EASTERN DISTRICT OF VIRGINIA
                                       Alexandria Division

                  UNITED STATES OF AMERICA,          )
                                         Plaintiff,  )
                        v.                           )    CRIMINAL ACTION
                  STEVEN J. ROSEN,                   )    1:05 CR 225
                  KEITH WEISSMAN,                    )
                                         Defendants. )

                                      REPORTER'S TRANSCRIPT

                                         MOTIONS HEARING

                                      Friday, April 21, 2006


                  BEFORE:       THE HONORABLE T.S. ELLIS, III

                                BY:  KEVIN DIGREGORY, AUSA
                                     NEIL HAMMERSTROM, AUSA
                                     THOMAS REILLY, SAUSA (DOJ)
                                     MICHAEL MARTIN, SAUSA (DOJ)

                                   For the Government


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

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     APPEARANCES (Continued):

            2                  ABBE LOWELL, ESQ.
                               KEITH ROSEN, ESQ.
            3                  ERICA PAULSON, ESQ.

            4                     For Defendant Rosen

            5                  JOHN NASSIKAS, ESQ.
                               KARITHA BABU, ESQ.
            6                  KATE BRISCOE, ESQ.
                               BARUCH WEISS, ESQ.
                                  For Defendant Weissman

            9                                  ---

















                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                                 INDEX


            3     COURT QUESTIONS / ARGUMENT BY THE DEFENDANTS             6

            4     COURT QUESTIONS / ARGUMENT BY THE GOVERNMENT            23

            5     COURT QUESTIONS / ARGUMENT BY THE DEFENDANTS            39

            6     RULING BY THE COURT                                     46

            7     FURTHER PROCEEDINGS                                     48

                        (Court recessed)

           10                                  ---
















                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                              PROCEEDINGS


            3                  (Court called to order at 4:30 p.m. in USA v.

            4     Rosen, Weissman)

            5                  THE COURT:  Good afternoon.  This is United

            6     States against Rosen and Weissman 05-225.  And the record

            7     will reflect that counsel and the parties are present and

            8     prepared to succeed -- or prepared -- to succeed, yes, both

            9     sides -- but prepared to proceed.

           10                  First, I want to thank counsel for convening on

           11     such short notice.  It was necessary, however.  I have an

           12     agenda that I wish to pass out to you in a moment.

           13                  But, in essence, we're going to proceed in the

           14     following way.

           15                  Mr. Wood, hand them each a copy of this brief

           16     agenda.

           17                  THE MARSHAL:  (Complied)

           18                  THE COURT:  We may not reach everything in

           19     this.  I doubt we will.  But this is the order in which I'm

           20     going to address them, and I'll be more explicit.  One for

           21     each party.  One for each party.

           22                  All right.  The first thing we're going to do

           23     is to hear the requested further oral argument.

           24                  Mr. Lowell requested additional oral argument

           25     on the motion to dismiss.  And I think I forecasted this in

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     the order setting this schedule.

            2                  That's correct, am I not, Mr. Lowell?

            3                  ATTORNEY LOWELL:  Yes, sir.

            4                  THE COURT:  I'll come back to that in just a

            5     minute.

            6                  Then I list a series of motions that remain

            7     outstanding.  We're not going to have further oral argument.

            8     I may ask a question or two about one or two of these

            9     motions, and I may dispose of one or two of them.

           10                  Then there is a necessity to revise the SIPA

           11     schedule.  And I will go into that in greater detail in just

           12     a few minutes.  But we -- it is not possible to hold the

           13     currently scheduled SIPA hearing next week the Court

           14     scheduled.

           15                  My caseload is not heavier than it's been in

           16     the last 19 or so years.  But since January, I have had

           17     trials almost consistently, almost continually.  In fact,

           18     oddly enough, I think I have between January and the end of

           19     mid-April somewhere on the order of 200 or more hours on the

           20     bench, which is a lot of time on the bench for this.  So

           21     we're going to have to revise the schedule.

           22                  So we'll proceed in that fashion.

           23                  Let's begin, Mr. Lowell.  You asked for further

           24     opportunity to address the motion to dismiss.  I have been

           25     engaged in reviewing that motion and in reviewing the FISA

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     materials.  I've completed my FISA document review, and I

            2     will be resolving the existing matters relating to FISA in

            3     the not -- in the very, very near future with one exception.

            4     But the motion to dismiss is a challenging issue.  And so if

            5     you need further time, Mr. Lowell, I'll give it to you now.

            6                  Do you have focused further argument?

            7                  ATTORNEY LOWELL:  Your Honor, I had requested

            8     it because in light of the supplementary briefs that you had

            9     requested and in the reply brief that we had requested to

           10     follow -- to file, I thought that with all that, I might

           11     take one last stab at summarizing down to the core five

           12     points that we're making so that they are sorted out in a

           13     properly stepped-up fashion.

           14                  THE COURT:  All right.  Do so -- see if you can

           15     do so in about 15 minutes.

           16                  ATTORNEY LOWELL:  I think less, but I will try.


           18                  ATTORNEY LOWELL:  As I have now read everything

           19     that has been written and reread the transcript of our last

           20     hearing to understand the Court's concerns, I think what can

           21     be said at this late date is still as follows:  The

           22     government has now still not provided any guidance to these

           23     defendants, to the Court, or to the world at large

           24     indicating what conduct of the kind that they want to sweep

           25     into 793 runs afoul of the lines the due process clause

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     requires that people in this country have notice of prior to

            2     undertaking the conduct that the government, after the fact,

            3     can declare to be illegal.

            4                  In looking at the arguments that we have put

            5     forward to you, the Court, I think there is a staircase of

            6     infirmities of a constitutional nature.  The first step of

            7     that staircase is that as to these two defendants and

            8     anybody who stood in their shoes in August of 2004 when the

            9     search of their offices were executed, there was no proper

           10     notice that Section 9- -- 793 in any form could be used

           11     against non-government officials, could be used against

           12     non-government officials for engaging in oral conversations,

           13     could be used against nongovernment officials engaged in

           14     oral conversations when their conduct was in the mainstream

           15     of First Amendment protected activity, could be used with

           16     those three criteria in that context and have the government

           17     say, as they have now said in answer to your hypotheticals,

           18     that certain information can be classified and yet not fall

           19     victim to 793 because it's not information related to the

           20     national defense and/or vice versa.

           21                  Or, in other words, to one of your

           22     hypotheticals, your Honor, if it was, as the government has

           23     conceded, that information about the sputnik program of 1957

           24     that was contained in classified documents put into the

           25     hands of these two or any other individuals would not run

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     afoul of 793 because it wouldn't necessarily be information

            2     related to the national defense with a mark of

            3     classification, with a mark of secret, with a mark of top

            4     secret.

            5                  But at the same time, these individuals can be

            6     at a restaurant in public and have a conversation orally

            7     about foreign policy, where there is no markings of any kind

            8     and nothing to indicate that it's of the nature of the same

            9     kinds of information, and yet that's the crime?  Then that

           10     defines the vagueness of this.

           11                  So the first step still and is that these two

           12     people and nobody in August had proper notice under the laws

           13     of proper notice, the Lanier kinds of cases.  A ruling in

           14     that regard now disposes of this case.

           15                  Now, the government will say after that:

           16     Everybody now does have notice.  From now on we are telling

           17     you, because we have brought these charges for the first

           18     time in 90 years, that everybody should be on notice.

           19                  Well, the next defendants who come along will

           20     not be able to argue notice, I suspect.  They will be able

           21     to argue the next step in the staircase.

           22                  The next step in the staircase is the

           23     constitutional infirmity of the First Amendment as applied.

           24     And that is, as we have pointed out to you in the other

           25     pleadings and with the other questions you've raised, that

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     when you are engaged in something that becomes illegal

            2     because of what you are saying and not what you are doing --

            3     and I understand the government will, with whatever

            4     contortions possible, try to equate what the defendants here

            5     did as being some form of conduct as opposed to some form of

            6     speech.

            7                  But the case law is so clear, including the

            8     Bartnicki case, that you cannot call something conduct by

            9     calling it disclosure when it is speech.

           10                  When the government is going to criminalize

           11     speech based on its content, in other words, what these

           12     group of prosecutors today determine to be information

           13     related to the national defense, where that crosses the line

           14     in as vague an area as it exists, when it is

           15     content-oriented, then to make it criminal has to go through

           16     the highest standard of review that this country allows for

           17     a very protected right called free speech.

           18                  And if it weren't just for free speech, we also

           19     have the concomitant clause in the First Amendment of the

           20     right to petition the government.  And when you apply that

           21     standard to the context of this case, of the oral arguments

           22     or the oral discussions and the banter that goes on in

           23     foreign policy exchanges with people that are engaged in

           24     foreign policy advocacy, it doesn't survive that strict

           25     scrutiny.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  THE COURT:  Remember I asked you before -- I'm

            2     sure you can weave this into what you're saying and respond

            3     to it.  But I said I think this would be an easier case for

            4     you if what these persons were doing, these defendants were

            5     doing, was taking information they received that might be

            6     national defense information and calling up their local

            7     congressman, senator, or somebody else rather than going to

            8     someone who might be characterized as an agent of a foreign

            9     nation.

           10                  ATTORNEY LOWELL:  I do remember that.  And I

           11     guess I would answer it with the names of cases where I was

           12     unable to do so the last time you asked me that question.

           13                  If you look at the Knorr case and the other

           14     cases, there are two things to be answered.

           15                  First, there is no distinction in our

           16     government, protection of petitioning the government -- and

           17     I want to come back to the free speech -- but to whether you

           18     are petitioning the Congress or the Executive Branch, number

           19     one.  And the case law we cite says that.

           20                  THE COURT:  Yes.  I quite agree with that

           21     proposition, but I didn't give you that option.  I said not

           22     the -- not Congress or the Executive Branch, but an agent of

           23     a foreign government.  That's not petitioning the government

           24     at all.

           25                  ATTORNEY LOWELL:  The case law does not say

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     that individuals are only protected in the narrowest

            2     straitjacket in which you would put them, which is the

            3     conversation they are literally having at the moment they

            4     are having it with the individual and the government.

            5                  When they're going out to acquire facts so that

            6     they will come back and petition the government, then they

            7     are in the process of their right to petition the

            8     government.

            9                  When they sit around and they are acquiring

           10     information from the newspapers, which, by the way,

           11     according to the government, the newspapers every day --

           12     well, that's a slight exaggeration -- certainly, the

           13     newspapers every week have classified information in it, the

           14     possession of which and retransmittal by these individuals,

           15     according to the government's theory of the case, would

           16     violate 793.

           17                  When they inquire that information and then

           18     they go and try to check it out and then they go to the

           19     government, you're suggesting, by your question -- I don't

           20     know what your answer is -- that it's only the moment where

           21     they take the information and are having the oral

           22     conversation with the government official for which they are

           23     protected.

           24                  But the breathing space of Knorr makes it clear

           25     that they can be in the acquisition of that information.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     And when they're checking it to see if it's correct or if

            2     it's known by others, they are in the same mode as if they

            3     are talking to the government official.

            4                  And so you're right that it would be an easier

            5     case -- that's the literal question you said.  "Wouldn't it

            6     be easier, Mr. Lowell, if this was a moment that the tapes

            7     captured in their conversations petitioning the government?"

            8                  And the answer to that is clearly yes, but it

            9     begs the issue of whether or not --

           10                  THE COURT:  Suppose an individual in the

           11     government disagreed with this country's policy, let's say,

           12     with respect to sharing nuclear technology with India and

           13     there were some secret aspects or protected information that

           14     somebody received, and they passed that on to Pakistan,

           15     agents for Pakistan.

           16                  Is that protected under petitioning the

           17     government?

           18                  ATTORNEY LOWELL:  Let's divide it up, if we

           19     can.

           20                  The answer is no and yes.  The individual

           21     government person in possession of the information that you

           22     were just telling me is prosecutable on any number of

           23     statutes or theories at the source.  No problem.

