U.S. v. Pollard
| Decision Date | 28 May 1992 |
| Docket Number | No. 90-3276,90-3276 |
| Citation | 959 F.2d 1011,295 U.S. App. D.C. 7 |
| Parties | UNITED STATES of America v. Jonathan Jay POLLARD, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (86cr00207-01).
Theodore B. Olson, with whom John H. Sturc, Theodore J. Boutrous, Jr., and Hamilton P. Fox, III, Washington, D.C., were on the brief, for appellant.
John R. Fisher, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and Elizabeth H. Danello, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.
Kenneth Lasson, Baltimore, Md., was on the brief for amici curiae, Law Professors, et al., urging reversal.
Before: RUTH BADER GINSBURG, SILBERMAN and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Pursuant to an agreement with the government, Jonathan Pollard pleaded guilty on June 4, 1986 to one count of conspiracy to deliver national defense information to a foreign government. See 18 U.S.C. § 794(c). Chief Judge Aubrey E. Robinson, Jr. of the district court sentenced him to life imprisonment. Pollard did not appeal his conviction. Pollard later made an unsuccessful motion under FED.R.CRIM.P. 35 to have his sentence reduced and, again, did not appeal.
Three years after sentencing, having served the intervening time in prison, Pollard sought to attack his sentence collaterally by filing a motion under 28 U.S.C. § 2255 1 seeking the district court's approval to withdraw his guilty plea. Pollard claimed that the government obtained his guilty plea improperly--even unconstitutionally--by linking or "wiring" his wife's plea to his own. Anne Henderson Pollard had also been arrested in connection with Pollard's espionage, but the government refused to enter into a plea agreement with her unless he pleaded guilty as well. Pollard also asserted that the government breached the plea agreement by the nature of its arguments (allocution) to the district court at sentencing and, furthermore, that Chief Judge Robinson based Pollard's sentence on ex parte communications from the government. Appellant sought a hearing on this rather dramatic charge and asked Chief Judge Robinson to recuse himself. Pollard's new attorneys in the § 2255 proceeding also sought access to certain highly classified materials the government had submitted at sentencing.
The district judge declined to recuse, denied access to the classified sentencing materials, and, without holding a hearing, refused to permit Pollard to withdraw his guilty plea. See United States v. Pollard, 747 F.Supp. 797 (D.D.C.1990). This appeal followed, and we now affirm.
For a period of approximately eighteen months, from June 1984 through November 1985, Jonathan Pollard, an Intelligence Research Specialist with the United States Navy, removed large amounts of highly classified U.S. intelligence information from his office, copied it, and delivered it to agents of the Israeli government. Initially, Pollard was not paid, but during the last twelve months of this period, he met regularly with his Israeli handlers in order to receive specific tasking information, and he received between $1,500 and $2,500 per month for his efforts.
Approximately one year after the regular deliveries began, agents of the FBI and Naval Investigative Service (NIS) stopped Pollard as he was leaving work and questioned him concerning the unauthorized removal of classified information from his office. Twice during the interview, Pollard received permission to call home to his wife, Anne Henderson Pollard. In those conversations, he used the prearranged code word "cactus," whereupon Mrs. Pollard removed a suitcase full of classified U.S. intelligence information from the Pollards' apartment and contacted Pollard's Israeli handlers to tell them that Pollard was in trouble. This was her only active involvement in Pollard's espionage.
During the next two days the FBI and NIS conducted further interviews of Pollard. Pollard, in the course of these interviews, lied to his interrogators, keeping secret his involvement with the Israelis. He stalled for time, as his Israeli handlers had instructed him, and one of his handlers during this period managed to leave the country.
Jonathan Pollard was finally arrested on November 21, 1985, and charged with violations of 18 U.S.C. §§ 794(a) and 793(e). Mrs. Pollard was arrested a day later as an accessory. The Pollards, prior to their arrests, had sought asylum at the Israeli embassy, actually gaining entrance to the embassy compound at one point, but the Israelis turned them away. Nonetheless, during his initial post-arrest interviews, Pollard continued to protect his Israeli handlers. Although he admitted that he had lied in his earlier interviews and had in fact been delivering classified information to a foreign government, he refused to identify the government or the names of the foreign intelligence agents controlling him. Pollard's other Israeli handler departed the United States during this time.
