1 AMERICA弗吉尼亚亚历山大司UNITED STATES，））原告））诉）刑事ACTION）史蒂芬J. ROSEN）1:05 CR 225 KEITH威斯曼，））被告在美国地方法院为东区。））记者TRANSCRIPT状态听证周四，2007年4月19日---之前：T.S.议员ELLIS，III主持出场：OFFICE美国律师按：KEVIN DIGREGORY，AUSA NEIL HAMMERSTROM，AUSA托马斯·赖利，SAUSA（DOJ）MICHAEL MARTIN，SAUSA（DOJ）对政府--- MICHAEL A.罗德里格斯，RPR / CM/ RMR官方苑记者USDC，弗吉尼亚州亚历山德里亚的东区，弗吉尼亚MICHAEL A.罗德里格斯，RPR / CM / RMR。2次出场1（续）：2 ABBE LOWELL，ESQ。ERICA鲍尔森ESQ。3对于被告罗森4 JOHN NASSIKAS，ESQ。5 KAVITHA BABU，ESQ。KATE BRISCOE，彼岸。6 BARUCH WEISS，ESQ。7对于被告威斯曼8 --- 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. MICHAEL罗德里格斯，RPR / CM / RMR。 3 1 INDEX 2 3 COMMENTS BY THE COURT 4 4 COURT QUESTIONS OF THE PARTIES 8 5 RECAPITULATION BY THE COURT 27 6 7 (Court recessed) 8 9 --- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 4 1 PROCEEDINGS 2 3 (Court called to order at 2:50 p.m. in USA v. 4 Rosen, Weissman) 5 THE COURT: All right, you may call the case. 6 THE CLERK: 1:05 Criminal 225, United States 7 versus Steven J. Rosen and Keith Weissman. 8 Would counsel please note your appearances. 9 THE COURT: All right, I will just note for the 10 record, Mr. Reilly, I see all counsel, the usual suspects, 11 ready to proceed. 12 COMMENTS BY THE COURT 13 THE COURT: I have some thoughts since I last 14 met with you on Tuesday, and, indeed, I have some new-found 15 sympathy for Mr. Reilly's claim to have to need to study 16 what I said. So, I worked particularly hard to take my 17 notes and put them into the memorandum opinion quickly, and 18 I have that for you today, although I may take a little more 19 time this afternoon, before I sign the final version, to see 20 if I can catch the grossest of the stylistic infelicities. 21 The rest will be merely offspring of my limitations in that 22 capacity. So, I will have it for you here shortly. I have 23 it in right now. And I think that it would be helpful for 24 both the government and the defendants to have it, to look 25 at it. MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 5 1 The big thing for Mr. -- for the government is 2 to figure out whether they want to appeal what I said, if it 3 fits into the appeal -- which I indicated I didn't think it 4 does -- or whether they want to proceed in the iterative 5 process that I think 6(c) in practice permits, which is to 6 give the government an opportunity to think about whether 7 they want to submit conventional 6(c) substitutions, or more 8 modest versions of what they have, or declassify 9 everything -- which seems to me also a possibility -- and 10 then proceed. 11 But I think it would be useful to give the 12 parties an opportunity to see what I have ruled. I haven't 13 issued an order yet, but I will do so in due course. 14 Now, given -- it's 30 pages. So I can either 15 give you ten minutes to rifle through it to see if there is 16 something particularly shocking -- I think it's essentially 17 what I said on Tuesday, because I had pretty much outlined 18 it and written out a lot of it in my mind, as well -- or we 19 can take a few minutes and I'll hear preliminarily where the 20 parties are now. 21 Let me ask, Mr. Reilly, have you conferred with 22 the defendants since Tuesday? 23 ATTORNEY REILLY: No, we have not, your Honor. 24 THE COURT: And I take it you are delighted 25 that I have put it down, although I just learned from the MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 6 1 court reporter that you asked for a transcript, too. So you 2 did have that. 3 ATTORNEY REILLY: That's correct, your Honor. 4 THE COURT: All right. Well, that, the 5 transcript won't be quite exactly like this, but it will be 6 reasonably close. 7 What -- would it be useful if I gave you ten 8 minutes to read it? 9 ATTORNEY REILLY: Actually I think at this 10 point, your Honor, we were prepared to ask you to stay the 11 entry of any order for Monday, pending what the government 12 will come back to you, hopefully in two weeks, to tell you 13 what we want to do, based upon what you stated from the 14 bench, so that we are not presented at this point with -- 15 excuse me -- the memorandum opinion and order, such that we 16 have to act on that. 17 Instead, we take what the bench has advised us 18 it is thinking, and incorporate that into our decision- -- 19 THE COURT: All right. 20 ATTORNEY REILLY: -- -making process -- 21 THE COURT: Well, let met think about that. 22 That's an understandable suggestion. 23 But what I intend to do is listen to Mr. Lowell 24 and Mr. Nassikas as to what they think. But then I'm going 25 to recess, give you the memorandum opinion, let you look at MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 7 1 it, and then we will reconvene. I have another matter at 2 3:00. 3 Mr. Lieser, you are here for that. 4 ATTORNEY LIESER: The plea at 3:00 o'clock, 5 your Honor. 6 THE COURT: I will do that plea while they read 7 this opinion. 8 And then I will take this matter back up with 9 counsel in this case, and you can tell me what you think of 10 Mr. Reilly's suggestion. 