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                                   EASTERN DISTRICT OF VIRGINIA
                                       Alexandria Division

                  UNITED STATES OF AMERICA,            )
                                        Plaintiff,     )
                        v.                             )   CRIMINAL ACTIONS
                  LAWRENCE ANTHONY FRANKLIN,           )   1:05-cr-225
                                                       )   1:05-cr-421
                                        Defendant.     )

                                      REPORTER'S TRANSCRIPT

                                         MOTIONS HEARING
                                     (Reduction of Sentence)

                                 (PROCEEDINGS HELD IN OPEN COURT)

                                     Thursday, June 11, 2009


                  BEFORE:       THE HONORABLE T.S. ELLIS, III

                                BY:  NEIL HAMMERSTROM, AUSA
                                     THOMAS REILLY, AUSA

                                   For the Government

                                PLATO CACHERIS, ESQ.
                                JOHN HUNDLEY, ESQ.

                                   For the Defendant


                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR
                                     Official Court Reporter
                               USDC, Eastern District of Virginia
                                       Alexandria, Virginia

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                                 INDEX


            3     PRELIMINARY MATTER RE:  SEALING                          4

            4           (Portion under seal under separate transcript)

            5     RECAPITULATION BY THE COURT                              8

            6     ARGUMENT BY THE GOVERNMENT                               8

            7     ARGUMENT BY THE DEFENDANT                               14

            8     ALLOCUTION BY THE DEFENDANT                             23


                        (Court adjourned)

           12                                  ---














                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                              PROCEEDINGS


            3                  (Court called to order at 5:45 p.m. in USA v.

            4     Franklin.)

            5                  THE COURT:  All right.  This is United States

            6     against Franklin.

            7                  What is the number of the case?

            8                  THE CLERK:  Case number 05 criminal 225, and

            9     case number 05 criminal 421.

           10                  THE COURT:  All right.

           11                  Who is here on behalf of the government?

           12                  ATTORNEY HAMMERSTROM:  Good afternoon, your

           13     Honor.  Neil Hammerstrom and Thomas Reilly for the United

           14     States.

           15                  THE COURT:  All right.  Good afternoon.

           16                  Mr. Cacheris, you are here on --

           17                  ATTORNEY CACHERIS:  And John Hundley, your

           18     Honor.

           19                  THE COURT:  And John Hundley, on behalf of --

           20                  ATTORNEY HUNDLEY:  Good afternoon.

           21                  ATTORNEY CACHERIS:  On behalf of Mr. Franklin,

           22     who is also present.

           23                  THE COURT:  -- of Mr. Franklin.

           24                  Good afternoon, Mr. Franklin.

           25                  THE DEFENDANT:  Good afternoon.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                    PRELIMINARY MATTER RE:  SEALING

            2                  THE COURT:  The first order of business is that

            3     I want to be sure this hearing is open.  I saw everything

            4     filed under seal, but I see no reason for these pleadings to

            5     be under seal, Mr. Hammerstrom.

            6                  ATTORNEY HAMMERSTROM:  There very much is a

            7     reason for ours to be under seal, your Honor.

            8                  THE COURT:  All of it?

            9                  ATTORNEY HAMMERSTROM:  Virtually all of it.

           10                  THE COURT:  Why?

           11                  ATTORNEY HAMMERSTROM:  Well, I can tell you,

           12     but I can't tell you in open court.  I am happy to come up

           13     to the bench.

           14                  THE COURT:  All right.  We will do it in that

           15     fashion.

           16                  ATTORNEY HAMMERSTROM:  And I also would like to

           17     address a few points in Mr. Cacheris' pleading, and that, of

           18     course, is under seal.  And what I want to address is a

           19     sealed matter, as well.

           20                  ATTORNEY CACHERIS:  Our position is it should

           21     be unsealed, and the hearing should be open, your Honor.

           22     That's our position.

           23                  THE COURT:  All right.

           24                  Mr. Lowell, you are here.

           25                  ATTORNEY LOWELL:  I am, sir.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  THE COURT:  You were counsel in this case.

            2                  ATTORNEY LOWELL:  I was.

            3                  THE COURT:  All right.

            4                  I will consider at the bench whether it should

            5     be closed.

            6                  I also want to hear from Mr. Hammerstrom

            7     whether you should be excluded.  You will be excluded from

            8     the bench conference, but I have in mind that you are here

            9     and that you wish to be here.

           10                  And who are the other gentlemen with you?

           11                  ATTORNEY CACHERIS:  David Charney (phonetics);

           12     he is a local psychiatrist that I have asked to be here,

           13     your Honor.

           14                  THE COURT:  All right.

           15                  And?

           16                  The other gentlemen?

           17                  UNIDENTIFIED SPEAKER:  I am a friend of

           18     Mr. Franklin.

           19                  THE COURT:  All right, sir.  That's fine.

           20     That's fine.

           21                  Well, let's have counsel come to the bench.  I

           22     need to consider first whether it's an open or a closed

           23     hearing.

           24                  (Sidebar conference held as follows:)

           25                  THE COURT:  Actually, let's exclude everybody,

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     so I can sit down, and do it that way.

            2                  ATTORNEY HAMMERSTROM:  Okay.

            3                  THE COURT:  All right.

            4                  (End of sidebar conference, open court as

            5     follows:)

            6                  THE COURT:  Let me ask Mr. Lowell, would you

            7     and the other gentleman leave.

            8                  And the other two gentlemen seated here are

            9     interns in my chambers, and they may remain.  And we will

           10     deal with this in open court.

           11                  We will get back to you just as quickly as we

           12     can --

           13                  ATTORNEY LOWELL:  Thank you, Judge.

           14                  THE COURT:  -- on the result.

           15                  (Courtroom closed in USA v Franklin.)

           16                                  ---

           17                  (Proceedings held under seal under separate

           18     transcript.)

           19                                  ---

           20                  (Proceedings resume in open court at 6:08 p.m.

           21     in USA v. Franklin.)

           22                  THE COURT:  We have added a body here.

           23                  All right.  The hearing is now public.  It's

           24     open to the public.

           25                  For the public, I should advise the public that

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     the pleadings in this matter were filed under seal.  I

            2     issued an order today requiring the parties, when they

            3     arrived today, to give me reasons why the pleadings should

            4     remain under seal, or why this hearing should be under seal.

            5                  We have now had a closed hearing about that.

            6     And as a result of that, I have ordered that the government

            7     file its pleading redacted for certain matters.  And the

            8     redactions will be noted in the public record as to what --

            9     where the redactions are.  The rest of it will be, will be

           10     in the public record.  It is important that as much as

           11     possible of anything any court does should be open to the

           12     public.

