U.S. v. Rosen

• Decision Date: 01 November 2007
• Docket Number: Criminal No. 1:05cr225.
• Citation: 520 F.Supp.2d 786
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Steven J. ROSEN and Keith Weissman.

520 F.Supp.2d 786

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

Criminal No. 1:05cr225.

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

November 1, 2007.

COPYRIGHT MATERIAL OMITTED

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

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

At issue in this Espionage Act¹ prosecution is the government's second motion pursuant to § 6(c) of the Classified Information Procedures Act (CIPA), 18 U.S.C.App. 3, to introduce certain summaries, redactions, and substitutions at trial in lieu of certain specific classified information, and to use the "silent witness rule" (SWR) with respect to portions of certain documents and recordings. After briefing on the motion, a sealed hearing was held over the course of eleven days in July, August, and September 2007,² during the course of which the Court heard argument and made rulings on, inter alit, (i) the relevance and admissibility of certain evidence under the Federal Rules of Evidence, (ii) the propriety under CIPA § 6(c) of the government's proposed redactions and summaries, and (iii) the propriety of the government's proposed use of the SWR. A sealed, classified order will record these rulings, while this memorandum opinion, which will be docketed and placed in the public record, will serve to identify and elucidate the legal principles that govern disposition of the government's motion.

I. CIPA Proceedings to Date

Defendants Steven Rosen and Keith Weissman are charged with conspiracy to violate the Espionage Act, in violation of 18 U.S.C. §§ 793(g) and (e). Rosen is also charged with one count of aiding and abetting alleged co-conspirator Larry Franklin's unauthorized disclosure of national defense information,³ in violation of 18 U.S.C. § 2, 793(d). The Superseding Indictment generally charges that defendants cultivated sources of information within the United States government, obtained or sought to obtain NDI from those sources, and disclosed that information to a variety of other individuals not authorized to receive it, including American Israel Public Affairs Committee (AIPAC) staffers, journalists, and foreign government officials.

This case involves a large volume of classified information. Discovery of such information, and its use at trial, is governed by CIPA. The preliminary stages of the CIPA process — the CIPA § 2 pre-trial conference, the CIPA § 3 protective order, and classified discovery pursuant to CIPA § 4 — are adequately described in a prior Memorandum Opinion. See United States v. Rosen, 487 F.Supp.2d 703, 706-07 (E.D.Va.2007) (Rosen VIII) (granting defense motion to strike government's CIPA § 6(c) motion).⁴ Following classified discovery, defendants filed notice pursuant to CIPA § 5 of classified information they reasonably expect to disclose, or to cause the disclosure of, at trial.⁵ At the government's request, a sealed hearing was held pursuant to CIPA § 6(a), at which the Court made preliminary relevance determinations. Some of the noticed material was ruled irrelevant, while other material was ruled relevant and passed to the CIPA § 6(c) stage.

The government then filed a motion, ostensibly pursuant to CIPA § 6(c), in which it sought application of the SWR to most of the classified information at issue in the case. The Court struck this motion in its entirety, finding, inter alia, that the government's proposed extensive use of the SWR effectively closed the trial to the public and that the government had not adequately justified this trial closure under the applicable standard of Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). See Rosen VIII, 487 F.Supp.2d at 707-21. The government has now filed a second CIPA § 6(c) motion in which the proposed use of the SWR is significantly reduced, and in which the government also proposes numerous conventional CIPA § 6(c) substitutions to be provided to the public and the jury in the same form. The motion has been fully briefed and argued, and is now ripe for resolution.

II. Applicable Law

A. CIPA

The goal of the CIPA process is to identify in advance of trial the universe of classified information to be disclosed at trial and to minimize unnecessary disclosure of classified information by use of substitutions, redactions, and summaries that do not meaningfully impair defendants' ability to present a defense. This goal is not easily attained, as it requires both prosecutors and defense counsel to disclose, well in advance of trial, certain aspects of their trial strategy, including the identity of potential witnesses and the nature and thrust of expected trial testimony and potential jury arguments. In effect, the CIPA process compels discovery well beyond that required by Rule 16, Fed.R.Crim.P. And attaining the CIPA goal is all the more difficult where, as here, the case is complex, the relevant issues and topics numerous and the volume of pertinent classified documents large by any measure. Thus, it is not surprising that the § 6(c) stage of the CIPA process has required eleven hearing days thus far and may require more.

