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747 F.Supp. 797 United States District
Court, District of Columbia. UNITED STATES of
America, Plaintiff, v. Jonathan POLLARD,
Defendant. Crim. No. 86-0207-AER. Sept. 11, 1990. SUBSEQUENT HISTORY: Affirmed by: 959 F.2d 1011 (D.C. Cir. 1992) [*798] COUNSEL: Hamilton P. Fox, III, Sutherland,
Asbill & Brennan, Washington, D.C., for defendant Jonathan Jay Pollard. Jay B. Stephens, U.S. Atty., for the District of Columbia, Daniel
S. Seikaly, Alan Strasser, Asst. U.S. Attys., Washington, D.C., for the U.S. MEMORANDUM JUDGE: AUBREY E. ROBINSON, Jr., Chief Judge. Nearly four years after pleading guilty to one count of conspiracy
to commit espionage in violation of 18 U.S.C. § 794(c),
defendant moves on several grounds to withdraw the plea and to stand trial. He
files his motion under 28 U.S.C. § 2255. Defendant also moves
that his counsel now be provided with access to certain materials made
available to him and to the Court at sentencing, namely the classified
memoranda submitted both by the Government and by then-Secretary of Defense
Caspar Weinberger. Finally, defendant has supplemented his Motion to Withdraw
Guilty Plea with an additional claim, previously maintained under seal, that
the Government had ex parte contact with the Court prior to sentencing. Based
upon the allegations this pleading contains, he also moves that the Court
disqualify itself under 28 U.S.C. § 455. The motion to disqualify and related materials, which the Court
will now unseal, [FN1] [*799] has no basis and as explained below, will be
denied. Because the disqualification motion challenges the ability of the Court
to continue to hear this matter generally, the Court will address it first, as
well as the substance of the section 2255 claim from which it arises. In
addition, the Court has given careful consideration to each of the substantive
claims in defendant’s initial motion, and concludes that they too are
without merit. Lastly, the Court finds that defendant’s new counsel is
not now entitled to examine the Weinberger Declaration or other classified
sentencing memoranda. For the reasons that follow, defendant’s motion
to withdraw his plea will be denied without the discovery or hearing to which
he believes he is entitled. FN1. Defendant’s Supplemental
Memorandum in Support of Motion to Withdraw Guilty Plea was originally placed
under seal on the advise of the Court Security Officer that it contained
classified material. Subsequent review revealed that that the material is not
classified. Consequently, there is no basis to maintain this and related
pleadings under seal. I. The
Court’s Alleged Receipt of Ex Parte Material and
Defendant’s A specific and supplemental ground offered as a basis for
withdrawing his guilty plea leads defendant to argue that the Court cannot hear
this matter because it is a witness to material facts and must testify at some
future hearing. Defendant has submitted the sworn affidavit of Professor Alan
Dershowitz. [FN2] In this affidavit, Professor Dershowitz reports a series of
communications he had with former Supreme Court Justice Arthur Goldberg, who is
now deceased. Dershowitz alleges that before he died, Justice Goldberg told
Dershowitz of a conversation he claimed to have had with this Court regarding
the sentence given defendant. In this conversation, as reported by Justice
Goldberg to Mr. Dershowitz, the Court allegedly stated that in sentencing
defendant, it relied upon certain materials provided by the Government to the
Court ex parte. FN2. Although in his affidavit Professor
Dershowitz advises that he is one of defendant’s lawyers, he has
entered no appearance in this case. These materials supposedly indicated, falsely, that defendant
provided United States satellite intelligence to Israel about Israeli missile
programs in South Africa. Defendant believes that if the allegations in Mr.