11 In other words, he wants to go back to his 12 clients, all of whom are very cooperative -- 13 (Laughter) 14 THE COURT: -- and see if they want to try 15 something else, or tell me that they want an order entered. 16 And whether or not it's appealable is not for me to 17 determine. 18 Is that -- anything at this time, Mr. Lowell or 19 Mr. Nassikas, or does that sound like -- 20 ATTORNEY LOWELL: Sounds like a good way to 21 proceed, your Honor. 22 THE COURT: All right. 23 I will recess this matter now. 24 Is defense counsel here, Mr. Lieser? 25 ATTORNEY LIESER: No, your Honor. MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 8 1 THE COURT: All right. 2 I will recess until 3:00 o'clock. As soon as I 3 recess, the court security officer will distribute to 4 counsel this memorandum opinion. Unfortunately, I only have 5 one copy for each of the parties, rather than multiple 6 copies. 7 Court stands in recess. 8 (Court recessed at 2:55 p.m. in USA v. Rosen, 9 Weissman) 10 (Court called to order at 4:35 p.m. in USA v. 11 Rosen, Weissman) 12 THE COURT: We are back on the record in United 13 States against Rosen and Weissman. 14 Well, had I known that I was going to have to 15 do these other items before getting back to this, I would 16 have written another 30 pages. 17 (Laughter) 18 THE COURT: Because you had plenty of time. I 19 could have been even more repetitive than I was. 20 COURT QUESTIONS OF PARTIES 21 THE COURT: All right, Mr. Reilly, you 22 indicated previously that you would like to have an 23 opportunity to consult at greater length with your clients, 24 and that you would request not entering or order until you 25 have had an opportunity to do so, and I would set a hearing MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 9 1 for a date to do that, or to have a further 6(c) hearing. 2 Is that right? 3 ATTORNEY REILLY: That's correct, your Honor. 4 THE COURT: Mr. -- well, Mr. Lowell, what's 5 your view? 6 ATTORNEY LOWELL: The first part of our view, 7 your Honor, is that you had asked us from Monday to today to 8 look at whether your instinct or your first impression about 9 where things stood at the end of Monday was correct, as to 10 whether we proceed to a 6(c), or whether they have an 11 appealable order, or where. 12 So we have done what you have asked. We have 13 looked. 14 We are confused in one sense, because whether 15 they take 14 days -- and I assume they want 14 days because 16 they don't want the CIPA appeals clock to start running, I 17 assume. I don't understand why else they would want the 18 time. 19 We don't think that what you have ordered, or 20 yet to order, is appealable at this stage, whether they take 21 fourteen days to ponder it or day days to ponder it or two 22 days to ponder it. So we start off with the premise that 23 there has still not been an order that is recognized as an 24 appealable order under Section 7. 25 If that's the case, I guess they can take MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 10 1 another, you know, ten days, because I don't think the clock 2 is running, because I don't think there is an appealable 3 issue yet. So -- 4 THE COURT: Refresh my recollection: How much 5 time do they get under Seven? 6 ATTORNEY LOWELL: Ten after -- ten days after 7 the order. And we had thought that you had issued the order 8 from the bench on Monday. I'm not sure if that's right or 9 not. 10 THE COURT: Suppose they said, Mr. Lowell, 11 "Okay, what you have in our submission and our desire to use 12 the Silent Witness Rule across the board this way, is the 13 way it's going to be. Take it or leave it." 14 Then I would enter an order consistent with the 15 memorandum opinion I already have, that included my 16 assessment of what an appropriate remedy would be. 17 Although I might want to include in that order, 18 I would want an under seal part of it to say explicitly and 19 clearly, using the classified information, why you can't 20 adequately cross-examine. 21 ATTORNEY LOWELL: And then I think there would 22 be an appealable order at that moment. 23 THE COURT: Right. 24 ATTORNEY LOWELL: If they were to say to you, 25 "What we had heretofore said would have been the redactions MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 11 1 and substitutions that we were prepared to show the public, 2 is now what we will go to trial with to the jury" -- I think 3 they would lose their case then, but I think they can do 4 that -- and say, "that is our 6(c) submission, final word," 5 or "final answer," as the television show would say. 6 So I think if they do that, then you have a 7 6(c) order, and then the clock starts ticking. 8 Or they could go another route, where, with 9 that, they could get the attorney general to issue the 10 affidavit that an attorney general has to, and then we would 11 be in a 6(e) sanctions mode, and then that's appealable. 