By the time of the § 6(c) stage of the CIPA process, the universe of classified documents and testimony topics for use at trial has been previously identified. The specific goal at hand is to consider the government's second § 6(c) motion to allow certain redactions of portions of classified documents and to use in lieu thereof certain substitutions and summaries to the end of avoiding unnecessary disclosure of classified information. This motion is governed chiefly by § 6(c) itself, which, in pertinent part, provides that

The court shall grant such a motion of the United States if it 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.

The government also proposes that certain classified documents and recordings be admitted at trial in redacted form, a proposal governed by CIPA § 8(b), which, in order to prevent unnecessary disclosure of classified information, authorizes "excision of some or all of the classified information contained therein, unless the whole ought in fairness to be considered."

It is quite clear, therefore, that the touchstone of permissible CIPA § 6(e) substitutions, summaries or redactions is fairness. It is not open to the court to question or second-guess the classification status of any document or the government's request to subject parts of documents to a substitution, redaction, or summary. See Rosen. VIII, 487 F.Supp.2d at 707. Rather, the court's sole inquiry is whether a proposed substitution, redaction, or summary provides the defendants with substantially the same ability to make their defense as would the specific classified information. Further elucidation of this fairness standard is not found in either CIPA or the decided cases. The legislative history in this regard is similarly sparse, noting only that the "substantially the same ability" standard does not preclude substitutions that result in "insignificant" tactical disadvantages to the defense. See H.Rep. 96-1436, reprinted in 1980 U.S.C.C.A.N. 4307, 4310-11. In the end, each CIPA § 6(c) decision must be a careful judgment based on a clear understanding of the relevance of the classified material in issue and how it relates to the elements of the charged offenses and to a defendant's defenses. And, of course, this judgment must also be informed by a sensitivity, born of experience, to the dynamics of jury trials and to the ways in which typical jurors respond to evidence and a judge's instructions.

This discussion summarizes briefly the principles that govern disposition of the purely § 6(c) issues raised in the government's motion. But this CIPA § 6(c) discussion does not, by itself, fully describe the legal principles that control disposition of the government's motion at bar inasmuch as that motion, together with related pleadings, also seeks to use the SWR in connection with a subset of classified matters to be used at trial and also to invoke the government's common law classified information privilege.

B. The Elements of the Offenses

Given the important role the offense elements play in CIPA § 6(c) judgments, it is useful to restate those elements here in Part B notwithstanding that they have elsewhere been stated. Defendants are charged under § 793(g) with conspiracy to obtain and disclose NDI to persons not authorized to receive it; they are not charged under § 793(d) or (e) with the substantive disclosure offense itself. The Fourth circuit has explained that the elements of a conspiracy are "an agreement among the defendants to do something which the law prohibits; knowing and willing participation by the defendants in the agreement; and an overt act by the defendants in furtherance of the purpose of the agreement." United States v. Hedgepeth, 418 F.3d 411, 420 (4th Cir.2005) (internal citations omitted and emphasis added). It is also black letter law that to prove a conspiracy, the government (i) need not prove all the elements of the underlying substantive offense,⁶ (ii) need not prove all the objects of a multiple object conspiracy, only one object,⁷ (iii) need not prove all the overt acts alleged, only that one conspirator committed one overt act alleged,⁸ and (iv) need not prove that the overt act is independently criminal, that is, the overt act may be "innocent when considered alone" so long as it "is knowingly committed by a conspirator in an effort to accomplish some object of the conspiracy."⁹

Based on these principles, the government has argued that it need not prove that defendants actually obtained or disclosed NDI, or that any individual to whom they actually disclosed NDI was not authorized to receive it. This argument reflects an...