Dershowitz’ affidavit are true, the Government violated its plea
agreement with him and he is therefore entitled to withdraw his plea. He can
only pursue this inquiry through an evidentiary hearing. According to
defendant, the only available witness who can testify about the matter is the
Court. Hence, the Court must disqualify itself. Title 28 of the U.S.Code, section 455 provides that a Judge of the
United States shall disqualify himself “in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). In addition, “[h]e shall also disqualify
himself … [w]here he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts concerning the
proceeding.” Id. § 455(b). Defendant’s focus
in invoking the section is upon the role he perceives for the Court in shedding
light on the question whether any ex parte communication occurred. Recusal is
required, he argues, both because the Court has personal knowledge regarding
this disputed fact and because, given his allegations, a reasonable person may
have doubts concerning the Court’s impartiality. Of course, to justify disqualification the Court’s
knowledge of disputed facts, or any alleged bias, must have an extrajudicial
source. “[K]nowledge gained through the court’s judicial role
is not ‘personal’ knowledge within the meaning” of
section 455. United States v. Heldt, 668 F.2d 1238, 1274 (D.C.Cir.1981), cert.
denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982). Moreover,
“alleged bias and prejudice to be disqualifying must stem from an
extrajudicial source and result in an opinion on the merits on some basis other
than what the judge leaned from his participation in the case.” United
States v. Grinnell Corp., 384
U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966). [*800] Here, the knowledge at issue—whether the Court
received any information about defendant from the Government ex
parte—is clearly knowledge gained by the Court in its judicial role.
The Court “knows” that it did not receive such information,
as is in fact the case, because and only because of its participation in this
criminal action against defendant. The Government cites two cases which
indirectly bolster this point. In United States v. Hillsberg, 812 F.2d 328 (7th
Cir.1987), cert. denied, 481 U.S. 1041, 107 S.Ct. 1981, 95 L.Ed.2d 821 (1987),
the trial court received a letter from the defendant’s mother.
Defendant argued that the letter gave the court personal knowledge of disputed
evidentiary facts and put its impartiality in question. According to the
Seventh Circuit, “Hillsberg’s mother wrote to the trial judge
as the judge in her son’s cases so he received the letter in his
judicial capacity.” Id. at 335. See also United States v. Meester, 762 F.2d 867, 885
(11th Cir.1985) (no recusal required because of phone call from bondsman
reporting defendant’s escape, which court received in judicial
capacity, or from review of ex parte evidence and denial of motion for access,
action which Court took in judicial capacity). Defendant correctly points out that these cases miss the mark
somewhat, but he does so for the wrong reason. The court’s
“knowledge” in Hillsberg and Meester came from the ex parte
materials themselves. Here, the threshold issue is whether contact occurred at
all. Thus, pointing to the open and proper—undeniably
“judicial”—manner in which the court acted in these
and similar cases, [FN3] defendant posits that the alleged ex parte
communication here would have been “received by the court without
notice and without opportunity to object.” According to defendant,
“this does not constitute proper judicial action,” and
presumably therefore could not lead to knowledge gained in a judicial capacity.
See Def. Reply to Gov’t Opp. to Mot. to Disqualify at 8 n. 7. This may
or may not be so. [FN4] The question is irrelevant [*801] because the
“judicial capacity” issue in this case does not turn upon the
propriety or impropriety of the conduct alleged by defendant. The issue is the
Court’s knowledge of what actually happened. Defendant’s
proposed inquiry into what the Court knows —again, whether contact
occurred—could only be answered by reference on the part of the Court
to its participation in this case. In that sense, the Court’s
knowledge that the ex parte communication described by defendant did not
occur was indisputably gained in its judicial capacity. Section 455, therefore,
does not require recusal, and defendant’s motion for disqualification
must be denied. FN3. See Liberty Lobby, Inc. v. Dow Jones
& Co., 838 F.2d 1287, 1301 (D.C.Cir.1988) (motion based upon
judge’s prior ruling from bench), cert. denied, 488 U.S. 825, 109
S.Ct. 75, 102 L.Ed.2d 51 (1988); United States v. Heldt, 668 F.2d 1238, 1272
(D.C.Cir.1981) (motion based upon security measures taken by trial court),
cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982); United
States v. Widgery, 778 F.2d 325, 328 (7th Cir.1985) (alleged knowledge of judge of
disputed facts derived exclusively from trial). FN4. Defendant cites Price Bros. co. v.
Philadelphia Gear Corp., 629 F.2d 444 (6th Cir.1980), and United States v.
