1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA ALEXANDRIA DIVISION UNITED STATES OF AMERICA vs. JEFFREY ALEXANDER STERLING, Defendant. . . . . . . . . . . . . . . . . . . . Criminal No. 1:10cr485 Alexandria, Virginia May 11, 2015 1:55 p.m. TRANSCRIPT OF SENTENCING BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE GOVERNMENT: JAMES L. TRUMP, AUSA DENNIS M. FITZPATRICK, AUSA United States Attorney's Office 2100 Jamieson Avenue Alexandria, VA 22314 and ERIC G. OLSHAN, Deputy Chief Public Integrity Section of the Criminal Division United States Department of Justice 1400 New York Avenue, N.W. Suite 12100 Washington, D.C. 20005 FOR THE DEFENDANT: EDWARD B. MAC MAHON, JR., ESQ. Law Office of Edward B. MacMahon, Jr. 107 East Washington Street P.O. Box 25 Middleburg, VA 20118 and BARRY J. POLLACK, ESQ. Miller & Chevalier Chartered 655 - 15th Street, N.W. Suite 900 Washington, D.C. 20005-5701 COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 2 1 APPEARANCES: (Cont'd.) 2 CLASSIFIED INFORMATION OFFICER: MAURA I. PETERSON OFFICIAL COURT REPORTER: ANNELIESE J. THOMSON, RDR, CRR U.S. District Court, Fifth Floor 401 Courthouse Square Alexandria, VA 22314 (703)299-8595 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 3 1 P R O C E E D I N G S 2 (Defendant present.) 3 THE CLERK: Criminal Case 10-485, United States of 4 America v. Jeffrey Alexander Sterling. 5 note their appearances for the record. 6 7 MR. TRUMP: MR. OLSHAN: Eric Olshan for the United States. MR. FITZPATRICK: United States. THE COURT: 13 MR. MAC MAHON: Good afternoon. MR. POLLACK: Good afternoon, Your Honor. Edward Good afternoon, Your Honor. Barry Pollack for Mr. Sterling. 17 18 And Dennis Fitzpatrick for the MacMahon for Mr. Sterling. 15 16 Good Good afternoon. 12 14 Jim Trump on afternoon, Your Honor. 10 11 Good afternoon, Your Honor. behalf of the United States. 8 9 Will counsel please THE COURT: All right. And the defendant is in court. 19 All right, this matter is before the Court on 20 posttrial motions that are not yet resolved as well as the 21 sentencing of the defendant if those motions are not granted. 22 Mr. MacMahon, I'm addressing you, but obviously, if Mr. Pollack 23 is the attorney to respond, then he'll just stand up and 24 respond. 25 under consideration: There are three motions by my understanding that are your motion for reconsideration based on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 4 1 the theory of selective position, correct? 2 MR. MAC MAHON: 3 THE COURT: Yes, Your Honor. As well as a motion for acquittal on 4 Count 9, that's a stand-alone motion; and there's a separate 5 motion for acquittal on all counts, correct? 6 MR. MAC MAHON: 7 THE COURT: 8 extensive brief. 9 done a reply brief. Yes, Your Honor, that's correct. All right. Now, you've written an The government has responded to it. You've I will tell you, frankly, I think the 10 government's response was thorough and accurate, and I 11 understand your argument about venue, but again, the Ebersole 12 case, I feel, fully supports the instruction which the Court 13 gave, but are there any additional issues you want to raise or 14 any particular issue in the government's response that you want 15 to take issue with? 16 17 MR. MAC MAHON: pleadings. 18 No, Your Honor. We'll rest on the I know the Court reads them carefully. THE COURT: I have. And as I said, you know, I 19 certainly agree with you, this case was almost entirely based 20 on circumstantial evidence, but this wasn't mere circumstantial 21 evidence. 22 was, in fact, overwhelming and compelling. 23 I think the circumstantial evidence in this case I mean, I'll just mention now orally one or two 24 points. Obviously, there'll be a written opinion coming out 25 hopefully within a few days, but the, one of the critical Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 5 1 issues in this case, frankly, was there were only four people 2 at that San Francisco meeting: 3 defendant, and one other agent, just four, and information 4 about that meeting and the visit to the Sonoma Valley appears 5 in the book, so the only logical inference that any trier of 6 fact could make from that is that one of those four people was 7 the source of that particular piece of information in the book. 8 And at trial, the jury heard from Mr. and Mrs. Merlin 9 as well as from that agent. Mr. and Mrs. Merlin, the They denied being the source. 10 There was also absolutely no evidence that any of them had any 11 motive. 12 The logical inference from all that evidence was that 13 Mr. Sterling, who was the other person there and who did have a 14 motive, was the source, and that's just one example of the very 15 powerful circumstantial evidence which the government had in 16 this case. 17 So I recognize your argument, and obviously, in a 18 perfect world, you'd only have direct evidence, but many times 19 that's not the case in a criminal case. 20 up of 12 carefully selected people. 21 They were attentive. 22 a morning when they came late, and that was their unanimous 23 decision. And the jury was made They were a good jury. You may recall I don't think we ever had 24 So I'm satisfied that both the motion under Rule 29 25 and Rule 33 should not be granted, and I'm going to deny your Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 6 1 2 motion. In the issue of selective prosecution, that's always 3 a troubling one, and you raise some interesting comparators, 4 but the government has come back and has been able to 5 articulate the various reasons why, for example, in the 6 Petraeus case, he was offered the opportunity to plead to a 7 misdemeanor. 