12 But right now, they are going to carve an 13 interlocutory appellate possibility that we -- 14 (Simultaneous discussion) 15 THE COURT: Well, I think -- 16 ATTORNEY LOWELL: -- don't see exists. 17 THE COURT: -- though, to be fair to 18 Mr. Reilly, they are not trying to do anything except to get 19 their bearings. 20 ATTORNEY LOWELL: Fairly said. 21 THE COURT: To be fair. 22 ATTORNEY LOWELL: Fairly said. 23 THE COURT: What he's got to do now is to go 24 back to his clients and say, "Look, at least this judge 25 doesn't want -- won't allow this, the use of the Silent MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 12 1 Witness Rule, across all of this material, and so we have 2 got to think about whether we want to go back to specific 3 substitutions that everybody sees and hears, or something 4 else." 5 And that would be the 6(c) hearing, from which 6 I would enter an order that would be appealable, or go to 7 sanctions. 8 If they were to come back, for example, and 9 say -- if the government were to say, "The proposal we have 10 made and the substitutions we have" -- or they really aren't 11 substitutions, but -- "The procedure we have said and the 12 Silent Witness Rule is our substitutions," then -- then I 13 would want to supplement the order with an under seal order 14 that has the specifics in it. 15 And I might put you and Mr. Nassikas to work to 16 give me specific examples out of the classified record to do 17 that. And I would -- because that's what I think the Court 18 of Appeals would expect. 19 ATTORNEY LOWELL: Obviously, we -- you know, we 20 want the process, like you and even the government does, to 21 move, and we understand that they are contemplating, and 22 it's not wrong -- they have constituent agencies, and they 23 have others. 24 So what we thought of, besides telling you that 25 we thought that your opinion on Monday about whether you MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 13 1 would get to issue an appealable order, we think you are 2 right, we also thought that the next thing is: So then if 3 they do need this time, why can't we have a parallel track? 4 Why can't -- if they need two weeks -- and we 5 will take them at their word, that they do, of course -- but 6 then why can't we, at that same time or shortly thereafter, 7 have them working in parallel tracks, both to determine 8 whether they do want to appeal, or something based on what's 9 happened, but also then be readying what might be a 6(c) 10 different submission that would then click in at some point 11 around that time, that will then trigger our response, that 12 can have a hearing date set. 13 That, at least, would put us on parallel 14 tracks, and we thought -- 15 THE COURT: All right. 16 ATTORNEY LOWELL: -- maybe that would be an 17 idea. 18 THE COURT: I think that's a good suggestion. 19 Mr. Nassikas, do you concur, or Mr. Weiss? 20 Who is going to do it. 21 ATTORNEY NASSIKAS: Mr. Weiss. 22 ATTORNEY WEISS: (Not at microphone) Because we 23 are of the view -- (inaudible) -- 24 THE COURT REPORTER: Your Honor. 25 THE COURT: You will to speak up, Mr. -- yes. MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 14 1 ATTORNEY WEISS: We share the view that this is 2 not likely to be appealable. And the likelihood, we think, 3 is that we are going to have to move on from here to a 4 conventional set of 6(c) substitutions. 5 And we also would not like -- we would like not 6 to lose any time, and would also ask the Court to set a 7 schedule as to when the government would have its 8 conventional set of 6(c) substitutions. 9 We could then respond to that, and then we 10 could have a hearing, as contemplated by CIPA -- at least as 11 we understood it -- thereafter. We don't want to lose any 12 more time. 13 THE COURT: All right. 14 And Mr. Nassikas, you all agree. 15 ATTORNEY NASSIKAS: Yes, your Honor. 16 THE COURT: All right. 17 Well, Mr. Reilly, you asked for two weeks. At 18 the end of that two weeks, what specifically would you be 19 doing? 20 Give me the alternatives. 21 ATTORNEY REILLY: At -- 22 (Simultaneous discussion) 23 THE COURT: Would you -- 24 ATTORNEY REILLY: -- the end -- 25 THE COURT: -- would you submit at the end MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 15 1 of -- for example, one alternative is that at the end of two 2 weeks, you would submit conventional 6(c) substitutions. 3 ATTORNEY REILLY: That's -- 4 THE COURT: Possibly. 5 ATTORNEY REILLY: That's not a possible 6 alternative. 7 THE COURT: All right. 8 What are the possible alternative? 9 ATTORNEY REILLY: The possible alternatives, as 10 we see them, are, we come back to the Court and tell you we 11 have a -- we are going to submit a new 6(c) motion. And 12 that new 6(c) motion will incorporate your statements from 13 the bench. 14 THE COURT: I have a memorandum now, that's 15 better. 