           13                  Now -- and the defendant's brief also had a

           14     short piece that I concluded, after hearing argument, should

           15     be under seal.  And the defendant will file a redacted

           16     public version.

           17                  And I have also heard brief -- well, at least I

           18     have had some statement of it.  It's fairly well explicated

           19     in the briefs.  So I have heard information about that.

           20                  And I have also indicated that if, in the

           21     course of the argument that I hear on this matter, that it

           22     becomes necessary in either party's view to get into these

           23     sensitive matters, to let me know, and I will consider

           24     whether I agree that they are, or are not, sensitive.

           25                  So, as of now, the hearing is open.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                      RECAPITULATION BY THE COURT

            2                  THE COURT:  This matter is before the Court on

            3     a motion for reduction of sentence pursuant to Rule 35.  The

            4     parties have filed their memoranda.

            5                  And I did receive, Mr. Cacheris, the additional

            6     memorandum, which I think you sent just to include the

            7     additional letter.

            8                  ATTORNEY CACHERIS:  That's correct; just one

            9     letter.

           10                  THE COURT:  Yes.  And I have reviewed that

           11     letter, as I have the other attachments.

           12                  None of the attachments to your memoranda are

           13     anything I have required to be sealed.

           14                  All right.  Now, I am prepared to hear any

           15     argument the parties want to offer on this, legal or

           16     factual.  And if you feel that you do have to get into

           17     sensitive matters, either because I ask a question or

           18     because you feel it's necessary, don't hesitates to let me

           19     know.

           20                  All right.  It's your motion, Mr. Hammerstrom.

           21     You may go first.

           22                      ARGUMENT BY THE GOVERNMENT

           23                  ATTORNEY HAMMERSTROM:  Your Honor, we have

           24     pretty much laid out all of the cooperation, the full extent

           25     of Mr. Franklin's cooperation.  And certainly, had he not

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     proactively cooperated early on in the investigation, we

            2     would not have been able to go forward on another

            3     significant case.

            4                  That said, Mr. Franklin was not what you would

            5     say is an ideal cooperator.  I know the Court has had

            6     hundreds and hundreds of Rule 35 motions brought before it.

            7     In many cases you see a cooperator, from day one, cooperate

            8     fully, a hundred percent, give everything they've got, and

            9     never look back.

           10                  And there were problems with Mr. Franklin.

           11     From the day that he entered his plea, we went through -- as

           12     you will recall from the extensive hearings in the Rosen and

           13     Weissman case, we had something that's called the

           14     Jakooz (phonetics) list.  And that was something that was a

           15     subject of overt acts in the indictment.

           16                  And we went through that with Mr. Franklin in

           17     preparation --

           18                  THE COURT:  Is that referred to by name in the

           19     indictment?  I don't recall.

           20                  ATTORNEY HAMMERSTROM:  I don't recall, either.

           21                  THE COURT:  So I think even referring to it in

           22     that fashion probably isn't -- is that classified?

           23                  ATTORNEY HAMMERSTROM:  I don't think that name

           24     is.  It's certainly not going to --

           25                  THE COURT:  Well, Emile Zola's use of it

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     probably isn't.  But this was not Emile Zola that you are

            2     referring to.  So -- (laughs).

            3                  And, of course, we don't reach today whether

            4     any of this should have been classified.  That's not the

            5     Court's task, or it's not my prerogative to say what should

            6     be classified or not.

            7                  But go ahead.

            8                  ATTORNEY HAMMERSTROM:  Well, in discussing that

            9     particular incident with Mr. Franklin in preparation for the

           10     plea, and during debriefings, we pointed out to him that of

           11     that information, some of those bullets, were classified.

           12     And, in fact, he had gotten that information over a secure

           13     system from a colleague of his in the intelligence

           14     community.

           15                  And when we told him that this classification

           16     authority had looked at this list and determined that a

           17     couple of these bullets were, in fact, classified,

           18     Mr. Franklin immediately said, "Well, if he" -- knowing this

           19     person very well -- "if he says they are classified, they

           20     are classified."  And he signed a statement of facts to that

           21     effect.

           22                  And then he appeared up in open court when we

           23     entered the plea.  And when I was reciting the -- or

           24     summarizing the statement of facts, when I got to that

           25     portion and I said the government would prove that this

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     information was classified, Mr. Franklin audibly spoke up,

            2     "Not a chance."

            3                  And then I said, trying to -- try to get him to

            4     come around, I said, "Well, the government would prove

            5     that," you know, for some reason, if he didn't agree with

            6     this.

            7                  And he said, "It's not classified."

            8                  And I went to the website the other day, to a

            9     Google website, and that statement he made and that whole

           10     recitation appeared in numerous articles around -- around

           11     that time.

           12                  That's not an ideal cooperator, to make a

           13     statement like that after he has already agreed that the

           14     information is, in fact, classified, and that he has signed

           15     a statement of facts to that -- to that effect.

           16                  My point of bringing this all up is that

           17     it's -- you have to balance those things against the good he

           18     did.  And there are a number of good things he did.  There

           19     is no question about it.

           20                  And you have to keep that separated from the

           21     hardships he has endured.  I think the hardships, the

           22     financial strain, the condition of his wife, those are

           23     factors the Court should consider under 3553.  We don't

           24     dispute that.

           25                  Our recommendation is based solely on the

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     extent of the cooperation, and that and other -- the factors

            2     that we outlined in the memorandum.

            3                  THE COURT:  Yes.

            4                  ATTORNEY HAMMERSTROM:  And I --

            5                  THE COURT:  I take it, however, the Court can

            6     consider the 3553(a) factors?

            7                  ATTORNEY HAMMERSTROM:  Certainly.  Certainly.

            8     And we don't dispute that.  And we told Mr. -- I told

            9     Mr. Cacheris that when we met, when we discussed this

           10     recommendation.

           11                  Obviously, he was very upset that our

           12     recommendation wasn't higher, and rightfully so.  I can

           13     understand that, because of Mr. Franklin's background.

           14                  We have had four years of litigation, in which

           15     Mr. Franklin has worked a number of odd jobs, as

           16     Mr. Cacheris points out in his pleading.

           17                  But obviously, if he had been in jail during

           18     this time, he would have had no income coming in.  And there

           19     are a lot of cooperators who wait their time sitting in jail

           20     or federal prison before any Rule 35 is filed.