Van Griffin, 874 F.2d 634 (9th Cir.1989), for the proposition that improper
judicial conduct is not within the Court’s duties and therefore may
violate § 455. Again, that may be so, but the these cases
simply do not control here. In Price Brothers, the judge allegedly sent his law
clerk to gather evidence. Thus, he gained knowledge of disputed facts on his
own initiative and utterly independent of his role as judge. Van Griffin dealt with the
circumstance where a magistrate failed to dispossess himself of an ex parte law
enforcement report, an action which the Ninth Circuit held would cause a
reasonable person to doubt his impartiality. The issue was bias, not knowledge
of disputed facts. Of course, defendant here claims that his allegations create
a similar doubt. See Def.Mot. to Disqualify at 5. But his case is not similar.
There was no factual issue in Van Griffin. The Magistrate admittedly received
and retained the report and, faced with this mistake, he should have granted
Van Griffin’s motion to disqualify. In this case, even assuming the bias alleged
was extrajudicial, defendant plainly poses a factual dispute on which the
existence of bias must turn: whether ex parte contact occurred. If the
allegation is baseless, there is no actual or apparent partiality, and the
court may deny even a hearing on the recusal motion. See United States v.
Rivera, 802 F.2d 593, 601 (2d Cir.1986); United States v. Balestrieri, 779 F.2d 1191, 1202
(7th Cir.1985) (“[T]he judge is free to make credibility
determinations, assign to the evidence what he believes to be its proper
weight, and to contradict the evidence with facts drawn from his own personal
knowledge ) (emphasis added); United States v. Heldt, 668 F.2d 1238, 1271
(D.C.Cir.1981) ( section 455 contemplates “some evaluation by the
court of the facts giving rise to the motion….”), cert.
denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 440 (1982). This Court assumes
that the Seventh Circuit’s reference to “personal
knowledge” is limited to personal judicial knowledge—and this
Court has already found that its knowledge whether ex parte contact occurred is
in fact judicial. Turning to this evaluation, the following can
be said: Defendant’s allegation about the source of bias is simply not
credible. It is based upon double hearsay. The primary declarant is the Court
itself, which has a directly contradictory recollection of events. The
secondary declarant is dead. The Government denies the conduct alleged. The
affiant has no independent evidence of the truth of his claim that ex parte
communication occurred. Nor could he, because the claim is false. The Court turns then to the substance of defendant’s
claim that under 28 U.S.C. § 2255, he should be permitted a
hearing and discovery into the possibility that ex parte contact took place.
Section 2255 provides that a federal prisoner may attack his sentence where
that sentence was imposed in violation of the Constitution or law, exceeded the
prescribed maximum, was assessed without jurisdiction, or is
“otherwise subject to collateral attack.” The provision calls
for relief, for example, where a plea or sentence arose from “a
fundamental defect which inherently results in a complete miscarriage of
justice” or “an omission inconsistent with the rudimentary
demands of fair procedure.” See Hill v. United States, 368 U.S. 424, 428, 82
S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). By the terms of section 2255, a motion may be made at any time,
however this Court need not grant a hearing where controverted factual issues
can be determined by the motion itself, by the trial court’s files and
records, or by the district judge’s personal knowledge or
recollection. See generally 28 U.S.C. § 2255; see also Machibroda
v. United States, 368 U.S. 487,
494-95, 82 S.Ct. 510, 513-14, 7 L.Ed.2d 473 (1962); Virgin Islands v.