16 ATTORNEY REILLY: Well, we would ask that the 17 memorandum and any order be stayed, because -- 18 THE COURT: Well, I am not staying the 19 memorandum. It's issued. I did it from the bench and I'm 20 going to issue it. But I might -- I'm going to stay the 21 order, probably, but not the memorandum. 22 Go ahead. 23 ATTORNEY REILLY: We would come back in two 24 weeks and advise you whether we were going for submit a new 25 6(c) and withdraw our original one, or proceed on our MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 16 1 original 6(c) as it is written, including the Silent Witness 2 Rule, which would require the Court to go through each 3 proposal as it is; or we are still examining whether -- what 4 our options are as far as whether this is an order 5 compelling a disclosure. 6 But I believe it's the first two that the Court 7 will hear when we come back in two weeks. We will be able 8 to tell the Court: We are working on a new 6(c). Give us 9 time to finish that -- 10 THE COURT: How much time do you think that 11 would take, in addition to the two weeks you will already be 12 getting? 13 ATTORNEY REILLY: I can't be too specific, 14 because -- 15 (Simultaneous discussion) 16 THE COURT: This would -- 17 ATTORNEY REILLY: -- I need to consult -- 18 THE COURT: -- knock the trial into a cocked 19 hat, the trial date. 20 ATTORNEY REILLY: Your Honor, under either of 21 these proposals, the trial date is going to be thrown off, 22 in our view, because both of them require time to deal with. 23 As you point out in your memor- -- draft -- the 24 memorandum -- I don't know if it's a draft, the version you 25 gave us -- MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 17 1 THE COURT: That -- well, I -- that is the 2 correct version. I'm just eliminating now some typos, that 3 I have signed, typos and some other things, but there is no 4 change to what you have. But you need to get the final 5 final, that I actually put in the record. 6 ATTORNEY REILLY: Under either of the options, 7 if we proceed on the motion that we have submitted, and the 8 Court will have to hold the 6(c) hearing and go through each 9 proposal. Based upon your ruling from the bench, you will 10 reject a substantial portion of that. And then the 11 government is in the same portion we are in now, where we 12 decide whether to appeal that, or, as you point out in the 13 memorandum opinion, come back to you, as they did in Libby, 14 although -- 15 THE COURT: This would be Libby squared. 16 ATTORNEY REILLY: It would be Libby in the 17 sense -- Libby, they didn't actually issue the orders 18 rejecting the substitutions. The judge did what you did 19 from the bench, saying, "I don't think that's going to work. 20 I don't like that. Can't you do this?" 21 Then the government went back to the 22 intelligence community, and hen went back to the judge with, 23 "We heard you. Here is a counterproposal." 24 Then we are still in the same situation if we 25 go forward with the one we have, versus a new proposal which MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 18 1 will take time to prepare. Either way, we are pushing into 2 June, under either option. 3 THE COURT: I am afraid, Mr. Nassikas and 4 Mr. Lowell, that that's correct. But you have already drawn 5 that conclusion. 6 You see, if we get into June, get into July, 7 then you interfere with Mr. Nassikas' week in the Greek 8 Islands and Mr. Lowell's week in the South of France. 9 (Laughter) 10 ATTORNEY DIGREGORY: My week in Pittsburgh, 11 your Honor. 12 (Laughter) 13 THE COURT: That beats Phoebus, Virginia, I can 14 tell you that. 15 (Laughter) 16 THE COURT: I don't know, Pittsburgh, Phoebus, 17 close. 18 (Laughter) 19 THE COURT: At least it isn't Detroit or 20 Newark. 21 But I'm surprised you would have any time off, 22 Mr. DiGregory. I thought the government worked all the 23 time. The government never sleeps, does it? 24 ATTORNEY DIGREGORY: We try to be ever 25 vigilant, sir. MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 19 1 (Laughter) 2 THE COURT: All right. 3 ATTORNEY REILLY: We will have a better idea on 4 how long it will take in two weeks, and -- or whether that's 5 going to -- 6 (Simultaneous discussion) 7 THE COURT: But I want -- 8 ATTORNEY REILLY: -- be necessary. 9 THE COURT: -- to be clear about what to expect 10 in two weeks. If I, for example, postpone this to Friday, 11 May -- when would it be? 12 Two weeks from today would be May 3rd, wouldn't 13 it? 14 ATTORNEY LOWELL: Yes. That's a Thursday. 15 THE COURT: That's a -- but today is a 16 Thursday. 17 ATTORNEY LOWELL: Right. 18 THE COURT: So two weeks from today would be 19 May 3rd. 20 At 2:00 o'clock, if -- when is the 21 LaBarr (phonetics) trial continued to? What date? 22 ATTORNEY WEISS: Your Honor, would the 4th be 23 possible? 24 I'm committed to be in New York on the 3rd. 25 ATTORNEY NASSIKAS: I requested a federal judge MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 20 1 to set a hearing on May 3rd. I have not heard from the 2 government. It may be set for May 3rd. I'm available on 3 May 4th. 4 THE COURT: I'm not. May 4th is already fully 5 booked. 