           21                  I also ask the Court to keep -- to put

           22     something in perspective here, in the last four years there

           23     has been a lot of emphasis on the Rosen and Weissman case.

           24     But you have to really look at that case and look at

           25     Mr. Franklin's role to see how critical his role was in the

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     scheme of things.

            2                  In many ways he was a more significant violator

            3     than Rosen and Weissman ever were alleged to be, because he

            4     was the government employee who signed nondisclosure

            5     agreements, who was tasked and held responsible for keeping

            6     the secrets of the United States, or the intelligence

            7     community, and he is the one that violated it.

            8                  And if you don't have people like Mr. Franklin

            9     in government doing that, you don't have people passing

           10     classified information.  It all starts with the people that

           11     have the classified information and have the responsibility

           12     to hold it secure and not reveal it to people not entitled

           13     to receive it.

           14                  And I think that's a very important factor in

           15     this case, because -- we can't lose sight of that.

           16                  Mr. Franklin doesn't come before the Court with

           17     clean hands, too.  If you recall from the presentence

           18     report -- in fact, I think it was paragraph 56 -- in 1997,

           19     when he was an employee of the DIA, he was investigated and

           20     admitted approximately 16 times taking classified documents

           21     home.  And he got a reprimand.  He got censured, and

           22     something was put in his personnel file.

           23                  But look what happened -- fast-forward to the

           24     time he was charged in this case:  He had 80-some classified

           25     documents at his home out in West Virginia, and 30-some of

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     those were top secret.

            2                  So, this is -- this is -- and again, we

            3     appreciate the cooperation he gave the government, but this

            4     needs to be balanced with the fact that you have before you

            5     an individual that just can't seem to follow the law when it

            6     comes to protecting classified information.

            7                  So I think the Court needs to balance that with

            8     the good that he has done and the cooperation that he has

            9     provided.

           10                  Thank you.

           11                  THE COURT:  All right.

           12                  Mr. Cacheris.

           13                       ARGUMENT BY THE DEFENDANT

           14                  ATTORNEY CACHERIS:  Well, your Honor, I am very

           15     surprised at the position that the government has taken on

           16     Mr. Franklin.

           17                  In their motion to reduce the sentence, they

           18     say he was, quote, "a substantial factor into bringing the

           19     case against Rosen and Weissman."  That's their words.

           20                  They say that the best evidence in the case

           21     involving false statements by the other defendants came from

           22     Mr. Franklin.

           23                  He was proactive.  He wore a wire.  He did

           24     everything the government wanted him to do for a period of

           25     four (sic) months, from July through September '04.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     Everything they wanted him to do, he did.

            2                  They didn't complain then that he had

            3     classified documents in his house, or that he had previously

            4     been reprimanded for having classified documents.  No.  They

            5     didn't complain then.  They used him.  They used him over

            6     and over and over.  And he was without counsel during that

            7     period of time, your Honor.

            8                  Other cases he gave them -- and we won't go

            9     into the sensitive cases that the Court has excluded, but he

           10     has given them other cases involving people who cannot come

           11     into this country.

           12                  He has given them criminal cases.  He was also

           13     approached --

           14                  THE COURT:  You are referring to the West

           15     Virginia matter.

           16                  ATTORNEY CACHERIS:  That's one; and another one

           17     about somebody that came to tamper with Mr. Franklin, to

           18     have him, in effect, disappear, and he immediately reported

           19     that to the government.

           20                  The complaints --

           21                  THE COURT:  Let me ask, while we are on it -- I

           22     need to ask Mr. Hammerstrom.

           23                  What has come of the West Virginia one, if you

           24     know?

           25                  ATTORNEY HAMMERSTROM:  Are you talking, your

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     Honor, about the -- when he was approached right before

            2     entering his plea?

            3                  THE COURT:  No, sir.

            4                  ATTORNEY CACHERIS:  No.

            5                  THE COURT:  I am talking about the information

            6     he provided with respect to drug trafficking, based on

            7     people coming to him for help.

            8                  He wasn't involved in it at all, but he, in

            9     effect, was the person who managed to get somebody to pay

           10     attention to this problem, is, I think, what it was.

           11                  Is that right, Mr. Cacheris?

           12                  ATTORNEY CACHERIS:  That's correct, your Honor.

           13                  ATTORNEY HAMMERSTROM:  The Court's indulgence.

           14                  THE COURT:  But that matter is not under seal

           15     in any way.

           16                  ATTORNEY CACHERIS:  No.

           17                  ATTORNEY HAMMERSTROM:  No, that is not.  There

           18     was no federal involvement in that case.

           19                  THE COURT:  Right.

           20                  But you may not -- and I can understand why you

           21     may not know.

           22                  Maybe Mr. Cacheris knows.

           23                  ATTORNEY CACHERIS:  We just gave them the

           24     information, your Honor.  We don't know what they did with

           25     it.  Mr. Franklin was not involved in the case in the sense

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     that he was a participant.  But he was a -- gave them the

            2     information.

            3                  (Counsel conferring.)

            4                  ATTORNEY CACHERIS:  I am told by Mr. Hundley

            5     that he knows there were arrests, but we do not know the

            6     outcome of the case.

            7                  THE COURT:  And just so that we are very clear

            8     about this, Mr. Franklin was not involved in the activity in

            9     any way.

           10                  ATTORNEY CACHERIS:  That's correct.

           11                  THE COURT:  It was just people who came to him

           12     and asked him for help.

           13                  ATTORNEY CACHERIS:  Right.

           14                  ATTORNEY HAMMERSTROM:  Your Honor, it's our

           15     understanding that a search was conducted based on the

           16     information and drugs were recovered.  But we don't know

           17     what the outcome of the case was.

           18                  THE COURT:  Thank you.  That's helpful.

           19                  Go ahead, Mr. Cacheris.

           20                  ATTORNEY CACHERIS:  So, your Honor, he has done

           21     a substantial amount of cooperation.

           22                  Now, the government has seen fit to drop the

           23     case against Rosen and Weissman, and that's their right.

           24     But it smacks of vengeance to try to ask this Court to

           25     impose an eight-year sentence on Mr. Franklin, because it's

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     just not justified, in my opinion.

            2                  In fact, as I say, their complaints, I think,

            3     are nit-picking:  The off-the-script comment, the "no way"

            4     statement, the fact that he refused, at the end of the day,

            5     to plead to 794, having been four months without counsel,

            6     and they confronted him for the first time and said, "Now,

            7     Mr. Franklin, we are going to give you a lawyer and you're

            8     going to plead guilty to 794," the more serious of the

            9     espionage charges.