           24                  The individual to whom that government official

           25     either told or gave may be prosecuted, depending on which

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     statute we are talking about.

            2                  When the government says that our vagueness or

            3     Constitutional First Amendment arguments don't have muster

            4     because they cite to a Gorin case or to another case, what

            5     they've done is they're picking and choosing lines from a

            6     case without application because we have to distinguish the

            7     government official from the recipient, 794 from 793,

            8     putting it in the hands of somebody who the government

            9     alleges is an agent of a foreign government versus talking

           10     about it with people in the United States in the same mode.

           11                  THE COURT:  That is what my hypothetical was

           12     intended to have you answer.

           13                  Let's suppose that the individual to whom --

           14     private individual --

           15                  ATTORNEY LOWELL:  The middle.

           16                  THE COURT:  The middle.  Call it a lobbyist.

           17     Call him a newspaper man.  Call him whatever you want to

           18     call him.

           19                  -- then gives it to an agent of a foreign

           20     government.  Let's say Pakistan, Indonesia -- Iran, let's

           21     say Iran -- gives it to someone from Iran because he

           22     believes that this country is wrong in its position in

           23     trying to stop Iran from developing nuclear energy and

           24     nuclear power, and he feels this information might be

           25     helpful to the government of Iran in arguing against the

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     United States' position in sharing information and

            2     technology with India on nuclear power.

            3                  Isn't that a violation?

            4                  ATTORNEY LOWELL:  Theoretically, it violates

            5     794.  They're not charged with 794 here.  Theoretically --

            6                  THE COURT:  Why would it not be 793?

            7                  ATTORNEY LOWELL:  Because you would have to go

            8     through the analysis.  What saves 794 from 793 is the two

            9     elements:  One is the foreign agent that you've put in your

           10     hypothetical and that 794 and the Gorin case would speak

           11     about.

           12                  The other one is the phrase that it has clear

           13     evidence that it does have or will be transmitted to injure

           14     the United States as opposed to the vague phrase "could be."

           15                  So the differences between 793 and 794 in your

           16     hypothesis --

           17                  THE COURT:  Let's focus only on the statute

           18     that's at issue here.

           19                  Would the person I described in my hypothetical

           20     be subject to prosecution?

           21                  ATTORNEY LOWELL:  Maybe.  I can't do more than

           22     that, your Honor, and I'm trying.

           23                  Was he authorized to hear that?

           24                  How would he know?

           25                  Because -- how would he know?

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  When Lewis Libby --

            2                  THE COURT:  (Inaudible) --

            3                  ATTORNEY LOWELL:  -- sat with Judy Miller --

            4                  THE COURT:  -- the protected information.

            5                  ATTORNEY LOWELL:  But when Judy -- we've read

            6     that Lewis Libby, the chief of staff of the vice president

            7     of the United States, took a reporter in the room --

            8                  THE COURT:  I'm not -- I'm not interested in

            9     what some other individual may have done in a nonadjudicated

           10     case.  You asked in my hypothetical for some clarification,

           11     and I gave it to you.  I said he's told that it's protected

           12     information.

           13                  So what else?

           14                  ATTORNEY LOWELL:  Okay.

           15                  THE COURT:  Is he prosecutable or not?

           16                  ATTORNEY LOWELL:  If he was not authorized to

           17     receive it because that's enough, what you said, "I am

           18     telling you this about India, and it's protected

           19     information," now, the person has to decide, why is he being

           20     told, anyway?

           21                  But if he's not authorized to have received

           22     that information and then he has received it with a clear

           23     understanding of that and if that person has then provided

           24     him with it, he now takes the step of willfully passing it

           25     on with the mens rea and he's -- which is to injure the

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     United States or help another country.  And if it's

            2     something that he recognizes and can be forewarned as

            3     national defense information, then perhaps all that is

            4     possible.

            5                  THE COURT:  All of those are issues of fact.

            6                  ATTORNEY LOWELL:  No, they're not.  Because

            7     what makes your hypothetical hypothetical is the fact that

            8     because you and I can ask the question, we have already

            9     proven the constitutional infirmity.

           10                  Before -- because you can ask Mr. DiGregory,

           11     "What about the Sputnik example?"  and he can respond the

           12     way he did, we have proved the very infirmity by a

           13     hypothetical that this is an infirm statute.

           14                  Because it doesn't give that warning to the

           15     person who heard that that because he's being told it's

           16     protected, what does "protected" mean?

           17                  Does it mean it's classified?

           18                  If it's classified, does it mean it's national

           19     defense?

           20                  And if it's national defense, is he still

           21     authorized to hear it, or why the heck would the government

           22     official be meeting and telling it to him anyway, unless the

           23     government official is wearing a little armband that says,

           24     "Today I'm acting as a traitor," as opposed to, "Today I'm

           25     acting as the vice president's chief of staff"?

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  How do you know that when you're sitting at the

            2     table?

            3                  So the fact that we can have this hypothetical

            4     shows us that this is a statute, when applied to

            5     nongovernment officials in oral information doing their

            6     First Amendment protected job, it is infirm.  And that is

            7     why we have had this problem.

            8                  THE COURT:  All right.

            9                  ATTORNEY LOWELL:  As to the First Amendment

           10     aspect, I would also like to conclude that part of it, other

           11     than the due process notice, by saying that when scrutiny is

           12     applied to the penumbra of the First Amendment, remember,

           13     your Honor, we are saying that we have a two-fer going on

           14     here.

           15                  We have the right to petition government that

           16     protects the work of these foreign policy advocates, but

           17     they have the same rights to free speech as advocated in the

           18     Bartnicki case and the other cases.  The Court doesn't

           19     distinguish between those rights and the First Amendment.

           20     And their oral conversations were protected speech.

           21                  And the fact that what makes it illegal in the

           22     hands of the government is that it's content-oriented.  I

           23     don't even have to get to the petition of the government

           24     clause.  We win on the free speech part of it.  Strict

           25     scrutiny as well.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  And then as to the last argument, as to the

            2     issue of its last step up the staircase, the first step

            3     being it's not noticed to them, the second is as applied,

            4     the third is to whether or not it's overbroad completely,

            5     look at what has been swept into the government's theory of

            6     the case so unnecessarily, what they've done; oral,

            7     nongovernment officials, lobbyists, members of the press,

            8     the First Amendment.

            9                  All that news-gathering has been swept up into

           10     the government's theory.  Retransmitters have been swept up

           11     into the government.

           12                  As you asked last week, where does it end?

           13                  It doesn't end.  Because if somebody who they

           14     spoke to said the same words that they heard to the next

           15     person down the line, 793 is the gift that keeps on giving,

           16     according to the government.  And it is way overbroad.

           17                  For them to say in their briefs that this is a

           18     limited application is wishful thinking on their part.  They

           19     don't distinguish between when you get the information and

           20     you use it to tell the foreign government agent?

           21                  Or, by the way, if Dr. Rosen heard something

           22     like you said about India and wanted to -- and he was upset

           23     about it and said, "I can't believe we're doing it," the

           24     government would say that if he took that and went to a

           25     member of Congress, which he knew was contained in national

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     defense information, he knew it, he took it, he heard it,

            2     it's in his possession, and he went to speak to a member of

            3     Congress, there's nothing in the government's theory that

            4     saves that.  That's how overbroad the application of 793 the

            5     way the government has done.

            6                  So it's all transmittals.  It doesn't matter to

            7     the government whether the source was a government official

            8     who should not have leaked it or they acquired it in the

            9     press and then later found out that it was national defense

           10     information.

           11                  If they pass it on, when the government says

           12     they should have known it was national defense, whether they

           13     got it from Larry Franklin or U.S. Government Official 1,

           14     U.S. Government Official 2, James Risen of the New York

           15     Times, Walter Pincus of the Washington Post, if they get

           16     that and they pass it on --

           17                  THE COURT:  Are these people whose names I

           18     should know?

           19                  ATTORNEY LOWELL:  Well, one of them got the

           20     Pulitzer Prize this week for doing what my client has been

           21     indicted for.  And the other one is in the audience, so I

           22     thought I would use his name.

           23                  THE COURT:  I've never heard of either of them,

           24     and they've never heard of me, and I hope it continues that

           25     way.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  ATTORNEY LOWELL:  The significance of my using

            2     the names is to show that we're not talking about

            3     theoretical problems here.  We're talking about real

            4     overbreadths of taking a statute and stretching it to

            5     conduct that it was not intended to cover, which is my last

            6     point.

            7                  The government then says, "Look, I can

            8     distinguish this."

            9                  When we say, your Honor, that this is an

           10     unprecedented case, we're not saying it hyperbolically the

           11     way people use "unprecedented."  We literally mean it's

           12     unprecedented.  There is not a case like it.

           13                  So what the government does is they create a

           14     sort of Frankenstein monster.  They take one piece of Gorin

           15     and they attach it to another piece of Pelton and then they

           16     attach it to a part of Chong and another piece of Morrison

           17     and they say, "Look it."

           18                  But if you take that apart, what you've found

           19     is that none of them apply.

           20                  THE COURT:  You've made that point, and I think

           21     it's a substantial point.  But you've made it twice.

           22     There's no reason --

           23                  ATTORNEY LOWELL:  I won't make it again.

           24                  THE COURT:  -- to make it again.

           25                  ATTORNEY LOWELL:  So in the time that I said I

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     could do this in, which was under the 15 minutes, let me

            2     conclude, other than answering your questions, by saying

            3     that the government wants, as it should, to protect national

            4     secrets and important secrets and things which will impair

            5     the government's ability to go forward.  We're living in a

            6     time of great peril, and so we care about the national

            7     security.

            8                  But they would take that concern and legitimate

            9     government interest and wave it around to cover all of their

           10     faults in the statute's application.  They don't have to

           11     worry.  There are plenty of laws that apply to cover the

           12     kinds of things that they are saying they're trying to do.

           13                  There's not a government official on this

           14     planet, in the United States, that doesn't know, when he or

           15     she is in possession of information, that it was and is

           16     classified and can look at, to determine the contours of

           17     national defense, "Don't give it away."  "Don't disclose it

           18     improperly."

           19                  That's another story.  Because when is it a

           20     proper disclosure of national defense information and when

           21     is it not, I can't quite figure out any more, given what

           22     we've heard about the President and all the others.

           23                  But at least they know what --

           24                  THE COURT:  That doesn't help your case,

           25     either.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  ATTORNEY LOWELL:  Well, it should to a point of

            2     putting yourself in the position of the recipient of never

            3     knowing whether or not they're sitting in the room with

            4     somebody who's allowed to tell them or somebody who's not

            5     allowed to tell them, because somebody doesn't come into the

            6     room and distinguish it.

            7                  I can guarantee you, your Honor, should this

            8     case -- I hope not -- ever go to trial, when U.S. Government

            9     Official Number 1 takes the stand, he's not going to say, "I

           10     warned these people that what I had was bad stuff and not do

           11     it."

           12                  When U.S. Government Official Number 2 takes

           13     the stand, he's not going to say it.

           14                  We'll see what Larry Franklin says when he

           15     finally comes to trial.  So it does matter.

           16                  But putting that aside, they've got plenty of

           17     ways to go after the real issues of national defense without

           18     stretching a statute and contorting it beyond recognition,

           19     when it's pretty clear Congress may not have even intended

           20     it to apply in this situation, let alone one where they're

           21     now trying to excuse all the vagaries and Constitutional

           22     violations.  We tell you that and the others in our brief as

           23     to why they have not lost a weapon here.

           24                  And so we would ask that when the Court

           25     scrutinizes, it is the highest level of scrutiny under the

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     vagueness statute, which is informed by the First

            2     Amendment's heightened scrutiny criteria.  When it's the

            3     First Amendment, it's strict scrutiny.  And at the end of

            4     that scrutiny, the application to the statute does not

            5     survive.

            6                  THE COURT:  All right.

            7                  Mr. Nassikas, do you wish to add anything?

            8                  ATTORNEY NASSIKAS:  No, your Honor.  We just

            9     coordinated the comments.  Thank you.

