U.S. v. Rosen

• Citation: 487 F.Supp.2d 703
• Decision Date: 19 April 2007
• Docket Number: No. 1:05cr225.,1:05cr225.
• Parties: UNITED STATES of America, v. Steven J. ROSEN and Keith Weissman.
• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

487 F.Supp.2d 703

UNITED STATES of America, v. Steven J. ROSEN and Keith Weissman.

No. 1:05cr225.

United States District Court, E.D. Virginia, Alexandria Division.

April 19, 2007.

COPYRIGHT MATERIAL OMITTED

Kevin Digregory, William N. Hammerstrom, Jr., United States Attorney's Office, Alexandria, VA, for United States of America.

Erica Emily Paulson, Chadbourne & Parke LLP, John N. Nassikas, III, Arent Fox PLLC, Washington, DC, for Keith Weissman.

MEMORANDUM OPINION

ELLIS, District Judge.

This Espionage Act (18 U.S.C. § 793) prosecution involves a substantial amount of classified information the government contends is information relating to the national defense ("NDI")¹ and for this reason the government seeks to avoid public disclosure of this material in the course of the trial. To this end, the government, by motion pursuant to § 6 of the Classified Information Procedures Act ("CIPA"),² has proposed utilizing a procedure at trial whereby substantial quantities of classified information would be disclosed to the Court, the jury, and counsel, but withheld from the public. This novel proposal, if allowed, would effectively close a substantial portion of the trial. Accordingly, defendants challenge this proposed procedure on the grounds that it is neither authorized by CIPA nor constitutionally permissible.

I.

Both defendants are charged with conspiracy to communicate NDI to persons not authorized to receive it, in violation of 18 U.S.C. § 793(g),(e). Rosen is additionally charged with aiding and abetting alleged co-conspirator Lawrence Franklin's unauthorized communication of NDI to persons not authorized to receive it, in violation of 18 U.S.C. §§ 793(d) and 2. The superceding indictment generally alleges that over a course of several years, defendants cultivated various sources of information within the United States government, obtained NDI from those sources, and then disseminated that NDI to others not authorized to receive it, including co-workers, journalists, and foreign government officials. For a more complete recitation of the facts alleged in the superceding indictment, as well as a more precise delineation of the government's burden of proof, see United States v. Rosen, 445 F.Supp.2d. 602 (E.D.Va.2006) (Memorandum Opinion denying motion to dismiss) and see also United States v. Rosen, 447 F.Supp.2d 538 (E.D.Va.2006) (Order clarifying Memorandum Opinion).

II.

Because this prosecution involves classified materials, CIPA governs the use of that material at the trial and pretrial stages. The purpose of CIPA is "to harmonize a defendant's right to obtain and present exculpatory material ... and the government's right to protect classified material...." United States v. Pappas, 94 F.3d 795, 799 (2nd Cir.1996) (citing United States v. Wilson, 571 F.Supp. 1422, 1426 (S.D.N.Y.1983)); see also Armstrong v. Executive Office of the President, 830 F.Supp. 19, 23 (D.D.C.1993) (same). A brief summary of the CIPA proceedings to date provides useful context for resolution of the issue presented.

At the outset, following a pretrial conference held pursuant to CIPA § 2, a protective order issued pursuant to CIPA § 3 governing the disclosure of classified information to defense counsel and defendants.³ United States v. Rosen, No. 1:05cr225 (E.D.Va. Sept. 19, 2005) (Protective Orders as to each defendant). Following entry of these orders, discovery proceeded, as authorized by the Federal Rules of Criminal Procedure and CIPA § 4. See also United States v. Rosen, No. 1:05cr225 (E.D.Va. Nov. 8, 2005) (ex parte, in camera, and under seal protective order pursuant to CIPA § 4 restricting discovery of some matters). Then, pursuant to CIPA § 5, defendants gave notice of their intention to introduce at trial a substantial amount of material which they reasonably expected might disclose or cause disclosure of classified material. This notice, it turned out, listed a large volume of material, in part because the indictment alleges a number of distinct elements of NDI covering a range of distinct subjects, and in part because defense counsel cannot know whether the government would assert that certain materials defendants proposed for use at trial were classified or would cause disclosure of classified information.