           10                  It was at that point that he decided that he

           11     should seek other counsel.  And we advised him not to plead

           12     to 794, your Honor.  It was our advice.  And for that

           13     reason, he stopped --

           14                  THE COURT:  Well, I'm not sure any of this is

           15     really important --

           16                  ATTORNEY CACHERIS:  Well --

           17                  THE COURT:  -- but let me be sure the facts are

           18     right.

           19                  Is that your view, Mr. Hammerstrom, as to what

           20     happened?  Briefly.

           21                  ATTORNEY HAMMERSTROM:  It is not, your Honor.

           22     I mean, it's close, but it's not exactly right.

           23                  THE COURT:  What's the only distinction?

           24                  ATTORNEY HAMMERSTROM:  The distinction is that

           25     he had previous counsel, and we he had proposed a 794 plea.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     He turned that down.  He retained Mr. Cacheris.  We met with

            2     Mr. Cacheris.  We ended up modifying our plea offer to 793,

            3     and he rejected that and took us through two indictments, a

            4     first indictment and a superseding indictment.

            5                  THE COURT:  All right.

            6                  ATTORNEY HAMMERSTROM:  That was after we had

            7     offered the 793 plea.

            8                  THE COURT:  All right.

            9                  Go ahead, Mr. Cacheris.

           10                  ATTORNEY CACHERIS:  And it was because of

           11     counsel advising Mr. Franklin what position he should take,

           12     again remembering that for four months he was without

           13     counsel and he was guideless in this whole situation.

           14                  He has had -- and, your Honor, the government

           15     has agreed that you should consider his exemplary life.  He

           16     has served his country both as a civilian in the Department

           17     of Defense and as a military man, as a colonel.

           18                  He has, since 2006, when this 12-year sentence

           19     was imposed, I suggest to the Court he has been essentially

           20     under home detention.  He has paid his penalty, and he has

           21     suffered greatly.

           22                  He brought the case.  The government rejected

           23     the case after a while, but it was not because of anything

           24     Mr. Franklin did.

           25                  They can talk all they want to about they may

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     not call him as a witness, but I suspect Mr. Franklin would

            2     have been a witness, and would have been entitled to the

            3     benefits of that.

            4                  So, for four and a half years, essentially,

            5     with some modifications, he has been cooperating.

            6                  The generosity that the government has shown to

            7     Rosen and Weissman is not being shared with Mr. Franklin.

            8     And we think that's wrong.  So --

            9                  THE COURT:  I don't think the government would

           10     characterize what they did as an act of generosity.

           11                  ATTORNEY CACHERIS:  I characterize it as an act

           12     of generosity.  Whatever they did, they did.  But they were

           13     the principals that they were asking Franklin to bring.

           14     Franklin brought them.

           15                  And then Franklin had nothing to do with the

           16     government's -- if I may use the word again -- generosity

           17     with regard to Rosen and Weissman.  He had nothing to do

           18     with that.

           19                  So we suggest to the Court, the fact that he

           20     has lived under this eight-year -- eleven-year sentence,

           21     twelve-year sentence since January 2006, over three and a

           22     half years now, is punishment enough.  We don't think any

           23     further punishment is warranted.

           24                  And for the Court -- we are beseeching the

           25     Court, asking the Court to consider giving him no sentence

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     at all, or at least a halfway house or something --

            2                  THE COURT:  Well, let me ask you this,

            3     Mr. Cacheris.  I don't usually listen to allocution by a

            4     Defendant on Rule 35 --

            5                  ATTORNEY CACHERIS:  I understand.

            6                  THE COURT:  -- but I would do so, if he

            7     requests it.

            8                  ATTORNEY CACHERIS:  He does.

            9                  THE COURT:  All right.

           10                  I want to be clear, because I have clearly in

           11     mind what he did.  And I understand your argument that he

           12     did he it out of a strong feeling of patriotism for his

           13     country.

           14                  ATTORNEY CACHERIS:  That's correct.

           15                  THE COURT:  Namely, he had a strong view about

           16     the position that the government should take with respect to

           17     Iran, and that failure to take that position would be

           18     harmful, detrimental, dangerous to the United States; and

           19     that the essential way to do this is to leak information to

           20     individuals who would pass it on to people who could do

           21     battle with those forces within the United States Government

           22     that had a different view.

           23                  ATTORNEY CACHERIS:  Correct.

           24                  THE COURT:  Now, I am going to ask him in a few

           25     minutes, does he understand why that's wrong?

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  ATTORNEY CACHERIS:  Well, that's why he entered

            2     his plea, your Honor.  He does understand it's wrong.

            3                  THE COURT:  Well, the fact you think you are

            4     doing the best thing for your country doesn't give you a

            5     license to violate the law.

            6                  ATTORNEY CACHERIS:  That's correct.  We don't

            7     disagree with that.

            8                  On the other hand, the fact that he has done so

            9     much for the United States Government should be a factor

           10     that grants him more than a mere --

           11                  THE COURT:  I understand that.

           12                  ATTORNEY CACHERIS:  -- 35 percent reduction.

           13     That's where we come from.

           14                  THE COURT:  So, I take it when he allocutes, he

           15     would respond that however well-established some people

           16     might feel this back-channel process is, that he now

           17     understands in spades that it's a violation of the law.

           18                  ATTORNEY CACHERIS:  Yes, your Honor.  He will

           19     say that to you.

           20                  And of course, as you know, as a result of this

           21     conviction he will never have a security clearance again.

           22     He will never be in a position to do anything like this

           23     again, ever.

           24                  Because look at what he has been doing.  He has

           25     been unable to find a meaningful job.  He has been digging

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     ditches.  He has been cleaning cesspools, et cetera, et

            2     cetera.  We have detailed all that in our motion.

            3                  So if you want to hear from him, your Honor, we

            4     will have Mr. Franklin answer the question.

            5                  THE COURT:  Well, that's not -- if I have a

            6     request, I will think about it.  But I don't typically hear

            7     from defendants on Rule 35.

            8                  I'm going to give Mr. Hammerstrom an

            9     opportunity, of course, to respond what you and --

           10                  ATTORNEY CACHERIS:  Very good.

           11                  THE COURT:  -- what Mr. Franklin have said.

           12                  Mr. Franklin, do you wish to be heard?  You are

           13     not required to say anything, if you don't wish to.