Nicholas, 759 F.2d 1073, 1077 (3d Cir.1985); Abatino v. United States, 750 F.2d 1442, 1444
(9th Cir.1985). Quite obviously, the “personal knowledge”
sanctioned for use by the district court on a motion under section 2255 is
distinct from the “personal knowledge” which would require
recusal under section 455. [FN5] The former is knowledge gained in a judicial
capacity, and its use properly ensures that only palpably credible collateral
attacks receive full-blown hearings. Indeed, “it is highly desirable
that the motions be passed on by the judge who is familiar with the facts and
circumstances surrounding” the case, and as a result “is not
likely to be misled by false allegations as to what occurred.” Carvell
v. United States, 173 F.2d 348, 349 (4th Cir.1949). FN5. Clearly, sections 2255 and 455 must be
construed together. “It would be anomalous, indeed, having determined
that the purpose of section 2255 was to permit the trial judge, because of his
familiarity with the proceedings and ability to supplement the record, to pass
upon motions thereunder, now to ascribe to Congress the intention to disqualify
any judge possessing that familiarity with the proceedings from passing upon
the motion. United States v. Smith, 337 F.2d 49, 53 (4th Cir.1964) (emphasis
supplied), cert. denied, 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436 (1965). A
district judge is not disqualified from determining a section 2255 motion
precisely because his useful familiarity with the case is gained in a judicial
capacity. The Court’s determination regarding the credibility of
defendant’s allegations in the section 455 context, see supra note 4,
applies equally here. The claim of ex parte contact by the Government is based
upon pure hearsay, twice over. The Court’s recollection of events is
in stark contradiction to that claim. While the burden falls upon defendant to
prove the ex parte communication, cf. Campbell v. Wainwright, 738 F.2d 1573, 1576
(11th Cir.1984) (no evidentiary hearing required on allegation based solely on
counsel’s affidavit of ambiguous facts), cert. denied, 475 U.S. 1126,
106 S.Ct. 1652, 90 L.Ed.2d 195 (1986), he offers no other evidence. It is
difficult to see what a hearing would achieve, nor in any event is one
justified by the bare affidavit proffered. Defendant’s request for a
hearing on his allegation, and ultimately to [*802] withdraw his
plea on this basis and be resentenced, will therefore be denied. II. The Government’s
Adherence to the Plea Agreement; By his main motion, defendant claims three defects in his guilty
plea and sentencing which require the withdrawal of the plea and trial. First,
defendant argues that the Government breached its plea agreement with him. He
asserts that the Government violated its promise not to seek a life sentence
because “the entire tenor of its written and oral submissions at
sentencing was a request for just such a sentence.” Def.Mot. to
Withdraw Plea at 1. Moreover, according to defendant, the Government failed to
limit its statements to the facts and circumstances of defendant’s
crimes, and failed to advise the Court adequately of defendant’s
cooperation. The plea agreement provided for each of these promises expressly. Second, defendant contends that the Government improperly argued,
and the Court improperly found, that he had violated the plea agreement when he
gave an interview to a journalist without following certain steps required by
the agreement. Finally, defendant claims that his plea came involuntarily
because under the terms of the plea agreement, unless he entered a plea of
guilty, his ill wife could not do so. As defendant was concerned for his wife’s
health and intent on avoiding a prison term for her, he argues that his plea
was unlawfully compelled. Again, the burden placed upon a defendant in a post-sentence
effort to withdraw a guilty plea is a demanding one. Together, Rule 32(d) and
section 2255 provide that in order to succeed, a defendant must demonstrate
that a “manifest injustice” would result in allowing his plea
to stand. See United States v. Griffin, 816 F.2d 1, 5 (D.C.Cir.1987). This
“stringent standard for post sentence plea withdrawal motions is
intended to prevent a defendant from testing the weight of potential
punishment, and then withdrawing the plea if he finds the sentence unexpectedly
severe.” United States v. McKoy, 645 F.2d 1037, 1040 n. 3
(D.C.Cir.1981). Because the files, records, transcripts and this Court’s
recollection of the challenged proceedings more than adequately answer
defendant’s claims, and show that no miscarriage of justice occurred,
the Court finds that it must reject them as a matter of law. A. Plea Agreement Violations in the Government’s
Submissions and Allocution In its written agreement with defendant, the Government obligated
itself as follows: Notwithstanding Mr. Pollard’s
cooperation, at the time of sentencing the government will recommend a sentence
of a substantial period of incarceration and a monetary fine. The Government
retains full right of allocution at all times concerning the facts and
circumstances of the offenses committed by Mr. Pollard, and will be free to
correct any misstatements of fact at the time of sentencing, including
representations of the defendant and his counsel in regard to the nature and
extent of Mr. Pollard’s co-operation. Plea Agreement at 3. In addition, the Government promised to: bring to the Court’s attention the
nature, extent and value of [defendant’s] cooperation and testimony
… the Government has agreed to represent that the information Mr.