           10                  THE COURT:  All right.

           11                  Mr. DiGregory.

           12                       ARGUMENT BY THE GOVERNMENT

           13                  ATTORNEY DIGREGORY:  Thank you, your Honor.  I

           14     will try to be brief.

           15                  I keep hearing this word "recipient."  The use

           16     of that word "recipient" consistently by counsel for

           17     defendants in their pleadings and before this Court is

           18     misleading.  It is a mischaracterization of these

           19     defendants.  They are not mere recipients and mere

           20     retransmitters of classified information.

           21                  These defendants are charged as coconspirators

           22     with government employee Lawrence Franklin and with others

           23     known and unknown to the grand jury, conspirators with whom

           24     they agreed to gather and disseminate national defense

           25     information.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  This distinction between conspirator and mere

            2     recipient is significant.  It's significant because their

            3     status as conspirators ultimately places them in the same

            4     shoes in which Samuel Morrison stood in the case decided by

            5     the Fourth Circuit.

            6                  In the Morrison case, in analyzing Morrison's

            7     claim that 793 should not apply to him and that the First

            8     Amendment protected him from the application of 793 to him,

            9     the Court refused to do so.  And the Court refused to do so

           10     because it characterized Samuel Morrison for what he was, a

           11     thief.  He was a thief because he stole classified

           12     information.

           13                  This case isn't about the First Amendment.

           14                  THE COURT:  That's not this case, either, is

           15     it?

           16                  There's no allegations that they stole

           17     anything.  What happened here is that an official of the

           18     government, who disagreed with the lack of emphasis that the

           19     government was placing on a certain country and position

           20     they were taking, gave certain information.  They didn't

           21     steal it.  They gave it -- he gave it to them.  And that

           22     information you characterize as national defense

           23     information.

           24                  And I grant you they didn't call up the senator

           25     or they didn't call up an Executive Branch person.  They

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     shared that information with other persons who were not in

            2     the U.S. Government.  But they didn't steal it.  There's

            3     nothing about having stolen it.

            4                  The real -- focus on the First Amendment.  I

            5     think Mr. Lowell is absolutely right.  It is an

            6     unprecedented, it's a novel case.

            7                  The case that you cite, if you cite Morrison,

            8     is that what you think is the case most closely apposite to

            9     this?

           10                  ATTORNEY DIGREGORY:  I think if you look at

           11     Morrison, your Honor, and you consider --

           12                  THE COURT:  Is that the case you think is most

           13     apposite to this case?

           14                  ATTORNEY DIGREGORY:  I think you have to

           15     consider Morrison, as well as Gorin, and as well as the

           16     cases which follow Morrison because of other distinctions,

           17     untenable distinctions, that are made by the defense between

           18     their clients and those persons who were brought to justice

           19     in those cases.

           20                  THE COURT:  Well, Morrison clearly was a person

           21     who took the information, as you put it, as a thief; right?

           22                  ATTORNEY DIGREGORY:  Yes, sir.

           23                  THE COURT:  These people didn't do that.

           24                  ATTORNEY DIGREGORY:  Except, your Honor --

           25     except that they are charged with conspiring with government

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     employees.

            2                  And if one of those government employees, as

            3     the government has alleged, misappropriated, stole

            4     classified information, and shared it with them as a result

            5     of their agreement and in furtherance of their agreement to

            6     gather and disseminate classified information, they stand in

            7     the shoes of a thief.

            8                  THE COURT:  You certainly don't intend to try

            9     to prove that Mr. Franklin stole the information.  He had

           10     it.  He had it as a part of his job.  And they certainly --

           11     these defendants -- you're not going to attempt to prove,

           12     and it isn't alleged in the indictment, that these

           13     defendants in some way conspired with him to do -- to steal

           14     it.

           15                  They didn't, for example, gather in a room and

           16     suggest to him that he go to a particular part in the

           17     Pentagon and open a safe and secrete some documents and give

           18     them the information.

           19                  I don't think you gain much from an analogy

           20     that doesn't fit.  I have suggested to you a number of

           21     times, and to Mr. Lowell, that Mr. Lowell's case would be a

           22     lot easier if they had petitioned the government.  And he's

           23     responded to that, pointed out to me other reasons why it

           24     doesn't matter.

           25                  It is unprecedented.  It is novel.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  Let's go back and start at the beginning with

            2     his first point.

            3                  He says there isn't adequate due process

            4     notice.  If you get to First Amendment or anything else, he

            5     says, "Look, the whole thing doesn't give notice that if --

            6     what happens in Washington on a daily basis, their

            7     back-channeled sharing of information for all sorts of

            8     ulterior motives" -- by "ulterior," I don't mean that that's

            9     a pejorative term, but everyone has an ax to grind.  There's

           10     a lot of back-channel sharing of information.

           11                  And where is the notice in this statute that

           12     the kind of activity that they would be engaging in, namely,

           13     accepting this information from a government official and

           14     passing it on to somebody else who might be characterized as

           15     an agent of a foreign government, is engaging in activity

           16     that violates this statute?

           17                  ATTORNEY DIGREGORY:  Fair notice can be

           18     provided by both the language of the statute and court

           19     decisions interpreting the language.

           20                  THE COURT:  That's right.

           21                  ATTORNEY DIGREGORY:  And in this particular

           22     case, we would rely first and foremost on the language of

           23     the statute.  We don't think that there should be any

           24     discussion over the word "whoever."  I think it's pretty

           25     clear what the meaning of that word is.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  I think it's pretty clear what the meaning of

            2     the word "communicates" is.

            3                  I think it's pretty clear, though there would

            4     be an argument to the contrary, I'm sure, from the defense,

            5     the word "information" is a broad term, which includes not

            6     only written disclosures of information, but oral

            7     disclosures of information.

            8                  The word "national" -- or "information

            9     related" -- the phrase "information related to the national

           10     defense" was found by the Gorin court to be a

           11     well-understood concept or a well-developed concept with

           12     respect to national preparedness.

           13                  And further, your Honor --

           14                  THE COURT:  Gorin was the -- that was, what,

           15     the troop movement case, the 18 --

           16                  ATTORNEY DIGREGORY:  No, your Honor.

           17                  THE COURT:  Which one was that?

           18                  ATTORNEY DIGREGORY:  Gorin was the case where

           19     Mr. Salitch, who was an investigator, a civilian

           20     investigator for the Naval Intelligence Service --

           21                  THE COURT:  That's right.

           22                  ATTORNEY DIGREGORY:  -- just prior to the

           23     Second World War, got together with a Mr. Gorin, who was a

           24     Soviet citizen running a travel agency on the West Coast of

           25     the United States.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  What Mr. Salitch did was review, read reports

            2     that were being made by fellow investigators in the Naval

            3     Intelligence Service concerning the movements of Japanese

            4     nationals on the West Coast of the United States.

            5                  And what Mr. Salitch did was then communicate

            6     the contents of those reports -- the contents of those

            7     reports to Mr. Gorin, both as the Ninth Circuit noted in its

            8     opinion, orally and verbally (sic) -- never turned over the

            9     reports to Mr. Gorin, but turned over the contents of those

           10     reports in two different ways.

           11                  THE COURT:  What do you mean, "orally and

           12     verbally"?

           13                  ATTORNEY DIGREGORY:  Excuse me.  Orally and in

           14     writing.  My apologies, your Honor.  Thank you.

           15                  THE COURT:  All right.

           16                  ATTORNEY DIGREGORY:  And the information in

           17     those cases was information which, on its face, appeared to

           18     be relatively innocuous because it involved the movements of

           19     these nationals.

           20                  Nevertheless, because of the time in which the

           21     information was being collected and the value of the

           22     information to the United States Navy and the value of the

           23     information to the United States Government, the Gorin court

           24     had no problem in finding that that information was national

           25     defense information and had no problem in finding that that

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     concept was not vague as it applied to both Mr. Salitch, the

            2     United States Government employee, and Mr. Gorin, the

            3     nongovernment employee.

            4                  THE COURT:  All right.  Let's move to the First

            5     Amendment.

            6                  ATTORNEY DIGREGORY:  May I get a little water?

            7                  THE COURT:  Yes, you may.

            8                  Let's move to the First Amendment argument.

            9                  You can respond now to that.  He argues that

           10     the First Amendment --

           11                  ATTORNEY DIGREGORY:  If I may, your Honor.

           12                  THE COURT:  You want to finish something?

           13                  ATTORNEY DIGREGORY:  Just to finish up on

           14     Gorin.

           15                  THE COURT:  All right.

           16                  ATTORNEY DIGREGORY:  And if that kind of

           17     information that the Court described as probably even

           18     innocuous, appeared innocuous on its face, was not -- and

           19     given to Gorin was not -- would not suffer a vagueness

           20     challenge or would not be undermined by a vagueness

           21     challenge, that national defense information, then most

           22     assuredly when you're talking about the information that was

           23     provided to the defendants in this case, the information

           24     provided to them most assuredly meets that test.

           25                  And even beyond that, when you're talking about

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     the Fourth Circuit precedent, the Fourth Circuit precedent

            2     went beyond Gorin and further elucidated on the concept of

            3     national defense and said not only is it information related

            4     to the national preparedness, but it is information that is

            5     closely held by the United States Government and information

            6     that is not -- that has not been made officially publicly

            7     available.

            8                  THE COURT:  Well, you would, also, I think, as

            9     you've alleged in the indictment, point out that there were

           10     other aspects of it -- of the passage of the information

           11     that would suggest that they knew that it was protected in

           12     some way.

           13                  ATTORNEY DIGREGORY:  Including the information

           14     that you mentioned earlier, your Honor, that they were told

           15     that it was of a protected nature, and they acknowledged

           16     that they knew it was protected.

           17                  THE COURT:  Let's move to the First Amendment.

           18     The hour is late.  It's Friday afternoon.

           19                  As you can tell, because I have wrestled with

           20     this problem, I find this a very, very, hard problem.

           21     Mr. Lowell put it exactly right when he said -- well, not

           22     quite exactly right because he's an advocate, but he's put

           23     his finger on what bothers anybody who looks at this.

           24                  Of course Congress should have the power to

           25     enact statutes that protect the national security by

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     criminalizing trafficking in national defense information.

            2                  But, Mr. Lowell says, you've got to be careful

            3     when you do that, because we have other rights that need to

            4     be acknowledged; namely, the First Amendment right.

            5                  Now, he's focused a lot on petitioning the

            6     government.  And I've suggested to him a number of

            7     hypotheticals that -- I would have more sympathy for that if

            8     it -- if that's really what was -- what happened to some of

            9     this information.  And perhaps, in due course, that would

           10     come out.

           11                  But Mr. Lowell goes on to say:  Look, that

           12     doesn't end the matter.  Simply the fact that it may not be

           13     used to petition the government doesn't mean that there is

           14     not a First Amendment aspect here that would require the

           15     Congress to make this statute narrowly tailored.

           16                  And he would point out:  Look, this statute was

           17     passed back in -- what -- 1917 or thereabouts.  And what may

           18     have been narrowly tailored there insofar as what was

           19     brought before it is not what happens today and in this

           20     context.

           21                  And he would say that:  This statute has the

           22     potential, in this case and others, for infringing First

           23     Amendment rights in its application.  And there -- it's not

           24     narrowly tailored for that purpose.

           25                  And then he points out, which, of course, is

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     not necessarily dispositive, but to make -- he's clever

            2     enough as an advocate to know that there's concern about

            3     this.  And he tells me:  Don't worry about it.  There are

            4     other statutes that can handle this --

            5                  And this sort of thing.  And that's not an

            6     inappropriate thing to argue.  And, to some extent, it's, of

            7     course, quite true.

            8                  What I'm interested in is this statute, not

            9     whether or not you could have used another statute or should

           10     use.  I have to focus on your use of this statute.

           11                  So tell me as succinctly as you can why you

           12     think either, A, the First Amendment is not implicated so

           13     that strict scrutiny is not required; or B, if it is

           14     required, why does this statute pass muster under the strict

           15     scrutiny test?