6 You know what? I'll do it at 3:00 o'clock on 7 May 4th. 8 ATTORNEY WEISS: Three o'clock on May 4th? 9 THE COURT: Yes. 10 ATTORNEY WEISS: Excuse me. 11 THE COURT: I will do that because I'm paid 12 such munificent sums -- 13 (Laughter) 14 THE COURT: -- that I need to -- 15 ATTORNEY LOWELL: Your Honor, may I confer with 16 counsel? 17 THE COURT: Yes, you may. 18 (Counsel conferring) 19 THE CLERK: May 9th. 20 THE COURT: May 9th. Thank you. 21 ATTORNEY NASSIKAS: Your Honor, if possible, 22 May 2nd, the Wednesday, we would all be available. There is 23 a conflict on May 4th, on Friday. I propose we can do it on 24 May 2nd. It gives the government 18 hours less than they 25 wanted. MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 21 1 THE COURT: All right. May 2nd at 3:00 p.m. 2 ATTORNEY WEISS: Thank you, your Honor. 3 THE COURT: May 2nd at 3:00 p.m. 4 ATTORNEY NASSIKAS: Thank you, your Honor. 5 THE COURT: Now, Mr. Reilly, can you enumerate 6 or list for us again what it is that you'll come in on 7 May 2nd with, what are the alternatives, so that I know what 8 to expect? 9 You have already told me what not to expect, 10 which is you are not going to give us substitutions for each 11 and every -- that is, substitutions in the form of statement 12 of facts or summaries for each of the NDI, alleged NDI. 13 ATTORNEY REILLY: We will not be giving you on 14 that date any new proposals. 15 THE COURT: Right. 16 What will you be giving us on that date? 17 ATTORNEY REILLY: We will tell you whether we 18 want to proceed to a 6(c) hearing on our current 6(c) 19 motion, or we will tell you we need X period of time to file 20 a new 6(c) motion, which will incorporate the guidance from 21 the bench. 22 THE COURT: All right. 23 Now, Mr. Reilly, suppose for a moment, let's 24 suppose that you say, "Okay, we hear what you say in this 25 memorandum opinion, but we want to go ahead with the 6(c) MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 22 1 motion we currently have." Now -- and at that time you 2 would bring affidavits or whatever else, you would have 3 those, as well. 4 ATTORNEY REILLY: That's correct, your Honor. 5 We would explain the government's overriding interest in 6 protecting -- 7 THE COURT: Right. 8 ATTORNEY REILLY: -- the information. 9 THE COURT: And then I would rule on that. 10 And I take it you might even say, "And we want 11 the Silent Witness Rule for everything we said we do." 12 ATTORNEY REILLY: If we stick to our current 13 motion, that's -- the whole scheme is the Silent -- 14 THE COURT: Right. 15 ATTORNEY REILLY: -- Witness Rule. 16 THE COURT: Well, remember, you know what to 17 expect. It's like spitting into the wind. You can do it if 18 you want to, but you may not like the result. 19 Because if that occurs, Mr. Lowell and Mr. 20 Nassikas, what I then would want to do is a very quick 21 turn-around from you, under seal, not ex parte, but 22 classified, filing in which you can go in to excruciating 23 detail to give me examples on specific NDI, the specific 24 ones, and say, "This is why we can't do it under 6(c)." 25 And then I would have to see whether I agree MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 23 1 with that or not. 2 So -- and that will be done, have to be done 3 fairly quickly. 4 So as soon -- if you decide before May 2nd or 5 May 3rd, let them know, so they can start working on that 6 right away. 7 On the other hand, you could come in with a 8 modified motion under 6(c). 9 Those are the two possibilities, right? 10 ATTORNEY REILLY: Well, we would tell you that 11 we will come in with a new -- 12 THE COURT: Right. 13 ATTORNEY REILLY: -- modified motion. 14 THE COURT: And then I'll set -- on the 2nd, 15 I'll set a short time for that, so you will have to move 16 briskly with that. 17 And then we will have -- then you all will 18 respond to that. And then I want under seal from you, in 19 excruciating detail, how you -- whether or not you can 20 cross-examine or argue to the jury. 21 ATTORNEY LOWELL: Your Honor, I have two 22 questions, if this is a timely point. 23 The first is, I heard them -- I would like to 24 be ready. I thought there was a third alternative that may 25 occur on May 2nd, which is that they will fashion how they MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 24 1 believe that this is, in its presence sense, something that 2 they could take on appeal in the present sense. 3 THE COURT: Well -- 4 ATTORNEY LOWELL: Is that not an option? 5 THE COURT: -- no, here is what I think I hear 6 Mr. Reilly saying. 7 And tell me if I've got it right. 8 One, they could come in on the 2nd and say, "We 9 have considered this carefully, and it is our view that the 10 motion that we have with all the Silent Witness Rule, 11 everything is fine the way it is. The only thing we want to 12 give you" -- because they now know they have to do that -- 13 "is these additional affidavits." 