8 misdemeanors. 9 Maryland, the Drake case. 10 In the -- in other cases, there have been There was a misdemeanor in the NSA case over in These cases are very difficult for both the defense 11 but also for the government. 12 its own individual merits, among which can be the nature of the 13 information involved, how much has to be disclosed if the case 14 goes to trial, and those other factors, and I do not find in 15 this case that the defendant's race played any part in the 16 government's decision to prosecute him nor that he was unfairly 17 selected, so I'm denying the motion for -- to dismiss this case 18 based on selective prosecution. 19 They have to weigh each case on That being the case then, unless there's any other 20 pretrial matter we need to address, I'm going to go ahead with 21 the sentencing. Is there anything else? 22 MR. TRUMP: No, Your Honor. 23 THE COURT: All right. Now, Mr. MacMahon and 24 Mr. Pollack, have you had enough time to -- and to put you at 25 ease, the guidelines are too high, all right? So I don't need Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 7 1 to hear a whole lot of argument about how the guidelines are 2 calculated. 3 Office has recommended a significant variance, even the 4 government has not asked for a guideline sentencing in this 5 case, and the Court is certainly not going to give a 235-month 6 sentence in this case. 7 We'll leave them as they are, but the Probation But the guidelines as calculated here come out to an 8 offense level of 38. The defense has a criminal history of I. 9 The advisory guideline range is 235 to 293 months. There's a 10 one- to three-year period of supervised release. 11 range is 25,000 to 250,000 dollars, and since there are nine 12 counts of conviction, there would be $900 in special 13 assessments, all right? 14 15 The fine Then, Mr. Trump, who's arguing this for the government? 16 MR. TRUMP: I am, Your Honor. 17 THE COURT: All right. 18 MR. TRUMP: I wasn't aware that the Probation Office 19 was advocating for a variance. 20 THE COURT: 21 22 23 24 25 You normally don't know it, but I'm saying it at this time. MR. TRUMP: I don't know what that, that variance is, so be that as it may. Your Honor, our pleadings tried to provide context, context for how the guidelines and 3553 factors relate to what Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 8 1 was proved at trial, because now we have a trial record. 2 don't have to speculate. 3 have to debate the merits of what the defendant did. 4 has spoken and spoken quite loudly in fact. 5 We don't have to guess. We We don't The jury In terms of the seriousness of the offense and how it 6 relates to the 3553 factors and the harm caused by the 7 defendant, Judge, the jury was required to find unanimously 8 that the information disclosed was, in fact, national defense 9 information and the disclosure was potentially damaging to the 10 United States, and that the jury got right because the evidence 11 at trial clearly established that this was no ordinary 12 intelligence program. 13 This was not a rogue operation. This was not 14 something for which there was any, any government abuse, 15 government fraud. 16 whistleblower effect. 17 There was nothing there of any, any type of It was meticulously planned. It involved the 18 cooperative efforts of the CIA and the National Laboratories. 19 It involved a team of the country's foremost nuclear experts. 20 It took years to develop, millions of dollars were spent, and 21 it wasn't launched until it was reviewed and vetted at the 22 highest level of the government, and its focus, its focus was 23 the proliferation of nuclear weapons, and that, Your Honor, was 24 and is a big deal. 25 Again, what was proved at trial was that one of the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 9 1 greatest threats to the security of our country is posed by the 2 proliferation of nuclear weapons, weapons of mass destruction, 3 and one of the CIA's most important missions, critical missions 4 is the gathering of intelligence about and, if possible, the 5 thwarting, the thwarting of the development of such weapons. 6 For a long time, the Intelligence Community resources 7 in this regard were directed at a very few number of countries, 8 for example, the Soviet Union and China. 9 there are dozens of countries together with transnational 10 organizations, terrorist organizations, and proliferation 11 networks who aspire to acquire and develop and possibly use 12 nuclear weapons. 13 Iran remains a nuclear threat. By comparison, today Historically, Iran 14 has been openly hostile to the United States and its allies. 15 It's been a supporter of terrorism and terrorist organizations. 16 The need for any additional information about Iran's nuclear 17 weapons program and its intentions has been and remains 18 extremely important to the United States. 19 in the late 1990s, when this program was developed; it was true 20 in 1999 and 2000, when the defendant was part of this operation 21 and worked on this program; and it was true in 2003, when the 22 disclosures were made to James Risen; and it was true during 23 the period 2003-2006, when the defendant continued to 24 communicate with Risen over the publication of State of War; 25 and it's true today. That was true back Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 10 1 And the defendant, of course, knew all of this. He 2 was trained as a CIA case officer. 