           16                  ATTORNEY DIGREGORY:  First of all, the First

           17     Amendment isn't implicated.  I'll go back to an argument

           18     that you don't like first, and I'll mention Morrison again.

           19     Because in Morrison's situation, the First Amendment was not

           20     implicated, said the Court.

           21                  Secondly, no -- no espionage act case ever,

           22     ever has suggested that the First Amendment has -- is

           23     implicated by the conduct the defendants engaged in.  And

           24     the solution that the defense proposes to you is one which

           25     is completely untenable.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  It's a solution which suggests -- which relies

            2     upon the -- and I'll use the word again because I can't

            3     think of another one -- untenable distinction when you're

            4     talking about the application of the First Amendment between

            5     documents and oral information.

            6                  THE COURT:  Well, put that to one side.  I take

            7     your point that information includes both.  At one point,

            8     Mr. Lowell suggested, I think imaginatively, that if I

            9     construed it as restricted to written information, I can

           10     save the statute and his clients.  But I don't think a fair

           11     reading of that term really allows that.  I think

           12     information is oral and written.

           13                  But I still don't see -- and you need to

           14     explain more vividly to me -- why the First Amendment is not

           15     implicated.

           16                  ATTORNEY DIGREGORY:  Well --

           17                  THE COURT:  What I heard you say is no case has

           18     ever said it is implicated.  Well, no case has ever been

           19     like this one.

           20                  ATTORNEY DIGREGORY:  Because, your Honor, if,

           21     for no other reason, this statute is not -- is not --

           22     despite defense assertions to the contrary, this is not a

           23     content-based regulation.

           24                  THE COURT:  All right.  Elaborate.  Elucidate

           25     on that.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  ATTORNEY DIGREGORY:  I'm sorry, sir?

            2                  THE COURT:  Elucidate on that.

            3                  What do you mean?

            4                  ATTORNEY DIGREGORY:  It's not a content-based

            5     regulation because this statute is not designed, your

            6     Honor -- Your Honor, is not designed or aimed at any sort of

            7     protected speech or expression.

            8                  All it's designed to do is to protect the

            9     intellectual property of the United States of America, which

           10     is national defense information, period.  And it doesn't

           11     restrict in any way the ability of these defendants to

           12     engage in foreign policy advocacy.

           13                  They just can't use classified information or

           14     national defense information that the government has chosen

           15     for reasons of national preparedness to hold closely and to

           16     not make officially publicly available to engage in their

           17     discussions.

           18                  THE COURT:  So that's your reason why it isn't

           19     strict scrutiny, because it's not content-based.

           20                  What else?

           21                  ATTORNEY DIGREGORY:  Well, this is also not a

           22     case that implicates the First Amendment because, as I --

           23     and I probably said this earlier -- it's not protected

           24     speech.  It's not protected conduct.

           25                  THE COURT:  Why?

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  ATTORNEY DIGREGORY:  It goes back to the fact

            2     that this information is information that is information

            3     that is vital to the national security of the United States.

            4     And I'm searching, your Honor, for which opinion it was.  It

            5     was either in Bransburg or it was either in the New York

            6     Times case where one of the justices cautioned against the

            7     application of the First Amendment in a situation such as

            8     this because "in an effort to protect our freedoms, we may

            9     ultimately destroy them" or words to that effect, because of

           10     the national security implications related to the protection

           11     of this information.

           12                  THE COURT:  All right.  Continue.

           13                  ATTORNEY DIGREGORY:  There is one other point I

           14     would like to address with respect to First Amendment, your

           15     Honor.  And that is the reliance of the defense upon the

           16     Bartnicki case.

           17                  Bartnicki is not applicable to this case.  The

           18     defendants are afforded no First Amendment protection by

           19     Bartnicki for a number of reasons.  The facts of Bartnicki

           20     are different than the facts in this case.  The facts in

           21     this case are more closely related to the facts in the Baner

           22     case.

           23                  And, in fact, if you look at the Baner case and

           24     the opinion of the District of Columbia Circuit Court of

           25     Appeals in that case and look at the facts in that case and

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     the holding, the Court held that someone who has mere

            2     knowledge, mere knowledge of the illegal interception of a

            3     communication, as Congressman McDermott did, shall not be

            4     granted the protection of the First Amendment.

            5                  THE COURT:  Say that again now.

            6                  ATTORNEY DIGREGORY:  Someone who has mere

            7     knowledge of the illegality of the interception shall not be

            8     granted protection of the First Amendment or that protection

            9     which he claims if he later discloses that information.

           10                  In this case, your Honor, the defendants are

           11     charged with not merely having knowledge of the illegality

           12     of the information, but they're charged with participating

           13     in the illegality itself and can be likened more to the

           14     persons in the Baner case who intercepted the communication

           15     than Congressman McDermott who merely disclosed it.

           16                  May I have a moment with cocounsel, your Honor?

           17                  THE COURT:  Yes, you may.

           18                  As a concession to the shortness of life,

           19     Mr. Lowell, I'll give you about two minutes to respond.

           20                  ATTORNEY LOWELL:  Thank you.

           21                  (Pause)

           22                  ATTORNEY DIGREGORY:  Counsel reminded me that

           23     there was one final point I wanted to make, when you asked

           24     about the vagueness issue, your Honor, and I failed to make

           25     it.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  As the Court had -- as the Court knows and as

            2     the Court has written, a requirement of willfulness in the

            3     statute vitiates any vagueness challenge.  If I may be

            4     permitted to quote the Court from the Walker Lindh case:

            5                      It is well-settled that a requirement of

            6               willfulness makes a vagueness challenge especially

            7               difficult to sustain because a mind intent on

            8               willful evasion is inconsistent with surprised

            9               innocence.

           10                  THE COURT:  All right.  I don't know that

           11     that's very elegant language, but I should point out it's

           12     not an original thought.  It is a well-settled principle in

           13     the law.

           14                  So I despise the computer.  It's come to the

           15     point where nothing I've said -- I've now been on the bench

           16     for nearly 20 years, and every day my words are repeated

           17     back to me.  And I scratch my head and say, "How could I

           18     have said something like that?"  But it forces me to be

           19     rigorous in my thinking and to respond, and that's entirely

           20     appropriate.

           21                  But I do envy those judges in years past when

           22     that couldn't be done.  In fact, I remember going to an

           23     argument at the House of Lords in London now 40 years ago.

           24     They not only did not have computers then.  They didn't have

           25     shepherds.  They didn't have much of anything.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  What did they use?  The barrister's

            2     recollection.  And they actually accepted the barrister's

            3     recollection on what was said in some case five years ago.

            4     It was astonishing to me.

            5                  I don't know which regime is ultimately the

            6     worst, but this one does require me to be more rigorous.

            7                  But I take your point about the importance of

            8     the addition of willfulness.  It does make it more

            9     difficult.

           10                  All right.  Mr. Lowell.

           11                  ATTORNEY LOWELL:  Thank you, your Honor, for

           12     the two minutes.

           13                       ARGUMENT BY THE DEFENDANT

           14                  ATTORNEY LOWELL:  Let me start with the last

           15     one first, then.

           16                  Again, it's the government citing a word or a

           17     phrase, in this case, from one of your opinions and asking

           18     it to do its logic for it without taking it to its next

           19     point.  Willful what?

           20                  Dr. Rosen willfully met with government

           21     officials, no doubt.  Willfully, he listened to what they

           22     had to say, no doubt.

           23                  So what is the willfulness?

           24                  What did he willfully do that makes this less

           25     vague?

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  The only thing he knew that he was willful

            2     about was his meeting with government officials doing what

            3     he always did; talked to his colleagues, the media, foreign

            4     officials, other governments.

            5                  The willfulness is better seen through the

            6     visage of 794 where you're willfully giving it to an agent

            7     of a foreign government, where you're willfully doing

            8     something that you know will injure the interests of the

            9     United States.

           10                  Throwing about willful, taking it out of the

           11     air, slapping it down is not going to make this vague

           12     statute unvague without understanding what "willful" means

           13     in this context.

           14                  Second, I think the government has admitted the

           15     case is unconstitutional.  Because they are fighting so hard

           16     to say this is not speech, it's not content-oriented, it's

           17     not protected speech, it's not protected content that I

           18     think the government doth protest too much, methinks.

           19                  I think once the court analyzes the case

           20     through the case law, of Playboy Enterprises, of the other

           21     cases we've cited, it is no doubt -- Turner versus the FCC

           22     -- it is precisely a content-oriented criminal prosecution

           23     because it's only -- these defendants are only guilty if

           24     they fall into one category of what they say.

           25                  In other words, they can't say something that

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     the government has declared they can't say or, in this case,

            2     they can't say what the government says is information

            3     related to the national defense.

            4                  If they had gone up to that line and said

            5     something about foreign policy, they haven't.  These

            6     prosecutors say they went over the line.  And therefore, it

            7     depends on what they said.  And that is the definition of

            8     content.  And that's not my words.  That's the Supreme

            9     Court's.

           10                  THE COURT:  So is 794 also a content-based

           11     restriction on speech?

           12                  ATTORNEY LOWELL:  Depending on its application,

           13     it could be.  Luckily, we're not at that juncture, as you

           14     would tell me quickly back.  I'm having a hard enough time

           15     trying to make the words of 793 make sense.  I spent some

           16     time on 794.  But that would be my third point.

           17                  The government raises again Gorin and says it

           18     saves their prosecution.  Let me remind the government that

           19     Gorin is a 794 statute.  It is not a 793 statute.  And

           20     that's the piecemeal cutting-and-pasting that I'm asking the

           21     Court not to allow them to do.

           22                  They throw up Morrison.  Morrison is a document

           23     case.  It's at thievery case.  Their argument is:  Wait a

           24     second.  Anybody who's charged with a conspiracy with

           25     somebody in the government is, therefore, guilty as the

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     person in the government.

            2                  That is not the law.  They have to have their

            3     elements of 793.  In fact, 793 has a (d) and an (e) for the

            4     very same purpose.

            5                  Consequently, Morrison, a document case of the

            6     government official who was well on notice of what was the

            7     national defense material, who knew it was classified, was

            8     doing it for his profit motive, et cetera, is not this case,

            9     nor is Gorin, which is a 794 case.

           10                  Lastly, as to the issue of notice and then

           11     Bartnicki, I will leave the Court to read the Baner decision

           12     of the D.C. Circuit and Judge Sentell's dissent against the

           13     cases that have been filed after Bartnicki and Bartnicki

           14     itself.

           15                  This is a Bartnicki case, and it is a Bowley

           16     (phonetic) case of the Third Circuit.  But I'll tell you

           17     what it really is.  It's a landmark case.  It's a Florida

           18     State case.  And the government is saying that these people

           19     should have known better.

           20                  Well, all the people that were protected by the

           21     First Amendment who received the information about the rape

           22     victim's name, all the people who received the information

           23     about what was going on behind closed doors of a judicial

           24     conference, all the people who received the information

           25     about the minor juvenile knew that they were in possession

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     of something they weren't supposed to be.

            2                  Their retransmittal by the Supreme Court was

            3     deemed to be protected by the First Amendment.  So if you

            4     take all these together, I end where I began.

            5                  How can we have what has taken 150 pages of

            6     briefing, many hours of argument, let alone how many hours

            7     you have considered this with your staff, that we have, and

            8     the government, and we still bandy about how does this

            9     apply?

           10                  Where are the contours --

           11                  THE COURT:  "Staff" -- let me stop you there.

           12                  Do you think I run some kind of bureaucracy

           13     here?

           14                  You know, there are --

           15                  ATTORNEY LOWELL:  Your trusted legal clerk.

           16                  THE COURT:  I have one clerk who helps me with

           17     these matters.

           18                  ATTORNEY LOWELL:  But he's a particularly good

           19     one, we hear.  So --

           20                  THE COURT:  I don't have anything but good

           21     clerks.  I hire no one who's not in the top five percent of

           22     their classes at first-rate law schools.  But I don't have a

           23     staff, as such.  And this isn't a collegial decision.  I do

           24     it alone.