The next step in the CIPA process was a hearing requested by the government pursuant to CIPA § 6(a), at which the Court would begin the process of making "determinations concerning the use, relevance or admissibility of classified information that would otherwise be made during the trial...." In the course of this hearing, some of the potentially-classified material defendants sought to use at trial was ruled irrelevant and inadmissible pursuant to Rules 402 and 403, Fed.R.Evid., while a still quite substantial volume of material considered to be classified or to cause disclosure of classified material was ruled relevant and admissible at trial. United States v. Rosen, No. 1:05cr225 (E.D.Va. Jan. 17, 2007) (sealed CIPA § 6(a) Order). This hearing and these rulings began, but did not complete, the CIPA § 6 process. A further hearing is now required pursuant to CIPA § 6(c) at which the government will be afforded the opportunity to declassify the material ruled relevant and admissible at trial, or alternatively, to move that in lieu of disclosing the classified material at trial, the government be allowed to substitute for such classified `information "a statement admitting relevant facts that the classified information would tend to prove" or "a summary of the specific classified information." The government has filed such a motion with respect to a substantial volume of the classified information ruled relevant and material. The CIPA § 6(c) hearing will be closed to the public, as the government has so requested and CIPA provides that "any such hearing shall be held in camera at the request of the Attorney General." Defendants, for their part, contest the substitutions advanced by the government for approximately 38 government documents, 8 public source documents, and 22 recordings. Should the government's motion for substitutions under CIPA § 6(c) fail, the government may object to disclosure of the classified information at issue, and if the government does so, the information may not be disclosed, but in that event the Court may (i) dismiss the indictment in whole or in part, (ii) find against the United States on any issue as to which the classified information relates, or (iii) preclude a witness' testimony. See CIPA § 6(e)(1)-(2).⁴ It bears emphasis that CIPA does not authorize a trial judge to second-guess the government's decision to classify information. Nor does it authorize a trial judge to find that information is not damaging to national security if revealed. Instead, the CIPA § 6(c) inquiry focuses solely on whether the proposed substitutions afford the defendant substantially the same ability to make his defense as the specific classified information.

III.

The government has proposed a procedure for handling this material at trial and it is this proposal that is at issue here. The government's proposal is novel; no published opinion has been found or cited in which the precise procedure proposed here was judicially approved or used. Simply put, the government proposes that while the jury, the Court, and counsel will, for the most part, have access to the unredacted classified material, the public will not. Instead, the public, in the course of the trial, will see and hear only the substitutions that have passed through the CIPA § 6(c) process. In other words, and putting to one side the not insubstantial practical problems inherent in conducting a trial pursuant to the government's proposed procedure, its use would surely exclude the public from substantial and critical parts of the trial. This result is evident from a more detailed description of the proposed procedure.

The government's proposal is, in effect, a variant and a substantial expansion of the so-called "silent witness rule," a rule that has been used and judicially approved in certain, but not all circumstances.⁵ But unlike in Zettl, the procedure in this case would be used for all classified material in both the government's case and the defense case.⁶ As noted, the effect of using the procedure in this case would be the exclusion of the public from substantial portions of the trial.

The proposed procedure would work as follows: for each classified document discussed at trial, the Court, the witness, counsel, and the jurors would have the unredacted classified document in front of them, either in paper form or via computer screens viewable only by those persons. The public, however, would see only a redacted version. When counsel or a witness wishes to direct the jury to a classified portion of the document, counsel and the witness would refer to the page, paragraph and line numbers, with the Court, opposing counsel, and the jury following along, but members of the public could not follow along because they would be unaware of the specific information referenced by counsel or the witness. And, the witness answering the questions about the document would not be permitted to refer to specific language or information in the document, except by use of certain codes. For example, to rebut the government's contention that certain material is NDI, defendants will likely wish to call witnesses to compare various public source documents with the alleged NDI. To do so effectively may well require the witness to refer to specific language or contents of both the public source document and the alleged NDI. Anticipating this, the government proposes that the witness would not speak the names of certain specific countries, foreign persons, etc., but would instead use a code (e.g. "Country A," "Report X," "Foreign Person Y," "Foreign Person Z," etc.) provided also to counsel, the Court, and the jury. Moreover, this code would change...