Pollard has provided is of considerable value to the Government’s
damage assessment analysis, its investigation of this criminal case, and the
enforcement of the espionage laws. Id. at 4(b). 1. The Weinberger
Declaration To demonstrate that the Government in fact argued for a life
sentence, defendant points to unclassified portions of Secretary
Weinberger’s Declaration (“Weinberger Decl.” or
“Supp. Decl.”). For example, the Declaration stated the
Secretary’s view that “[p]unishment, of course, must be
appropriate to the crime, and in my opinion, no crime is more deserving of
severe punishment *803 than conducting espionage against one’s own
country.” Weinberger Decl. at 45. The Secretary also reported his view
that even in the “year of the spy,” it was difficult for him
to conceive of greater harm to the national security than that caused by
defendant. Supp.Decl. at 1- 2. Weinberger submitted that defendant’s
punishment should reflect among other things, “the magnitude of the
treason committed.” Id. at 2. Finally, the Secretary offered his
opinion that defendant’s loyalty to Israel transcended his loyalty to
the United States. Id. at 3. Defendant reads these passages as inaccurately implying he had the
intent to harm the United States. Moreover, to defendant the
Secretary’s call for “severe” punishment
“cannot be misinterpreted: the most severe punishment appropriate for
the most severe crime is the maximum sentence.” Def. Mot. to Withdraw
Guilty Plea at 19-20. Defendant also believes that comments upon his loyalty
went beyond the facts and circumstances of his crime. These claims are utterly without basis. The opinion that a
“severe” sentence is warranted in no way means that the most
severe sentence should be imposed. The purpose of the Secretary’s
Declaration was to provide the Court with his opinion of the damage to the
national security done by defendant’s disclosures. Whether or not
defendant intended that damage, and the Court and counsel specifically noted
the relevant statutory distinction, see Sentencing Transcript at 4, the
Secretary’s point was that defendant had in fact caused severe damage,
and on a grand scale. His offhand use of the word
“treason”—a term commonly applied by the public to
individuals who violate their loyalty to the United States—does not
change this fact, nor does it in any sense secretly call for a life sentence.
Defendant’s loyalty to Israel was directly relevant to the motivations
which drove him to commit espionage, as defendant himself has admitted. Defendant had a full opportunity to review the Weinberger
Declaration, unredacted, prior to sentencing. He challenged its reliability and
its veracity in a very general way, but offered nothing specific to contradict
it, though the Court noted and counsel agreed that defendant himself was quite
able to assess the technical aspects of the Declaration. Defendant merely
claimed the document was “speculative”, “seriously
flawed” and exaggerated. It simply cannot be said that the Weinberger
Declaration served to end-run the Government’s promise to request
merely a “substantial,” rather than a life sentence. The
phrases defendant seizes upon do precisely what the Government agreed to do:
argue for a substantial term of imprisonment, and no more. 2. The
Government’s Allocution and the Facts The Government limited itself so as only to permit discussion of
to the facts and circumstances of defendant’s crimes. Defendant
asserts that the Government’s explanation of its view of
defendant’s motive, and conclusions that he lacked remorse and
exhibited a deceptive and arrogant nature, violated the agreement, and implied
that he should receive a life sentence. Defendant relies primarily on United
States v. Moscahlaidis, 868 F.2d 1357 (3d Cir.1989). In Moscahlaidis, the
Government had agreed not to seek any custodial sentence at all. The Third
Circuit found a violation of this promise when the Government discussed
Moscahlaidis’ “greed,” “moral
bankruptcy,” and “utter contempt” for his fellow
man. This case is inapposite. The Government here did not agree not to take any
position at all; rather, it announced its intention to seek a severe sentence.
Other cases cited by defendant are similarly distinguishable. See United
States v. Crusco, 536 F.2d 21 (3d Cir.1976) (Government promise to take no
sentencing position); United States v. Cook, 668 F.2d 317 (7th
Cir.1982) (promise to take no sentencing position or to provide material in
aggravation). Moreover, motive and character, insofar as they place
defendant’s conduct in some context and assist in the sentencing
decision, are facts and circumstances of defendant’s crimes, and are
directly relevant to [*804] the Court’s task at sentencing. See, e.g.,
18 U.S.C. § 3661 (“No limitation shall be placed on
the information concerning the background, character and conduct of a person
convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.”) The
Court finds that the Government’s allocution and pleadings did not
violate the plea agreement’s requirement that it limit itself to the
facts and circumstances of defendant’s crimes. 3. Adequacy of the
Government’s Comments Defendant also contends that the Government’s comments
about his cooperation were inadequate to satisfy its obligations under the
agreement. Again, he asserts that these comments constituted a poorly hidden
attempt to secure a life sentence. In fact, defendant simply disagrees with the
Government’s assessment of his cooperation, as he made clear at the
time of sentencing. The Government reported defendant’s cooperation in
the plea agreement itself, in its first Memorandum in Aid of Sentencing and its
Classified Sentencing Memorandum. These materials explained in some detail the
manner, extent and value of defendant’s efforts. In any event, prior to sentencing the Court and the parties
addressed this very issue. [FN6] Defendant made no further objection on the
question. His argument, freshly posed, is no more persuasive now. Defendant
claims that by “casting aspersions” on defendant’s
cooperation, the Government completely undercut the statements it made earlier.