           25                  ATTORNEY LOWELL:  And that --

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  THE COURT:  That's why there's a Court of

            2     Appeals, to check and get me -- and correct me when I'm

            3     wrong.  And that's why there is a Supreme Court to check

            4     them when they're wrong.  And that's why Congress can change

            5     things when it sees that it's wrong or if it ever -- strike

            6     that -- if it sees a better way of doing things.

            7                  ATTORNEY LOWELL:  Your Honor, I dare say the

            8     fact that you -- with all the things that you've just told

            9     us about, how many hours you tell us -- over 200 hours on

           10     the bench this year alone --

           11                  THE COURT:  I've spent -- it's not a matter of

           12     a heavy caseload.  I'm not overworked.  I don't mean to

           13     suggest that.  I just mean that an odd set of circumstances

           14     this year has led to a lot of trials.  And -- but I'm not at

           15     all complaining.  I enjoy the work.  I'm not overworked.

           16     And I don't complain about my pay.

           17                  ATTORNEY LOWELL:  What I was going to say, your

           18     Honor, is only this:  We all --

           19                  THE COURT:  My wife does.

           20                  ATTORNEY LOWELL:  We all know how much time you

           21     have given this particular item and how much we have and the

           22     government has.  The fact that so much has been able to have

           23     been written, and concern (sic), I think proves the point --

           24     and if it doesn't prove any other point, this is the point

           25     it proves:  People of this amount of --

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  THE COURT:  It might prove that I'm obtuse and

            2     that I don't understand things as quickly and as clearly as

            3     I ought to.

            4                  But I know what point you're headed at, and I

            5     don't think it's going -- I think the substantive points

            6     you've made are far more powerful.  I wouldn't bother

            7     arguing that because we've devoted all this time to it, it

            8     shows that there must be some flaw in the government's case.

            9                  ATTORNEY LOWELL:  Would you give me the last

           10     sentence to say as follows, then, so that this last point

           11     that I make, at least I make sure that I'm understood.

           12                  If the Supreme Court and the Fourth Circuit's

           13     definition of "vagueness" is that people of common

           14     intelligence and knowledge can understand when their conduct

           15     falls afoul so that can attenuate their conduct, if that is

           16     the standard of when a person in this country is on fair

           17     notice, haven't, by what we've done over the last weeks,

           18     proven that nobody could have been on fair notice given

           19     what -- the debate and the amount of scholarship that we are

           20     trying to contain?

           21                  That's my only point.

           22                  Is it dispositive?

           23                  No.

           24                  But when you take words like "people of common

           25     knowledge," how do you apply that to the real world?

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  My suggestion is, is that I think all these

            2     things add up to the steps that I have said.  And, your

            3     Honor, I think you can take the first step, the second, and

            4     the third.  But I think all these steps are there, and we're

            5     asking that you just at least stand on one of them.

            6                  Thank you.

            7                  THE COURT:  All right.  Mr. Nassikas, I take it

            8     everything has still been said that you think needs to be

            9     said?

           10                  ATTORNEY NASSIKAS:  On this motion, yes, your

           11     Honor.

           12                  Thank you.

           13                  THE COURT:  Now, that's been helpful.  And I

           14     will continue to wrestle with this motion and the issues

           15     that it raises.

           16                          RULING BY THE COURT

           17                  THE COURT:  The motion to dismiss for

           18     outrageous government conduct I have considered at some

           19     length.  Let me begin by the standard.  The standard, of

           20     course, finds its origin in Supreme Court authority; really,

           21     dicta.

           22                  The Supreme Court has never affirmed or

           23     required a dismissal of an indictment or reversed a

           24     conviction on this ground.  But I think the issue -- or the

           25     principle is well established.  And as the parties have both

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     pointed out, I've written on it in the past myself in at

            2     least two cases, and I have applied it in at least two

            3     cases.

            4                  There can be circumstances where the behavior

            5     of the government in investigating a case can be so

            6     outrageous as to go beyond the bounds of due process, to be

            7     so outrageous as to require the dismissal of an indictment

            8     or the reversal of a conviction.

            9                  And in this case the defense calls the Court's

           10     attention to a number of factors in that regard.  I will not

           11     review those in detail because some are under seal and some

           12     are classified.  They relate, in essence, to certain events

           13     that occurred in the course of investigating this and in the

           14     use of Mr. Franklin as part of this investigation.  I won't

           15     go into any detail beyond that because it would trespass on

           16     what is under seal and classified.

           17                  In any event, the standard that must be met

           18     before an indictment would be dismissed is very rigorous.

           19     I'm not surprised that my own statement of the principle

           20     doesn't seem to have surfaced, but there are very few

           21     deathless words that I write.

           22                  In any event, it has to be so outrageous that

           23     due process principles would absolutely bar the government

           24     from invoking the judicial process, that sort of question

           25     begging.  But it has to be shocking, outrageous, clearly

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     intolerable.  And the cases are also clear that sting

            2     operations and the like, of course, fall far short of

            3     that -- of that standard.

            4                  I've reviewed this matter in some detail,

            5     including a late addendum to the motion filed recently

            6     involving the government's dealings with the widow of a

            7     columnist and the allegations that the government tricked

            8     this woman into agreeing to allow the government to look at

            9     documents and search things.

           10                  Whether that has anything to do with this case,

           11     there's some doubt.  But even assuming that it did, I am not

           12     convinced that that falls into that category or requires a

           13     need for any hearing.

           14                  In my view, the motion to dismiss for

           15     outrageous conduct must, therefore, be denied.

           16                    FURTHER PROCEEDINGS - SCHEDULING

           17                  THE COURT:  Moving on to the motions for

           18     subpoenas and the Rule 15 depositions, I asked Mr. Lowell

           19     whether you had -- on the Rule 15 depositions, I believe you

           20     informed the Court that the people in Israel were not

           21     willing to be deposed; is that correct?

           22                  ATTORNEY LOWELL:  I think you asked me a

           23     two-part question, and the first was would they be willing

           24     to do this voluntarily.

           25                  Their answer is no.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  I said, "What would you do if there were a

            2     court order that allowed the depositions to occur?"

            3                  They said I was posing a hypothetical question

            4     to them they would not be able to respond to.

            5                  THE COURT:  A court order allowing the

            6     depositions doesn't compel them to testify.  It has no power

            7     to do that.

            8                  ATTORNEY LOWELL:  I understand that.

            9                  THE COURT:  If they're not willing to do it,

           10     that really answers the question.  Now, if you want to get

           11     back to me on that before the end of next week, I'll allow

           12     you to renew it.

           13                  But it's a useless act to allow the depositions

           14     if they won't agree to be deposed.  The fact that I issue an

           15     order allowing you to take the depositions imposes no

           16     obligation on them to be deposed.

           17                  So I'm going to deny that, but let's go to the

           18     subpoenas now.

           19                  You've asked for a subpoena of Franklin.

           20     There's got to be no dispute about that.  You'll get that.

           21     You've asked for the subpoena of --

           22                  And these names can be revealed, can they not?

           23                  ATTORNEY LOWELL:  Yes, your Honor.

           24                  THE COURT:  There are three --

           25                  ATTORNEY LOWELL:  There are three individuals

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     that the local rules --

            2                  THE COURT:  -- other than Franklin?

            3                  ATTORNEY LOWELL:  Franklin we didn't have to

            4     ask for permission.

            5                  THE COURT:  So there are three; right?

            6                  ATTORNEY LOWELL:  Right.  Present, yes.

            7                  THE COURT:  The three are General Zinny --

            8                  ATTORNEY LOWELL:  Yes, former Special Envoy

            9     Zinny.

           10                  THE COURT:  Secretary Rice?

           11                  ATTORNEY LOWELL:  For when she was national

           12     secretary advisor.

           13                  THE COURT:  And Satterfield or whatever the

           14     name is?

           15                  ATTORNEY LOWELL:  No.  Mr. Burns.

           16                  THE COURT:  Burns, former ambassador or

           17     something.

           18                  And I take it what you would have these --

           19                  ATTORNEY LOWELL:  I'm sorry, your Honor.  Just

           20     to be clear, I was confused myself.  I think the 17(d)

           21     requirements apply to General Zinny, Secretary Rice, also, I

           22     think, Ambassador Satterfield.

           23                  THE COURT:  Yes, I thought his name was there.

           24                  ATTORNEY LOWELL:  And Burns.

           25                  THE COURT:  And Burns.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  So there are four?

            2                  ATTORNEY LOWELL:  Yes, sir.

            3                  THE COURT:  I take it you think these people

            4     are important because they would be able to testify as a

            5     matter of fact that the dissemination of this information

            6     would not injure the United States?

            7                  Is that what you think they would be --

            8                  ATTORNEY LOWELL:  No, your Honor.  Each of

            9     these individuals have real-life experiences dealing with

           10     the defendants in this case in ways which will inform the

           11     Court and the jury as to the elements of the crime, which

           12     include the government's acknowledge that they have to show

           13     beyond reasonable doubt --

           14                  THE COURT:  In other words, they'll tell us

           15     that back-channel disclosures are an everyday common

           16     practice?

           17                  ATTORNEY LOWELL:  They'll do more than that.

           18     They'll explain what they told Dr. Rosen in quite detail so

           19     that Dr. Rosen, prior to the time he sat down with the

           20     people he's alleged to have committed crimes with, will have

           21     been informed as to what was allowed in his conduct and what

           22     was disallowed, whether he was authorized or unauthorized,

           23     whether he was being told something that he was supposed to

           24     pass on --

           25                  THE COURT:  So it goes to the element of the

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     offense of authorization?

            2                  ATTORNEY LOWELL:  And whether he was being told

            3     to do something, to pass it on.

            4                  THE COURT:  All right.

            5                  ATTORNEY LOWELL:  And also to whether or not

            6     something was national defense information.

            7                  If Day 1 Secretary of State Rice tells him

            8     something, and Day 2 somebody he's alleged to be in a

            9     conspiracy with tells him either the same thing or something

           10     that is of less volatile nature, how does he know that the

           11     first one was okay and the second one wasn't?

           12                  THE COURT:  All right.

           13                  Now, the Court's granting you permission to

           14     subpoena these people is, of course, just the first step.

           15     You then have to proceed with the administrative process.

           16                  ATTORNEY LOWELL:  Yes, sir.

           17                  THE COURT:  All right.

           18                  Mr. DiGregory, does the government have any

           19     objection to those four?

           20                  ATTORNEY DIGREGORY:  We filed --

           21                  THE COURT:  I read that.

           22                  ATTORNEY DIGREGORY:  -- with respect to

           23     Mr. Satterfield, your Honor.  But with respect to the

           24     others, we did have objections.

           25                  THE COURT:  Satterfield you agreed because he

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     appears in this matter?

            2                  ATTORNEY DIGREGORY:  We agreed to

            3     Mr. Satterfield, yes, sir -- Ambassador Satterfield.

            4                  THE COURT:  Why aren't these other three people

            5     appropriate witnesses for just the reasons Mr. Lowell has

            6     stated?

            7                  ATTORNEY DIGREGORY:  Well, we would submit to

            8     the Court that Mr. Lowell has failed to sufficiently advise

            9     the Court of the relevancy of their testimony.  What he's

           10     repeated in court is pretty much what they said in their

           11     pleadings.

           12                  THE COURT:  That's right.

           13                  ATTORNEY DIGREGORY:  First of all, some of the

           14     information --

           15                  THE COURT:  Why isn't that enough?

           16                  ATTORNEY DIGREGORY:  Because he's not specified

           17     for Your Honor's benefit what information it is that is

           18     implicated in this indictment --

           19                  THE COURT:  You don't -- certainly, you don't

           20     suggest that he's required to give me chapter and verse,

           21     question and answer on everything that they're going to be

           22     asked?