           14                  THE DEFENDANT:  Yes, your Honor, I do.

           15                  THE COURT:  All right.  Come to the podium.

           16                  THE DEFENDANT:  (Complied.)  Okay to go?

           17                  THE COURT:  Yes, you may proceed.

           18                      ALLOCUTION BY THE DEFENDANT

           19                  THE DEFENDANT:  God is present in the

           20     conscience of everyone in this courtroom, and, your Honor,

           21     God is my witness that what I say here is true, is simple

           22     truth.

           23                  I want to just say that I am grateful to be in

           24     such a court in a country where the rule of law and the

           25     respect for human rights is (sic) vibrant, because I have

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     been in many countries around the world many needs where

            2     neither respect for law -- there is neither respect for law

            3     or rights.

            4                  I just want to express so gratitude --

            5                  THE COURT:  You feel the rule of law is

            6     important.

            7                  THE DEFENDANT:  Yes, sir.

            8                  THE COURT:  You are right.  And what follows

            9     from that?

           10                  THE DEFENDANT:  Well, sir, I -- can I --

           11                  THE COURT:  You want to do it in your order.

           12                  THE DEFENDANT:  Is that all right?

           13                  THE COURT:  That's all right.  But you --

           14                  (Simultaneous discussion.)

           15                  THE DEFENDANT:  I will answer --

           16                  THE COURT:  -- know what --

           17                  THE DEFENDANT:  -- that question.

           18                  THE COURT:  -- I'm getting at.  I have lived in

           19     countries where there isn't rule of law.  I was born in one.

           20                  THE DEFENDANT:  Okay.

           21                  THE COURT:  And what really matters is that

           22     government officials obey the law.

           23                  THE DEFENDANT:  That is correct, sir.

           24                  THE COURT:  All right.  Go on.

           25                  THE DEFENDANT:  I want to just --

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  THE COURT:  Now --

            2                  THE DEFENDANT:  -- just thank --

            3                  THE COURT:  -- I think this individual is a

            4     member of the press, and pretty soon I will get letters from

            5     everywhere, angry letters from several countries I have

            6     lived in, complaining --

            7                  (Laughter.)

            8                  THE COURT:  -- that I have said they don't have

            9     rule of law.  And I suppose that's all right.  And it's

           10     true.

           11                  Go ahead.

           12                  THE DEFENDANT:  I want --

           13                  THE COURT:  You don't live in a country where

           14     la mordida is what really matters.  That's "the bite."

           15                  Go ahead, sir.

           16                  THE DEFENDANT:  I want to thank --

           17                  THE COURT:  But I will get angry letters.

           18                  (Laughter.)

           19                  THE DEFENDANT:  I just want to express my

           20     gratitude for the generosity that beats in the heart of

           21     Plato Cacheris.  And it's through his efforts and the

           22     efforts of John Hundley and others in the firm of Trout and

           23     Cacheris, who gave me the full measure of their assistance

           24     and never asked for a dime.

           25                  His assistance and that of Dr. Charney helped

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     me maintain my internal equilibrium so that I could

            2     discharge, during these five years, my duties to -- as a

            3     husband and a father.

            4                  I also want to thank those who stood by me who

            5     are not here, whose strength of character and commitment to

            6     friendship and, in some cases, acts of courage, were like

            7     oxygen for me.

            8                  Now, Judge Ellis, I fully admit to serious

            9     errors in judgment, and accept full responsibility --

           10                  (Simultaneous discussion.)

           11                  THE COURT:  Well, let's --

           12                  THE DEFENDANT:  -- for violations --

           13                  THE COURT:  -- be clear --

           14                  THE DEFENDANT:  -- of the law --

           15                  THE COURT:  Let's be clear, Mr. Franklin,

           16     because words are important.

           17                  THE DEFENDANT:  Yes, your Honor.

           18                  THE COURT:  "Errors," and "errors in judgment"

           19     are somewhat euphemistic.  You know, an error is like

           20     putting on the wrong color tie.  Or an error in judgment is

           21     like throwing something in the washing machine that should

           22     only be dry cleaned.  Those are all within "errors" and

           23     "errors in judgment."

           24                  We are talking about crimes.

           25                  THE DEFENDANT:  And I accept full

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     responsibility.

            2                  THE COURT:  All right.  I just want you to be

            3     clear.  Sometimes we use euphemisms to disguise the full

            4     weight, and I don't want that to be lost on you.

            5                  THE DEFENDANT:  It is not, sir.

            6                  THE COURT:  All right.  Go on.

            7                  THE DEFENDANT:  And neither have the

            8     consequences for my action s been lost on me, sir.

            9                  I especially apologize to those colleagues who

           10     were subjected to unwarranted and unwanted scrutiny.  And

           11     the fact that I acted with incredible naiveté does not

           12     negate my culpability, for which I have contrition.

           13                  However, I want to inform the Court and my

           14     fellow citizens who are not present that my intentions were

           15     always motivated by love for our republic and for the safety

           16     of our military personnel that were about to go into Iraq.

           17                  And it is because of that love of our American

           18     republic, fostered by my own upbringing and admiration for

           19     the uniqueness in the annals of history that America is,

           20     that I foolishly and wrongfully entrusted sensitive

           21     information to people who were not authorized to receive it.

           22                  Once I illegally uttered those few sentences, I

           23     lost control over where that information might go.  It no

           24     longer mattered that my intentions were pure.

           25                  And ironically, I didn't know that Mr. Rosen

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     and Mr. Weissman were with AIPAC until I had met them.  I

            2     had never been to AIPAC.  I didn't even know where it was

            3     located.  I thought that this information would only go to a

            4     particular NSC source, who had responsibility for that

            5     action.  And I was wrong.

            6                  THE COURT:  The meeting was arranged by

            7     Mr. McCoskey?

            8                  THE DEFENDANT:  Yes, sir.

            9                  THE COURT:  All right.  Go on.

           10                  THE DEFENDANT:  And I had rationalized at that

           11     time that it was the right thing to do, even though I knew

           12     it was illegal.

           13                  Earlier, I said that I have accepted and

           14     endured the consequences of my rash actions.  The most

           15     painful consequences of my behavior involve the erosion of

           16     integrity in my own family, the emotional impact on our

           17     youngest son, and the precipitous decline in my own beloved

           18     wife's health.

           19                  And there is one other consequence that I will

           20     regret until the day I die, sir, and that is my father, the

           21     hero, veteran of World War II, patriarch of the family, died

           22     perplexed as to my status.  This is the most unsettling

           23     consequence of all for me.

           24                  And so I am asking you, Judge Ellis, to temper

           25     justice with mercy, and not for my sake, but for the sake of

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     my wife.  That is why I am begging your indulgence.