3 He served on the Iran task force. 4 Counterproliferation Division. 5 the operation. 6 operation, how it was developed, the resources and the time and 7 the effort that was spent on the operation. 8 his employment complaints about his management in New York is 9 that he wasn't given enough credit for his role in this 10 11 He was an Iranian expert. He worked at the He obviously was familiar with He was familiar with the history of the Indeed, part of operation. Simply put, we cannot overstate the significance of 12 Classified Program No. 1 as it was described at trial. 13 that important. 14 number of ways to penetrate and gain intelligence information 15 from our adversaries in an effort to stop the proliferation of 16 nuclear weapons and weapons technology. 17 It was As Dr. Rice explained, there are only a finite Having to abandon this operation, having to abandon 18 Merlin, that hurt. 19 intelligence efforts involving Iran and other rogue states. 20 That was true then and it remains true today. 21 It was a substantial and costly blow to our Of course, we will never know what would have 22 happened had Merlin reestablished contact with the Iranians 23 back in 2003. 24 when Bill Harlow got his call from James Risen about the story 25 that he wanted to publish in March and April of 2003, and we As Robert S. testified, that was in the works Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 11 1 won't know what else Merlin could have done for the CIA. 2 Again, Robert S. testified that the publication of State of War 3 in early 2006 caused the CIA to cease all operational use of 4 Merlin. 5 He was a unique asset. His skill set was very, very 6 valuable, and most significantly, he could be trusted, but the 7 agency determined at that time that it could not go forward 8 with any of their plans because the risk to his safety was far 9 too great following publication of Risen's book. 10 And let me talk about Merlin for a minute, Your 11 Honor. 12 He has a wife. 13 who was recruited by the CIA to do something that no one else 14 could. 15 safe with us. 16 No one will ever know what you did for the CIA. 17 We refer to him as a human asset. He's a real person. He has children, grandchildren. He was told by his case officers: He was someone Your identity is Your association with the CIA is safe as well. In fact, in a run-up to the Vienna operation, at one 18 of the defendant's meetings with Merlin in New York, Merlin 19 asked: 20 become public? 21 22 23 Will my identity and association with the CIA ever And this defendant sat face to face with Merlin and assured him: No, it will never, ever become public. Based on those assurances, he went to Vienna. He 24 knew he could be arrested, he could be kidnapped, he could be 25 interrogated by the Iranians, but he did what he was told to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 12 1 do. He performed the mission as directed. 2 fire set plans as he was instructed to do. 3 He delivered the Gathering intelligence, the CIA depends on 4 information collected with the assistance of people like 5 Merlin. 6 between, between the CIA and its assets such as Merlin depends 7 on absolute certain secrecy. 8 9 It is critical to their mission, and the relationship The asset works closely with a case officer, and the most important -- and again, this came out at trial through a 10 number of witnesses -- the most important function of any case 11 officer is maintaining the secrecy of the identity of his or 12 her human sources and their relationship with the CIA. 13 The defendant broke that promise. He violated the 14 most basic, most fundamental, most important duty of a case 15 officer. 16 yet retaliated against Merlin doesn't serve to mitigate the 17 defendant's conduct. 18 Merlin in danger, his family in danger, and for what? 19 the CIA would not settle his claims against the agency. 20 That the KGB or the Iranians or anyone else has not What he did was unconscionable. He put Because Merlin, of course, was quite upset with the 21 publication of the books in 2006, and after the trial, he 22 wanted to provide the probation officer or the Court with a 23 statement as to how this case had affected him and his family, 24 but when he read about the case and he saw how he was 25 characterized in the trial as a greedy, perhaps racist, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 13 1 bumbling Russian scientist, he just had enough. 2 nothing more to do with this process. 3 He wanted Merlin came to the United States with his family not 4 as a defector, not as someone wanting to help the CIA, but to 5 provide his family with a better life. 6 became United States citizens on their own, without help from 7 the CIA. 8 they were able to do, and proud that they were able to do 9 something noble for the United States. 10 He and his wife both They were proud of their new country, proud of what The defendant, of course, wants the Court to consider 11 the time he has spent on bond preparing for trial, that he was 12 living under a cloud for four years, unable to support his 13 family. 14 decade, living in fear for himself, for his family. 15 his job working for the CIA. 16 Merlin has been living under a cloud for almost a Merlin deserves our thanks. He lost He did not deserve what 17 happened to him as a result of the defendant's crimes, and he, 18 not the defendant, is the only victim here. 19 The context of when, how, and why these disclosures 20 were made also demonstrates the egregiousness of the 21 defendant's conduct. 