           23                  ATTORNEY DIGREGORY:  We think he's required --

           24                  THE COURT:  He's told me that there is

           25     communication between these defendants or at least one of

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     them and Secretary Rice about the issue of authorization and

            2     about the issue of national defense information.

            3                  Now, why isn't that sufficient?

            4                  ATTORNEY DIGREGORY:  If there's a communication

            5     about the authorization of the disclosure of national

            6     defense information specifically with respect to these

            7     defendants, we haven't heard about it.  And the point that

            8     I'm making to the Court is --

            9                  THE COURT:  I'm not sure that that is something

           10     they're obligated to disclose to you.

           11                  Can you tell me how they're obligated to

           12     disclose that to you?

           13                  ATTORNEY DIGREGORY:  I think that if the Court

           14     looks at the regulations, at the Touhy regulations that

           15     apply to the State Department --

           16                  THE COURT:  That's another proceeding.  That's

           17     after I okay -- that's something they'll fight out in the

           18     Touhy process.

           19                  That's not today, is it?

           20                  That's not on this motion.  I merely decide at

           21     this stage whether these folks have relevant information on

           22     the representation of counsel.

           23                  Is the Touhy process accelerated to the

           24     subpoena issuance stage of the District Court?

           25                  Don't they have to go through an administrative

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     process?

            2                  ATTORNEY DIGREGORY:  They do.

            3                  I hesitated, your Honor, because I didn't

            4     anticipate you would bring this issue up today.  I wanted to

            5     take a look at at least one of our pleadings.

            6                  THE COURT:  Well, I think that's fair.  I

            7     didn't give you warning about this situation.  That's true.

            8     That's fair.

            9                  So do you have -- what is the process that

           10     Mr. Lowell has to follow, as you understand it?

           11                  ATTORNEY DIGREGORY:  Well, as I understand it,

           12     Mr. Lowell has to notify, which he did, I believe -- notify

           13     the State Department of the witnesses that he wished to

           14     subpoena and that he --

           15                  THE COURT:  That begins the Touhy process,

           16     doesn't it?

           17                  ATTORNEY DIGREGORY:  I believe that's right.

           18                  THE COURT:  And then he has to go through that,

           19     but he has to get subpoenas from here to be -- as I

           20     understand it.

           21                  Is that right, Mr. Lowell?

           22                  Is that your understanding?

           23                  ATTORNEY LOWELL:  Your Honor, I think you have

           24     it right on the two parts.  And that is this Court happens

           25     to have a local rule which says that to a certain level, I

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     have to apply and get permission.  That doesn't obviate the

            2     Touhy process.  It precedes the Touhy process.  And so we

            3     did that to the four individuals.

            4                  But we have provided the government and you

            5     with the Touhy affidavits as part of the request for those

            6     four individuals.  And so they're aware -- we have provided

            7     a lot more specificity than we think the rules require, but

            8     it's there.

            9                  THE COURT:  But if I approve the issuance of

           10     the subpoenas, Mr. Lowell, don't you still have to complete

           11     the Touhy process with the Executive Branch?

           12                  ATTORNEY LOWELL:  Absolutely.  We've started

           13     that process.  But then, as you have indicated, your Honor,

           14     they have our Touhy affidavit and the subpoena.  They

           15     process it and make a determination.

           16                  They have the right to determine whether that

           17     makes sense to us.  "Sure, we're coming."

           18                  "No, we're not coming."

           19                  "We want to move to quash."

           20                  "We want to work out" --

           21                  THE COURT:  Then they come back to court?

           22                  In other words --

           23                  ATTORNEY LOWELL:  Correct.

           24                  THE COURT:  -- if Secretary Rice says "I don't

           25     have anything to offer, and I don't want to appear," then

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     she must move to quash.

            2                  ATTORNEY LOWELL:  Correct, your Honor.  That's

            3     exactly right.

            4                  THE COURT:  That's the way I saw it,

            5     Mr. DiGregory.

            6                  Do I miss something?

            7                  ATTORNEY DIGREGORY:  Well, one thing I wanted

            8     to point out, your Honor, a lot was said about what these

            9     witnesses would testify to.  And as I said, we didn't have

           10     an opportunity to review the pleadings.  And then I was not

           11     present --

           12                  THE COURT:  You mean a second time?

           13                  You've had them for weeks, and you've

           14     responded --

           15                  ATTORNEY DIGREGORY:  I'm talking about our own

           16     pleadings in preparation for --

           17                  THE COURT:  Yes.  And that's fair.  That's

           18     true.

           19                  ATTORNEY DIGREGORY:  But one of the things

           20     that -- and I understand the Court is desirous of perhaps

           21     ruling this afternoon.

           22                  But one of the things that one of my colleagues

           23     pointed out to me, because he was present for the interview

           24     of Secretary Rice, she never gave national defense

           25     information to Mr. Rosen; doesn't even remember him.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  THE COURT:  All right.  Well, that's something

            2     that she can -- that I'll hear about if it's necessary --

            3                  ATTORNEY LOWELL:  I guess the quick answer is

            4     that it's premature to make that fight now, your Honor.

            5                  I would -- first of all, I think that that

            6     happens to be an incorrect fact.  But putting that aside,

            7     the issue is not what she did in this case.  The issue is

            8     what my client did.

            9                  And I dare say as this unfolds, this Court will

           10     understand that what one government official told my client

           11     on a day at which the indictment argues he committed a crime

           12     will have been told to him by other government officials who

           13     are not charged and who I believe the government is going to

           14     say they didn't do anything wrong.

           15                  I'm sorry.  One more thing for the record, and

           16     I apologize.  We did file a formal 12.3 notice in this case.

           17     I just want the record to be clear about that, a public

           18     authority defense.

           19                  THE COURT:  I think what Mr. -- what

           20     Mr. DiGregory was really referring to is that I didn't note

           21     in the notice of this hearing that this was going to be

           22     brought up, and it takes him a bit by surprise.  And I

           23     understand that.

           24                  But what you have to do in this business is

           25     react, and you have reacted.  As it happens, you have

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     reacted in a way that causes me to do the following:

            2     First, with respect to the Rule 15 depositions, Rule 15

            3     depositions -- again, the parties call attention to some

            4     opinion I wrote -- I really dislike that computer -- in

            5     which I said that Rule 15 depositions are permitted only in

            6     rare instances and that the testimony to be material has to

            7     be exculpatory, not merely corroborative or cumulative and

            8     has to be necessary to avoid an injustice.

            9                  Now, in this instance, it seems to me that

           10     issuing these subpoenas is a useless act if these people

           11     aren't going to be deposed.

           12                  And so unless the government -- unless the

           13     defendants can tell me in a pleading promptly that these

           14     folks are willing to be deposed, I will --    what I'll do

           15     is this, because we need to dispose of these matters:  I'm

           16     going to deny it with leave for you to renew the motion if

           17     you can tell me that it's not a futile gesture, they really

           18     will appear and testify, and that they will give exculpatory

           19     material that it would be an injustice not to hear it.  Be

           20     specific about what that is.

           21                  All right.  With respect to the four subpoenas,

           22     we'll start the process on that, and I'll grant the issuance

           23     of those subpoenas.

           24                  Now -- and we'll see, Mr. DiGregory, as we

           25     proceed with that, whether the motions to quash, if they're

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     filed, will being granted.

            2                  Now, I need to revise the SIPA hearing

            3     schedule.  There will not be a SIPA hearing under Section 6

            4     and 10 on the -- I think I had it for the 25th.  I'm -- I

            5     wonder whether we don't need a multiple hearing.  There's a

            6     request for a more definite statement.  It may be that we

            7     can do it all at one time.

            8                  Bring me the book, the docket book, as well,

            9     please.

           10                  The motion that I have just granted with

           11     respect to the issuance of subpoenas, Mr. Lowell, doesn't

           12     that moot your motion for leave to file an ex parte reply to

           13     the government's response?

           14                  ATTORNEY LOWELL:  It does, your Honor.

           15                  THE COURT:  Now, if there are motions to quash,

           16     then we may have to confront the issues that you wanted to

           17     raise in your ex parte submission.  What you wanted to do is

           18     give me a lot of juicy information that you didn't want the

           19     government to know about yet.

           20                  ATTORNEY LOWELL:  That's a good way of saying

           21     it, your Honor.

           22                  THE COURT:  Now, there is a motion to suppress

           23     and a motion to compel Brady material.  I'll come back to

           24     that in a moment.  Let's deal with SIPA.

           25                  Mr. DiGregory, Mr. Lowell, Mr. Nassikas, do you

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     think we can do SIPA in one day?

            2                  ATTORNEY LOWELL:  I don't think anybody thinks

            3     it can be done in one day.

            4                  ATTORNEY NASSIKAS:  Agreed.

            5                  THE COURT:  Three?

            6                  ATTORNEY NASSIKAS:  Three days?

            7                  THE COURT:  No.  You said, "Agreed."

            8                  Thank goodness.

            9                  Two days would do it; right?

           10                  ATTORNEY DIGREGORY:  May I consult --

           11                  THE COURT:  Yes.

           12                  ATTORNEY LOWELL:  May we have the same moment?

           13                  THE COURT:  Yes, do so.

           14                  (Pause)

           15                  ATTORNEY DIGREGORY:  Your Honor, with the

           16     Court's permission, may I ask Mr. Reilly to come to the

           17     podium and go through the process that we need to go through

           18     with the Court with respect to SIPA, and then maybe that

           19     will inform the Court about scheduling.

           20                  THE COURT:  Yes, go ahead, Mr. Reilly.  That

           21     would be helpful.

           22                  ATTORNEY REILLY:  Thank you, your Honor.

           23                  With respect to the SIPA process, it all begins

           24     in this case with the defendants' Section 5 notice which

           25     puts the government on notice of the information it

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     reasonably expects to disclose at trial.

            2                  We received their Section 5 notice, and we

            3     would move this Court for a more definite Section 5 notice.

            4     That's the only way we can work with our client intelligence

            5     agencies to assess the risk to the national security posed

            6     by the disclosures of information at trial.  Once we get a

            7     specific Section 5 notice --

            8                  THE COURT:  So you do think that what we

            9     need -- if I don't decide the motion for a more definite

           10     statement on the papers, what we need is a bifurcated SIPA

           11     hearing, one that resolves that issue and then one that

           12     resolves the SIPA Section 6 and 10 matters?

           13                  ATTORNEY REILLY:  Bifurcated in the sense that

           14     you do have to first give them a more definite Section 5 --

           15     we have to get a more definite Section 5 to go back to the

           16     intelligence agencies to assess the disclosure.

           17                  Then we have a Section 6 hearing pursuant to

           18     6(a) where the Court, pursuant to SIPA, makes written

           19     findings concerning the use, relevance, and admissibility of

           20     all the classified information that they say in their

           21     Section 5 they're going to disclose.

           22                  Then we have to, again, go back to our client

           23     intelligence agencies and say:  Look, the Court has said all

           24     of this information is going to be disclosed at trial.  It's

           25     admissible.  What do you want to do about it?

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  How are we going to use it?

            2                  Are we going to use certain procedures to

            3     protect the information?

            4                  Are we going to propose substitutions,

            5     stipulation, or summaries to the Court?

            6                  And that takes time for us to work with the

            7     intelligence agencies, especially in this case where there

            8     are so many involved and given the sensitivity of the

            9     information in this case.

           10                  After we get that from the intelligence

           11     community, we come back to the Court under 6(c) and we have

           12     a hearing with the Court on our motion for substitutions,

           13     use, and stipulations.

           14                  After the Court rules in writing on that, we go

           15     back again to the intelligence community and say:  This is

           16     what the Court has proposed.

           17                  And that's where we have an opportunity to

           18     either appeal the Court's order, change our plan as far as

           19     what information is going to being offered by us, or to go

           20     forward.

           21                  And again, we need time at each of those steps

           22     to work with our client intelligence community.

           23                  THE COURT:  All right.  That's a helpful

           24     summary.  Let's go back to the beginning of it.