            2                  In closing, I profoundly regret, every day in

            3     these past years, that I have not been permitted, because of

            4     my actions, to employ my expertise to help our country.

            5                  Even if I could have saved one life, it would

            6     have worth it.  As in my study at home, all the walls are

            7     filled with the faces of our fallen.  I want to help prevent

            8     other American families from enduring the loss of a loved

            9     one.

           10                  Whatever the outcome of this hearing, I am

           11     ready to contribute, and will, all my professional skills to

           12     that end.

           13                  So I am asking you, Judge Ellis, not to make my

           14     sentence too lengthy, so that I can spend the rest of my

           15     days attending to my wife's medical needs, but also to

           16     instructing our nation 's youth as to the danger that our

           17     civilization faces from those who would replace us.

           18                  THE COURT:  You are no longer teaching at

           19     Shepherd, are you?

           20                  THE DEFENDANT:  No, sir, I am not.  But I --

           21                  THE COURT:  Well, I am very interested -- go

           22     ahead.

           23                  THE DEFENDANT:  I -- when -- the president of

           24     Shepherd said that upon completion of my obligation with the

           25     government, they would rehire me.  And I have written a

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     book, which is not published yet, which is directed to the

            2     American youth, as to the threat of radical Islam and

            3     terrorism.  And everything I say in there is based upon my

            4     own experience.

            5                  THE COURT:  I am much more interested,

            6     Mr. Franklin, not in your views about the threat of radical

            7     Islam, but in your understanding now of the importance of

            8     the rule of law insofar as it applies to government

            9     officials obeying the law.

           10                  Don't you think that's important to tell the

           11     youth about?

           12                  THE DEFENDANT:  Absolutely, sir.  And I have

           13     told my class about that, the one, when I did teach at

           14     Shepherd, that what I had done was wrong.

           15                  THE COURT:  All right, sir.

           16                  Do you have anything else?

           17                  THE DEFENDANT:  No, sir.

           18                  THE COURT:  All right.

           19                  Mr. Cacheris, do you have anything you want to

           20     add?

           21                  And I will --

           22                  ATTORNEY CACHERIS:  Nothing further --

           23                  THE COURT:  -- ask Mr. --

           24                  ATTORNEY CACHERIS:  -- your Honor.

           25                  THE COURT:  All right.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  Mr. Hammerstrom?

            2                  ATTORNEY HAMMERSTROM:  We will rest on the

            3     papers, your Honor.

            4                  THE COURT:  I am going to take a few minutes

            5     more to reflect on this, but I want to make some remarks.

            6                  (Pause.)

            7                         RULING ON MOTION AND

            8                  IMPOSITION OF SENTENCE BY THE COURT

            9                  THE COURT:  I have been reflecting on this for

           10     weeks.  Indeed, I issued an order that said -- after I

           11     dismissed the charges against Rosen and Weissman, I issued

           12     an order requiring the government to let me know what --

           13     whether there were any motions with respect to Mr. Franklin.

           14     I didn't limit it to Rule 35.  I said "any motions," I

           15     think.

           16                  So this has long been in my thoughts.  And when

           17     I received your briefs, I read those carefully and thought

           18     about them.  And I have heard your arguments.

           19                  It's a very difficult unusual situation.

           20     Mr. Hammerstrom is absolutely right.  I have seen hundreds

           21     of these things over the past 20-plus years, going into my

           22     23rd.  But this one is unique in many respects, chiefly, of

           23     course, because of the context and because of the fact that

           24     the government, for its own reasons, decided to discontinue

           25     the case against Rosen and Weissman.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  It is not the judiciary's business whom to

            2     prosecute and what they should be prosecuted for.  It is not

            3     the judiciary's business to decide when to proceed and to

            4     continue with a prosecution and when not to do so.  Those

            5     issues are entirely up to the discretion of the Executive

            6     Branch, and I express no view about that.

            7                  The only time I have expressed views about that

            8     is when the Executive Branch makes decisions to use judicial

            9     resources in a way that, really, I cannot stand by.  And

           10     that's only happened once, and that was in connection with

           11     Lorton.

           12                  If some of you may recall, I thought Lorton was

           13     a disgrace, and said so on the front page of one of these

           14     newspapers.  The only solution to Lorton is what occurred:

           15     to close.  It was a disgrace.

           16                  But we would receive a ton of cases over here

           17     involving assaults within Lorton, on inmate on inmate.  And

           18     there is an internal grievance proceeding.  So I sat on

           19     several cases, case after case after case, in which one

           20     inmate -- they would prosecute one inmate for an assault by

           21     another.

           22                  And so you had groups of inmates who would come

           23     in and testify.  And the jury would scratch their heads and

           24     say:  How can we determine whom to believe when they are all

           25     felons, and they don't look like very reputable folks.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  And after a while, that seemed to me to be a

            2     waste of judicial resources.  That's the only time that the

            3     judiciary -- that I have, as a judge, interfered with the

            4     government's decision of whom to prosecute, whom not to

            5     prosecute, when to continue or not to continue.

            6                  So I don't express any view about the

            7     discontinuing of the Rosen and Weissman case.

            8                  However, it is significant, in the context of

            9     Mr. Franklin, that it was discontinued.

           10                  Having said that, however, I don't have any

           11     doubt -- and Mr. Franklin has made clear that he doesn't

           12     doubt, and Mr. Cacheris does not contest, that Mr. Franklin,

           13     in what he did, violated the law.

           14                  Whether it was specifically 792 or something

           15     else is something maybe for dispute.

           16                  The main issue in Rosen and Weissman -- well,

           17     not the main -- we have an expert here -- or we have the

           18     experts here, Mr. Reilly, Mr. Hammerstrom, Mr. Lowell.  But

           19     a principal issue in that case, and something that I don't

           20     think is well-understood, is that the information had to be

           21     national defense information.  It wasn't enough that it be

           22     classified.  It had to be NDI for there to be a violation.

           23     And that was a very disputable issue.

           24                  And as I said, I don't have a view on whether

           25     something should be classified or not.  That's only part of

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     the NDI equation.  That's the closely held part.

            2                  It isn't the judge, the judge's view, it isn't

            3     the judiciary's task or obligation to determine what should

            4     or shouldn't be classified.  That's, again, an Executive

            5     Branch decision.

            6                  It is, however, the province of the

            7     judiciary -- and in this case it would have been the

            8     province of the jury -- to decide whether or not the

            9     information was NDI.  That's really what a major dispute was

           10     about.

           11                  Am I correct, Mr. Reilly; there was a major or

           12     dispute about that?