22 Risen is significant. 23 the CIA. 24 that he worked on back in 2000, but the defendant was aware 25 when he turned Merlin over to the next case officer, When. When the defendant spoke with In 2003, the defendant had already left He spoke with Risen about his knowledge of a program Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 14 1 Stephen Y., he was aware that the operation was continuing, 2 that it was being planned against other countries as well. 3 In other words, when he sat down with James Risen, at 4 the same time that was occurring, Merlin was engaging with 5 other countries in similar operations. 6 what the defendant did is astounding. 7 He put case officers at risk. 8 was happening at the time he was sitting down with a reporter. 9 And how? The recklessness of He put Merlin at risk. He put the program at risk. Well, as the trial record again proved, 10 there was nothing amiss about this program. 11 faulty plans. 12 to Iran. 13 secrets, but what does the defendant tell Risen? 14 It There were no There was no inadvertent transfer of technology There was no threat that we were giving away nuclear Here is an intelligent, astute, well-trained case 15 officer, who knows the truth about the program, he knows the 16 facts, yet he makes a very deliberate, calculated decision to 17 change some of those facts, and why? 18 the story published, the only way he could create something 19 newsworthy was by characterizing the program in the light that 20 he did. Spite. The only way he could get 21 Why? Vindictiveness. Nothing to do -- 22 nothing noble. 23 in the nature of any sort of legitimate complaint. 24 angry. 25 his litigation settlement claims had been, had been dismissed Nothing doing his duty, going to SSCI. He ran out of options. Nothing He was His litigation was running -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 15 1 by the agency, and this was what was left, and he struck back. 2 Your Honor, this was not a fun case. Asking the 3 Court to punish a former public servant, someone who at one 4 time volunteered to serve his country, is not something that 5 makes anyone feel good. 6 the case. 7 on this case, getting to meet and to know some of the case 8 officers, some of the men and women who work at the CIA. 9 was a fascinating experience, getting to know a little about Yet there were rewarding aspects of There were moments where it was a pleasure to work It 10 their lives and how they conduct themselves on a day-to-day 11 basis. 12 We have gone through lots of CIPA hearings. We have 13 dealt with lots of classified material, classified documents. 14 We have filed things under seal ad nauseam. 15 protective orders. 16 documents, the substitutions that have to be made, which way is 17 the document better suited for trial, which way should this 18 appear, and at times it's all very technical, very legal, very 19 sterile. 20 We've had We've debated the redactions to particular But in sitting down with the witnesses in this case, 21 the case officers: Stephen Y., Stephen B., Laurie D., Zach W., 22 Max, Denis M., Bob S., even the supervisors: 23 people like David Shedd and others, dealing with classified 24 information is not a technicality. 25 because they're legally obligated to do it. Charles Seidel, It's not something they do It's not something Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 16 1 that they have to study a CIPA guide to figure out. 2 It is real. It's how they live their lives. It's 3 how they deal with their colleagues, with their friends, with 4 their family. 5 soul that they do not, they do not question why material was 6 classified or why they are obligated to keep those secrets 7 dear. It is engrained in them, it is part of their 8 They have sworn that they will do so. 9 sworn that they will protect these secrets with their life 10 11 They have because they are life-and-death matters. It is a difficult job. It is a job that few 12 undertake, but it is a job that they do knowing what the 13 consequences are, knowing that they can't talk about these 14 things, they can't talk about them with their friends, with 15 their families, and even when they leave the agency, they are 16 sworn to secrecy. 17 They know that. It's engrained in them, and the idea that one of 18 theirs, one of theirs, the defendant, Jeffrey Sterling, would 19 violate that trust is just unconscionable, and that is why in 20 the end, Judge, he should be sentenced severely because what he 21 did was deliberate, it was calculated, it was designed to 22 thwart an operation that at its core put people at risk, put 23 assets at risk, and for that he should be punished and he 24 should be punished severely. 25 THE COURT: All right. Mr. MacMahon? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 17 1 MR. MAC MAHON: May it please the Court. Your Honor, 2 I don't want to relitigate the case that we already tried, 3 obviously. 4 allocute to you today that he did these things, and we'll have 5 to deal with that on appeal, I understand. 6 Mr. Sterling pled not guilty and is not going to So the prosecutors did a great job trying their case. 7 They won their case. They deserved to call the facts out as 8 they want to, and that's not really what we're doing here 9 today. What we're trying to do today is to figure out what 10 would be a fair sentence for Mr. Sterling given all the facts 11 and circumstances as we deal with them here. 12 And again, I know you read the pleadings that we file 13 very closely, so I'm not going to repeat everything that's in 14 my sentencing memorandum. 