           25                  The beginning of it was the motion for a more

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     definite statement.

            2                  ATTORNEY REILLY:  Correct.

            3                  THE COURT:  Now, as I recall, that's -- first

            4     of all, the defendants have to give a statement of what they

            5     intend to use.

            6                  ATTORNEY REILLY:  Correct.

            7                  THE COURT:  And you think that needs to be more

            8     definitized, to use a coined modern term that I normally

            9     avoid, so that you can have a more concrete way of dealing

           10     with the problem.

           11                  Have you and defense counsel discussed so that

           12     we might obviate a hearing on that and they might provide

           13     what you want without the necessity for an order or a

           14     hearing?

           15                  ATTORNEY REILLY:  We have not done that, but we

           16     could.

           17                  THE COURT:  You will.

           18                  ATTORNEY REILLY:  Understood.

           19                  THE COURT:  Because that's something counsel

           20     ought to be able to work out.

           21                  Now, once that occurs, the next step, you said,

           22     is that you have to then consult with your clients.

           23                  ATTORNEY REILLY:  Correct.

           24                  THE COURT:  And then you file with the Court

           25     the material in the form that you think it ought to be used;

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     is that right?

            2                  ATTORNEY REILLY:  No.  The first step is the

            3     Court has to make a ruling on their motion, basically --

            4                  THE COURT:  And then you go back.

            5                  ATTORNEY REILLY:  -- to disclose the classified

            6     information.  So take a specific classified document that

            7     they want to use at trial.  If you find that that document

            8     is relevant and admissible, we have to go back to the

            9     intelligence community.

           10                  THE COURT:  Let's take this one bite at a time.

           11                  ATTORNEY REILLY:  Sure.

           12                  THE COURT:  At the moment, we were to have a

           13     SIPA hearing on the 25th.  So I'm going to direct counsel to

           14     meet and confer on the 25th for the purpose of reaching an

           15     agreement about a more definite statement.  There's no

           16     reason why you all can't do that.

           17                  Yes?

           18                  ATTORNEY LOWELL:  Just so that we're doing as

           19     much work as we can to smooth this along, your Honor, the

           20     concomitant request that we have is for a more definite

           21     SIPA 10 statement from the government.

           22                  THE COURT:  I know.  They're both more definite

           23     statements.  You should both be doing it.  And I see no

           24     reason why there can't be an agreement there.

           25                  I don't think this is a case that, if it is

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     ever tried, there are going to be shocks or surprises on

            2     either side about the nature of the evidence presented.

            3     Ultimately, in any event.

            4                  All right.  Then after that, Mr. Reilly, you

            5     pointed out we then need a hearing at which the Court will

            6     decide, based on these more definite statements, whether you

            7     really get to have this information to use at trial; whether

            8     it's really necessary, to put it colloquially.

            9                  ATTORNEY REILLY:  It's the same as at trial a

           10     ruling on the use, relevance, and admissibility of any

           11     evidence at trial.

           12                  THE COURT:  And that -- the Court will issue

           13     findings and conclusions with respect to that.

           14                  ATTORNEY REILLY:  With respect to each piece of

           15     information.

           16                  THE COURT:  I beg your pardon?

           17                  ATTORNEY REILLY:  With respect to each piece of

           18     classified information.

           19                  THE COURT:  Yes, I understand that.

           20                  And that needs to be a hearing where you think

           21     we ought to set aside a day; is that right?

           22                  ATTORNEY REILLY:  Given the volume, at least a

           23     day, yes.  It will likely take more than a day.

           24                  THE COURT:  All right.  Let's set that, then --

           25     and those, of course, are in camera classified hearings.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  ATTORNEY REILLY:  We filed a motion and a

            2     declaration by the --

            3                  THE COURT:  I saw that.

            4                  ATTORNEY REILLY:  -- deputy --

            5                  (Simultaneous discussion)

            6                  THE COURT:  It will --

            7                  ATTORNEY REILLY:  -- for a closed hearing.

            8                  THE COURT:  -- be in camera, classified.  So

            9     we'll have to do the sweep and everything else.

           10                  ATTORNEY REILLY:  Correct.

           11                  THE COURT:  And the earliest I can accommodate

           12     that is May 2nd at 10:00 a.m.

           13                  ATTORNEY LOWELL:  Your Honor, I'm embarrassed

           14     to tell you that I keep -- maybe it's too modern, as you

           15     were saying about computers.  My calendar is on the device

           16     the security officer will not let me take into the

           17     courtroom.  I should know better than to bring something

           18     else.

           19                  Let's pick the dates, but let me confirm them

           20     as quickly as possible to make sure I'm not messing up

           21     another court appearance.  I'm sorry.  I didn't know.  I

           22     should have known.

           23                  THE COURT:  I'll accommodate another fixed

           24     court appearance.  But otherwise, I'll ask that you make

           25     alternate arrangements and not go to your house on Martha's

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     Vineyard or --

            2                  ATTORNEY LOWELL:  You knew about that.

            3                  THE COURT:  -- or your house in Vail or

            4     anything like that, but attend this.

            5                  ATTORNEY LOWELL:  The only thing it could be is

            6     either a court-ordered deposition or a court-ordered

            7     appearance.  Everything else I will definitely move.  So why

            8     don't you give us -- I'll work with --

            9                  THE COURT:  May 2nd at 10:00 a.m.  Then we'll

           10     do that until we finish it, although I have other matters on

           11     the 3rd, and I will -- and the 4th.  But we'll get it done.

           12                  Now, then, Mr. Reilly, that doesn't end the

           13     process.

           14                  ATTORNEY REILLY:  No.

           15                  THE COURT:  Then you go back to your clients --

           16     I've been through this three or four times before.  I think

           17     I wipe the slate clean each time in the hopes that I won't

           18     have to repeat it.

           19                  Now, you then come back with a pleading that

           20     you file that says what, what the government is -- whether

           21     it's willing to declassify some material, whether other

           22     material must remain classified, whether some material can't

           23     be used at all.

           24                  ATTORNEY REILLY:  Exactly right under

           25     Section 6(c).  We get to argue at that stage the

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     admissibility versus the risk to the national security, the

            2     ability of the government to substitute and stipulate or

            3     make other use limitations upon the use of the classified

            4     information.

            5                  THE COURT:  Well, I start a class-action trial

            6     soon thereafter.  The earliest I can accommodate such a

            7     hearing --

            8                  Is there any reason why we couldn't accomplish

            9     such a hearing in two or three hours?

           10                  ATTORNEY REILLY:  It all depends,

           11     unfortunately, on the amount of information that the Court

           12     deems is admissible.  They usually do take quite a long

           13     time.  A full afternoon or even a day would be -- might be

           14     needed.

           15                  THE COURT:  Well, I will -- and, of course,

           16     there should be some time allotted for that prior to the

           17     hearing.

           18                  Would there be one further hearing after that?

           19                  ATTORNEY REILLY:  There have been in the past

           20     where the Court and the government and defense counsel

           21     engage in a discussion -- continuing discussion about the

           22     use and limitations or substitutions.

           23                  THE COURT:  All right.  Now, that I will direct

           24     that you take up on the 15th of May and that you submit a

           25     pleading to the Court by the 18th of May jointly or

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     individually telling me what remains to be done.  And I'll

            2     set the SIPA hearing for the first day of what was the

            3     trial.  That is the 23rd of May.

            4                  Now, that necessarily requires rescheduling of

            5     the trial.  I have a capital case that begins not long after

            6     that as well as some other jury matters.  Some matters may

            7     plead out.

            8                  But how long do you think, again, Mr. Reilly,

            9     that it will take to try this matter were it to go to trial?

           10                  ATTORNEY REILLY:  The government's case would

           11     be four, four and a half, five days at the most.

           12                  THE COURT:  And about the same if the

           13     defendants choose to offer -- they're not required to offer

           14     any evidence, but they may if they choose to if the matter

           15     goes to trial.

           16                  ATTORNEY LOWELL:  Your Honor, I'm positive that

           17     there will be a defense unless the Court grants our Rule 29,

           18     if it gets that far.  And it will take longer than that, I

           19     dare say.  I can't imagine that this case would be done in

           20     less than eight trial days from the defense point of view.

           21                  THE COURT:  The earliest that I can

           22     thereafter -- since I think the hearing on the 25th is going

           23     to take at least a day and perhaps more and on each of these

           24     occasions the Court has to prepare findings because all of

           25     these rulings are immediately appealable and, therefore, I

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     regret to say that --

            2                  Let me ask the deputy clerk.

            3                  (Discussion held off the record.)

            4                  THE COURT:  The earliest that I can address the

            5     matter after that may be July 11th.  That seems to be a

            6     realistic schedule in terms of the SIPA matters.

            7                  ATTORNEY REILLY:  The most important parts of

            8     the SIPA process where we need the time is between the

            9     Court's ruling on admissibility to go back and have enough

           10     time with the intelligence agencies.

           11                  THE COURT:  What have I set so far?

           12                  ATTORNEY REILLY:  Right now we have a

           13     pleading -- or on May 15th, you, I think, directed us to

           14     file our motion for --

           15                  THE COURT:  First of all, let's go back again

           16     and recapitulate.

           17                  ATTORNEY REILLY:  Right.

           18                  THE COURT:  This coming -- this coming Tuesday,

           19     you are directed to meet and confer about more definite

           20     statements.

           21                  Now, in the unlikely event that you are unable

           22     to reach agreement about supplying each other with

           23     sufficient information so that you can then file the SIPA

           24     notices that you need to file, then I need to know that

           25     right away, and I'm -- I will hear the parties under seal on

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     Monday, May 1st at 3:00 and resolve that matter.  But --

            2                  ATTORNEY REILLY:  If there is --

            3                  THE COURT:  If there is a dispute.  I ask

            4     counsel not to push me to that.  I'm normally ill-tempered.

            5     Don't exacerbate the normal -- my normal intemperateness.  I

            6     vacillate between the one on this side of the wall and the

            7     one on that side of the wall.  You don't want the one on

            8     that side of the wall.  For the others in the courtroom,

            9     that's a mystery, and it should remain a mystery.

           10                  Then the next thing on the schedule is what,

           11     Mr. Reilly?

           12                  ATTORNEY REILLY:  Then there's a -- right now

           13     you have a May 2nd hearing on the 6(a) hearing regarding

           14     use, admissibility --

           15                  THE COURT:  All right.  Now, that may have to

           16     change, but I'm not available before then.  That may have to

           17     change if -- in fact, why don't we not do the May 1st.  And

           18     if there is a failure to agree, I'll take it up on May 2nd.

           19                  And I set that for 10:00 a.m., did I not?

           20                  ATTORNEY REILLY:  Correct.

           21                  THE COURT:  10:00 a.m. on May 2nd.  But I would

           22     hope that at 10:00 a.m. on May 2nd, that matter will have

           23     been resolved on April 25th.

           24                  And then the purpose of May 2nd will be for the

           25     Court to consider whether the parties' various motions to

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     use classified information should be granted; is that right?

            2     In other words, I will consider, just as I would at trial,

            3     the materiality, the relevance, the admissibility of this

            4     material, the necessity for it.  And I've set aside and will

            5     set aside two days, if that's necessary.

            6                  Then after that the parties -- that gives you

            7     some time, doesn't it, Mr. Reilly?

            8                  ATTORNEY REILLY:  Pardon?

            9                  THE COURT:  That gives you time.  In the

           10     meantime, I'm not ignoring this case.  I'm working on a

           11     motion to dismiss and considering that with diligence.

           12                  ATTORNEY LOWELL:  Your Honor, I'm sorry to

           13     rise, but I want to make sure we're on the same page.

           14                  We had thought that you had set May the 23rd as

           15     what we call the SIPA hearing, which, as I understood, after

           16     we've tried our best and done the preliminaries and you've

           17     ruled on the definitive statements or we've tried to work it

           18     out and Mr. Reilly has gone and done his preliminary work

           19     with the agency and come back, that's when we begin the

           20     process of, to excuse the expression, "duking it out."