14 That's one possibility; in which case, if that 15 were to occur, I would then want you all to turn to, 16 quickly, to give me specific things that I could look at and 17 make a specific determination with respect to each piece of 18 NDI, about how it affects your right to cross-examine, your 19 right to make arguments, your right to make your case. 20 And I think I'm already pretty clear about 21 that, but I want to give the Court of Appeals what they 22 expect, which is the specificity under seal. 23 Now, that's one possibility. 24 The second possibility is that Mr. Reilly will 25 appear and say, "We've thought about it, we have heard about MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 25 1 what you have said, and now what we are going to do is give 2 you an amended Section 6(c) motion, that may have some 3 characteristics of the old one, but some new 4 characteristics." 5 And then I'll set or date for that, I'll set a 6 date for you to respond, and a hearing. And at that 7 hearing, that's going to be the end. I mean, I agree with 8 this iterative process, but I have gone to a lot of trouble 9 to make clear where I stand on it. So we are not going to 10 fine tune this any more that it is going to be fine tuned 11 this next time. 12 ATTORNEY LOWELL: I then do understand that the 13 vehicle that they might use to get to an appeal, if that's 14 what they want to do, is the first of the two options. 15 If they do that, your Honor -- 16 THE COURT: Even the second option might lead 17 to an order that would cause them to appeal. 18 ATTORNEY LOWELL: With more time, a little bit 19 more time after that. 20 THE COURT: Yes. 21 ATTORNEY LOWELL: But I -- and then my second 22 question is sort of mooted, but I wanted to remind -- 23 (Simultaneous discussion) 24 THE COURT: So you can -- 25 ATTORNEY LOWELL: -- the Court -- MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 26 1 THE COURT: -- you can be working now on those 2 specific examples for each set of NDI. 3 ATTORNEY LOWELL: And we already have. 4 If you -- 5 THE COURT: Why am I not surprised? 6 ATTORNEY LOWELL: But we have also actually 7 submitted already. 8 THE COURT: Yes, I -- 9 ATTORNEY LOWELL: So I want you to remember 10 that we have a pleading under seal that was based on -- 11 (Simultaneous discussion) 12 THE COURT: But you -- 13 ATTORNEY LOWELL: -- the premise -- 14 THE COURT: -- didn't cover every -- I'm -- 15 ATTORNEY LOWELL: No, we -- 16 THE COURT: -- going to -- 17 ATTORNEY LOWELL: -- did not. 18 THE COURT: -- cover every one. 19 ATTORNEY LOWELL: At least we started. 20 THE COURT: I mean, the ones you submitted are 21 part of the reason why I said what I said in this memorandum 22 opinion. 23 ATTORNEY LOWELL: We will be able for at least 24 use that as a starting point. 25 THE COURT: All right. MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 27 1 I will refrain, then, from entering an order at 2 this time. In fact, the order that I will enter will simply 3 say what I have said here, which is, I am going to refrain 4 from entering an order at this time to allow the government 5 further time to consider whether to amend their Section 6(c) 6 motion or not; and then set the May 2nd hearing, and we'll 7 see what happens on May 2nd. 8 This gives you enough time to take stock of 9 where you all are. 10 I'm pretty clear now about what to expect. 11 RECAPITULATION BY THE COURT 12 THE COURT: Let me recapitulate. There are two 13 possibilities. On May 2nd at 3:00 o'clock -- and it will be 14 in this courtroom, although there will be a swearing in, in 15 this courtroom, of the new public defender at 2:00 o'clock, 16 but that should be over by 3:00 or shortly after 3:00, 17 depending on how long-winded people are. 18 And, in fact, if it goes -- if I'm apprised 19 that it's going to go a long time, I may have it in another 20 courtroom. And now that I am senior, I don't really matter 21 very much, so I don't know that I need to be here. 22 But I expect one of two things. Mr. Reilly 23 will tell us that: On further consideration, the government 24 wishes to stand with its current motion, unchanged. Here 25 are some affidavits which make clear the government's view MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 28 1 about its compelling and overriding interest in keeping the 2 matters confidential or classified or from the public. 3 And at that point, I will want to enter an 4 order. And I want that order to deal not only with the 5 closure of the trial, which I have already dealt with, but 6 also, I want to be specific with respect to each piece of 7 NDI, as to why the government's proposal precludes proper or 8 adequate cross-examination and making the case, argument to 9 the jury, and the like. 10 I have looked at what you have submitted, and, 11 as I said, I found it persuasive, which is why I reached the 12 conclusion I did. But now I'm going to have to be very 13 specific in a classified, under seal, order that will say 14 it. 15 And the second possibility is that Mr. Reilly 16 will say: Well, we've thought about it, and we would like 17 an opportunity to submit an amended 6(c) motion. 