15 that with respect to the claim that, in the reply that somehow 16 defense counsel was responsible for five years, four-and-a-half 17 years of delay in this case by not agreeing to a continuance at 18 the time that the first trial went sideways, Judge, that was a 19 very serious issue. 20 had a conflict of -- a scheduling conflict. 21 you a continuance. 22 that came up anyway. 23 First of all, I just wanted to say It was very serious to you at the time. I I couldn't give And there were multiple appellate issues So it is a fact that Mr. Sterling since he was 24 arrested in 2001 has lived under a cloud. He hasn't had a job. 25 He hasn't been able to work, and that's just a fact. And Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 18 1 whether it's because Mr. Risen appealed to the Supreme Court or 2 the government appealed the issue about who would know what the 3 jury is may be important to the lawyers involved, but 4 Mr. Sterling is the one whose, whose life has been passing as 5 it goes by. 6 With respect to the issue of harm, no one that tried 7 this case from the very beginning and to the end, and that 8 includes all the lawyers in this room, we all know this is a 9 very serious case. 10 issues. 11 important. 12 We all appreciate your time on these CIPA Anytime we have CIPA issues in a case, it's very So nothing, nothing we've said or written at all in 13 any way is meant to take away from what's obviously a very 14 serious case and a very serious issue, but the record does 15 show, Your Honor, there is peace negotiations, whatever you 16 want to call them, with the Iranians right now. 17 to open an embassy in Washington. 18 They're going And there was a 2007, I believe, intelligence 19 estimate that said they don't even have a nuclear weapons 20 program. 21 water under the bridge at this point in time from a factual 22 standpoint, and again not taking away or anything that would 23 happen, the government never even tried, didn't assume a burden 24 of proving that there was any actual damage done to the United 25 States, and that's why I think it was important for you to read So whatever it was that occurred in 2003 or 2005 is Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 19 1 Mr. Manners' letter, which since it was a sentencing issue, in 2 their sentencing memorandum, they said this was the worst leak 3 essentially that had ever occurred or one of them. 4 And again, I'm not, I'm not belittling this. I'm 5 just saying so Mr. Manners reads this, and what does he do? 6 comes forward with his own description. 7 Aldrich Ames turned in a whole bunch of agents who 8 got killed, and that was before Mr. Sterling supposedly 9 disclosed the name of Merlin. 10 11 12 He THE COURT: The book -- Yeah, but Aldrich Ames also got a life sentence. MR. MAC MAHON: He did, Your Honor. So I'm saying in 13 terms of the claim that everything was going to be -- I'm not 14 comparing -- I'm just saying the claim they can't recruit 15 agents because of this is something that Mr. Manners deals with 16 in his letter. 17 And what did Mr. Manners get out of it? He gets 18 called, someone who retracted his testimony and otherwise, he's 19 obviously saying something that the agency didn't want, but the 20 issue, you can, you can read his letter and determine for 21 yourself the level of damage, and again, it wasn't even an 22 element in the case. 23 I do just very quietly, I mean, quietly is not the 24 right word, but remind you that we had, you know, in dealing 25 with CIA people telling you things of a certain fact and that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 20 1 they're established and that all these terrible things had 2 happened, we had another case where the whole world was 3 watching and they couldn't tell you the truth, and there were 4 no consequences for what happened in that situation, and I only 5 ask you to keep that in mind when you hear what Mr. Manners 6 called the hyperbolic claims of damages that arise from this 7 case as to what they say. 8 9 Mr. Manners certainly -- I'm sorry, Merlin feels like he was mistreated in this case. We only asked questions that 10 were brought out in the discovery, but Mr. Manners certainly 11 didn't deserve this at all. 12 So it gets me to the end here, Judge, which is where 13 I want to try to tell you about Jeffrey Sterling, and I don't 14 think I can do any better than the letters that you read from 15 all the people that described him as a loving and a caring 16 person and a wonderful person. 17 in this courtroom: 18 times; somebody who turned over -- he's been called a lot of 19 names, but who he is is a person. 20 family to graduate high school and go to law school, and he 21 did, as Mr. Trump says, volunteer and go and work at the CIA. 22 He's been called a lot of names a traitor; selfish, I think, five or six He's the first person in his And this is a very odd sentencing. At least maybe 23 the Court with all your experience has dealt with this before, 24 but if Mr. Sterling was a selfish person in 2003 or an angry 25 person in 2004, that's not who's here today. He's a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 21 1 47-year-old man, and, and it's not somebody that you need to 2 wait and see what's going to happen if you give him a fair 3 sentence in line with what other people convicted of what he 4 has done. 5 I don't know if you've had a defendant come before 6 you who has letters of support from people he worked with at 7 health care fraud investigations, and we've given you 8 commendations he got where he saved our government millions of 9 dollars in health care fraud. He was someone who a judge in -- 10 a federal judge called to the, the podium or at least called 11 out in a sentencing to thank him for all the work that he's 12 done. 13 So whoever he was in 2003, he's not that person 14 anymore. 