           21                  THE COURT:  So May 2nd is merely to determine

           22     what, then, Mr. Reilly?

           23                  ATTORNEY REILLY:  Well, normally, it would

           24     be -- originally, you would set that to determine use,

           25     relevance, and admissibility.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  THE COURT:  Yes.  And then you go back to the

            2     agency --

            3                  ATTORNEY REILLY:  Correct.

            4                  THE COURT:  -- because you may get stuck with

            5     some rulings on relevance and admissibility on materials

            6     that may stick in their craw to use.

            7                  ATTORNEY REILLY:  Correct.

            8                  ATTORNEY LOWELL:  My only point, your Honor, if

            9     that's the case, given that you said you're pretty -- in the

           10     middle of a May 3rd, May 4th, that's -- the first

           11     opportunity that you get with the parties to sift through

           12     what is ever left from our best efforts is likely, given

           13     what I understand from the people working on it, to take

           14     longer than a day.

           15                  THE COURT:  All right.  Yes, I will accommodate

           16     more than a day, because then that gives Mr. Reilly from

           17     then until the 15th of May to deal with his clients and to

           18     sit down with Mr. Lowell and Mr. Nassikas on the 15th of

           19     May; is that right?

           20                  ATTORNEY LOWELL:  A meet-and-confer was

           21     something you wanted on the 15th?

           22                  THE COURT:  Meet and confer on the 15th of May.

           23                  ATTORNEY REILLY:  That's not sufficient time

           24     for us.

           25                  THE COURT:  What would be sufficient time?  As

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     long as it's before the 25th, because on the 25th -- or is

            2     it the --

            3                  ATTORNEY REILLY:  23rd.

            4                  THE COURT:  -- 23rd, I will then have a further

            5     hearing.

            6                  Will you have done it by the 19th, or do you

            7     need until the 23rd?

            8                  ATTORNEY REILLY:  In order -- depending on how

            9     much information is actually going to be admissible --

           10                  THE COURT:  Set the meet-and-confer on the 23rd

           11     instead of the 15th.  That should give you, then, from the

           12     2nd, 3rd, or 4th, whenever we finish that, until the 23rd.

           13     That should be 20 days.  That should be sufficient time,

           14     Mr. Reilly.

           15                  ATTORNEY REILLY:  It's tight.

           16                  THE COURT:  I beg your pardon?

           17                  ATTORNEY REILLY:  It's tight.

           18                  THE COURT:  Well, if you can persuade me that

           19     you really need more time, you may let me know.

           20                  ATTORNEY REILLY:  We'll approach the Court if

           21     we need more time.

           22                  THE COURT:  We need to move this thing along,

           23     but at least have a schedule.

           24                  So the 23rd is when you will confer with

           25     Mr. Nassikas and Mr. Lowell.  And then a further hearing and

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     really the last hearing on SIPA --

            2                  Now, this should be a shorter hearing,

            3     shouldn't it?

            4                  ATTORNEY REILLY:  The issues are less cut and

            5     dry.  So even if the volume is lower, the arguments are

            6     longer.

            7                  THE COURT:  All right.  Well, there are two

            8     trials set, but I think they may be resolved.  I'll set this

            9     for the 14th of June at 10:00 a.m.  And I'll record this in

           10     an order.

           11                  All right.  There were other matters that I was

           12     going to cover, but I --

           13                  ATTORNEY NASSIKAS:  Your Honor, you had

           14     mentioned a May 18th pleading.

           15                  THE COURT:  Yes.  That needs to be revised.

           16                  ATTORNEY NASSIKAS:  Thank you.

           17                  THE COURT:  You're right, Mr. Nassikas.  That

           18     needs to be revised because the May 15th date is gone for

           19     the meet-and-confer.

           20                  That's now May 23rd, is it not?

           21                  ATTORNEY REILLY:  Correct.

           22                  THE COURT:  And then the next hearing after

           23     May 23rd I just set is June what?

           24                  ATTORNEY LOWELL:  14th.

           25                  ATTORNEY REILLY:  June 14th.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  THE COURT:  14th.

            2                  So any reason why the pleadings, then, could

            3     not being filed by June the 9th?

            4                  ATTORNEY REILLY:  What exactly is this

            5     pleading?

            6                  THE COURT:  This would tell me what's left to

            7     be resolved.  This should frame for me what I need to

            8     consider, hear argument on, resolve.  Because it is really

            9     the results of this hearing and the conclusions I reach in

           10     this hearing that may provoke an appeal.  The earlier ones

           11     are really predicates or preliminary.  It's this one that's

           12     going to lead a party to conclude that this matter needs to

           13     be reviewed.

           14                  ATTORNEY REILLY:  All right.

           15                  THE COURT:  And then that occurs roughly

           16     30 days before I fix the trial date.

           17                  Anything else to be done in this matter today?

           18                  ATTORNEY NASSIKAS:  Your Honor, one helpful

           19     additional date might be related to the government's plans,

           20     as we understand from a recent SIPA filing, to declassify a

           21     fair amount of material in this case.  If they are given a

           22     deadline for that declassification moment, it could

           23     substantially reduce --

           24                  THE COURT:  They already have a deadline.  I'm

           25     sure, Mr. Nassikas, if you did it when you were an AUSA, you

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     know how painful these hearings are.  So they have an

            2     enormous incentive to persuade their clients to declassify.

            3     I'm sure you would be shocked, as I would, if Mr. Reilly

            4     hasn't already applied the thumbscrews to his clients.

            5                  Am I correct?

            6                  ATTORNEY REILLY:  You are correct, sir.

            7                  THE COURT:  I thought so.

            8                  ATTORNEY REILLY:  Your Honor, the trial date,

            9     as I understand it, is set for July 11th?

           10                  THE COURT:  That's correct.

           11                  ATTORNEY REILLY:  That's less than -- I have it

           12     as less than 30 days after the 6(c) hearing.  That may not

           13     be enough time for us given that the Court has to make

           14     written findings from the 6(c) hearing to be reviewed, and

           15     then we have to make a decision going forward to trial.

           16                  THE COURT:  Well, you'll just have to move with

           17     alacrity in that regard.

           18                  ATTORNEY REILLY:  I understand.

           19                  THE COURT:  What have I set?  I've set the

           20     11th?

           21                  ATTORNEY REILLY:  Correct.

           22                  THE COURT:  Well, beyond that, I get quite busy

           23     again.  I have a patent infringement trial that begins

           24     thereafter that may take a while.  And I don't want to move

           25     this trial date.  If there's going to be a trial, I want it

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     immutable and fixed.  And it will -- as Sam Johnson said

            2     about the man about to be hanged, it will wonderfully

            3     concentrate everyone's minds.

            4                  How much time do you think would be needed, if

            5     not July 11th?

            6                  ATTORNEY REILLY:  Well, the appellate time is

            7     ten days, and that's the time we have to take to review the

            8     written opinion.  So it's not from the date of the hearing.

            9     It's from the date that the Court gets us a written opinion.

           10                  THE COURT:  I may do that from the bench, that

           11     Mr. Rodriquez here, in his fashion, can prepare pretty

           12     promptly.

           13                  ATTORNEY REILLY:  We generally like to build in

           14     as much time as we can between the end of the SIPA process

           15     and the trial date so that the trial date doesn't have to

           16     move again if the government has to go back again to the

           17     intelligence agencies and review what's going to be

           18     disclosed and then go back to the Court.  We want a fixed

           19     trial date as well.

           20                  THE COURT:  I don't have any more dates until

           21     August 2nd.  And here you get into -- we don't take

           22     vacations on the bench.  We're not allotted vacations.  But

           23     I suspect that lawyers who make munificent sums need time to

           24     spend that money.

           25                  ATTORNEY REILLY:  I wouldn't know.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  THE COURT:  Good answer.

            2                  ATTORNEY REILLY:  What about August 2nd,

            3     Mr. Lowell and Mr. Nassikas?

            4                  ATTORNEY NASSIKAS:  Your Honor --

            5                  THE COURT:  Just do it from there.  Let's get

            6     it done.

            7                  ATTORNEY NASSIKAS:  August 2nd works for me as

            8     counsel.  My concern is August is a month -- there are

            9     multiple witnesses the defense --

           10                  THE COURT:  That's why we have subpoenas.

           11                  ATTORNEY NASSIKAS:  I understand.  It is a

           12     difficult -- it is a difficult time of year.  Personal

           13     preference would be September because it's the work mode,

           14     the witnesses, and everybody else, your Honor.  I know it's

           15     not convenient for cocounsel.

           16                  THE COURT:  It's really not convenient for the

           17     Court either.

           18                  ATTORNEY LOWELL:  Your Honor, all I want to say

           19     is two things:  One is that when we have been trying to get

           20     this all scheduled, way long ago I accepted an assignment to

           21     teach at Columbia Law School starting in September.  We can

           22     accommodate that if -- depending on my ability to tell the

           23     folks at Columbia what day I might be able to move it.

           24                  THE COURT:  No.  We're going with August.

           25                  ATTORNEY LOWELL:  The second is -- and this is

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     a point of personal privilege -- August the 3rd, it's not

            2     about making money or spending it.  It's mom's 85th

            3     birthday, and we're planning quite an event.

            4                  THE COURT:  I'll accommodate that.

            5                  What date is it?

            6                  ATTORNEY LOWELL:  August the 3rd is her

            7     birthday.

            8                  THE COURT:  All right.

            9                  ATTORNEY LOWELL:  Was August the 2nd a Monday

           10     or Tuesday?

           11                  THE COURT:  It's a Tuesday.  I'll give you

           12     August the 7th.  Don't miss your mother's birthday.

           13                  ATTORNEY LOWELL:  I knew you would think that

           14     way, your Honor, and she'll appreciate it.

           15                  Thank you.

           16                  ATTORNEY REILLY:  Thank you, your Honor.

           17                  THE COURT:  I thank counsel for your

           18     cooperation today.  It's been painful, but helpful.

           19                  And the court stands in recess until 9:00

           20     Monday morning.

           21                  ATTORNEY NASSIKAS:  Your Honor, are there any

           22     other motions on the agenda that will be decided today?

           23                  THE COURT:  No.  I'm tired.  They don't pay me

           24     very much, but they do give me the power to say when it's

           25     done.  And it's done for the day.  There are other things.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1     I'm acutely sensitive to additional things that need to be

            2     done in this case.

            3                  I'm especially -- I'm exquisitely sensitive to

            4     the motion to dismiss that I'm continuing to consider.  I've

            5     about considered -- I've focused a lot of attention and time

            6     on the FISA materials.  There may be some issue that doesn't

            7     relate to the FISA materials themselves, but I've also

            8     looked at the motion for sanctions and a show cause hearing

            9     with respect to the Rule 6.

           10                  At the moment, Mr. Lowell and Mr. Nassikas, I'm

           11     not moved much by the Rule 6 matter, but there's another

           12     little issue in there that I have do have in mind that I

           13     can't go into now because it relates to classified

           14     information.  And I'm struggling with that, too.

           15                  So the answer to your question is I know that

           16     there are things out there.  I know that they're important.

           17     This case is important just like every case is important.

           18     I've had cases this morning involving people who were facing

           19     either having a weekend in jail or not having a weekend in

           20     jail.  That's very important to them, too.  And this is very

           21     important to both sides, and I'm giving it as much attention

           22     as I can as quickly as I can.

           23                  So never, never forget that I have in mind that

           24     there are a lot of things out there.  I haven't forgotten

           25     anything about this case.

                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR

            1                  Thank you.  Court stands in recess.

            2                  In addition to which none of this material can

            3     be taken home.  But that's something you have to struggle

            4     with, too.

            5                  (Court recessed at 6:14 p.m.)


            7                                  ---



















                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR


            2                        CERTIFICATE OF REPORTER


            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. STEVEN J. ROSEN,

           10     KEITH WEISSMAN.


           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 84, 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                    , 2006.



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



                                MICHAEL A. RODRIQUEZ, RPR/CM/RMR