18 And I will, of course, grant him that leave. 19 We'll set it. It will be a short turn-around. I can't say 20 for certain now how short, but we will try to do it as 21 quickly as possible. 22 And then when we have that -- and that will 23 have a time for him to file, you all to respond. Then we 24 will have the hearing. I will enter the order very quickly 25 after that. It will say something -- it will either approve MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 29 1 it or disapprove it, in part or in whole, and that will then 2 be the order. 3 And I'll consider whether -- if I rule 4 adversely to the government, I should consider at that time 5 what, if any, sanctions might be appropriate. And then 6 that's an order that would definitely be appealable. 7 On the other hand, the government may prevail. 8 The government may persuade me that everything in this 9 amended motion is right. 10 Now, I want to be clear, though, Mr. Reilly, 11 that will probably be the end of the iterative process that 12 it is arguable that the statute envisions. Because I'm not 13 going to sit around on the bench endlessly and say, "Well, 14 if you change this and if you change that, if you change 15 this" -- there is a limit to how much courts should 16 participate in this creative process to enable this to 17 happen. 18 ATTORNEY REILLY: But the Court correctly 19 points out, one of the key pieces for that iterative process 20 is specific objections from the defendant -- 21 THE COURT: Yes. 22 ATTORNEY REILLY: -- so that we can go back and 23 say -- 24 THE COURT: I agree. 25 ATTORNEY REILLY: -- "Oh, we didn't think you MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 30 1 needed that. Here is a way to incorporate that." 2 THE COURT: I agree. And we will make -- I 3 will take account of that. We'll see. 4 So, I guess you are right, Mr. Reilly. I 5 shouldn't be so definitive about that being the end of the 6 iterative process. I should just say that I hope it's the 7 end, I contemplate that it's the end. But I'm not, I am not 8 insensitive to the need for maybe further process, because I 9 don't know what the landscape is right now. We will see 10 what it is. 11 And you are right to point out, it is possible 12 that it may need further refinement, if it's there; if it 13 needs to be. 14 All right. Are we clear, then? I think I'm 15 clear about what to expect on May the 2nd. All right. 16 And I will issue -- I will correct these nits 17 and issue it in the next 30 minutes. And I will also issue 18 an order that defers the entry of an order based on that, in 19 order to permit the government to consider the Court's 20 views, and to consider whether it wishes to -- how it wishes 21 to proceed in connection with CIPA Section 6(c). That's all 22 I will say. 23 And I'll see you on Monday at -- I'm sorry -- 24 on Wednesday at 3:00 o'clock, May 3rd. 25 ATTORNEY REILLY: Your Honor? MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 31 1 THE COURT: Yes, sir. 2 ATTORNEY REILLY: If I may raise the issue of 3 the trial date? 4 THE COURT: Yes -- yes, sir. 5 ATTORNEY REILLY: Subpoenas have been issued to 6 multiple government witnesses, whose schedules are -- some 7 of them are very significant. 8 THE COURT: Yes. 9 ATTORNEY REILLY: And for -- holding a date is 10 very difficult for some of these people. 11 THE COURT: I quite agree. What do you 12 suggest? 13 ATTORNEY REILLY: I suggest that we vacate the 14 June 4th trial date, and wait until we see what better 15 picture we have of what the process is going to be -- 16 (Simultaneous discussion) 17 THE COURT: Can we wait -- 18 ATTORNEY REILLY: -- the next -- 19 THE COURT: -- until May 3rd to do that -- 20 May 2nd, rather, to do that? 21 I think the point you are making is probably 22 sound. 23 ATTORNEY REILLY: We will have a better picture 24 then. 25 THE COURT: I think the picture will be better MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 32 1 on May 2nd. And you will also, between now and May 2nd, 2 have a chance to discuss with Mr. Lowell and Mr. Nassikas 3 your views in that regard. Maybe you'll come to me and say, 4 "We've got a date. Look at this date." And I will try to 5 accommodate you. 6 ATTORNEY WEISS: Your Honor, may I address that 7 for one moment? 8 THE COURT: Yes. 9 You have to come to the podium to do it, 10 because Mr. Rodriquez has become hard of hearing. 11 ATTORNEY WEISS: Thank you, your Honor. 