A.N. 3182. The legislative history of the Bail Reform Act of 1984 states that "there is a small but identifiable group of particularly dangerous defendants as to whom neither the imposition of stringent release conditions nor the prospect of revocation of release can reasonably assure the safety of the community or other persons," and that it was this "limited group of offenders that the courts must be given the power to deny release pending trial." Id. at 6-7, reprinted in 1984 U.S.C.A.A.N. at 3189. The legislative history stresses that "the decision to provide for pretrial detention is in no way a derogation of the importance of the defendant's interest in remaining at liberty prior to trial," but notes that this interest must be weighed against society's interest in protecting the community. Id.

Consistent with this legislative history and a defendant's presumption of innocence,⁴ the statutory scheme of 18 U.S.C. § 3142 generally favors the pretrial release of defendants. See 18 U.S.C. § 3142(b); United States v. Orta, 760 F.2d 887, 890 (8th Cir.1985). However, for a narrowly defined group of defendants Congress clearly indicated that it did not encourage pretrial release. See 18 U.S.C. § 3142(e). Congress prescribed that "a rebuttable presumption arises that no condition or combination of conditions [of release] will reasonably assure the safety of any other person and the community" if the judicial officer finds that the defendant had previously been convicted of committing one of certain serious crimes while the defendant was on release pending trial for a Federal, State, or local offense, and "a period of not more than five years has elapsed since the date of conviction, or the release of the person from imprisonment, for the offense" of conviction. 18 U.S.C. § 3142(e). Congress also separately provided that "[s]ubject to rebuttal ... it shall be presumed that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds ... probable cause to believe" that the defendant committed one of certain specified offenses, regardless of whether the defendant had any prior convictions. Id.

At the December 13, 1999 detention hearing, the Government conceded that neither of these statutory rebuttable presumptions of detention applies in this case. See Tr. of December 13, 1999 hearing at 7. During the December 20, 1999, scheduling conference, an attorney for the Government also stated that the rebuttable presumption of § 3142(e) did not apply to Dr. Lee. See Tr. of December 20, 1999 hearing at 7. Therefore, this Court must begin its analysis with the backdrop of Congressional preference for pretrial release under 18 U.S.C. § 3142. See 18 U.S.C. § 3142(b); Orta, 760 F.2d at 890.

Under § 3142(b), a judge "shall order the pretrial release" of a defendant on personal recognizance or unsecured appearance bond "unless" the judge determines that the defendant's release "will endanger the safety of any other person or the community" or "will not reasonably assure" the defendant's appearance. 18 U.S.C. § 3142(b). If release under § 3142(b) is not appropriate, then a judge "shall order the pretrial release" of a defendant "subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(c)(1)(B). One of the many conditions specifically contemplated by § 3142(c)(1)(B) is a defendant's supervision by a third-party custodian. 18 U.S.C. § 3142(c)(1)(B)(i). "The wide range of restrictions available ensures, as Congress intended, that very few defendants will be subject to pretrial detention." Orta, 760 F.2d at 891.

Only after a hearing and a finding that "no condition or combination of conditions will reasonably assure the appearance" of the defendant and the...