15 started ferreting out health care abuse. 16 loves his, his wife. 17 that love him and support him, and that's who you, that's who 18 you're going to sentence today. 19 He's someone who went to law school, got a job, and He's someone who He's someone who has a family and people And I think you do need to look at the other 20 sentences that other people got. 21 agent, a CIA agent turning over the name of somebody. 22 that's what Mr. Kiriakou did. 23 and he got sentenced. 24 a reporter issues of the Korean nuclear weapons program. 25 Mr. Trump talked about an Well, He stood at this very podium, Mr. Kim was convicted of discussing with Every case is different; I understand that. That's Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 22 1 why we haven't -- I don't stand here telling you -- you have 2 the job of figuring out what the sentence is here. 3 can do that job for you, but all we ask is that you be fair, 4 and I know you will be, and sentence Jeffrey Sterling for the 5 man that he is today, and just please be fair to him, Your 6 Honor. That's all. 7 8 THE COURT: All right, Mr. Sterling, come up to the lectern. 9 10 None of us First of all, just for the record, are there any victims who want to be heard? 11 (No response.) 12 THE COURT: All right, Mr. Sterling, this is your 13 opportunity to say anything you'd like the Court to consider. 14 I have read all the letters that were submitted on your behalf 15 by counsel, but you may very well want to say something as 16 well. 17 THE DEFENDANT: Very briefly, Your Honor. I would 18 like to thank the Court for the respect -- the Court and the 19 staff for the respect that you have shown me and the courtesies 20 that you've shown me through the years. 21 like to thank Mr. Wood, who has been very gracious and very 22 courteous to me and my loving wife, Holly. 23 I would especially And I would also finally like to thank Your Honor for 24 delaying the start of the trial so I was able to attend my 25 brother's funeral. He was a Marine and proudly served his Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 23 1 country, and it meant a lot to me to be able to say goodbye to 2 him. 3 And that's all. 4 THE COURT: Thank you very much. All right. Well, Mr. Trump, to 5 paraphrase something you said about being a CIA agent is a 6 difficult job, being a federal judge is also a very difficult 7 job, and there's nothing more difficult than having to sentence 8 in a case like this because clearly, Mr. Sterling, you should 9 get a lot of credit in terms of your total life, and 3553(a) of 10 Title 18 of the United States Code gives the Court the 11 authority, in fact, the obligation to make sure that in any 12 sentencing, we consider the multiple factors, not just the 13 crime that was committed, although that is clearly a factor and 14 an important one. 15 But the Court has to look at the entire person who 16 stands before the Court when we go to sentence someone, and you 17 do get a lot of credit in the Court's eyes for coming from the 18 background you came from, working your way through school, 19 getting a law degree, and volunteering to work at the CIA. 20 that was highly commendable. 21 All And what's happened since you left the CIA, I do also 22 feel that your work for Blue Cross was outstanding and showed 23 that you have a lot of talent and the ability to live a 24 law-abiding life. 25 But these years at the CIA, especially the ones at Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 24 1 issue in this case, are obviously a terrible part of your life. 2 It's a part that you're going to have to deal with. 3 takes very seriously the obligations of people who have trust 4 of the kind that you had, especially when you're working with 5 human assets. This Court 6 Since you've mentioned the Kiriakou case, 7 Mr. MacMahon, you may recall that I accepted that plea under a 8 binding plea agreement, but I also said during that sentencing 9 that I was troubled by the fact that the identity of an agent 10 was disclosed, and had I not agreed -- and I did agree for the 11 various reasons that we often have in these types of cases 12 where you're balancing the disclosure problems that the 13 government has against being able to have the case go 14 forward -- I would have probably sentenced him higher, because 15 there is in my view no more critical secret than the secret of 16 those people who are working on behalf of the United States 17 government in covert capacities, even more than the program 18 itself. 