12 I understand -- I understand the need to 13 consider a new trial date at this point in time. I just 14 want to point out one efficiency point, if I might. And 15 that is, we anticipate that there will be a great deal of 16 litigation over the Touhy affidavits, the motions to quash, 17 and the witnesses that we call. 18 And we have been trying to issue subpoenas, 19 valid -- valid subpoenas, which need a trial date, to start 20 that. The agencies won't consider our Touhy requests, and 21 so on, as I think we've mentioned before, without a valid 22 subpoena -- 23 (Simultaneous discussion) 24 THE COURT: Well, do you -- 25 ATTORNEY WEISS: -- date. MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 33 1 THE COURT: -- think, Mr. Weiss, that we could 2 prudently select a new date now? 3 ATTORNEY WEISS: Well, I think -- 4 THE COURT: And do you want to? 5 ATTORNEY WEISS: I think if we formally leave 6 the June 4th in place until when we come back in May, even 7 understanding that will be put off, at least it will keep 8 the Touhy process in motion -- 9 THE COURT: All right. 10 ATTORNEY WEISS: -- because it will be a valid 11 subpoena. 12 THE COURT: All right. I was inclined to keep 13 it in place anyway, until May 2nd. 14 Yes, Mr. Reilly? 15 ATTORNEY REILLY: Your Honor, they had 16 subpoenaed, among other people, the Secretary of State of 17 the United States of America. It is very difficult for her 18 to keep a date open when -- 19 THE COURT: Well, fourteen days isn't going to 20 matter that much. Maybe she will run for president. 21 ATTORNEY REILLY: It makes -- 22 THE COURT: If she runs for president, I might 23 excuse her. 24 ATTORNEY REILLY: It's a significant burden on, 25 on the people who have been subpoenaed, and triggers other MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 34 1 dates for other things that need to be done. 2 The Touhy process is going to go forward in any 3 event, when they do issue the subpoenas. We have gotten 4 their Touhy notices before. We have considered -- we have 5 even file motions under Rule 17 in response to notices of 6 subpoena. 7 I don't -- 8 (Simultaneous discussion) 9 THE COURT: I think -- 10 ATTORNEY REILLY: -- believe that's any -- 11 THE COURT: -- you are right -- 12 ATTORNEY REILLY: -- -- reason not to vacate -- 13 THE COURT: I think -- 14 ATTORNEY REILLY: -- the trial. 15 THE COURT: -- you are right, Mr. Reilly. I 16 understand your point. I think you are right. 17 I'm just viscerally disposed to wait until 18 May 2nd. But I accept the soundness of your point. I'm 19 just adamant about waiting until May 2nd. But I will do 20 something about it then. 21 And as I said, I acknowledge the soundness of 22 the points you are making. But we will do it on May 2nd. 23 That means you all need to confer, if it needs to be done. 24 Suppose -- I mean, take the two possibilities 25 and think about them. And I will be guided a lot by what MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 35 1 you think you need in order to prepare, and what you think 2 you need in order to prepare. 3 And then we will pick it on May 2nd, or leave 4 it. 5 ATTORNEY LOWELL: Your Honor, I just want to be 6 clear with the government, that as soon as they can -- I 7 mean, we have done that in the 6(a), 6(a) process -- 8 (Simultaneous discussion) 9 THE COURT: I'm sure they will tell you -- 10 ATTORNEY LOWELL: -- need to know -- 11 THE COURT: -- as soon as -- 12 ATTORNEY LOWELL: -- how many weeks they are 13 going to need. 14 And remember, we are going to need multiple 15 days for a hearing -- 16 THE COURT: Yes, well, I expect you fully to 17 confer before May the 2nd about where you stand and where 18 you think it ought to go, and see if you can possibly come 19 to some sort of agreement about it. 20 All right. Are the parties here in the 5:00 21 o'clock hearing? 22 THE PROBATION OFFICER: Yes, your Honor. 23 THE COURT: All right. 24 I thank counsel for your cooperation. I need 25 to continue to try to earn these munificent sums I am paid. MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 36 1 This matter is recessed. I thank counsel for 2 your cooperation. 3 (Court recessed in USA v. Rosen, Weissman) 4 5 --- 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MICHAEL A. RODRIQUEZ, RPR/CM/RMR . 37 1 2 3 CERTIFICATE OF REPORTER 4 5 I, MICHAEL a. RODRIQUEZ, an Official Court 6 Reporter for the United States District Court, in the 7 Eastern District of Virginia, Alexandria Division, do hereby 8 certify that I reported by machine shorthand, in my official 9 capacity, the proceedings had upon the status hearing in the 10 case of UNITED STATES OF AMERICA v. STEVEN J. ROSEN, KEITH 11 WEISSMAN. 12 13 I further certify that I was authorized and did 14 report by stenotype the proceedings in said status hearing, 15 and that the foregoing pages, numbered 1 to 37, inclusive, 16 constitute the official transcript of said proceedings as 17 taken from my machine shorthand notes. 18 19 IN WITNESS WHEREOF, I have hereto subscribed my 20 name this day of , 2007. 21 22 23 Michael A. Rodriquez, RPR/CM/RMR Official Court Reporter 24 25 MICHAEL A. RODRIQUEZ, RPR/CM/RMR