For example, the Government noted that defendant’s delay in cooperating
allowed certain co-conspirators to flee the United States. It was no violation
of the plea agreement for the Government to explain the positive value of the
cooperation in one sense (damage assessment), while also noting that defendant
had frustrated Government efforts in another sense (law enforcement). The
record in this case does not support the contention that the Government failed
in its obligation. It did not dryly recite in a few declarative sentence that
defendant had cooperated. It did much more, as it had said it would. In short,
the Government kept its promise. FN6. See Sentencing Transcript at 63: THE COURT: [To counsel for the Government] Do
you want to address what Mr. Hibey [defendant’s counsel] has
suggested, that nowhere in the Government’s allocution has there been
any honest attempt by the Government to indicate any value in Mr.
Pollard’s post-plea efforts? MR. LEEPER: I will address that in about ten
words, your honor. It was in the very first pleading we filed, your honor. THE COURT: I thought it was. MR. LEEPER: It was in the classified version
of the pleading that we filed with your honor, called the Government’s
Classified Sentencing Memorandum. I believe it was filed on the 9th of January.
But I have nothing further, your honor. THE COURT: Does that refresh your
recollection, Mr. Hibey? MR. HIBEY: Yes, sir. B.
Government’s Comments About Defendant’s Media Interview Next, defendant complains that the Government discussion of his
prison interview with a journalist following his guilty plea also constituted a
breach of the plea agreement. He argues that if the interview violated the plea
agreement, he was entitled to a formal hearing and findings. To defendant, the
Government comments again reflected its effort to persuade the Court to impose
a life sentence, violated due process and themselves constituted a breach of
the plea agreement. This argument can be disposed of easily. In the plea agreement,
defendant was bound as follows: Should Mr. Pollard at any time author any book
or other writing, or otherwise provide information for the purposes of
publication, he hereby agrees to first submit said book, writing or information
to the Director of Naval Intelligence for pre-publication review and deletion
of information, which, in the sole discretion of the Director of Naval
Intelligence, is or should be classified. [*805] Plea Agreement at 9. Defendant gave the interview without
clearing or submitting to Naval Intelligence any of the information he
discussed with the reporter. Defendant characterizes the Government’s discussion at
sentencing as alleging that he disclosed classified information to the reporter
in violation of the agreement. At the hearing, the Court made clear that it
understood the Government’s argument differently: that the mere fact
of the interview revealed defendant’s view that his assessment of what
could or could not be disclosed should control. See Sentencing Transcript at
60. The episode also was relevant to defendant’s veracity. These were
certainly factors the Court could consider in imposing sentence.