19 Regardless of the merits of that program, there's no 20 question that Merlin was a human asset and that the information 21 in that book put him in a highly compromised position, and that 22 is to me the most serious element of this entire case, and that 23 is, of course, another reason why the Court has to impose a 24 sentence that addresses not just your conduct, because I don't 25 think there's any danger, Mr. Sterling, that you're going to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 25 1 recidivate, that you're going to do this type of thing again, 2 but there has to be a clear message sent to other people at the 3 agency or in any other kind of clandestine or sensitive or 4 secret operation of the government that when you take an oath 5 in which you promise that you will not reveal secrets, that if 6 you do knowingly reveal those secrets, there's going to be a 7 price to be paid. 8 9 Now, the government talked about how essential it is to the national security that we have people willing to serve 10 as human assets and that we have secrets preserved, and that's 11 true, but it's equally if not more essential to the security of 12 the nation that we have a justice system that's fair so that it 13 will have the respect of the people, and that means that the 14 courts have to always balance these various issues. 15 I've looked very carefully at this case. I am 16 satisfied that a sentence higher than that given to 17 Mr. Kiriakou is appropriate in this case and in part because, 18 as the government did correctly point out, this is different in 19 that Kiriakou did come forward and admit his guilt. 20 not happened in this case. 21 That has Now, that doesn't mean a person is punished severely 22 because he uses his right to go to trial, but from a sentencing 23 standpoint, it does suggest that you have two different 24 defendants, one who has come to grips with the fact that he did 25 wrong, recognizes it, and is ready to move on with his life, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 26 1 and the second person, who for whatever reason does not believe 2 he committed any crime, and that means, in my view, that there 3 is a difference between these two cases. 4 that not that great a difference is appropriate. 5 I think, however, The final sentence of the Court, considering the 6 3553(a) factors, is the defendant be committed to the custody 7 of the Bureau of Prisons for a period of 42 months on each of 8 Counts 1, 2, 3, 4, 5, 6, 7, 9, and 10, all concurrent with each 9 other, followed by two years of supervised release, and the 10 terms and conditions of supervision, Mr. Sterling, are first of 11 all your uniform good behavior, which means you're not to 12 violate any federal, state, or local laws. 13 Do you understand that? 14 THE DEFENDANT: 15 THE COURT: Yes, I do. Secondly, you are not to -- I'm sorry, 16 you are required to follow all the conditions of supervision as 17 explained to you by the Probation Office, and they'll also be 18 included on the judgment order. 19 THE DEFENDANT: 20 THE COURT: Do you understand that? Yes, I do. The only special condition I'm imposing 21 in this case is you are required to get a complete mental 22 health evaluation. 23 prescribed by your mental health practitioner and fully 24 participate in such in- or outpatient mental health treatment 25 as directed by the Probation Office. You are required to take any medications Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 27 1 Do you understand that? 2 THE DEFENDANT: 3 THE COURT: Yes, I do. You will have to waive any privacy rights 4 you have to the mental health treatment so that Probation can 5 monitor your progress. Do you understand that? 6 THE DEFENDANT: 7 THE COURT: Yes, I do. I'm going to waive the costs of that 8 program. I am also waiving the costs of supervision, any other 9 costs of supervision, the costs of incarceration, and any of 10 the statutory fines. 11 resources to cover those at this point. 12 I don't think you have the financial There is no history of drug abuse, so the mandatory 13 drug testing is not imposed. 14 demand a drug test from you at any time, and you must comply. 15 Do you understand that? 16 THE DEFENDANT: 17 THE COURT: 18 19 However, the Probation Office can Yes, I do. Lastly, because there are nine counts of conviction, there's a total of $900 in special assessments. Now, there was a forfeiture provision in the 20 indictment, and I can't recall what we finally did with the 21 forfeiture. Is there any forfeiture in this case? 22 MR. TRUMP: We have not pursued the forfeiture issue. 23 THE COURT: All right, I just wanted to make sure for 24 25 the record. And I'm assuming that the government has no objection Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 28 1 to the defendant being allowed to self-surrender? 2 been no problems at all on bond, and this is a nonviolent 3 offense. 4 MR. TRUMP: There have We would not object to self-surrender 5 once space became available at whatever institution the 6 defendant recommends or the Bureau of Prisons decides. 7 THE COURT: All right. Now, Mr. MacMahon, I don't 8 think in your papers -- and if you had it, I must have missed 9 it -- did you make a recommendation to a facility? 10 assuming you want it near Missouri? 11 MR. MAC MAHON: 12 13 14 I'm Yes, Your Honor, near where his wife lives, St. Louis, Missouri. THE COURT: All right, we'll make that recommendation. 15 MR. MAC MAHON: 16 THE COURT: 17 MR. MAC MAHON: If I may, Your Honor? Yes, sir. There is some -- in the pre-sentence 18 report, which is obviously filed with you under seal, there's 19 some specific medication, and I just would ask that the Court, 20 if you're willing to put in the order that they consider, 21 however that can be -- I know you don't want to tell BOP what 22 to do in the prison in terms of medication, but the doctors 23 have suggested those specific medicines for him. 24 25 THE COURT: That's something that you and Ms. Riffle should talk about, the Probation Office. You're going to have Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 29 1 time, at least a few weeks, before the defendant has to 2 self-surrender in which you should be able to make those 3 arrangements. 