Following their arrests, the Pollards were jailed without bail. Mrs. Pollard had, for several years, suffered from a debilitating gastrointestinal disorder that had not been accurately diagnosed prior to her arrest. During her stay in the D.C. jail, she was seriously ill, losing forty pounds over a period of three months. In February of 1986, Mrs. Pollard was released on bail.
Pollard had, in the meantime, begun plea discussions with the government. He sought to plead guilty both to minimize his chances of receiving a life sentence and to enable Anne Pollard to plead as well, which the government was otherwise unwilling to let her do. The government, however, was prepared to offer Pollard a plea agreement only after Pollard consented to assist the government in its damage assessment and submitted to polygraph examinations and interviews with FBI agents and Department of Justice attorneys. Accordingly, over a period of several months, Pollard cooperated with the government investigation, and in late May of 1986, the government offered him a plea agreement, which he accepted.
By the terms of that agreement, Pollard was bound to plead guilty to one count of conspiracy to deliver national defense information to a foreign government (18 U.S.C. § 794(c)), which carried a maximum prison term of life, and to cooperate fully with the government's ongoing investigation. He promised not to disseminate any information concerning his crimes without submitting to pre-clearance by the Director of Naval Intelligence. His agreement further provided that failure by Anne Pollard to adhere to the terms of her agreement entitled the government to void his agreement, and her agreement contained a mirror-image provision.
In return for Pollard's plea, the government promised not to charge him with additional crimes, entered into a plea agreement with Anne Pollard, and made several specific representations that are very much at issue in this case. The critical provisions are paragraphs 4(a) and 4(b) of the agreement, in which the government "agree[d] as follows":
(a) When [Pollard] appears before the Court for sentencing for the offense to which he has agreed to plead guilty, the Government will bring to the Court's attention the nature, extent and value of his cooperation and testimony. Because of the classified nature of the information Mr. Pollard has provided to the Government, it is understood that particular representations concerning his cooperation may have to be made to the Court in camera. In general, however, the Government has agreed to represent that the information Mr. Pollard has provided is of considerable value to the Government's damage assessment analysis, its investigation of this criminal case, and the enforcement of the espionage laws.
(b) Notwithstanding Mr. Pollard's cooperation, at the time of sentencing the Government will recommend that the Court impose a sentence of a substantial period of incarceration and a monetary fine. The Government retains full right of allocution at all times concerning the facts and circumstances of the offenses committed by Mr. Pollard, and will be free to correct any misstatements of fact at the time of sentencing, including representations of the defendant and his counsel in regard to the nature and extent of Mr. Pollard's cooperation. Moreover, Mr. Pollard understands that, while the Court may take his cooperation into account in determining whether or not to impose a sentence of life imprisonment, this agreement cannot and does not limit the court's discretion to impose the maximum sentence.
The district court accepted Pollard's plea at a hearing held on June 4, 1986. Chief Judge Robinson addressed Pollard in open court and questioned him about his understanding of the rights he was surrendering, including the potential sentences he faced and the terms of the plea agreement. After being assured by both Pollard and his attorney that there was no reason to be chary of the plea, the district court accepted it.
Sentencing took place nine months later. Both the government and Pollard submitted extensive pre-sentencing memoranda to the district judge. In general, the government argued that Pollard had done grievous damage to U.S. national security interests in the pursuit of financial reward and that Pollard was unremorseful and a continuing danger to national security. The government mentioned that Pollard had violated his plea agreement while in prison awaiting sentencing by giving several interviews to a journalist for the Jerusalem Post, Wolf Blitzer, without first submitting his comments to the Director of Naval Intelligence. This again, according to the government, demonstrated that Pollard could not be trusted to refrain from...
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