Defendant’s counsel contested the idea that the interview revealed
classified information, but he agreed fully with the Court that defendant had
utterly failed to comply procedurally with the provision quoted above. There
was no factual dispute whatsoever in that regard. [FN7] The
Government’s allocution on this point did not breach the plea
agreement. FN7. The following colloquy at sentencing
about the interview is self-explanatory. Defendant did not dispute that he had
violated the procedural requirements to which he had bound himself: THE COURT: You just take the position that
there was nothing wrong with it? MR. HIBEY: No, I am not saying that. The whole
action was ill-advised, unauthorized, there is no question about that in my
mind. What I am still trying to point out is the fact that the information was
unclassified. THE COURT: And all the Government is arguing
is that that is consistent with his view that it is his determination on all
these things that controls and not anybody else’s, even when he is
before the Court. That is all the Government was trying to say, for sure, but
they can say it better than I can. But that is the thrust of the argument, as I
understood it. Didn’t you understand it that way? MR. HIBEY: No. THE COURT: All right. MR. HIBEY: That is the only reason why I took
issue with it. But as the Court has stated it, I obviously and will not recede
from your interpretation of it. THE COURT: Oh, feel free. MR. HIBEY: No, No, No. I am saying this
because you are correct in your interpretation * * * My argument is, he
didn’t [give classified information]. But, yes, your honor, you are
correct, that it was done without the pre-clearance procedure. C. The Voluntariness
of Defendant’s Plea Defendant claims that his plea was involuntary, since it was
“wired” to that of his wife, and that this fact, coupled with
the Court’s failure at sentencing to directly inquire whether his plea
was voluntary, mandates withdrawal. Assuming without deciding that these claims
are timely, both must fail. First, although the Supreme Court had reserved
judgment on prosecutorial promises of lenient or adverse treatment of third
parties in plea negotiations, see Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98
S.Ct. 663, 668 n. 8, 54 L.Ed.2d 604 (1978), the Circuits addressing the issue
have approved such arrangements. In Politte v. United States, 852 F.2d 924, 930
(7th Cir.1988), the court specifically held “that a good faith
prosecution of a third party, coupled with a plea agreement which provides for
a recommendation of a lenient sentence for that third party, cannot form the
basis of a claim of coercion by a defendant seeking to show that a plea was
involuntarily made.” See also Bontkowski v. United States, 850 F.2d 306, 313
(7th Cir.1988) (threat of prosecution of wife, previously indicted,
“cannot support a claim of coercion”); Harman v. Mohn, 683 F.2d 834, 837
(4th Cir.1982) (same); United States v. Nuckols, 606 F.2d 566, 569 (5th
Cir.1979) (same; “As a threshold matter, we see no constitutional
infirmity in broadening plea negotiations so as to include third party
beneficiaries.”). By the same token, the Court’s failure specifically to
inquire of defendant by rote whether his plea was voluntary neither is
cognizable under section 2255 nor constitutes a “fundamental defect
which inherently results in a complete miscarriage of justice.” See Hill
v. United States, 368 U.S. 424,
428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). Rule 11 provides that the Court
“shall not accept a plea of guilty or nolo contendere without first,
by addressing the defendant personally in open court, determining that the plea
is voluntary….” [*806] Fed.R.Crim.Pro. 11(d). In United
States v. Timmreck, 441 U.S. 780,
99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the Supreme Court held that technical
violations of Rule 11 are “neither constitutional nor
jurisdictional,” and foreclosed relief on such complaints under
section 2255 altogether. Id. at 784, 99 S.Ct. at 2087. Even assuming that the plea agreement provision dealing with
defendant’s wife created a sufficiently “aggravating
circumstance” to avoid this initial hurdle, see id. at 785, 99 S.Ct. at
2088, no manifest injustice occurred at the sentencing hearing in this case,
and no section 2255 relief obtains. The Court satisfactorily determined that
the plea was voluntary through a series of questions addressed to defendant and
his counsel, including inquiries regarding defendant’s understanding
of the charge and its consequence, his rights at trial, and the extent to which
defendant had discussed all aspects of his actions with his attorney.
Defendant’s counsel then volunteered that defendant came before the
Court “knowingly, and voluntarily enters his plea.”