4 they're formulary or they're funny, sometimes the Bureau of 5 Prisons has trouble with some of those, but if you find in 6 talking with Ms. Riffle and the BOP that there are going to be 7 issues about that, you can approach the Court with a motion, 8 and we'll see if we can help you out on that. 9 MR. MAC MAHON: 10 11 THE COURT: If Thank you, Your Honor. All right? So I'm not going to put it in the judgment order per se. 12 13 I think those two medications are standard. We will recommend a designation to a facility as close to St. Louis, Missouri, as possible. 14 Mr. Sterling, I want to advise you you have a right 15 to appeal both the convictions and this sentence. If you wish 16 to file an appeal, you have to file the notice of appeal within 17 14 days of today's date. 18 represented by counsel through that appeal. 19 to afford to hire counsel yourself, we will appoint counsel for 20 you. I will -- you have a right to be 21 Do you understand that? 22 THE DEFENDANT: 23 THE COURT: 24 MR. MAC MAHON: 25 THE COURT: If you are unable Yes, I do, Your Honor. All right, is there anything further? Not for the defense, Your Honor. All right. Then the last thing, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 30 1 Mr. Sterling, is I am going to continue you on your current 2 bond. 3 additional condition that when you are notified by the Marshals 4 Service as to where and when to report to start serving your 5 sentence, you must get yourself there. The terms and conditions are all the same, with the 6 Do you understand that? 7 THE DEFENDANT: 8 THE COURT: All right. Mr. Trump, was there anything MR. TRUMP: Yes, Judge. With respect to any issues 9 Yes, I do. else? 10 11 that may arise on appeal, if the Court is inclined, we would 12 ask the Court to make the record as to whether the sentence 13 would be the same regardless of the number of counts; in other 14 words, would the Court have imposed the same sentence 15 regardless of nine counts versus three? 16 THE COURT: I've imposed the sentence on each count 17 concurrent because I believe that that is the appropriate 18 sentence as to each count. 19 MR. TRUMP: I guess our question is would the Court 20 find that, that that would be the sentence regardless of the 21 number of counts? 22 THE COURT: If there had been one or nine, it 24 MR. TRUMP: Yes. 25 THE COURT: The only -- yes. 23 would -- They're all the same. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 31 1 I mean, the only count that really is a little bit different is 2 the obstruction count because that's sort of after the fact, 3 but, of course, ironically, that had the highest exposure. 4 That had a twenty-year exposure. 5 ten-year exposure. 6 I think all the others had a All the other counts have the same core problem, that 7 is, that Merlin's identity was exposed and there was a clear 8 breach of the obligation to keep things secret. 9 In terms of the obstruction count, that's an 10 obstruction of justice. 11 its own problems. 12 that the sentence would have been the same were it a conviction 13 of one count or of all of those counts. 14 That's in some respects, you know, has So I'm comfortable in putting on the record MR. TRUMP: The second thing is an administrative 15 matter, and I'm not trying to signal to the Court any intention 16 on the part of the government, but because of the different 17 multiple layers of review in this case, we have to object to 18 the sentence or else any appellate issue related to sentence 19 could be waived, so we just want to put on the record that, 20 note our objection. 21 THE COURT: That's your job, Mr. Trump. 22 MR. TRUMP: Thank you. 23 THE COURT: I understand that. 24 MR. MAC MAHON: 25 I'll jump in and object to the advisory opinion on the first question about the consecutive -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 32 1 the sentence on all charges. 2 THE COURT: Well, look, as long as we're doing this, 3 to save us another hearing on this, if the defendant -- if 4 there is an appeal, is there going to be any motion to stay 5 execution of sentence? 6 MR. MAC MAHON: Well, Your Honor, I'm not, I'm not 7 sure as of today if there's going to be, but it wouldn't affect 8 the motion for bail pending appeal, I wouldn't think. 9 haven't had a chance to consult with my client about that. 10 THE COURT: 11 MR. MAC MAHON: 12 THE COURT: 13 I All right, that's fine. So I can't answer that. Well, maybe you and the government can talk as well and see what you can work out. 14 MR. MAC MAHON: We will, Your Honor. 15 THE COURT: 16 When you leave court today, Ms. Riffle is in the All right, very good. 17 courtroom. You should make sure you've checked in with 18 Probation and Pretrial so that also the folks in Missouri know 19 that the pretrial bond will stay in place until the defendant 20 self-surrenders if there's no stay of the execution. 21 MR. MAC MAHON: 22 THE COURT: 23 We'll do that, Your Honor. All right, if there's nothing further then, we'll recess court for the day. 24 MR. TRUMP: 25 MR. POLLACK: Thank you, Your Honor. Thank you, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 33 1 2 (Which were all the proceedings had at this time.) 3 4 5 6 CERTIFICATE OF THE REPORTER I certify that the foregoing is a correct transcript of the record of proceedings in the above-entitled matter. 7 8 9 /s/ Anneliese J. Thomson 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595