           13                  There may have been others, but that was a

           14     major dispute.

           15                  ATTORNEY REILLY:  I believe that's correct,

           16     your Honor.

           17                  THE COURT:  And I see Mr. Lowell smiling, and

           18     so I think it was.

           19                  And I don't know whether that's the reason.

           20                  There were a lot of witnesses that the defense

           21     had lined up.  There were rulings that I made.  Those were

           22     referred to in the media.

           23                  I don't know.  It doesn't matter.  I don't know

           24     and don't care.  That's a matter for others to write about,

           25     think about.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  I do want to say that the lawyers in that case

            2     on both sides, both the government and the defendant, were

            3     exemplary and did an exemplary job.

            4                  Now -- but it has some relevance to this case,

            5     and I'll come to that in just a moment.

            6                  In deciding on a Rule 35, I do consider the

            7     3553(a) factors, but it's not a resentencing.  And I

            8     considered the factors under 5K.  They are all advisory.

            9     The Guidelines are advisory.  The factors there are not

           10     binding.  But I consider those and 3553(a).

           11                  And my task at the end of the day is to

           12     evaluate his cooperation, to make a decision about the

           13     importance of it, the substance of it, to evaluate the other

           14     3553(a) factors, which, of course, are his personal history

           15     characteristics, the nature of the offense, the need to

           16     insure that there -- whatever is done is just -- and I'll

           17     come back to that -- promotes respect for the law, does not

           18     involve unwarranted disparities in on sentences imposed on

           19     this defendant.  In this case, it wouldn't be unwarranted

           20     disparities in the sentencing.  It really would be

           21     unwarranted disparities, also, in the reductions.

           22                  And also, I have already mentioned, or should

           23     mention, deterrent effect.  Mr. Hammerstrom made a very

           24     important point.  He said that this case is different from

           25     Rosen and Weissman, in that Mr. Franklin was a government

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     official.

            2                  And I think the government's view -- correct me

            3     if I am wrong, Mr. Hammerstrom -- is that these back-channel

            4     efforts, insofar as they involve classified information, are

            5     not justified, cannot be justified.  And that had to be a

            6     significant motivation in the government's originally

            7     bringing the prosecution.

            8                  Would that be reasonably accurate?

            9                  ATTORNEY HAMMERSTROM:  Yes, your Honor.

           10                  THE COURT:  And so what I do today has to

           11     continue to send that message.  That's very important.

           12                  Now, it's true that there have been

           13     disclosures, as Mr. Cacheris points out, in which people

           14     have disclosed classified information to the press, when

           15     they shouldn't have under the law, and they haven't been

           16     pursued and prosecuted.

           17                  I don't have a problem with people doing that

           18     if they are held accountable for it.  To use the Jack Bauer

           19     analogy, one might hope that, for example, someone might

           20     have the courage to do something that would break the law if

           21     it meant they're the savior of the country; but then one has

           22     to take the consequences, because the rule of law is so

           23     important.

           24                  So, if someone discloses an NIE about Iran,

           25     which happened, and a day later it appears in the newspapers

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     because that was a very hot topic in those days; if one

            2     discloses NSA surveillance -- that was -- because someone

            3     clearly thought that that was wrong -- and I can understand

            4     that feeling, but it was wrong to disclose it.  There were

            5     other ways to go about it.

            6                  Now, disclosing it was okay if the person is

            7     willing to stand up and say, "I did it.  Give me the

            8     consequences."

            9                  So, what I do today -- what has happened to

           10     Mr. Franklin and what will happen after I rule today has to

           11     stand as a beacon to government officials, because

           12     Mr. Hammerstrom is absolutely right, it is important that

           13     government officials, more than anyone else, get this

           14     message:  You cannot engage in disclosure of classified

           15     information, certainly not NDI -- I mean, it may turn out in

           16     the end not to be NDI, under the statute.  But you are

           17     precluded by your agreement with the government and by

           18     internal regulations from disclosing classified information,

           19     which in all likelihood might well be NDI; and that if you

           20     do so, there are consequences; and that noble motives don't

           21     erase the violation.

           22                  And it's important that what I do today

           23     reflects that.

           24                  It is also important to have what I do today

           25     reflect the very substantial amount of cooperation that he

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     has provided in a range of areas that we reviewed, some of

            2     which are under seal; and that I consider all of the other

            3     factors that Mr. Cacheris has brought to my attention in his

            4     submission, the bulk of which will not be under seal and be

            5     publicly available.

            6                  This case has clearly had a very severe effect

            7     on him, his family.  But those -- that's a result of choices

            8     that Mr. Franklin made.  Life is making choices and living

            9     with the consequences of the choices that you make.

           10                  We don't determine where we are born, to whom

           11     we are born, or whether we are born with handicaps, but we

           12     all determine how we respond to those.  And what choices we

           13     make, those choices shape our lives.  He made a bad choice,

           14     he made a criminal choice, and there must you be

           15     consequences for that.

           16                  I also remember and take into account that

           17     Mr. Franklin made a heartfelt, I think, sincere statement

           18     about his feelings about our country and about our warriors

           19     in uniform.  I think those were sincere.  And he can make

           20     those because he was a warrior.  He did serve.  And he also

           21     had very close friends who were killed as warriors.

           22                  This country cannot survive without its

           23     warriors.  Of course, it won't survive very well unless we

           24     use our warriors well and carefully.  But his heartfelt

           25     statements, I think, are genuine and they have some basis.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  So I take all of that into account.

            2                  In the end, I grant the motion to reduce his

            3     sentence.  And I reduce his sentence on the three counts to

            4     a sentence of probation with a special condition that he

            5     serve ten months in community confinement.

            6                  As a further special condition of his

            7     probation, I am going to require that he do a hundred hours

            8     of community serve.  And I want this hundred hours of

            9     community service focused on giving talks to young people.

           10                  But I am not interested in giving -- in your

           11     giving talks to young people about the Islamist threat to

           12     our country -- not that I don't think there is one.  We

           13     might not agree on precisely what it is.  It doesn't matter.

           14                  What I want you to do, Mr. Franklin -- come to

           15     the podium.

           16                  THE DEFENDANT:  (Complies.)

           17                  THE COURT:  What I want you to do is I want you

           18     to speak to these young people about the rule of law, the

           19     importance of the rule of law insofar -- and how important

           20     it is with respect to public officials, that public

           21     officials must obey the law.

           22                  And simply because you believe that something

           23     that's going on that's classified should be revealed to the

           24     press and to the public, so that the public can know that

           25     its government is doing something you think is wrong, that

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     doesn't justify it.