Transcript of Plea Proceedings at 7. Shortly thereafter, the Court pointedly
inquired of defendant: “Do you know of any reason that I shouldn’t
accept your plea?” He responded: “No sir, I
don’t.” Id. at 8. This exchange in open court unquestionably satisfied Rule 11. The
Court’s questioning of defendant and his counsel formed a perfectly
adequate basis for the Court’s determination that the plea came
voluntarily. Defendant was provided ample opportunity to bring his claimed
misgivings to light. Instead, he persuaded the Court that he understood the
consequences of his actions, and faced them willingly. The Rule requires
nothing more. The Government lived up to its obligations under the plea
agreement. It refrained from advocating a life sentence, limited its allocution
to the facts and circumstances of defendant’s crimes and adequately
advised the Court of defendant’s cooperation. The
Government’s discussion of defendant’s failure to comply with
the plea agreement in granting a media interview, as the Court understood it,
was directly relevant to sentencing. Lastly, the provision for joint pleas by
defendant and his wife did not render defendant’s plea involuntary,
and the Court adequately determined the voluntariness of that plea as required
by Rule 11. Defendant’s motion to withdraw Guilty Plea will therefore
be denied. III. Defendant’s
Motion for Access to the Classified Weinberger Declaration On the assumption that classified portions of the Weinberger
Declaration would bolster defendant’s claim that the Declaration
implicitly argued for a life sentence, defendant’s newly-retained
counsel received a security clearance and sought access to the document as well
as other classified sentencing memoranda. The Government resisted, and
defendant filed a motion for an order permitting him to review it. The Court
holds that the materials need not be provided to defendant’s counsel
to assist his section 2255 effort. There are analogous cases dealing with requests for access to
presentence reports to support motions to reduce sentence. In United States
v. Lewis, 743 F.2d 1127 (5th Cir.1984), the Fifth Circuit upheld the
District Court’s refusal to allow access to a presentence report,
citing a number of factors: (1) the defendant “alleged no facts to
show that the sentence was a gross abuse of discretion”—his
claims were “wholly conclusory;” (2) lack of access did not
prevent his counsel from presenting the information contained in the
presentence report—defendant’s background and record; (3)
“Furthermore, [defendant] himself has read the report, and he and his
prior counsel commented upon it at sentencing”—there was no
allegation that prior counsel was unavailable or incompetent, or that defendant
did not remember or understand the report. According to the court in Lewis, refusal
to supply the report post-sentence was no due process or Sixth Amendment
violation. Id. at 1129. Similarly, United States v. Bernstein, 546 F.2d 109, 110
(5th Cir.1977) held that it was no error to withhold a presentence report from
new counsel seeking a Rule 35 reduction in sentence. See also [*807] United
States v. Buckley, 847 F.2d 991, 1003 (1st Cir.1988), cert. denied, 488 U.S. 1015,
109 S.Ct. 808, 102 L.Ed.2d 798 (1989). Each of the factors identified in Lewis apply with some force
here. As pointed out in section II.A, supra, defendant’s claims of
exaggeration and inaccuracy in the unclassified portion of the Weinberger
Declaration simply do not withstand scrutiny. The sentence here was well within
the Court’s discretion. Defendant’s current counsel has
access both to defendant and, presumably, prior counsel and his files. More
importantly, defendant’s previous attorney, who was quite competent,
commented extensively on the Weinberger Declaration and other classified submissions.
There is no allegation that either defendant or prior counsel cannot recall the
substance of these materials. Defendant attempts to distinguish this line of cases by casting
the Declaration in particular as a “pleading,” to which he
believes he should be given automatic access. The prosecution did not prepare
the Declaration; instead, the Secretary of Defense prepared it. While the
Secretary may not have been neutral and detached, his submission is analogous
to a presentence report. Both types of material are evidentiary in nature and
designed to assist the Court in sentencing by providing context for a given
crime which at points is unavoidably subjective. Moreover, defendant’s
claim to other classified sentencing material relies completely on perceived
exaggeration and inaccuracy in the Weinberger Declaration. This perception is
totally unfounded and defendant has made no showing to justify access to these
sensitive documents. Defendant’s Motion for Access to Materials Presented at
Sentencing will be denied. An appropriate Order accompanies this Memorandum. ORDER Upon consideration of Defendant’s Motion to Recuse the
Court under 28 U.S.C. § 455, Motion to Withdraw Guilty Plea,
Supplemental Memorandum in Support of Motion to Withdraw Guilty Plea and Motion
for Access to Materials Presented at Sentencing, the Government’s
opposition thereto and the entire record in this matter, and in accordance with
the Memorandum entered this date, it is by the Court this 10th day of
September, 1990, ORDERED, that Defendant’s Supplemental Memorandum in
Support of Motion to Withdraw Guilty Plea, and related pleadings, and
Defendant’s Motion to Recuse the Court under 28 U.S.C.
§ 455 and related pleadings, be and hereby are UNSEALED, and
the Clerk shall file them on the public record; and it is FURTHER ORDERED, that Defendant’s Motion to Recuse the
Court under 28 U.S.C. § 455 be and hereby is DENIED; and it
is FURTHER ORDERED, that Defendant’s Motion to Withdraw
Guilty Plea be and hereby is DENIED; and it is FURTHER ORDERED, that Defendant’s Motion for Access to
Materials Presented at Sentencing be and hereby is DENIED. |