            2                  Now, you may want to go ahead and do it, but

            3     you have to stand up and take the consequences.

            4                  And Mr. Cacheris, you asked for straight

            5     probation, and largely because of two things:  one, the case

            6     against Rosen and Weissman abated, and therefore you would

            7     think nothing worse could happen to Mr. Franklin.  And

            8     number two, you point out that there are other people in the

            9     government who are doing this and not being prosecuted.

           10                  I agree with you.  I think that's indisputable.

           11     And it's sad.

           12                  The person who disclosed those things that you

           13     refer to and that I refer to, probably thinks he or she is a

           14     hero.

           15                  They are not a hero, not a hero at all.  They

           16     were a lawbreaker.  And that's the point Mr. Hammerstrom

           17     wants driven home.

           18                  Am I right, Mr. Hammerstrom?

           19                  ATTORNEY HAMMERSTROM:  Yes, sir.

           20                  THE COURT:  So what I want you to speak to

           21     these young people about, Mr. Franklin, is the rule of law

           22     and the obligation that public officials especially have,

           23     and the importance of classified information.  Secrets are

           24     importance to a nation.  If we couldn't keep our secrets, we

           25     would be at greater risk.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  Don't you agree?

            2                  THE DEFENDANT:  Yes, sir.

            3                  THE COURT:  No, whether or not we overclassify

            4     things is certainly open to great debate.  In fact, Mr.

            5     Lowell was ready to engage in that debate full bore in the

            6     case.

            7                  Am I right, Mr. Lowell?

            8                  ATTORNEY LOWELL:  May I say "yes" on the

            9     record, sir?

           10                  THE COURT:  (Laughs.)  So, that is not

           11     something -- that's true, we may overclassify some things.

           12     But we need to protect our secrets with the law.  Don't you

           13     agree?

           14                  THE DEFENDANT:  Yes, sir.

           15                  THE COURT:  I want you to explain to young

           16     people the importance of public service under the rule of

           17     law.

           18                  And I am going to ask that a probation officer

           19     send me copies of your lectures on this subject during

           20     the -- and you can do it in high schools, you can do it at

           21     Shepherd.  You can do it at various places.

           22                  THE DEFENDANT:  I would love to do it, sir.

           23                  THE COURT:  Well, you will have an opportunity

           24     to do it, and time to do it.  And to the extent that there

           25     are hours left over, I want you to go to veterans hospitals

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     and help with the veterans.  And I know that is close to

            2     your heart, and you have already done some of that.

            3                  THE DEFENDANT:  Yes, sir.

            4                  THE COURT:  But I want you to talk to your

            5     people about that.

            6                  I am going to permit you to surrender

            7     voluntarily, of course.

            8                  The reason that have kept some element of the

            9     sentence that goes beyond what Rosen and Weissman have to

           10     endure -- and we don't know whether a jury would have found

           11     Rosen and Weissman innocent -- or not guilty or guilty.  We

           12     don't know that.  Because there was a clear fight about

           13     whether anything they did was illegal.  We don't know why

           14     the government -- and I don't want to know why the

           15     government -- abated.  It's none of my business.

           16                  The only thing I can say is that it made my

           17     trial docket easier to manage.

           18                  (Laughter.)

           19                  THE COURT:  That's about all I can say.

           20                  But it's important that you have a consequence

           21     from this.  It includes the papers you took home, after

           22     being told not to.

           23                  Mr. Hammerstrom was dead right on that, and I

           24     remembered it clearly.  After being told not to, you did it.

           25     You can't do that as a public official.  You have a higher

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     obligation to the rule of law, not to your own estimate of

            2     what you think is good or not.

            3                  The fact that you had these strong views about

            4     the threat of Iran, I understand that.  But you had a forum

            5     in which to engage that within the Department of Defense.

            6                  THE DEFENDANT:  Yes, I did.

            7                  THE COURT:  And you arrogated to yourself the

            8     power to do something more about it.  You know, you could

            9     have been wrong about that.  Who knows?  We don't.  We

           10     don't.

           11                  In fact, we will never know whether one

           12     position or the other is right until one history takes

           13     care -- or we take one route, history tells us about that.

           14     But we will never know what would have happened if we had

           15     taken the other route.  We do the best we can, and we will

           16     do better if we obey the rule of law.

           17                  Have I made myself clear?

           18                  THE DEFENDANT:  Yes, you have, sir.

           19                  And one of the -- one of two principal

           20     objectives of our adversaries is to force us to change

           21     internally.  And what I did was play into that objective by

           22     my violations.

           23                  THE COURT:  All right.

           24                  Anything further in this matter today?

           25                  Let me end on a positive note.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  You may be seated.

            2                  THE DEFENDANT:  That you.

            3                  THE COURT:  I have said this twice already

            4     today, and I will say it again.  I haven't seen lawyers on

            5     the government side, and Mr. Lowell on your side -- that

            6     includes Mr. Weiss and all the other folks -- work any

            7     harder, any more diligently, any more honestly and

            8     effectively than this group here.

            9                  I know I imposed a lot of burdens on you, but I

           10     want to end on that positive note that you all did a very

           11     good job as lawyers.  I appreciate it.

           12                  And I think we are fortunate to have in our

           13     Department of Justice such capable, conscientious, honest

           14     lawyers; and on the defense side, Mr. Lowell, Mr. Weiss and

           15     all of those who aren't here, such able lawyers, honest,

           16     diligent and effective lawyers on the other side.

           17                  I'll enter an order accordingly.

           18                  Court stands in recess.

           19                  (Court adjourned at 7:03 p.m.)


           21                                  ---





                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR


            2                              CERTIFICATE


            4                  I, MICHAEL A. RODRIQUEZ, an Official Court

            5     Reporter for the United States District Court, in the

            6     Eastern District of Virginia, Alexandria Division, do hereby

            7     certify that I reported by machine shorthand, in my official

            8     capacity, the proceedings had upon the motions hearing in

            9     the case of UNITED STATES OF AMERICA v. LAWRENCE ANTHONY

           10     FRANKLIN.


           12                  I further certify that I was authorized and did

           13     report by stenotype the proceedings in said motions hearing,

           14     and that the foregoing pages, numbered 1 to 45, inclusive,

           15     constitute the official transcript, of said proceedings as

           16     taken from my machine shorthand notes.


           18                  IN WITNESS WHEREOF, I have hereto subscribed my

           19     name this        day of                    , 2010.



           22                              Michael A. Rodriquez, RPR/CM/RMR
                                                Official Court Reporter



                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR