Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 1 of 162 PageID# 6133 1416 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 January 22, 2015 9:53 a.m. TRANSCRIPT OF JURY TRIAL BEFORE THE HONORABLE LEONIE M. BRINKEMA UNITED STATES DISTRICT JUDGE VOLUME VII 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 (APPEARANCES CONT'D. ON FOLLOWING PAGE) (Pages 1416 - 1577) COMPUTERIZED TRANSCRIPTION OF STENOGRAPHIC NOTES Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 2 of 162 PageID# 6134 1417 1 APPEARANCES: (Cont'd.) 2 FOR THE DEFENDANT: BARRY J. POLLACK, ESQ. MIA P. HAESSLY, ESQ. Miller & Chevalier Chartered 655 - 15th Street, N.W. Suite 900 Washington, D.C. 20005-5701 CLASSIFIED INFORMATION SECURITY OFFICERS: CHRISTINE E. GUNNING MAURA PETERSON ALSO PRESENT: GERARD FRANCISCO SA ASHLEY HUNT JENNIFER MULLIN, ESQ. 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 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 3 of 162 PageID# 6135 1418 1 I N D E X 2 Closing Argument by Mr. Olshan: Page 1437 Closing Argument by Mr. Pollack: Page 1467 Rebuttal Argument by Mr. Trump: Page 1505 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 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 4 of 162 PageID# 6136 1419 1 P R O C E E D I N G S 2 (Defendant present, Jury out.) 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: Good morning, Your Honor. MR. OLSHAN: 9 on behalf of the United States. 10 Good morning, Your Honor. MR. FITZPATRICK: THE COURT: 13 MR. POLLACK: Good morning, Your Honor. Good morning, Your Honor. Pollack on behalf of Mr. Sterling. 15 MR. MAC MAHON: Barry Edward MacMahon on behalf of Mr. Sterling, Your Honor. 17 MS. HAESSLY: Good morning. Mia Haessly on behalf of Mr. Sterling, Your Honor. 19 20 Dennis Good morning. 14 18 Eric Olshan Fitzpatrick on behalf of the United States. 12 16 Jim Trump on behalf of the United States. 8 11 Would counsel please THE COURT: seat. Good morning. All right, counsel, have a We're going to hopefully do this very quickly. 21 The verdict form that was submitted by the 22 government, we've made -- the only change we've made to it is 23 we always want the foreperson's printed signature as well, so 24 that's been changed. 25 with us. Otherwise, that's exactly as it was left There's been no objection, so that's the one we're Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 5 of 162 PageID# 6137 1420 1 going to send to the jury. 2 In terms of the final charge, just so you know, we 3 did make two small typographical corrections since last night. 4 The instruction for Count 10, where it gives the elements, we 5 struck out the word "four" to "three," because there are only 6 three elements; and in the witness protection instruction, 7 there was a typo. 8 was a one-letter typo, but it makes no change. 9 I think "on" was "no." Whatever it was, it I looked at the government's request to change the 10 possession instruction. 11 changes. 12 I'm not going to add the requested I think that's arguing your case. The job of the instructions is simply to give 13 definitions of law to the jury but not necessarily to explain 14 how those definitions apply to the case. 15 would overly help the jury making a decision one way or the 16 other. 17 In my view, that So I'm not going to make the changes that the 18 government requested, and as far as I can tell, other than the 19 classification markings instruction we just got, there were no 20 other requests to change anything in the charge. 21 correct? Is that 22 MR. FITZPATRICK: 23 THE COURT: 24 Now, the defense filed a series of objections. 25 That's right, Your Honor. All right, that's fine, Mr. Fitzpatrick. I don't think those objections require any changes to the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 6 of 162 PageID# 6138 1421 1 instructions to the extent that both the instruction as to the 2 witnesses and the exhibits that have -- that we had to handle 3 specially clearly told the jury not to draw any inferences, and 4 therefore, the language is already there, and I don't think the 5 additional language is helpful, so I'm not going to add that. 6 In terms of the description of the counts, including 7 language about the Eastern District of Virginia, I told the 8 defense the choice you have is either a brief summary of what's 9 involved in those counts or the indictment goes to the jury, 10 and you-all are much happier with the indictment not going in. 11 Those counts do allege Eastern District of Virginia, and I 12 think it is therefore appropriate that that be in the overall 13 very brief summary of those counts, so I'm overruling that 14 objection. 15 And I didn't think there was any merit to any of the 16 others, but I'll hear any last-minute discussion of the 17 instructions. 18 The other thing I just want you to know so there's no 19 surprises, it's my standard practice when I give them the 20 direct and circumstantial evidence instruction to give them an 21 example, and it's usually it snowed in your front yard. 22 see a footprint. 23 someone in your yard. 24 before. 25 You You can draw an inference that there was Most of you have heard me do that one And with possession, I am leaving constructive Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 7 of 162 PageID# 6139 1422 1 possession in here because you have Mr. -- the allegation that 2 Mr. Risen got the possession from the defendant. 3 jury, my standard example is actual possession, I've got 4 physical control of this pen. 5 Ms. Guyton works for me, and therefore, I can tell her what to 6 do with her laptop computer, and therefore, I am considered in 7 the eyes of the law to have constructive possession of that 8 computer. 9 10 I give the Constructive possession, I'm not going to do joint and single. That we don't need. 11 And those should be the only two slight ad libs. 12 All right, Mr. MacMahon? 13 MR. MAC MAHON: Yes, Your Honor, good morning. 14 briefly, with respect to the -- can I read from here, Your 15 Honor? 16 THE COURT: Yeah. 17 MR. MAC MAHON: Just I know you're uncomfortable, yeah. Judge, with respect to the venue 18 instruction, I understand the Court's ruling, but I did want to 19 put in the record -- I assume our objections are going to be 20 put in the record. 21 22 23 24 25 Do you want us to file them ECF? THE COURT: You should do them ECF so they're formally on the record, yes. MR. MAC MAHON: hand Mr. Trump a copy. THE COURT: We will do that, Your Honor, and I'll We have one for you, Your Honor, but -Oh, my law clerk can get it from you. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 8 of 162 PageID# 6140 1423 1 Ms. Copsey? 2 MR. MAC MAHON: Judge, I'm just handing you a page 3 from your opinion on the grand jury subpoena of Mr. Risen just 4 to put in the record here -- 5 THE COURT: All right. 6 MR. MAC MAHON: 7 What you wrote on page 24 of the opinion, which is -- as well. 8 November 30, 2010, is -- and this, this is the substance of the 9 instruction that we asked for and it was refused -- is that 10 prosecutions involving disclosure of classified information, 11 venue is proper both where the information is sent and where it 12 is received. 13 And you talk about venue -- 14 THE COURT: But read the next sentence: "Then you 15 may be in multiple districts as long as part of the criminal 16 act took place in that district," and I think that's not 17 inconsistent with my statement that as long as an act in 18 furtherance of the crime occurred in the district, there's 19 venue. 20 21 So I -MR. MAC MAHON: Well, I understand your ruling, Your Honor, but I don't -- the defendant objects to the instruction. 22 THE COURT: I understand. 23 MR. MAC MAHON: It doesn't say the disclosure, that 24 venue is proper where it's sent or received. 25 the record, Your Honor. I'm just making Thank you. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 9 of 162 PageID# 6141 1424 1 THE COURT: That's fine, Mr. MacMahon. 3 MR. TRUMP: Yes. 4 THE COURT: And, Mr. MacMahon, the other objections 2 Anything else? 5 you had as to a definition of "causation" and "classified 6 information," the Court not only gives the elements of the 7 offense to a jury in jury instructions, but it's also expected 8 to give legal definitions of key terms within the elements, and 9 "national defense information" is a key term that does have to 10 be explained, and some of the -- as does "willfully," 11 "knowingly." 12 I mean, some of these are English language words, but 13 in any standard charge, you still give the jury some specific 14 help. 15 you've objected to that, I'm overruling that objection as well. So to the extent that we've defined certain terms and 16 Now, Mr. Trump? 17 MR. TRUMP: Yes, Your Honor. On the possession 18 issue, and I don't believe there was any dispute from the 19 defense this morning, the definition, the fifth paragraph in 20 that instruction -- 21 22 THE COURT: All right, give me the number of the instruction. 23 MR. TRUMP: Possession defined. 24 THE COURT: Yeah. 25 can get it faster. You've got page numbers. On the bottom of your -- go ahead. Just I While Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 10 of 162 PageID# 6142 1425 1 you're talking, let me look for it. 2 MR. TRUMP: Go ahead. The way it reads is incorrect in terms of 3 Counts 1, 4, and 6. It should be in the past tense. 4 words, "In this case, lawful possession of classified 5 information means possession" -- 6 In other (Knocking on Jury Room door.) 7 THE COURT: Wait, wait, wait, wait, wait. 8 MR. TRUMP: Page 31, Your Honor. 9 THE COURT: Thank you. 10 MR. TRUMP: "For Counts 1, 4, and 6, a person has Go ahead. 11 lawful possession of something if he is entitled to have it. 12 In this case, lawful possession of classified information means 13 possession of classified information by a person who held an 14 appropriate security clearance at the time the person acquired 15 the information." 16 17 THE COURT: Does the defense have any objection to that? 18 MR. MAC MAHON: No, Your Honor, not to that part of 19 it. I mean, I've looked at it this morning. The part about 20 the memories and otherwise, I think, is argumentative, but, you 21 know, the issue in the case is there's no question Mr. Sterling 22 had a clearance when he obtained this information and that all 23 the events that took place thereafter, he didn't, he didn't 24 have a need to know, so I think that is a clarification that 25 would be good. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 11 of 162 PageID# 6143 1426 1 The rest of it, I don't think it's necessary. 2 THE COURT: All right, so let me go over that again. 3 "Possession of classified information by a person who held an 4 appropriate security clearance" -- 5 6 7 8 MR. TRUMP: -- "at the time the person acquired the classified information." THE COURT: Wait a minute. Do we need "and had a need to know"? 9 MR. TRUMP: "And had a need to know." 10 THE COURT: "At the time he acquired"? 11 MR. TRUMP: "At the time the person acquired the 12 classified information." 13 THE COURT: We will add that. 14 I did omit to tell the government, you-all, I am 15 striking the 404(b) instruction. 16 doesn't want it; the government doesn't need it. 17 done to protect the defendant, so I agree with you, I don't 18 think in this case it helps your case very much, all right? 19 MR. MAC MAHON: 20 THE COURT: 21 22 23 24 25 It's not -- the defense It's normally The instruction, Your Honor. I'm getting rid of the instruction. That's what you wanted, and I think that's correct. MR. MAC MAHON: Well, the way it was written, Your Honor, suggested it was evidence of other crimes. THE COURT: Well, I tried to make it other acts. you don't want a 404(b) instruction; is that correct? But If you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 12 of 162 PageID# 6144 1427 1 look at the book, if you look at O'Malley, it has acts and it 2 has crimes. 3 MR. MAC MAHON: Well, there's clearly going to be 4 argument about these letters and that they're not -- they 5 aren't part of the indictment, so I think the jury -- 6 THE COURT: 7 MR. MAC MAHON: 8 THE COURT: 9 10 It's not the letters. government maintained were still Secret when they were obtained from your client's home, correct? MR. MAC MAHON: 12 THE COURT: Yes. All right. Do you want an instruction on that or not? 14 15 It's the phone number, whatever -- It's the three documents that the 11 13 It's the -- MR. MAC MAHON: Can I consult with Mr. Pollack, Your Honor, briefly? 16 THE COURT: All right. 17 MR. MAC MAHON: Your Honor, the instruction goes to 18 other acts. 19 the manner in which they saw those, what those documents would 20 be. 21 no, there's no 404(b) pattern type of evidence here that that 22 evidence would be, so it's hard to craft the instruction, I 23 understand. 24 25 I think the jury is going to wonder, especially in The objection I filed last night was as to the -- there's THE COURT: Well, all right. the, the docket numbers. That's why I omitted I could do it now. What I was going Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 13 of 162 PageID# 6145 1428 1 to say and what it says now, "The government has introduced 2 evidence that defendant had classified documents," and I'm 3 going to do the exhibit numbers. 4 MR. MAC MAHON: 5 THE COURT: 6 MR. MAC MAHON: 7 There's four of them. 141, -42, -43. It's just those three. No, there were four, Your Honor. There was also the, the report he had when he was a trainee. 8 9 I think it's 141 through -- MR. OLSHAN: Your Honor, there was four exhibits, only three of which were introduced by the silent witness rule. 10 THE COURT: 11 MR. OLSHAN: 12 THE COURT: All right. Is that 145 then? Correct. All right. 13 residence was searched." 14 did come in. 15 MR. MAC MAHON: 16 THE COURT: "In his custody when his And that's correct, and that evidence Yes. And I changed the instruction slightly. 17 "Evidence that an act was done by the defendant at some time is 18 not, of course, evidence or proof whatever that at another time 19 the defendant performed a similar act, including the offenses 20 charged in the indictment." 21 22 MR. MAC MAHON: We would request that instruction. 23 THE COURT: 24 MR. MAC MAHON: 25 Yes. Well, that's what I gave you here. Well, I thought there was more to it that -- Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 14 of 162 PageID# 6146 1429 1 THE COURT: Well, then it says, "Evidence of a 2 similar act may not be considered by the jury in determining 3 whether the defendant actually performed the physical acts." 4 MR. MAC MAHON: Mr. Pollack is asking that it be 5 "another act," because there isn't a similarity here between 6 the acts and the way the evidence came in, but I think the jury 7 does need to be instructed that it's just an act and how it 8 could be considered, because it was proffered just as evidence 9 of venue, and they don't need to be told -- I'm sure they'll be 10 11 told that in the argument, but -THE COURT: All right, I believe I got the 12 word "other crimes" out, but I think I still left it in the 13 last paragraph, but, I mean, the way I modified the standard 14 404(b) instruction was to get out "evidence of other crimes" 15 and do it "evidence of other acts," all right? 16 relevant only to the issue of intent. 17 Yeah. 18 MR. OLSHAN: And that's Would the Court mind just reading the 19 portion of the instruction that the Court has as to what they 20 may consider it for? 21 THE COURT: 22 MR. OLSHAN: 23 MR. MAC MAHON: 24 THE COURT: 25 So the key -- I think the key paragraph, "If the jury Look at 24. Page 24. Page 24, Your Honor? Page 24 is where I've got it. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 15 of 162 PageID# 6147 1430 1 should find a reasonable doubt from other evidence in the case 2 that the defendant did the act or acts alleged in the 3 particular count under consideration, the jury may then 4 consider evidence as to an alleged earlier act of a like nature 5 in determining the state of mind or intent with which the 6 defendant actually did the act or acts charged in the 7 particular count." 8 9 10 11 12 Now, that's verbatim from the standard jury instruction. MR. MAC MAHON: I think that's a model instruction, isn't it, Your Honor? THE COURT: It is a model instruction. I took out 13 the word "crime," so it's been modified, frankly, in your favor 14 in that respect. 15 of the last paragraph. 16 17 18 19 20 And then I have to take the word "crimes" out MR. MAC MAHON: They've already been told he's not on trial for any other crimes. THE COURT: instruction, on 23. Correct. And I've got it in the previous So, I mean, it's been told twice. MR. POLLACK: I'm sorry, Your Honor, in the first 21 paragraph, you're going to say that at another time, the 22 defendant performed another act, or is it going to say a 23 similar act? 24 25 THE COURT: It just says, "The government has introduced evidence that defendant had classified documents, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 16 of 162 PageID# 6148 1431 1 Exhibits 141 through 145" -- right? 2 MR. OLSHAN: 3 THE COURT: 4 MR. POLLACK: 5 THE COURT: I'm going to add that. 142 through 145. 142 through 145. Yes. ". . . in his custody when his residence 6 was searched. Evidence that an act was done by the defendant 7 at some other time is not, of course, any evidence or proof 8 whatever that at another time, the defendant performed a 9 similar act, including the offenses charged in the indictment." 10 That's absolutely, I mean, that's absolutely -- other 11 than I took the word "crimes" out as to the 404(b) evidence, 12 all right? 13 MR. POLLACK: Yeah. And I understand, Your Honor. 14 just -- I would in that last line say "performed another act" 15 rather than "a similar act." 16 17 18 19 THE COURT: I'm not going to do that. sticking with the language. MR. MAC MAHON: I think I'm I've changed enough of it. Your Honor, can I talk to Mr. Trump for one second about this instruction? 20 THE COURT: 21 MR. MAC MAHON: Go ahead. Your Honor, with respect to the 22 possession defined instruction? 23 THE COURT: 24 MR. MAC MAHON: 25 I Yes. In the government's revised draft on the new paragraph 6? Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 17 of 162 PageID# 6149 1432 1 THE COURT: Go ahead. 2 MR. MAC MAHON: It says, "unauthorized possession of 3 classified information means possession of classified 4 information," and what was handed to me is a, is a statement, 5 namely, a letter related to Classified Program No. -- 6 7 THE COURT: I don't have that. I did not agree to put that request in this instruction. 8 MR. MAC MAHON: 9 THE COURT: 10 Okay. That's fine, Your Honor. Okay? MR. MAC MAHON: I didn't know that that had been -- I 11 think it may help the jury. 12 I accept that. 13 THE COURT: 14 MR. MAC MAHON: So it can't be -- but that's fine; Do you want -I mean, I would think that rather 15 than thinking that it was all the classified information that 16 may have been in his head or other things, that we're limited 17 to the letter about Classified Program No. 1, which is the 18 chart. 19 THE COURT: 20 be glad to enter it. 21 MR. TRUMP: If you -- if both sides want that, I'll For those counts, 2, 5, and 7, it's taken 22 directly from the indictment, namely, a letter related to 23 Classified Program No. 1. 24 25 MR. MAC MAHON: And I think that would eliminate the potential for confusion of the jury as they try to decide what Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 18 of 162 PageID# 6150 1433 1 exact classified information. 2 THE COURT: All right, tell me which line in that you 3 want it. 4 information means possession of classified information by a 5 person." 6 7 "In this case, unauthorized possession of classified MR. MAC MAHON: comma, "namely, a letter related to Classified Program No. 1." 8 THE COURT: 9 MR. POLLACK: 10 to Counts 2, 5, and 7. 11 12 After "classified information" is All right, I will add that. Your Honor, Mr. Trump said that applies THE COURT: I think it also applies to Count 3. Well, we're not talking about Count 3 here. 13 MR. POLLACK: I understand, but I think the same 14 should be on the Count 3 instruction. 15 information we're talking about in Count 3 is the letter. 16 THE COURT: The national defense All right, does the government agree with 17 that? 18 elements of Count 3, and the first element, "that on or about 19 the date set forth in the indictment" -- I thought we had put 20 the date in there because I want to help the jury not have to 21 search for those things -- "the defendant had unauthorized 22 possession or control over a document relating to the national 23 defense, specifically, a letter." 24 MR. POLLACK: 25 What we could do is on page 41, where we're giving the Yeah, it looks like you already have it, Your Honor, I'm sorry, on page 39. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 19 of 162 PageID# 6151 1434 1 MR. MAC MAHON: I'm sorry to be double-teaming you, 2 Your Honor. We're all trying to get this done. 3 39, the nature of the offense on Count 3, says "namely, a 4 letter relating to Classified" -- 5 THE COURT: 6 MR. MAC MAHON: 7 10 And the date -- It's there, but it's not described as an element of the offense. 8 9 So it's there. THE COURT: not an element. Well, it's not really an element. It's That's the, that's the item that fulfills that element. 11 MR. MAC MAHON: 12 THE COURT: 13 All right, is there anything else? 14 But on page Thank you, Your Honor. So all right, it's there. Because we want to get the jury -- 15 MR. TRUMP: Yes, yes, Your Honor. The modification 16 to your 404(b) evidence does not take into account the other 17 permissible uses of 404(b). 18 intent. 19 preparation, plan, and knowledge. 20 the instruction. We did not offer it for proof of We offered it for proof of opportunity, intent, All of those should be in 21 THE COURT: What book are you looking at? Because 22 the one I took it -- 23 MR. TRUMP: I'm looking at the rule, Your Honor. 24 THE COURT: I'm sorry? 25 MR. TRUMP: I'm looking at the rule, Rule 404(b). I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 20 of 162 PageID# 6152 1435 1 mean, typically, 404(b) in many cases is offered for intent, 2 but that is not the purpose here. 3 THE COURT: I'm using the standard jury instruction, 4 which is not a misstatement of the law. 5 You can argue. And you can argue. I've ruled on that. 6 All right, anything else, Mr. Trump? 7 MR. TRUMP: No, Your Honor. 8 THE COURT: No? 9 10 for the opening? 45-15? All right, are you all ready then Now, how do you want to split up your time? 50-10? 11 MR. OLSHAN: 12 THE COURT: Hopefully, closer to 50-10. 50-10, all right. Everybody is ready. 13 We're going to try to go without a break, so that again, the 14 plan is after they've gotten closing arguments, we're breaking 15 for lunch. 16 Then I'm going to instruct them, all right? All right, let's bring the jury in. 17 (Jury present.) 18 THE COURT: 19 Thank you. 20 time. 21 Good morning, ladies and gentlemen. Please have a seat. And again, you've been on We had a few matters we had to take care of. I do want to ask you, did any of you look at The 22 Washington Post this morning before coming to court? 23 Either online or in the paper? 24 25 No? (No response.) THE COURT: All right, because there was an article Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 21 of 162 PageID# 6153 1436 1 about the case. 2 exposure to anything about this case and avoid any kind of 3 outside-of-the-courtroom contact. 4 Again, you must be very careful to avoid any We're going to now go into closing arguments. As I 5 told you yesterday, we're going to hear first from the 6 government their closing argument, then the defense closing 7 argument, and because the burden of proof is on the government, 8 they'll get to do a brief rebuttal, and then you will have your 9 lunch break. 10 Obviously, that's going to be about two hours. If 11 any of you do need a break, you know, I'll be looking at you. 12 Just make a signal and we'll have to take a break. 13 We'll have the regular one-hour lunch break, but it's 14 earlier today, and then after lunch, you'll get the 15 instructions from the Court, and then you'll have the case to 16 deliberate. 17 Who's going to open for the government? 18 MR. OLSHAN: 19 THE COURT: I am, Your Honor. All right, Mr. Olshan, it's lovely to see 20 the sunshine, but if it's too bright, if it's bothering you, we 21 can close the blinds. 22 MR. OLSHAN: 23 24 I think the sunshine is good, Your Honor. THE COURT: All right, that's fine. 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 22 of 162 PageID# 6154 1437 1 CLOSING ARGUMENT 2 BY MR. OLSHAN: 3 One of the most important priorities of the United 4 States government is to do everything it possibly can to 5 prevent a foreign enemy from obtaining a nuclear weapon. 6 Keeping nuclear weapons out of the hands of countries like Iran 7 protects the United States, and it protects the American 8 public. 9 classified program at issue in this case was one of those 10 Make no mistake; we don't have that many options. The options. 11 When the CIA developed Classified Program No. 1, they 12 vetted it, they approved it, they put time and resources into 13 it so that this country had an option, an option to disrupt the 14 nuclear weapons capabilities of Iran. 15 levers that we believed that we had to try to disrupt the 16 Iranian nuclear weapons program. 17 It was one of the only Those were the words of former National Security 18 Advisor and Secretary of State Condoleezza Rice. 19 of a parade of witnesses who came into this courtroom and sat 20 in that witness box and told you how important, how vitally 21 important this classified program was. 22 develop a classified program that could help undermine the 23 Iranian nuclear program, but the fact that that program was a 24 secret. 25 She was one Not just that we would Without question, the operation at the heart of this Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 23 of 162 PageID# 6155 1438 1 case was one of the CIA's and the United States' most sensitive 2 and closely held programs. 3 and Merlin, the human asset at the heart of it, risked grave 4 harm not only to Mr. Merlin and his family but also to the 5 United States and its ability to keep programs like this one a 6 secret. Public disclosure of that program 7 So why are we here talking about it in a courtroom? 8 Because of that man, the defendant, Jeffrey Sterling, someone 9 who violated the oath he swore on the first day he became an 10 employee of the CIA in 1993, an oath to safeguard the CIA's 11 secrets not just while he was employed at the CIA but forever. 12 That was his oath, and he broke it. 13 In 2002, on his last day as an employee at the CIA, 14 what did he do? 15 understood his obligations and he would abide by them. 16 same promise that he made on his way into the agency, the 17 defendant refused to make on the way out. 18 He refused to sign that last form saying he The You see, the defendant's career was in shambles by 19 that point, and he blamed the CIA. 20 mistreated by the agency, he was angry, and he was bitter, and 21 so he was done keeping the CIA's secrets. 22 He felt he'd been Four years later, many of the secrets that had been 23 entrusted to the defendant during his time at the CIA came 24 spilling out of chapter 9 of James Risen's book, State of War. 25 Risen and Sterling had developed a relationship during Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 24 of 162 PageID# 6156 1439 1 Sterling's discrimination lawsuit, and Risen was a natural 2 conduit for Mr. Sterling's story, and so out came the details 3 of Sterling's work on a classified program and with a 4 classified human asset, that's Merlin, the defendant knew very 5 well. 6 That's why you're here, ladies and gentlemen. Over the course of this trial, you've heard testimony 7 and seen documents that establish a simple truth: 8 Sterling, a disgruntled former CIA employee with an axe to 9 grind, disclosed the CIA's secrets to Risen, a reporter he knew 10 11 12 13 14 15 16 Jeffrey well. But let's step back. This case comes down to three basic questions: 1: Who knew all of the information about Classified Program No. 1 that shows up in chapter 9 of State of War? Question 2: Who had a motive to disclose that information? 17 Question 3: Who had a relationship with James Risen? 18 The evidence in this case has proven beyond a 19 reasonable doubt that the single answer to all three of those 20 questions is just one person: 21 Not only did the defendant know all of the relevant facts about 22 Classified Program No. 1 that showed up in Risen's book; he was 23 an eyewitness to many of them. the defendant, Jeffrey Sterling. 24 More importantly, Mr. Sterling, unlike anyone else 25 who knew anything about this operation at any point, was the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 25 of 162 PageID# 6157 1440 1 only person who had a reason to tell Mr. Risen what he knew 2 about it. 3 Bill Harlow at the CIA in April of 2003 with Mr. Risen's story 4 about this botched Iranian nuclear operation, Mr. Sterling had 5 run out of options. 6 lawsuit was going nowhere. 7 not two, but five settlement offers from Mr. Sterling and his 8 lawyers. 9 10 By the time Mr. Risen picked up the phone to call He'd lost his EEO complaint, and his civil The agency had rejected not one, The defendant was unemployed, he was angry, and he was bitter. 11 He wanted to lash out. There's your motive. And finally, he knew how to lash out. He already had 12 a documented relationship with Risen. 13 Mr. Sterling refused to sign that final nondisclosure 14 agreement, Mr. Risen published a story about the defendant in 15 The New York Times. 16 knew who would listen to him. 17 answer: 18 Just five weeks after So the next year, in 2003, Mr. Sterling Three questions, one common Jeffrey Sterling. Let's take each question one at a time. Question 1: 19 Who knew all the information in chapter 9? When you go back to 20 the jury room, you're going to get a couple binders filled with 21 all of the exhibits in this case. 22 any of those nondisclosure agreements or any of the cables we 23 looked at for a number of days or any of those settlement 24 offers that were rejected by the CIA, pull out Exhibit 132. 25 That's chapter 9. Before you take a look at Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 26 of 162 PageID# 6158 1441 1 As you go through chapter 9, remember one thing: All 2 that matters for purposes of this case and your job as jurors 3 is information in that chapter about Classified Program No. 1 4 and Merlin. 5 Cross it out. 6 Everything else in that chapter you can ignore. It's irrelevant. The publication of that chapter exposed to the world, 7 friends and enemies alike, the details of Classified Program 8 No. 1, so let's start with it. 9 that much of the chapter has nothing to do with Classified 10 Program No. 1 or Merlin. 11 out is what matters. 12 As you read it, you'll notice All that's left when you take that Ladies and gentlemen, at its core, chapter 9 contains 13 accurate classified details about Classified Program No. 1 and 14 Merlin. 15 corroborated facts. Let's start with what Risen gets right: The core true I'll highlight a few. 16 The book accurately describes that Classified Program 17 No. 1 was designed to stunt the development of Tehran's nuclear 18 program by sending Iran's nuclear experts down the wrong 19 technical path, wasting years trying to make a flawed nuclear 20 design work instead of focusing on their existing nuclear 21 program. 22 true. 23 That's the basic overview of the program, and it's More specifically, the chapter details the nature of 24 the flawed plans, identifying the specific nuclear component as 25 a TBA 480 high-voltage block or firing set for a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 27 of 162 PageID# 6159 1442 1 Russian-designed nuclear weapon. 2 true. That specific detail, that's 3 The book also accurately sources the original Russian 4 intelligence to a Russian scientist who's working with the CIA. 5 You've seen him referred to in cables as Human Asset No. 2. 6 The book notes that the intelligence from Human Asset No. 2 was 7 sent to a National Laboratory and scrutinized by a team of 8 scientists. 9 implant flaws deliberately into those Russian -- into that All of that is true. The same team was asked to 10 Russian design, and those flaws were supposed to be so clever 11 and well hidden that no one would be able to detect their 12 presence. 13 Again, it's in the book, and it's true. Walt C. 14 testified about exactly how the National Laboratory went about 15 taking that intelligence from Human Asset No. 2, creating that 16 working fire set, deconstructing it to add in those embedded 17 flaws, and testing it with a Red Team. 18 That's true. Now, in addition to specific technical details of the 19 operation, chapter 9 also contains several facts about Merlin, 20 also known as Human Asset No. 1. 21 accurately reflects that Merlin was a Russian scientist who had 22 worked at Arzamas-16 in the former Soviet Union and who had 23 endured long debriefings in which CIA experts and scientists 24 from the National Laboratories tried to drain him of everything 25 he knew about the status of Russia's nuclear weapons program. For example, the book Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 28 of 162 PageID# 6160 1443 1 Those details about Merlin are true. And when he 2 testified, he told you that the description of him in the book 3 was enough for the Russians to figure out who he was and the 4 fact that he was working with the United States government. 5 As for Merlin's role in Classified Program No. 1, the 6 book once again gets many things right. 7 of the operation, Merlin's job was to pose as an unemployed and 8 greedy scientist who would serve as a go-between for the other 9 Russian scientist, the one with the greater technical know-how. 10 For example, as part That's true. 11 In order to develop viable Iranian contacts, the CIA 12 instructed Merlin to send e-mails to Iranian scientists and 13 scholars and to attend scientific conferences. 14 Those were his instructions. 15 That's true. Ultimately, Merlin communicated with an Iranian 16 professor, and later, when the CIA learned that another 17 Iranian, this one a top official, was headed to the 18 International Atomic Energy Association, or IAEA, in Vienna, 19 the decision was made to send Merlin over with the fire set 20 plans. 21 All true and all in the book. So Merlin traveled at the CIA's direction to Vienna 22 in February of 2000 to make the delivery. During his trip, 23 Merlin saw a postman while he was trying to figure out how to 24 deliver the plans. 25 delivered them. Ultimately, he found the mission and Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 29 of 162 PageID# 6161 1444 1 Ladies and gentlemen, these facts are true, and 2 they're all in chapter 9. 3 the facts that I've just recited to you were facts known to the 4 defendant, but that's not all. 5 There's also no dispute that all of The chapter also contains a number of additional 6 details that point to Mr. Sterling specifically as the source 7 for Risen. 8 gets the most favorable treatment of all the people who are 9 referenced in that chapter. First, as you read chapter 9, pay attention to who It's not Merlin. No, Merlin's 10 portrayed as being a handling problem, a bumbler, somebody 11 who's out for money. 12 And it's not Robert S. No, he was more concerned 13 about pushing ahead than listening to the concerns raised by 14 the case officer or Merlin as portrayed in the book. 15 And it's certainly not the CIA managers, who somehow 16 deem this mission a success despite those risks portrayed in 17 the book. 18 No, the only person who comes out smelling like roses 19 in Mr. Risen's telling is Mr. Sterling, the case officer. 20 was the case officer during the operation? 21 The book even mentions the fact that the case officer took his 22 concerns to the Senate. 23 Mr. Risen writes it, the defendant, the case officer, is the 24 hero of chapter 9. 25 Who Jeffrey Sterling. You know that's also true. The way You should also pay attention to the two most Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 30 of 162 PageID# 6162 1445 1 detailed events related to Classified Program No. 1 that show 2 up in the book. 3 Merlin's case officer: 4 trip to Vienna. 5 Merlin's case officer: 6 No other case officer had greater knowledge of those events 7 than the defendant. 8 9 Both took place during the defendant's time as the meeting in San Francisco and the Those events bookended the defendant's time as trip to San Francisco, trip to Vienna. First the San Francisco meeting. Chapter 9 accurately reflects that Merlin was first shown the fire set 10 design in a hotel room during the trip. 11 the case officer, that's Sterling, and the senior CIA officer, 12 that's Robert S., had a private conversation after Merlin 13 raised initial concerns about the completeness of the plans. 14 It also mentions that That private meeting is reflected in no cable 15 traffic. 16 reference to that private conversation between Robert S. and 17 the defendant. 18 You have the cables. You won't see any single And what about the trip to Sonoma? 19 that. 20 about the kinds of wines he liked. 21 That happened. You heard it from Mr. S. Mrs. Merlin, the defendant, and Robert S. 23 mention of Sonoma in any cable traffic. 25 He told you The only people who went on the trip were Mr. and 22 24 You remember Once again, no What about the other bookend to Sterling's time as Merlin's handler, the Vienna trip? Much of chapter 9 deals Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 31 of 162 PageID# 6163 1446 1 with Merlin's attempt to deliver the flawed plans to the 2 Iranian mission, to the IAEA. 3 true detail that appears in no official CIA document and would 4 have been known only to Merlin and the people who debriefed him 5 when he got back, Sterling and Robert S. 6 postman Merlin saw when he was attempting to deliver the plans. 7 Once again, the book contains a Next we have the letter. That detail was the In chapter 9, Risen 8 reproduces verbatim the letter Merlin purportedly gave to the 9 Iranians when he delivered the plans. This is the letter that 10 laid out for the Iranians what Merlin was giving them and the 11 fact that Merlin expected to be paid if they wanted any more. 12 With one minor exception, the version of the letter 13 that appears in the book is an exact duplicate of the last 14 version of the letter to appear in any CIA cable. 15 draft letter. 16 Exhibit 35. 17 January 12, 2000. 18 You have a It's embedded in the cable that's at Government That was a cable drafted by the defendant on Two days later, you have edits coming back from 19 headquarters from Robert S. 20 to reflect that it's clear to the Iranians that this initial 21 package is for free. 22 He recommends changing the letter That's in Government's Exhibit 36. What appears in the book is the draft letter from 23 Exhibit 35 with the changes made that show up in Exhibit 36. 24 The evidence at this trial established that the people who 25 worked most closely on back-and-forth edits to those letters Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 32 of 162 PageID# 6164 1447 1 over a period of months were Mr. Sterling and Merlin. 2 And during, during Merlin's testimony, when 3 Mr. MacMahon asked him about the last version of the letter, 4 what did Merlin say? 5 Vienna, he took the last version and he gave it to Jeff, the 6 defendant. 7 He said a couple weeks before he left for Finally, take a look at page 197 when you go back in 8 the jury room of chapter 9. At the very top, in paragraph 20, 9 there is a reference to a secret CIA report that referred to 10 Merlin as a known handling problem due to his demanding and 11 overbearing nature, and according to the book, he was a 12 sensitive asset who had been used in a "high-priority 13 operation." 14 Again, that's true, but what's even more interesting 15 about this language is the source of it. 16 verbatim in the defendant's performance assessment report, or 17 PAR, from 2000, the same exact language. 18 This language appears And you know the defendant was given a copy of his 19 PAR with that quoted language in the course of his EEO 20 litigation, but keep one other thing in mind: 21 performance evaluation connects that quoted language to a 22 specific classified program or specific asset. 23 Nothing in the It's vague. The only way James Risen knew to take that language 24 and connect it to this operation and this asset was if someone 25 told him that that language connected to the asset in the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 33 of 162 PageID# 6165 1448 1 program. 2 Bottom line, not only does chapter 9 contain a number 3 of core facts related to Classified Program No. 1 and Merlin; 4 all of them were known to the defendant. 5 What about question 2? That's question 1. Who had motive? Who had any 6 motive to disclose any information about Merlin and Classified 7 Program No. 1? 8 The only person who had any reason to do this was the 9 defendant. This is an easy question, ladies and gentlemen. There is absolutely no, zero evidence that anyone 10 else had any motive to disclose these facts about this 11 operation and Merlin. 12 Just the defendant. How do you know? Look at the particular spin that 13 Mr. Risen puts on the operation in the book. 14 core true facts and he spun them in a particular way. 15 the claim that this was somehow a botched operation that risked 16 handing over the keys to the nuclear kingdom to Iran. 17 He took those That's Who had reason to spin a story in a way that made the 18 CIA look hapless and reckless? 19 S. 20 brilliant. It's not Mr. Merlin or Robert They both testified they thought the operation was 21 No. Who had a reason not only to out the program but to 22 do it in a way that would inflict maximum damage to the CIA? 23 Jeffrey Sterling. 24 the book. 25 Divoll when he went to the Senate Intelligence Committee on Jeffrey Sterling's spin is what appears in It's the exact story he told Don Stone and Vicki Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 34 of 162 PageID# 6166 1449 1 March 5, 2003, less than a month after the CIA had rejected his 2 fifth settlement offer. 3 The only other time anyone expressed the concerns 4 that Risen parroted in his book was when Mr. Sterling went to 5 the Senate. 6 years since the trip to Vienna, when Merlin handed over the 7 plans. 8 9 That meeting took place over three years, three Take a look at the cables. At no point leading up to the trip, over a year, from December of 1998 to when the trip 10 occurred in February of 2000, at no point during that time did 11 the defendant raise a single concern about this operation, not 12 a word to Robert S., not a word to his chain of command in New 13 York -- that's Mark L., Tom H., Charles Seidel, David Cohen -- 14 not a word. 15 This is very serious stuff we're talking about, 16 ladies and gentlemen. 17 the case officer who was assigned to oversee this operation had 18 concerns, why wouldn't he raise them before these plans made 19 their way overseas? 20 This is nuclear weapons technology. He'd be crazy not to. The defendant didn't speak up because he didn't have 21 any concerns. 22 General to complain about discrimination in December 1999. 23 That was before the operation occurred into 2000. 24 25 If Not a word when he went to the CIA Inspector And when Sterling went to the House Intelligence Committee, you'll remember that's HPSCI, in August of 2000, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 35 of 162 PageID# 6167 1450 1 again, not a single word about a botched operation. 2 Sheehy testified that a program -- that this program was 3 extremely sensitive. 4 court this week, 15 years later. 5 Michael He was reluctant to talk about it in Not a word to Mr. Sheehy. No, Sterling didn't raise any concerns until March 6 2003, almost five years, five years since the first meeting in 7 San Francisco where Merlin was shown the plans. 8 9 What happened between August 2000, when he went to the House, and March 2003, when the defendant went to the 10 Senate? 11 Sterling and the CIA. 12 About three years of bitter litigation involving First there was the EEO process. 13 year. 14 ultimately two lawsuits. 15 lost. 16 defendant's settlement offers. 17 Sterling lost. It took more than a Then the civil litigation, not one but You have the exhibits. The defendant And all the while, the CIA rejected every one of the The CIA wasn't giving in. During that time in August 2000, Sterling told Eileen 18 Swicker, she's the chief of staff to the Deputy Director of 19 Operations, that he would, quote, pursue his claims as long and 20 as loud as possible, inside and outside the agency. 21 Later in January 2003, when the defendant was 22 fighting with the Publications Review Board over the 23 publication of his memoir, he told Bruce Wells that he was, 24 quote, absolutely disgusted with the CIA and that the board's 25 conduct was, quote, absolutely reprehensible. He told Wells Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 36 of 162 PageID# 6168 1451 1 he'd be coming at the CIA with, quote, everything at his 2 disposal. 3 Now, I want to talk to you very directly about the 4 defendant's claims against the CIA. 5 serious matter. 6 whether it's government or private sector. 7 going to say otherwise. 8 9 Discrimination is a There is no place for it in the workplace, No one here is But regardless of the merits of Mr. Sterling's claims against the CIA, one thing was abundantly clear: 10 was very unhappy with the CIA. 11 was angry at the CIA. 12 Mr. Sterling Everyone agrees Mr. Sterling That's what matters in this case. That is what gave Mr. Sterling the motive to take the 13 secrets entrusted to him by the CIA, valuable secrets that the 14 CIA had spent years investing in, and put a spin on them, the 15 spin that he took to the Senate, the same one that showed up 16 later in chapter 9, where the defendant is the hero. 17 What about some of the other people we've heard about 18 in this trial? 19 Robert S. 20 testimony: 21 proud of it; and two, he had absolutely no reason to talk to 22 Sterling -- excuse me, Risen. 23 What about their motives? Let's start with At least two things came across clearly in his One, this program was his baby, and he was very This was a program that Mr. S. invested ten years of 24 his career developing. What reason did he have to talk to 25 Risen, let alone to tell him that his brainchild was somehow Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 37 of 162 PageID# 6169 1452 1 botched? 2 No reason. And if Mr. S. had spoken to Mr. Risen, you'd expect 3 there would be some additional details in the book, things that 4 Mr. S. knew that the defendant didn't know. 5 in the book, the timeline lines up with the defendant's 6 involvement in the program. 7 finish, but the book only covered the defendant's time. 8 9 But conveniently Mr. S. was there from start to How about Ms. Divoll from the Senate? She only knew the barest sketch of the details contained in chapter 9. 10 told you that. 11 the time in April of 2003. 12 So did Don Stone. She There was a memo written at Don Stone and Vicki Divoll didn't hear that this was 13 a TBA 480 fire set. 14 in San Francisco. They didn't hear about the postman. They 15 didn't hear that these plans were delivered to Vienna. They 16 didn't hear about Merlin's compensation or whether he was a 17 handling problem. 18 up in chapter 9. 19 20 They didn't hear that there was a meeting None of their performance evaluations show They just didn't know. And what motive did Ms. Divoll have to call Risen and talk about this program? 21 None. And finally, you've heard the defense actually 22 suggest, actually suggest that Merlin may have been a source 23 for Risen. 24 doors and into this courtroom or that door into this courtroom, 25 you don't check your common sense when you enter. Ladies and gentlemen, when you come through those There is no Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 38 of 162 PageID# 6170 1453 1 reason in this world why Merlin would put his own life at risk, 2 the life of his wife and his family, by talking to Mr. Risen 3 about what he did while working for the CIA. 4 tell his wife what he was doing. 5 He didn't even She told you that. When the defense asked Mrs. Merlin when she was 6 testifying if they had actually been contacted by the KGB yet, 7 she said, "No, not yet." 8 day-to-day, that the people from their former country are going 9 to come get them. 10 James Risen? 11 These people live in abject fear, What reason would Merlin have to talk to None. What makes most sense, the commonsense answer is that 12 the only person with motive was the defendant. 13 2. That's question 14 Question 3, who had a relationship with James Risen? 15 Again, the evidence in this case has established that only one 16 person had a relationship to James Risen: Jeffrey Sterling. 17 Go back to that first article after 9/11. It's Government's 18 Exhibit 75. 19 citing unnamed sources for the fact that a CIA office had been 20 destroyed on 9/11. 21 lost his appeal and was terminated from the CIA, five days, and 22 then that story ran. 23 was gloating about it when he spoke to Carrie Newton Lyons 24 about how he had disclosed that fact to a newspaper. 25 On November 4, 2001, Mr. Risen wrote an article That was five days after Jeffrey Sterling A couple of months later, the defendant And then there was this article, ladies and Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 39 of 162 PageID# 6171 1454 1 gentlemen. 2 March 2, 2002, about a month after the defendant refused to 3 sign his final secrecy agreement. 4 The subject? 5 Sterling. 6 against the CIA. 7 Risen wrote about Jeffrey Sterling in The New York Times. 8 9 This is Government's Exhibit 83. It ran on The byline is James Risen. The only subject of this article is Jeffrey That's his picture. Jeffrey Sterling and his fight 1,630 words, ladies and gentlemen, that James There is simply no better proof of an existing relationship between Jeffrey Sterling and James Risen than that 10 article. Not only does Risen quote extensively from Sterling; 11 he also quotes from another one of his PARs, the 1990 -- excuse 12 me, the 1999 PAR that Sterling got during the EEO process. 13 That's Exhibit 59. 14 Specifically, the article states that Sterling had 15 received a positive performance evaluation which stated that 16 he, quote, demonstrated good tradecraft in the handling of his 17 assigned cases. 18 So you've got the 1999 PAR quoted in this article and 19 the 2000 PAR quoted in chapter 9, both documents that Sterling 20 had, both quoted in Risen's work. 21 But that wasn't the end of the relationship, not by 22 any stretch. 23 summary of calls and e-mails between the defendant and James 24 Risen. 25 Take a look at Government's Exhibit 98. It's a Special Agent Hunt took you through it yesterday. The first call, first documented call is on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 40 of 162 PageID# 6172 1455 1 February 27, 2003. 2 Mr. Sterling's final settlement offer lapsed and about a week 3 before he showed up at the Senate. 4 That was about two weeks after Exhibit 98 shows a pattern of calls beginning in 5 February 2003 and ending in November 2005, about a month before 6 State of War was published. 7 During that time, Risen's contact with the defendant continued 8 even when the defendant moved. 9 February 2003 to November 2005. In February and March of 2003, the calls were from 10 the defendant's home in Herndon, right here in the Eastern 11 District of Virginia. 12 The next year, after Mr. Sterling had moved in with 13 his friends, the Dawsons, in Missouri, the phone traffic 14 continued, and after he moved out of the Dawsons' house later 15 in 2004, Sterling continued to communicate by phone with Risen 16 from the defendant's work phones. 17 In total, 47 calls, some very short, some longer, but 18 47 times these individuals called each other. 19 began before Sterling went to the Senate. 20 through Mr. Risen's calls to Bill Harlow about his New York 21 Times article that he was planning to write. 22 through the time when the article was squashed and through 23 finally the lead-up to State of War's publication. 24 25 And then there were the e-mails. the e-mail from March 10, 2003. These calls They continued They continued First let's look at This was the e-mail that was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 41 of 162 PageID# 6173 1456 1 deleted from Mr. Sterling's e-mail account. 2 sometime three years later, around when he learned the FBI was 3 investigating. 4 but quite interesting, don't you think? 5 wonder...J." 6 It says: It was deleted "I'm sure you've already seen this, All the more reason to This is an e-mail from Mr. Sterling to James Risen. 7 And what's the link that's included in this e-mail? 8 article, a CNN article titled, "Report: 9 Advanced' Nuclear Program." 10 It's an Iran Has 'Extremely The defendant sent this e-mail just five days, five 11 days after he went to the Senate with his story, his story 12 about how the classified program may have actually aided the 13 Iranians. 14 e-mailing an article about Iran and its nuclear weapons program 15 to James Risen. 16 And wouldn't you know, five days later, he's This isn't an e-mail about race discrimination or his 17 complaints against the CIA. 18 work and whether the Iranian nuclear program has been advanced. 19 It says, "All the more reason to wonder." 20 This is about Mr. Sterling and his What does Mr. Sterling want Risen to wonder about 21 when he's sending him that? 22 Senate, whether they had actually aided the Iranian nuclear 23 weapons program. 24 25 It's that story that he told the It fits, ladies and gentlemen. It fits the defendant's spin, the one he gave the Senate and the one he Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 42 of 162 PageID# 6174 1457 1 gave Risen. 2 That wasn't it for e-mails, though. There were the 3 deleted e-mails Special Agent Hunt was able to recover from the 4 Dawsons' computer. 5 Let's take a look at a few. December 23, 2003, after the defendant had left 6 Virginia, Risen to Sterling: 7 January?" 8 9 10 May 8, 2004, Risen to Sterling: today. I'm trying to write the story. "I want to call Jim." And, "I need your phone number again." 11 May 16, 2004, Risen to Sterling: 12 have failed you so far. 13 and I would like to continue. 14 15 "Can we get together in early "I am sorry if I But I really enjoy talking with you, Jim." Finally, June 10, 2004: "I can get it to you. Where can I send it?" 16 A few months after that last e-mail, Risen submitted 17 a book proposal to Simon & Schuster. 18 Exhibit 128. 19 not his code name. 20 That's Government's That document contains Merlin's true first name, His true first name. Ladies and gentlemen, this evidence -- the 9/11 21 article, the New York Times profile of the defendant, and the 22 e-mail and phone traffic -- all make clear that not only did 23 the defendant and Risen have a relationship; they maintained 24 that relationship all the way through publication of State of 25 War. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 43 of 162 PageID# 6175 1458 1 After the book came out in January of 2006, how many 2 more calls did you see? 3 Hunt able to identify until sometime in the middle of 2007, 4 when the request had ended? 5 6 7 8 9 Zero calls. How many more calls was Special Agent No more calls between Mr. Sterling and Risen after the book came out. The job was done, ladies and gentlemen. Mr. Risen wrote the story; it got published. Three questions; three common answers. 10 the true details in chapter 9? 11 motive to disclose those facts and paint them in a false light? 12 The defendant. And who had someone in the media who would 13 listen to him? The defendant. 14 One other thing: The defendant. Who knew all Who had a After lunch, the Court will 15 instruct you that the government only has to prove that the 16 defendant was a source for Risen; that's all. 17 conclude that Sterling was a source, one source, it's 18 completely irrelevant whether he had any other -- whether 19 Mr. Risen had any other sources for the same or different 20 information related to this program or Merlin. 21 mind as you review the evidence. 22 There are nine charges in this case. So long as you Keep that in After the 23 lawyers finish up, as I mentioned, the judge will instruct you 24 on the law that you should apply to the facts. 25 carefully to those instructions. Listen I'm not going to repeat all Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 44 of 162 PageID# 6176 1459 1 of them here, but let me break them down very briefly. 2 Six of the counts, Counts 1 and 2, 4 and 5 and 6 and 3 7, address the defendant's unauthorized disclosure or 4 communication of material related to Classified Program No. 1 5 and Human Asset No. 1, or Merlin. 6 defendant with causing, causing the unauthorized communication 7 of what's called national defense information to the general 8 public via publication of State of War in 2006. 9 Counts 1 and 2 charge the Counts 4 and 5 charge the defendant with the 10 unauthorized communication of national defense information to 11 James Risen in 2003, and Counts 6 and 7 charge the defendant 12 with attempting to cause the unauthorized communication of 13 national defense information to the general public through that 14 New York Times article that Mr. Risen wanted to write and was 15 about to publish until the meeting with Condoleezza Rice. 16 These charges are grouped in pairs, one count 17 focusing on the disclosure of information and the other count 18 focusing on the disclosure of a tangible item, the letter to 19 the Iranians that Risen reproduced in chapter 9. 20 That's six of the charges. So what do you need to 21 decide as to each? 22 the relevant information or letter relating to the national 23 defense? 24 25 First, did the defendant have possession of Again, there is no dispute that all of the true details about Classified Program No. 1 and Merlin that show up Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 45 of 162 PageID# 6177 1460 1 in Risen's book were known to Mr. Sterling. 2 details that Risen told Bill Harlow he was prepared to put in a 3 New York Times article in 2003. 4 You also know that Sterling had access to the letter 5 that shows up in chapter 9. 6 defendant a copy. 7 letter. 8 9 They are the same Merlin testified that he gave the Risen told the CIA in 2003 he had seen a I want you to remember a distinction between information generally and the physical document, the letter. 10 The defendant is not charged with unlawfully possessing the 11 information that came into his head when he was an employee at 12 the CIA. 13 your mind. 14 The problem is if you take that information and you disclose 15 it. When you leave the job, you can't purge that from He can lawfully possess that information forever. 16 The same is not true for the document. 17 Mr. Sterling no longer had a need to know about Classified 18 Program No. 1, his continued connection or retention of that 19 document was unlawful. 20 not allowed to have it. 21 when he was leaving the CIA, she instructed him that he was 22 obliged to return any classified information that he had, and 23 he did not. 24 25 Once That possession was unlawful. He was In fact, Gayle Scherlis told you that Once you determine that the information or letter was in the defendant's possession, you must also determine whether Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 46 of 162 PageID# 6178 1461 1 the material related to the national defense. 2 tell you that something relates to the national defense, it's a 3 term of art, if it is closely held by the government and could 4 be damaging to the United States or used for the benefit of an 5 enemy of the United States. 6 The judge will Once again, the evidence establishes that the 7 information and document in question without question relate to 8 the national defense. 9 how closely held this program was. You heard witness after witness describe Secretary Rice told you 10 this was one of the most closely held programs during her 11 entire tenure as National Security Advisor. 12 boss of the New York office, told you this was one of the most 13 closely held programs during his entire 35-year career with the 14 CIA. 15 David Cohen, the David Shedd said the same thing. Even the scientist, Walt C., who testified on one of 16 the first days of trial, he told that you in over 40 years of 17 experience between his work with the Air Force and his work at 18 the National Laboratory, this program was the most closely held 19 operation he'd every worked on. 20 You also heard multiple witnesses discuss just how 21 damaging that sort of disclosure could be. Secretary Rice 22 commented on how few options the United States had to undermine 23 the Iranian nuclear program. 24 talked about how devastating it can be to the United States' 25 national security interests when a program like this is Robert S. and Charles Seidel Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 47 of 162 PageID# 6179 1462 1 exposed. Not only does it tell our foreign adversaries that we 2 are targeting them; it tells them how we're doing it. 3 Disclosure of this sort of information has the 4 potential to do real damage to our relationships abroad. 5 this country cannot keep its secrets, why would any other 6 country share theirs with us? 7 human assets, why would anybody willingly become one? 8 9 If And if we cannot protect our Next, you must determine whether the defendant had a, quote, reason to believe disclosure could cause potential harm 10 to the United States or aid a foreign nation. 11 ladies and gentlemen. 12 He knew the implications of disclosing this information. 13 This is easy, Mr. Sterling was a trained case officer. Finally, you have to determine that the defendant 14 willfully or with an unlawful purpose communicated the 15 information or caused another person to communicate it to 16 someone who did not have a right to receive it. 17 the defendant's secrecy agreement. 18 disclose classified information to anyone without appropriate 19 clearances, anyone, let alone James Risen. 20 You've seen He knew it was a crime to And how do you know he wanted to go one step further 21 and cause Mr. Risen to communicate these same facts to the 22 public at large? 23 gentlemen. 24 tell your story. 25 you're hoping that they'll keep all of your secrets. Because that's what reporters do, ladies and You talk to a reporter because you want them to You don't go talk to a reporter because There's Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 48 of 162 PageID# 6180 1463 1 no other reason to talk to a reporter. 2 Sterling did for years -- 47 calls, multiple 3 e-mails -- because he knew Risen would be his mouthpiece and 4 broadcast his version of events to the world, and that's what 5 he did. 6 communicate those facts to the public. That's how you know he willfully caused Risen to 7 Ladies and gentlemen, as to Counts 1 and 2, there's 8 no dispute that State of War was sold in the Eastern District 9 of Virginia, none. Those facts were communicated to people 10 here in the Eastern District of Virginia, everyday folks, 11 enemies and friends alike, who had no right to access that 12 information. 13 There's also no dispute that the defendant was 14 unemployed and living in Herndon, in the Eastern District of 15 Virginia in earlier 2003, when Risen first picked up the phone 16 and called Bill Harlow to tell him the details of his story 17 about Classified Program No. 1 and Merlin. 18 Sterling called Risen from his home in February 2003, and 19 there's no dispute that Sterling e-mailed Risen the CNN article 20 while Mr. Sterling was living in Herndon. 21 There is no dispute There's also no dispute that Mr. Sterling was in 22 possession of classified CIA documents when his house in 23 Missouri was searched in 2006. 24 had any access to CIA facilities, where did Mr. Sterling keep 25 CIA documents? At his home. Four-and-a-half years after he He had moved two times, and yet Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 49 of 162 PageID# 6181 1464 1 there they were at his home. 2 documents at his home. 3 This is a man who keeps CIA Again, when he left the CIA, he was living in 4 Herndon, right here in the Eastern District of Virginia, during 5 the same time Risen was preparing the New York Times story that 6 Condoleezza Rice ultimately convinced the paper not to run. 7 That's six of the counts. 8 9 That leaves three additional counts. Count 3 is similar to the first six I told you about. It has to deal with the defendant's unlawful retention of that 10 letter. Again, Merlin told you he gave the defendant the 11 letter. Where did the defendant keep CIA documents? 12 home. 13 Right here, Herndon. Where was the first place he moved when he left the CIA? 14 Count 9 charges the defendant with causing Risen to 15 convey the CIA's property to the general public. 16 property? 17 and Merlin. 18 At his What was the It was those secrets about Classified Program No. 1 The judge is going to instruct you that property can 19 be something intangible, it can be secrets, and what's more 20 valuable to the CIA than its secrets? 21 into this classified program. 22 like Robert S. in the Counterproliferation Division, and all 23 the people who worked on planning and implementing the program, 24 that's thousands and thousands of man-hours. 25 What about the lab? The CIA put ten years Between case officers, people The lab spent the better part of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 50 of 162 PageID# 6182 1465 1 two years and over a million-and-a-half dollars developing the 2 fire set plans. 3 In order to establish the defendant's guilt as to 4 Count 9 and whether he caused the conveyance of these -- this 5 property in the Eastern District of Virginia, you must 6 determine that the value of that information was $1,000; that's 7 all. There's no doubt that it far exceeded that amount. 8 9 And finally, Count 1, obstruction of justice, this count focuses on the deletion of the March 10, 2003 e-mail. 10 You heard about it already. 11 three different times. 12 before the defendant knew any idea that there was an FBI 13 investigation, that there was a grand jury investigation. 14 After he received that, there were two more snapshots in July 15 and October of 2006. 16 The defendant got a snapshot at They got the April 2006 snapshot, This e-mail, Government's Exhibit 102, appears in 17 just the first one. 18 April and July of 2006, three-and-a-half, almost 19 three-and-a-half years after it was written. 20 somebody go back three-and-a-half years later and delete an 21 e-mail? 22 So for some reason, it disappeared between Why would Agent Hunt told you the whole account wasn't wiped 23 out. There wasn't appreciable differences between the volume 24 in batch 1 from April and the other two batches. 25 targeted, ladies and gentlemen. This was Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 51 of 162 PageID# 6183 1466 1 The defendant knew that the FBI was investigating, 2 that there was a grand jury investigation, and that his work 3 was at issue. 4 weapons programs. And what did he work on? Iran and nuclear 5 THE COURT: Time's almost up. 6 MR. OLSHAN: 7 The CIA has a right to keep its secrets secret for Thank you. 8 the safety and security of the American people. The evidence 9 in this case has established that the defendant put his own 10 selfishness and his own vindictiveness ahead of the American 11 people. 12 knowing full well the ramifications that his actions could 13 have. 14 He made a decision to break his oath, and he made it It could mean scuttling a viable classified program 15 that was employed not just once but multiple times, and it 16 could mean endangering the life of Merlin, a man who had come 17 to this country with his family as a refugee, seeking a better 18 life, a man who had agreed to help the CIA and to put his life 19 at risk for his new country. 20 The defendant risked all of it, and for what? 21 Because he hated the CIA and he wanted to settle the score. 22 Those aren't the actions of a patriot, ladies and gentlemen. 23 Those are the actions of a criminal. 24 25 We have brought you the evidence. defendant was a source for Risen. We have proven the We have proven that he knew Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 52 of 162 PageID# 6184 1467 1 the classified information that wound up in chapter 9. 2 proven that he had the motive to disclose those facts and the 3 letter so that they would get out to the public and harm the 4 CIA, and we have proven that he had a relationship with 5 Mr. Risen. 6 actions because he's guilty of each and every offense charged 7 in the indictment. 8 9 We have We ask that you hold him responsible for his Jeffrey Sterling was the hero of Risen's story. Don't let him be the hero of this one. Thank you. 10 THE COURT: 11 Why don't you wait one second, Mr. Pollack, while we 12 All right, Mr. Pollack? get people settled. 13 MR. POLLACK: 14 THE COURT: Your Honor? Yes, sir. 15 CLOSING ARGUMENT 16 BY MR. POLLACK: 17 Ladies and gentlemen, make no mistake, this is a very 18 important case to the government. 19 team of excellent lawyers. 20 just laid out a compelling argument setting forth the 21 government's theory of how Mr. Sterling could have been a 22 source of national defense information published by Mr. Risen. 23 It has assigned a team, a One of those lawyers, Mr. Olshan, The government has great lawyers. 24 theory. It just made a great argument. 25 lacks is evidence. It has a great What the government Yesterday, Agent Hunt candidly admitted Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 53 of 162 PageID# 6185 1468 1 that to you. 2 Explaining how something could have happened is 3 simply not enough. 4 just, as Mr. Olshan said, that Mr. Risen was a source -- I'm 5 sorry, that Mr. Sterling was a source for Mr. Risen. 6 point to national defense information contained in chapter 9 7 and present evidence to prove to you beyond a reasonable doubt 8 that Mr. Sterling was the source for that information and that 9 Mr. Sterling committed part of that crime in the Eastern 10 It has to District of Virginia. 11 The government cannot do that because there is no 12 such evidence. 13 evidence. 14 actually happened. 15 The government has to prove to you not The government's theory is not supported by It's not even the most likely theory of what The evidence, ladies and gentlemen, has shown that 16 everything that Mr. Risen wrote could have and likely did come 17 from sources other than Mr. Sterling and, yes, from people who 18 had their own motive to talk to Mr. Risen. 19 Mr. Risen wrote he got right. Some of what Some of it he got wrong. 20 The government has spent a lot of time in this trial 21 putting in evidence about the things that Mr. Risen got wrong, 22 but whether Mr. Risen's rendition of Classified Program No. 1 23 is accurate or not is not an issue in this case. 24 government has spent a lot of time putting on evidence about 25 how important Classified Program No. 1 was, how important to Likewise, the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 54 of 162 PageID# 6186 1469 1 the CIA; to the National Security Advisor, Dr. Rice; and even 2 to the President of the United States, George W. Bush. 3 Whether Classified Program No. 1 was a bad idea, 4 whether it was poorly executed, or whether it was the most 5 important intelligence operation this country has ever 6 undertaken is not an issue in this trial. 7 important to the CIA, they may be important to Merlin, they may 8 be important to the government, but they should not be 9 important to you. 10 These things may be Through this trial, the government has allowed the 11 CIA to tell its side of the story of Classified Program No. 1, 12 and it is a story very different than the one told by 13 Mr. Risen. 14 trial in getting its reputation back is for others to judge. 15 Whether or not the CIA has been successful in this If you're angry that Mr. Risen reported about a 16 highly classified program, if you're unhappy that his reporting 17 was not always accurate or even fair to the CIA, you cannot 18 take that out on Mr. Sterling. 19 national defense information about Classified Program No. 1 to 20 Mr. Risen. Mr. Sterling did not provide 21 Where is the evidence that Jeffrey Sterling in 2000, 22 before he left, printed out cables, snuck them out of the CIA, 23 then proceeded to sit on them for three years, only to give 24 them to Jim Risen in 2003? 25 he had done that, he would have remembered years later details Where is the evidence that even if Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 55 of 162 PageID# 6187 1470 1 that aren't in any of those CIA documents, like the fact that 2 the mailbox in Vienna was on the left, the fact that Merlin 3 covered the plans with an old newspaper, details that Bob S. 4 and Merlin do remember? 5 Where is the evidence that Mr. Sterling would have 6 used language in describing the operation to Mr. Risen 7 like "high-voltage block" or "firing set" that Merlin and 8 Bob S. used, but there's no evidence that Mr. Sterling used 9 even when he was involved in the program three years earlier? 10 Mr. Sterling knew about Classified Program No. 1 11 since November of 1998. 12 related to the program in May of 2000. 13 filed a discrimination suit against the CIA. 14 was being fired from the CIA in October of 2001. 15 He lost access to the documents In August of 2001, he He was told he Mr. Risen wrote about Mr. Sterling's discrimination 16 suit in The New York Times in March of 2002. By March of 2003, 17 Mr. Sterling had known about Classified Program No. 1 for 18 years. He had been upset about his treatment at the agency for 19 years. He had been in litigation with the CIA for years. 20 had made settlement offers, he had had settlement offers 21 rejected for years. 22 year if you believe the government that he was the source for 23 confirmation of a publicly known fact that the CIA had an 24 office in New York at 9/11. 25 that because that article was in November of 2001. He And he had known Mr. Risen for at least a He had known Risen for longer than Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 56 of 162 PageID# 6188 1471 1 Yet all of this time, there is no evidence that 2 Mr. Risen knew anything about Classified Program No. 1. 3 March of 2003, Mr. Sterling legally talked to SSCI, the Senate 4 Select Committee on Intelligence, about Classified Program 5 No. 1. 6 Mr. Harlow, to tell him that Mr. Risen, that he knows about 7 Classified Program No. 1. 8 9 In Less than a month later, Mr. Risen calls the CIA, Why does Mr. Risen learn about Classified Program No. 1 then? Why? Because the Hill had just learned about it 10 then. SSCI had just learned about it then from Mr. Sterling. 11 And as often happens, people on the Hill talk, and when they 12 do, reporters like Mr. Risen listen, and then they go out and 13 investigate what they've learned, and that's why they win 14 Pulitzer Prizes. 15 Mr. Risen went to his sources to see what he could 16 learn after finding out from SSCI that a former CIA officer, 17 Jeffrey Sterling, had come in with complaints about a program, 18 and he started calling his CIA sources, and what happened? 19 They became very alarmed. 20 Now, Bob S., he told you that he was a colonel, but 21 he also told you that there were a lot of generals above him, 22 and when the generals learned that Jim Risen of The New York 23 Times had a story about a classified program and were afraid 24 that he was going to disclose it, they told Bob S. to brief 25 them on that program, and Bob S. told you, "I went back and I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 57 of 162 PageID# 6189 1472 1 accessed the cables in 2003 so I could brief the generals." 2 Now, the CIA and National Security Advisor 3 Condoleezza Rice both worked to kill the story. Dr. Rice told 4 you the administration had two tactics when trying to kill a 5 story. 6 reporter not to publish it. One is to confirm the story unofficially and ask the 7 The other, the one chosen here, was to try to 8 convince the author that he was jeopardizing national security 9 and that he had the story wrong. The problem with this tactic 10 is that you have to give the reporter additional information to 11 try to convince them that he has the story wrong. 12 Now, Dr. Rice, she only participated in a single 13 meeting, and she told you she doesn't know what the generals at 14 the CIA did separately. 15 shows is what they did is they fed Mr. Risen information and 16 documents about the program to try to convince him that the 17 story was wrong and that he would jeopardize national security 18 by publishing it, and in doing so, they gave him more detail 19 about the program than what Mr. Risen had learned from SSCI. 20 And what the evidence in this trial Did Bob S. have a motive to feed information to 21 Mr. Risen? 22 to be in The New York Times. 23 CIA cables to Risen and convince him this wasn't a screwed-up 24 program; this was an excellent program. 25 Absolutely he did. His program, his baby is about He has every incentive to feed Merlin, does Merlin have a motive to assist in that Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 58 of 162 PageID# 6190 1473 1 process? 2 this program is disclosed. 3 information, directly or indirectly, to get information to 4 Risen to get this story killed? 5 Merlin thinks his life is going to be in danger if Does he have a motive to get You bet he does. But their strategy ultimately backfired. As 6 Mr. Trump put it in the opening, they won the battle, but they 7 lost the war. 8 later in a book, but he's now armed with a lot more detail, 9 detail that came from the CIA in its failed effort to kill the 10 Mr. Risen not only ends up writing the story story. 11 Worse yet for the CIA, the story is still written 12 from essentially the same perspective, in some ways an accurate 13 perspective, that Mr. Risen started with when he learned 14 secondhand about Mr. Sterling's meeting on the Hill, and the 15 story made the CIA look bad. 16 So let's start with Mr. Sterling's meeting on the 17 Hill. 18 sense. 19 Mr. Sterling had no documents with him. That makes He hadn't had access to documents in years. He said that current events -- now, remember, this is 20 right before the United States is going to invade Iraq, based 21 in part on Iraq's supposed program of weapons of mass 22 destruction. 23 events, he decided he wanted to come in and talk to SSCI about 24 concerns he had about a weapons of mass destruction 25 counterproliferation program he had worked on. Mr. Sterling says in that environment of current Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 59 of 162 PageID# 6191 1474 1 Now, we know that Mr. Sterling did not have much of a 2 technical background, and he was taken aback in San Francisco 3 when he saw that Merlin's immediate reaction on seeing the 4 plans was to say that there was something wrong with them, and 5 we know he tried to raise that with Bob S. 6 Now, Bob S. might have thought he was being tactful, 7 but as Merlin put it, Bob S. told Jeffrey Sterling to shut up, 8 and the plans were not changed. 9 concerns with his superior and was told to shut up. Sterling had raised his He was 10 already having problems with the agency, and he believed he was 11 being held to an unfair standard. 12 didn't feel comfortable raising the issue again? 13 Is it surprising that he He went to the Inspector General of the CIA with his 14 employment issues in December of 1999. 15 that he could appeal his complaints internally with the CIA. 16 The Inspector General closed its file on Jeffrey Sterling two 17 days after it opened it. 18 it surprising that Jeffrey Sterling didn't take his concerns 19 about Classified Program No. 1 to the Inspector General? 20 Okay. All he was told was That's Government's Exhibit 34. Why didn't he go to SSCI sooner? Is You can take 21 him at his word, he was prompted by current events, or you can 22 believe that he had grown so disappointed with the agency by 23 this point that he was no longer to accept their assurance that 24 this was a good program and wanted somebody outside of the 25 agency to take a look at it. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 60 of 162 PageID# 6192 1475 1 Either way, Sterling legally told Ms. Divoll and 2 Mr. Stone about the program and about his concerns. 3 their testimony: 4 claim it was a rogue operation. 5 had just handed blueprints for a working fire set to the 6 Iranians. 7 that he had concerns about the program that had never been 8 addressed to his satisfaction. 9 He was calm. He was rational. You heard He did not He did not claim that the CIA What he did was he told Mr. Stone and Ms. Divoll Go ahead and put up Government Exhibit 101. 10 He told them that the human asset immediately saw 11 that there were problems about the plans. 12 that Iran might be able to figure out and correct some of the 13 problems with the plans and that if they did, they might learn 14 new information about a nuclear fire set that they didn't have 15 before. 16 He was concerned Whether he is right or he is wrong, whether that 17 concern is justified or is not justified -- let me start with 18 that third paragraph -- is not the issue. 19 concern. He expressed his 20 The second concern he expressed to SSCI was that he 21 did not think the CIA should have given the Iranians the fire 22 set plans all at once. 23 way to assure that the Iranians would follow up. 24 just take what we gave them, learn something from it, or sell 25 them. By just leaving the plans, there was no They might Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 61 of 162 PageID# 6193 1476 1 And we know that, in fact, in the almost six years 2 from the time that the plans were left in Vienna to the 3 publication of State of War, the Iranians never did follow up 4 with Merlin. 5 justified or not is not the issue. 6 his concerns. 7 But again, whether Sterling's concern was He was legally expressing And he was not told how, if at all, SSCI was going to 8 follow up. 9 what Mr. Stone wrote in his memo. 10 Yet he seemed satisfied with the visit. That's Mr. Stone now says that he recalls in the reception 11 area after the meeting Mr. Sterling's lawyer making some 12 comment about wanting the CIA to act quickly, didn't know if 13 that related to the employment issues or related to Classified 14 Program No. 1. 15 experience with other people thought that that was a reference 16 to the press. 17 No mention of the press, but Mr. Stone from his But Ms. Divoll said that that didn't happen at all. 18 Ms. Divoll said that there was no such threat, no suggestion 19 that any drastic action was going to be taken such as going to 20 the press. And it's not reflected in Mr. Stone's memo. 21 And Ms. Divoll was there the entire time. 22 Ms. Divoll said she ended up escorting Mr. Sterling out of the 23 offices. 24 Ms. Divoll's presence, and she says it didn't happen at all. 25 Remember, If this happened, it would have to have happened in Special Agent Hunt told you that she had heard a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 62 of 162 PageID# 6194 1477 1 rumor that Sterling's lawyer had made such a threat. 2 not clear whether it related to going public with the 3 employment concerns, which he had every right to do, or if it 4 related to Classified Program No. 1. 5 tried to chase that rumor down, and guess what? 6 able to corroborate it. 7 Again, So Special Agent Hunt She wasn't She wasn't able to corroborate it because there was 8 not a threat to go public with Classified Program No. 1. 9 Mr. Sterling did with Classified Program No. 1 was he legally 10 What talked to SSCI about it. 11 Now, Mr. Stone says that at some point afterwards, 12 Mr. Risen called him, and claims that Mr. Stone did not speak 13 with Mr. Risen. 14 that call. 15 Agent Hunt's phone record search did not find Now, that could mean that Mr. Stone is lying about 16 that call, but it could also mean that phone records -- a phone 17 record search would not show a call through the Senate 18 switchboard, and if that's true, that means that anyone at SSCI 19 could have had a phone conversation with Mr. Risen about 20 Mr. Sterling's meeting there. 21 Ms. Divoll said that while her old boss had a 22 relationship with Mr. Risen and asked Ms. Divoll to talk to the 23 press on occasion, she said that she never talked directly to 24 Risen, doesn't know him. 25 believe it. Now, you can believe that or not It doesn't matter whether Ms. Divoll directly Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 63 of 162 PageID# 6195 1478 1 spoke to the press. 2 What we do know is that when Ms. Divoll shared closed 3 door SSCI business with someone outside the committee within a 4 week of when Mr. Stone's memo was written, what she disclosed 5 ended up in The New York Times the very next day in a story 6 written by Jim Risen. 7 Now, the Senate is a very -- the Senate Committee on 8 Intelligence, Ms. Divoll told you, is a very partisan place. 9 The Republicans had just taken over. Democrats love stories 10 that embarrass Republicans. 11 coming in with concerns about a counterproliferation weapons of 12 mass destruction operation right before the invasion of Iraq. 13 Was there someone on the Hill who wouldn't have minded getting 14 that story out to the press? 15 Here was a former CIA officer Mr. Goco told you that he didn't really have a way to 16 follow up after asking the CIA about the program at his next 17 scheduled meeting, so SSCI didn't do anything further in 18 response to Mr. Sterling's concerns. 19 know that. 20 we look at the book, at page 211, at paragraph 92, it tells us 21 that SSCI took no action, something that Mr. Risen had to have 22 learned from SSCI. 23 Mr. Sterling would not He was not told what action SSCI would take, but if What did Sterling tell Stone and Divoll? Again, this 24 is Government Exhibit 101. He told them that the program 25 involved getting faulty plans for a fire set to Iran. He told Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 64 of 162 PageID# 6196 1479 1 them that the National Labs had modified the plans. Both Stone 2 and Divoll recall that Sterling mentioned a Russian scientist, 3 and Divoll recalls that the plans were passed to the Iranians 4 in Europe. 5 Call up 106, please. 6 Less than a month later, Jim Risen is calling 7 Mr. Harlow at the CIA. 8 when he calls Mr. Harlow? 9 for a fire set. He knows that the plans were modified at the 10 National Labs. He knows that the operation involved a Russian 11 scientist. 12 What does he know about the program He knows it involves faulty plans Did, did the memo get all the details right about the 13 Russian scientist? No, but Mr. Sterling told the Hill about a 14 Russian scientist. Mr. Risen knows it, and he knows that the 15 plans were given to Iran in Europe, exactly what Vicki Divoll 16 recalls from that meeting. 17 Not Vienna, in Europe. And he knows that it happened in 2000, and he doesn't 18 know if the program is still in operation. 19 knows exactly what Jeffrey Sterling told Divoll and Stone. 20 In other words, he Now, the government has pointed out that Risen also 21 knew that the code name was Merlin and neither Stone nor Divoll 22 remember that Sterling mentioned the code name Merlin. 23 have and they didn't remember it when they wrote up their memo 24 seven weeks later, or Risen could have gotten that information 25 afterwards, when he followed up on the information that he He may Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 65 of 162 PageID# 6197 1480 1 learned from SSCI. 2 In this first call with Mr. Harlow, Mr. Risen also 3 says that he knows that the program had been approved by 4 President Clinton and wants to know if Bush had reapproved it. 5 There is no evidence that Mr. Sterling told Divoll or Stone 6 anything about President Clinton approving the program, but 7 Stone and Divoll told you that others on SSCI already knew 8 about Classified Program No. 1 before Sterling came in. 9 If Risen followed up with people on the Hill, people 10 like Bill Duhnke, the Republican partisan, asking questions 11 about a supposedly flawed program, would that person tell Risen 12 that that was a program that was approved by a Democratic 13 president? 14 Now, as you know, when the book finally comes out, 15 it's not just the version that Mr. Sterling told SSCI. It's 16 that version on steroids. 17 has concerns about the program; it's Merlin himself who has 18 concerns about the program. 19 concerned that he's about to give a nuclear, working nuclear 20 fire set to the Iranians in a rogue operation. 21 Now, how did that happen? Now it's not just Mr. Sterling who He's wandering around Vienna, Sterling said that Merlin 22 immediately saw a problem with the plans, and he said that 23 Merlin later got cold feet. 24 together to create an impression that is not accurate. 25 it's also not something that Mr. Sterling ever said. Both are true, but Risen puts them But Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 66 of 162 PageID# 6198 1481 1 Risen does not ultimately tell Mr. Sterling's story. 2 Mr. Risen tells Mr. Risen's story. 3 simply mistaken because he misunderstood some of the facts, 4 whether he was engaging in hyperbole to sell a book, or whether 5 he found others that gave him a different version than Jeffrey 6 Sterling told the Hill does not matter. 7 story; it is not Sterling's story. 8 9 Now, whether Mr. Risen was Chapter 9 is Risen's After the first call from Risen to Mr. Harlow, both the CIA and the NSC, the National Security Council, are 10 alarmed. 11 brief the generals at the CIA. 12 call, Risen was unsure whether the program was still in 13 operation. 14 We know that. Bob S. starts accessing cables to On April 3, that first phone Let's go to Exhibit 112, if we can. It's now April 15 25. 16 Has Mr. Risen been sitting on his hands for these three weeks, 17 or has he gone out and got additional information from what he 18 learned from the Hill? 19 It's three weeks later, and Mr. Risen calls the CIA again. Risen now knows that this is an ongoing program. 20 Indeed, the lead for his story, he tells Mr. Harlow, is that 21 the United States has had an ongoing program, something he 22 didn't know three weeks earlier, and more importantly, 23 something that Mr. Sterling, who hadn't been at the agency for 24 years, did not know and could not have told Mr. Risen. 25 Mr. Risen got that by talking to CIA sources after he Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 67 of 162 PageID# 6199 1482 1 talked to the Hill. 2 program involved nuclear firing sets, plural, and that it was 3 part of a larger program to inject flawed designs into Iran. 4 He now knows, he now knows that the Now, when Sterling was on the Hill, he used the 5 term "fire set." 6 Risen used when he called Harlow initially. 7 8 9 It's in Exhibit 101. It's also the term It's in 106. Now, in 112, Risen is using the term "firing set," the term that Bob S. used in cables. And by April 25, Mr. Risen tells Harlow he has 10 documents, something he did not say on April 3. 11 get those documents? 12 knew that in 2003, this was an ongoing operation, wanted to 13 convince Risen of that, and wanted to kill the story. 14 Where did he He got those documents from people that Now, "fire set" and "firing set" may be the same 15 thing -- may mean the same thing. Mr. Sterling says tomato; 16 Mr. S. says "tomato"; they mean the same thing; but Risen has 17 now switched from using the language that Sterling used when he 18 talked to the Hill to the words that Bob S. uses in cables. 19 Now, Risen only knows that they're running this 20 operation against Iran, and that's all he's asking about. 21 There'd be no reason for the CIA generals to tell him: 22 the way, we're also running it with these other countries. 23 Oh, by They don't want to give him information that he 24 doesn't have and isn't going to write about. What they want to 25 do is convince him that he's wrong about what he does want to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 68 of 162 PageID# 6200 1483 1 write about, and so they want to give him more information 2 about the Iranian operation, the Vienna operation, to convince 3 him that he's got it wrong. 4 Now, where did the information that Risen got come 5 from? Let's talk about Merlin. 6 there's been a leak. 7 Merlin, according to Bob S., was chosen for this program 8 because Merlin is willing to take risks and do them in a way 9 that they won't be traced back to the CIA. 10 Merlin, according to Bob S., has chutzpa. What does Merlin recall about the San Francisco 11 meeting? 12 meetings in San Francisco?" 13 Merlin is told by Bob S. In his testimony, he was asked, "Who attended the And the judge is going to instruct you it is your 14 recollection of this testimony that controls, not mine, but let 15 me suggest to you that I believe that he testified that in San 16 Francisco, he met Jeff for the first time. 17 CIA person there, I believe Lenny Bob, if I remember correctly. 18 There was a representative from the National Laboratory. There was another 19 Mr. Trump says, "There was?" 20 "Yes, from Los Alamos or Sandia." 21 Now, we know from everybody else's testimony that, in 22 fact, there was nobody from the National Laboratories at the 23 meetings in San Francisco. 24 one who believes that there was a representative of the 25 National Laboratories there. Merlin is mistaken. He's the only Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 69 of 162 PageID# 6201 1484 1 What does the book say? Page 98, paragraph 125: "In 2 a luxurious San Francisco hotel room, a senior CIA official -- 3 Bob -- involved in the operation, walked the Russian through 4 the details of the plan. 5 National Laboratories to go over the blueprints that he was 6 supposed to give to the Iranians." 7 He brought in experts from one of the Also, the book uses the word "blueprints." That's a 8 word that does not appear in any cable. 9 the term "blueprints," and Bob S. told me that would be an 10 inaccurate term. 11 question, in his own terminology: 12 meetings in San Francisco?" I asked Bob S. about But Merlin testified, not in response to any "What was discussed at the 13 "The schematics and blueprints were introduced." 14 "This letter, what were you supposed to do with the 15 16 17 18 letter?" "I was supposed to pass it to the Iranians with documents, blueprints, and schematics." The only person affiliated with Classified Program 19 No. 1 who uses the word "blueprints" is Merlin. 20 term "blueprints" appears in chapter 9 repeatedly. 21 count, "blueprint" or "blueprints" appears in chapter 9 at 22 least 20 times. 23 The note. The By my The cables and the testimony make clear 24 that it was decided in advance that there will be a note to the 25 person in Vienna on the outside of the envelope, the inside of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 70 of 162 PageID# 6202 1485 1 which would contain the plans and a cover letter directed to 2 the person back in Iran, but Merlin, Merlin testified that on 3 the spot in Vienna, he had the idea to write a handwritten 4 cover note when he realized he was going to have to leave the 5 package at a mailbox rather than give it to somebody. 6 "I have the time to think, and I realize nobody's in 7 the office. I, I thought it would be suspicious, somebody puts 8 this very expensive documents, these very important documents 9 without any explanation, and I decided to wrote very short this 10 sized note where I said I came many times to your office. 11 was closed. 12 important and valuable information." 13 Please take attention to this envelope. It This is Merlin returns, and he's debriefed by Bob S. and 14 Mr. Sterling together. 15 44. 16 Review it carefully. The cable of that debriefing is Exhibit It does not mention a handwritten cover note by Merlin. 17 Only Merlin knows about this note. What does the book say? Page 204 in paragraph 57: 18 "In Vienna, the Russian went over his options one more time and 19 made a decision. 20 blueprints and included a personal letter of his own to the 21 Iranians." 22 He unsealed the envelope with the nuclear Now, Risen gets a lot of things wrong here. He 23 thinks that this personal note that he quotes at length is 24 actually the cover letter that was done in advance, the draft 25 of which appears in Exhibit 35. He also thinks that the letter Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 71 of 162 PageID# 6203 1486 1 is warning the Iranians of flaws in the plans rather than 2 telling them that the plans are incomplete. 3 But what is important is not what Mr. Risen got 4 wrong; what is important is what Mr. Risen got right, that 5 Merlin wrote a personal note on the spot in Vienna that had not 6 been planned in advance. 7 reflected in any cable, and it ends up in Mr. Risen's book. 8 9 did you get inside the office building?" "The first time I came about 8 a.m. on a Friday. office was closed. 12 Look at Exhibit 44, the debriefing. reflected. 14 telling him the times. 16 What does the book say? Page 205, paragraph 67: "By 8 a.m., he found 19 Heinestrasse." Page 206, paragraph 71: 18 chance to be inside of the gate." "At 1:30 p.m., I got the That one is in quotes. Merlin testified that the times were 8 a.m. and 20 between 1 and 2 p.m. 21 quotes Merlin. 22 No time is Bob S. testified he didn't recall Merlin ever 17 19 The I came back after lunch, like 1 or 2 p.m." 13 15 It is not The times that things happened, "Merlin, what time 10 11 Merlin knows this. The book says 8 a.m. and 1:30 p.m. and Mr. Risen reports that this information came from a 23 document that Merlin later wrote. That's at page 206, 24 paragraph 71. 25 did not write any report of his trip to Vienna. But Merlin and Bob S. both testified that Merlin The Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 72 of 162 PageID# 6204 1487 1 information is not in any cable. 2 After the generals at the CIA learned that Risen had 3 the story and were asking for information about Classified 4 Program No. 1, did Bob have Merlin write him a report of the 5 trip that someone at the CIA leaked to Risen? 6 evidence that the time is written out anywhere. 7 they were, we know that Merlin knew them, and they end up in 8 the book. 9 There's no Whether or not We've talked about the terminology, the fact that 10 "high-voltage block" is the Russian term and that "firing set" 11 is Bob S.'s term, and that's what ends up in the book. 12 There's a quote from Merlin at page 203, paragraph 13 50, where he's asking for directions. 14 testimony that he did, in fact, know enough German that he 15 could have asked for directions, but he claims that he wouldn't 16 have because it would look suspicious for a Russian scientist 17 to ask for directions to the address of the IAEA. 18 Now, Merlin says in his Now, it's not at all clear why that makes sense. 19 Remember, this is a building that has not just the IAEA Mission 20 in it; it also is an apartment building. 21 suspicious for somebody to ask for an address for an apartment 22 building? 23 Why would it be But that doesn't matter because the book doesn't say 24 that he asked for the address. It just says that he asked if 25 people knew where that street was. There would be no reason Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 73 of 162 PageID# 6205 1488 1 for Merlin not to have asked where the street was. 2 place that it's in a cable, and it's in quotations attributed 3 to Merlin in the book. 4 There's no Ladies and gentlemen, most importantly, the cover 5 letter. The cover letter is at the heart of most of the 6 charges in this case. 7 Mr. Sterling leaked to Mr. Risen, gave to Mr. Risen, physically 8 gave the document itself. 9 that Mr. Sterling had that letter ever. 10 That's the document that supposedly There's no evidence, no evidence Now, in Merlin's testimony, he admitted the drafts of 11 the cover letter were typed on his home computer. 12 talk to -- take a printout to Mr. Sterling, they would go over 13 it, they would talk about revisions, and then Merlin would take 14 the paper back to his house, make the revisions on his home 15 computer. 16 He would The cover letter is quoted at length at pages 204 and 17 205 of the book. 18 version of that letter resides on his home computer. 19 Mr. Olshan says, so on cross-examination, he claims that he 20 gave a copy of the final version of the letter to Mr. Sterling 21 when he met him about two weeks before leaving for Vienna. 22 23 This is a real problem for Merlin if the only There's one problem with that testimony: true. As It's not I mean, go ahead and put up that timeline. 24 We know Exhibit 35 is a January 10, 2000, meeting 25 between Merlin and Mr. Sterling where they come up with the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 74 of 162 PageID# 6206 1489 1 fifth version of the cover letter, which Mr. Sterling then in a 2 cable sends on to headquarters. 3 On January 14, 2000, Exhibit 36, Bob S. writes the 4 cable directing that the words "for free" be added to the 5 letter. Mr. Olshan talked about this. 6 On February 14, 2000, there's a meeting between 7 Merlin, Bob S., and Mr. Sterling. This is the meeting that 8 Merlin storms out of. 9 given a copy of the final letter at this meeting. Bob S. did not say that Mr. Sterling was It's not 10 reflected in the cable, and you can be sure if Mr. Sterling was 11 given a copy of that letter, it would have to have been 12 reflected in that cable. 13 On February 21, 2000, there is a meeting, this is the 14 final meeting, it's Exhibit 38, between Bob S. and Merlin. 15 This meeting takes place without Mr. Sterling being there. 16 And then on March 3, Merlin delivers the cover letter 17 and the plans in Vienna, and that's in Defendant's Exhibit 3. 18 As Mr. Olshan noted, the version that's in the book 19 includes the "for free" language. 20 the letter. 21 computer. 22 It is the final version of It is the version that resides on Merlin's Merlin told you he did not bring back a version of 23 this letter from Vienna. The only place it resides is on his 24 computer. 25 weeks before I left when I met with him." So Merlin says, "Well, I gave a copy to Jeff two Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 75 of 162 PageID# 6207 1490 1 He didn't meet with Jeff alone two weeks before he 2 left. The last time that he met alone with Jeff before he left 3 is on January 10, two months earlier, and at that point, 4 the "for free" language didn't exist yet. 5 given Mr. Sterling a copy of the final letter with the "for 6 free" language, the copy that appears in the book, he could not 7 have given that to Mr. Sterling two weeks before he left. 8 couldn't have given it to Mr. Sterling at any time because he'd 9 never met alone with Mr. Sterling when that language existed. 10 He couldn't have He Merlin's mistaken belief that someone from the 11 National Labs was in San Francisco, that Merlin decided at the 12 last minute to include a personal cover note, the term 13 "blueprints," "high-voltage block," the times that Merlin got 14 into the building, the quote asking for directions, and most 15 importantly, the final version of that letter, all of those 16 things came from Merlin. 17 otherwise. 18 Bob S. Merlin attempted to mislead you Directly or indirectly, Bob S. was likely a 19 source for chapter 9. 20 no longer has access to cables. 21 (sic) also still has access to Merlin. 22 In 2003, in 2004, in 2005, Mr. Sterling Bob S. does. Mr. Sterling Mr. Sterling does not. Bob S. designed disinformation campaigns and created 23 legends for a living. To quote none other than the Rolling 24 Stones, he was practiced in the art of deception, and he had 25 Merlin, who had chutzpah. Whether he gets the information from Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 76 of 162 PageID# 6208 1491 1 Merlin and passes it on himself, whether he gets the 2 information from Merlin and passes it on through others, 3 whether Merlin passes it on, it has to be some combination of 4 people that still have access to the program. 5 6 What is in the book that sounds like it came from Bob S.? We've discussed the term "firing set." 7 The Wine Country. 8 Sonoma is not in any cable. 9 would have known that, but is that a fact that Mr. Sterling is 10 11 Mr. Olshan tells you that's right, Now, it's true that Mr. Sterling going to remember years later? We know that Bob S. remembers it now, 16 years later, 12 because it's important to him because he cares about wine, and 13 to him, there's a big difference between Napa wine and Sonoma 14 wine, but there's no reason for this detail to be important to 15 anybody else, and this detail that is uniquely important to Bob 16 S. is in the book. 17 The book details the names of various streets in 18 Vienna, a city that Bob knew well even before he went there on 19 more than one occasion to case for this operation. 20 evidence that Mr. Sterling's ever been to Vienna. 21 remember the details about these street names years later, Bob 22 S. or Mr. Sterling? There's no Who would 23 More tellingly is Bob S. in his testimony recalled 24 that the mailbox in which Merlin left the package was to the 25 left of the door. Look at Exhibit 44, the debriefing cable. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 77 of 162 PageID# 6209 1492 1 It's not in there. 2 206, paragraph 71. 3 Yet this detail appears in the book at page Why would Jeffrey Sterling remember that detail years 4 later? 5 had talked again to Merlin. 6 We know that Bob S. did either on his own or because he Even more telling, Bob S. in his testimony recalled 7 that Merlin saw an Austrian postman and that he covered the 8 package with a newspaper. 9 Exhibit 44 or any other cable. Neither of those details is in Even if Mr. Sterling had 10 somehow secreted cables with him and held them for three years, 11 he wouldn't know this unless he remembers it. 12 evidence he would remember those details, but Bob S. remembers 13 both, the postman and the newspaper. 14 on his own or because he's talked to Merlin, both appear in the 15 book. 16 There's no Whether he remembers them Why is it particularly telling that he recalls these 17 details? 18 could have known that the mailbox was on the left. 19 saw that when he traveled to Vienna. 20 explain away how it is Risen could possibly have known that 21 Merlin saw an Austrian postman or that he left the plans under 22 a newspaper. 23 cable. 24 25 Remember, Bob S. tried to explain away how Risen Maybe Risen But Bob S. couldn't Only Merlin could know that, and it's not in any The national defense information that appears in chapter 9 that did not come from the Hill came from Merlin, Bob Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 78 of 162 PageID# 6210 1493 1 S., or someone at the CIA. 2 What was Mr. Sterling's relationship with Mr. Risen? 3 Because Mr. Olshan is correct, they clearly did have a 4 relationship. 5 Exhibit 83. 6 story by Jim Risen where he's quoted in his own name. 7 course he has a relationship with Mr. Risen. 8 9 Was Mr. Sterling hiding that fact? You saw He's got his picture in The New York Times in a Of And absolutely, Mr. Risen is writing about his employment discrimination suit, and Mr. Sterling is given 10 unclassified PARs as part of that suit. 11 illegal in any way for him to give those unclassified PARs to 12 Mr. Risen, who's following his employment discrimination suit, 13 and yes, he wants attention to that suit both inside and 14 outside of the agency. 15 that's why he filed a lawsuit, and that's why he wants that 16 lawsuit publicly covered. 17 You haven't heard it's That's why he hired outside lawyers, And yes, part of Exhibit 59 is quoted in Exhibit 3, 18 Risen's story, and yes, and part of 60 is quoted in chapter 9. 19 By 2006, when Mr. Risen publishes the book, how does he know 20 that the PAR he obtained back in 2002, the report on Sterling's 21 discrimination suit, is talking about Merlin? 22 He knows that Sterling speaks Farsi and is an Iranian 23 expert. He reports that in Exhibit 83. He knows that Sterling 24 worked in New York from January '99 until 2000. 25 talking to the Hill in 2003 that Sterling came to talk about an He knows after Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 79 of 162 PageID# 6211 1494 1 asset that had been used in an operation in 2000 against Iran, 2 and from talking to whoever his sources were at the CIA after 3 he had talked to the Hill, he knew that Merlin was a known 4 handling problem, demanding, overbearing in nature, walked out 5 of meetings. 6 cables describe him as somebody unable to follow even the 7 simplest and most explicit direction. 8 9 Mr. S. described him as a difficult asset. The How hard would it be for Mr. Risen to piece together that when he's got a PAR praising Sterling's handling of a 10 known -- of an asset who's difficult, demanding, overbearing, 11 and a known handling problem, how hard would it be for him to 12 figure out that that asset was Merlin? 13 In 2003 -- well, again, 2003, Mr. Sterling goes to 14 SSCI to talk about Classified Program No. 1. 15 following the discrimination suit. 16 that Sterling has been out talking about the classified 17 program. 18 period. 19 Risen learns from the Hill Risen and Sterling have several conversations in this Is Risen trying to get information from Sterling 20 about Classified Program No. 1? 21 mean that Sterling gave him any? 22 Risen is Almost certainly. Does that No. What do we know that he gave him? Risen comes to him 23 and says, "Hey, heard you were up on the Hill talking about 24 this classified program." 25 Sterling sends him an e-mail with a publicly Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 80 of 162 PageID# 6212 1495 1 available CNN article and says, "Yeah, makes you wonder." 2 That's what he passed on to Mr. Risen when he was 3 asked about Classified Program No. 1. 4 about his discrimination suit. 5 He talks to Mr. Risen Mr. Risen is able to keep his discrimination claims 6 and his concerns about Classified Program No. 1 separate. 7 know this. 8 employment discrimination claims. 9 Classified Program No. 1. When he talks to HPSCI, he talks about the He doesn't talk about When he talks to SSCI, he talks 10 about Classified Program No. 1. 11 employment claims. 12 his discrimination case and did not talk to him about 13 Classified Program No. 1. 14 We He doesn't talk about his And in March 2002, he talked to Risen about Over the years, Sterling and Risen have spoken a 15 number of times, but there's no evidence, no evidence that they 16 speak about Classified Program No. 1 in a way that Mr. Sterling 17 is providing him national defense information. 18 that Sterling is the hero of chapter 9. 19 accurate or not. 20 Risen and we know that Risen seems to have some sympathy for 21 Sterling if you read that article, article 83. 22 Mr. Olshan says I don't know if that's We know that Sterling has a relationship with But more importantly, how, how does the chapter 23 portray Merlin? Mr. Olshan said as a bumbler. That's funny, 24 the cables say he can't follow the simplest direction. 25 can't even find the mission after having been given explicit He Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 81 of 162 PageID# 6213 1496 1 instructions. 2 Mr. Olshan says that the chapter portrays Robert S. 3 as pushing forward with the program -- Robert S. was pushing 4 forward with the program -- and that Jeffrey Sterling is 5 portrayed as a competent case officer. 6 Read those PARs. 7 good job. 8 operation. If you read the PARs, he got high marks for the 9 operations. He got high marks for his security measures. Guess what? He was. Every witness on the stand said that he did a Even, even Bob S. said he did a good job on this 10 Their criticism of him was that he didn't go -- not 11 how he handled the cases that he was given but that he didn't 12 do enough to go out and develop new cases. 13 14 Let's look at the timeline. If we can go ahead and put up that modified Exhibit 98? 15 This is the government exhibit, but I've added, I've 16 added some things that the government didn't put on the 17 timeline. 18 for a couple of months is filed by Mr. Sterling's lawyer 19 against the CIA. 20 employment discrimination suit from New York to Virginia. 21 On March 3, the PRB suit that has been in the works March 6, there is an order that transfers his Mr. Olshan said in this time frame in March, 22 Mr. Sterling is out of options. 23 case has just been transferred to Virginia, and it's going to 24 move forward. 25 He's not out of options. His That's Exhibit 94. After the public PRB suit is filed and after the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 82 of 162 PageID# 6214 1497 1 public order transferring the case, he has a number of 2 conversations with Mr. Risen. 3 about? 4 What were they likely talking The PRB suit and the discrimination suit. Let's go to page 4. On March 3, 2004, a year later, 5 the employment discrimination suit is dismissed by the Virginia 6 court. 7 next couple of months between Mr. Sterling and Mr. Risen, about 8 27 minutes' worth of conversations in March, about 43 minutes 9 of conversations by mid-May, in the two months since the 10 employment suit was dismissed. 11 12 And again, there are a series of conversations over the And let's go to page 7. What does Risen say? "I am sorry if I have failed you so far." 13 How has he failed him? He hasn't written a single 14 article about the dismissal of the employment discrimination 15 suit. 16 suit with any published article since 2002. 17 enjoy talking to you, and I'd like to continue. He hasn't followed up on the employment discrimination "But I really Jim." 18 Now, if we can go to page 10? 19 In July of 2004, according to the records pulled by 20 Agent Hunt, Mr. Risen goes to Vienna to research the book. 21 September of '04, he submits the book proposal. 22 Exhibits 128 and 129. 23 clearly, when Risen's clearly working on the book, how many 24 conversations does he have with Jeffrey Sterling? 25 In These are In this period of time, when he's None. And finally, the government points out that their Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 83 of 162 PageID# 6215 1498 1 relationship seemed to end at the end of 2005 and notes that 2 the book was published in January of 2006, and that's true, but 3 it's also true that in January 2006, Agent Hunt told you this, 4 the Supreme Court decided not to take the appeal from 5 Mr. Sterling's employment discrimination suit. 6 relationship ends when the employment discrimination suit ends. 7 The government's suspicion of Jeffrey Sterling is not 8 evidence. 9 keep a secret if two of them are dead. Their As we learned, Benjamin Franklin said that three can In this case, at least 10 90 people had a secret. 11 it. 12 went through legal channels, was Jeffrey Sterling. 13 Someone, several people didn't keep But the evidence of one who did, who time and time again So what does the government rely on? They rely on 14 1987 telephone rotary phone instructions and an interim 15 evaluation report from when he was a trainee in 1993 that they 16 find in his house. 17 case, nothing to do with Classified Program No. 1, nothing to 18 do with any other classified operation. 19 Nothing to do with the charges in this He shouldn't have had those documents in his house, 20 but they're not evidence that he disclosed national defense 21 information about Classified Program No. 1 to Jim Risen. 22 The obstruction of justice charge. From August 3 -- 23 sorry, from August of 2003 to July of 2004, Mr. Sterling had 24 use of the computer in the Dawson home. 25 11. That's in stipulation On April 19, 2006, two years later, data is preserved at Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 84 of 162 PageID# 6216 1499 1 hotmail, and this March e-mail to Mr. Risen with the CNN 2 article is still on there. 3 hotmail account. 4 By July 14, it's no longer in the Mr. Risen is served with a grand jury subpoena on 5 June 16, 2006. That's Exhibit 139. Look at the attachment to 6 139. 7 proceeding. 8 bring with him in the way of documents. 9 any classified documents he has. 139 tells Mr. Sterling that there's a grand jury It also tells him what the grand jury wants him to It wants him to bring It wants him to bring PARs 10 that he has. Clearly, they're looking for those 1999 and 2000 11 PARs that have been quoted by Risen. 12 information about his time at the agency. It says that it wants 13 There is not a single category in there of things 14 that they're interested in that has anything to do with his 15 communications with Risen about publicly available information. 16 The computer is turned over by Ms. Dawson to the FBI 17 in August of '06. 18 Mr. Sterling deleted it, he would have had to have deleted it 19 by 2004, two years earlier, when he lost access to the 20 computer. 21 If that e-mail is not there, that would mean If it is still there, it means that he didn't delete 22 it; it's still there. 23 how it is that Mr. Sterling had the ability to get into 24 hotmail's database and delete it from hotmail's records. 25 The government has not explained to you Also, we have no idea when it was that it got deleted Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 85 of 162 PageID# 6217 1500 1 from hotmail or why. 2 grand jury until June, and the data is preserved again in July. 3 That could have been deleted anytime between April and July, 4 before Mr. Sterling even knew about the subpoena, the subpoena 5 that tells him that they're not interested in this e-mail. 6 Mr. Sterling's not put on notice to the So you now have to believe that Mr. Sterling kept 7 the, the e-mail on his computer but then somehow got into 8 hotmail's records to delete them because he was put on notice 9 of the fact that the grand jury was not interested in this 10 document. 11 There is no obstruction of justice in this case. Now, ladies and gentlemen, all of our lives would 12 have been a lot easier if Mr. Risen would have revealed who his 13 sources were and who they were not for his reporting on 14 Classified Program No. 1, but he didn't, and whether you think 15 that's a good thing or a bad thing is no more relevant than 16 whether you think Classified Program 1 was a good program or a 17 bad one or Mr. Risen's reporting good or bad. 18 The government says that chapter 9 is only about 19 Jeffrey Sterling's time with the program. Well, they say that 20 only after telling you to ignore the entire rest of the 21 chapter. 22 that happened in 2004, after Mr. Sterling is gone. 23 discussion about Classified Program No. 1 with information 24 about the NSA tracking the person from Vienna going back to 25 Tehran. The chapter starts on pages 193 and 194 with an event It ends its There's no evidence that anyone ever told Mr. Sterling Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 86 of 162 PageID# 6218 1501 1 that. There's no reason he would have told Mr. Risen that. 2 The government's suspicion that because the book 3 talks in detail about things that Mr. Sterling knew simply is 4 not enough. 5 Mr. Risen had sources at the CIA. 6 The Hill knew what Mr. Sterling told them. They have a theory; I have a theory. I think my 7 theory is the more likely theory, but frankly, that doesn't 8 matter. 9 dealing in evidence, and it is the government's burden to put 10 11 We're not dealing in competing theories. We're on evidence beyond a reasonable doubt that it was Mr. Sterling. You heard from any number of CIA, former/current CIA 12 people in this case, and Mr. Sterling himself spent years of 13 his life with the CIA. 14 to defend our national defense. 15 a system where you are not convicted of extraordinarily serious 16 crimes because the government believes that you committed them. 17 Why? Because all of these people want Why? Because they believe in You took an oath to decide this case only on the 18 evidence presented to you, not on theories. 19 not prove beyond a reasonable doubt that Mr. Sterling committed 20 the offense charge -- the offenses charged. 21 The evidence does Now, this is my last opportunity to speak to you. 22 The government gets to get up, they get to go last. They get 23 the last word, and that's appropriate. 24 burden to prove the case, and the burden is a high one. 25 Indeed, in this case, it is an insurmountable one. It is the government's Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 87 of 162 PageID# 6219 1502 1 The government has great lawyers. One of them is 2 going to get up now, and they're going to think of an argument 3 that I have not thought of. 4 of evidence that I didn't mention or I didn't discuss 5 thoroughly enough. 6 argument. 7 They're going to discuss a piece They're going to make a compelling Yes, the government is allowed to use circumstantial 8 evidence, and there may be cases where guilt can be established 9 beyond a reasonable doubt based on circumstantial evidence, but 10 this is not one of those cases. 11 dangerous. Be very careful. It's 12 Can you put up Exhibit 146? 13 THE COURT: 14 MR. POLLACK: 15 Can you blow it up? 16 The government offered this to you as circumstantial You've got one more minute. Thank you, Your Honor. Yeah, blow that up. 17 evidence that Mr. Sterling had a classified document on his 18 computer pertaining to Classified Program No. 1, circumstantial 19 evidence that he provided that information to Mr. Risen. 20 Ladies and gentlemen, it would have been a tragedy if 21 we had not found Mr. Gilby or if he had not remembered that he 22 had used a software called Merlin. 23 Jeffrey Sterling of grave charges because Mr. Gilby researched 24 scheduling software for use in his business renovating homes. 25 You would have convicted When you get back to the jury room, before you begin Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 88 of 162 PageID# 6220 1503 1 your deliberations in earnest, please think carefully about how 2 I would have responded to the government's final arguments had 3 I been given the chance. 4 make my arguments for me. 5 And Mr. Sterling deserves that. 6 Look at the evidence carefully, and You'll make them better than I can. Then and only then begin deliberating, and when you 7 are done, do the only thing that you can do on the evidence 8 that has been presented: 9 and every count. Find Mr. Sterling not guilty of each 10 Thank you. 11 THE COURT: All right, Mr. Trump, you have ten 13 MR. TRUMP: May we approach, Your Honor? 14 THE COURT: Yes. 15 (Bench conference on the record.) 16 THE COURT: Mr. Trump? 17 MR. TRUMP: I just want to make sure that I don't 12 minutes. Yes. 18 step over the line should I make this argument, but counsel 19 suggested that there was some sort of conspiracy within the CIA 20 to kill this story, to feed documents to Jim Risen tasking 21 Bob S. to write a report after the fact to feed to Risen. 22 Obviously, Judge, if there had been any such 23 conspiracy, if anybody had actually done that, if there were 24 documents, we were legally obligated to produce that to the 25 defense. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 89 of 162 PageID# 6221 1504 1 MR. POLLACK: 2 MR. TRUMP: If you have them. And we didn't, and the CIA was legally 3 obligated to provide them to us. 4 There is no such evidence. 5 THE COURT: There is no such documents. Well, you need to be careful from my past 6 experience in these cases. 7 evidence. 8 testify, if that's what your concern was about, about that. 9 think you don't want to make that argument. 10 11 You're not aware of any such You don't want to put yourself in the -- you can't MR. TRUMP: Okay. I I just want to make sure I don't go too far, Your Honor. 12 THE COURT: I don't think you want to make that 14 MR. TRUMP: Okay. 15 (End of bench conference.) 16 MR. TRUMP: May I consult with cocounsel for one 18 THE COURT: Yes. 19 It's always a bad sign when a lawyer pours a glass of 13 17 20 argument. minute? water. 21 22 (Laughter.) THE COURT: We used to have a colleague here who 23 wouldn't let the lawyers have water. 24 very quickly. 25 It made the trials go (Laughter.) Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 90 of 162 PageID# 6222 1505 1 THE COURT: All right, Mr. Trump, are you ready? 2 REBUTTAL ARGUMENT 3 BY MR. TRUMP: 4 Good afternoon. 5 Sorry, Your Honor, something doesn't seem to be -- I 6 only have a few minutes, so I'll just address a few points. 7 Don't overlook the obvious. 8 speculation and possibilities and probabilities. 9 Don't get lost in conjecture and Circumstantial evidence can be compelling. 10 powerful. 11 outside and you see that it's wet, you know it rained. 12 don't have to see the rain to know it's true. 13 It can be sufficient to convict. It can be If you look You Counsel just went through a scenario for which there 14 is absolutely no evidence whatsoever. 15 had a source somewhere on Capitol Hill, that somehow someone 16 from SSCI talked to James Risen, there's no evidence that that 17 happened. 18 and there was some sort of conspiracy, some sort of group 19 effort by the CIA to feed him documents in an effort to kill 20 the story, that they enlisted Merlin, they enlisted Bob S., 21 that they asked Bob S. to write after-the-fact reports which 22 they could then feed to Mr. Risen to support an effort to kill 23 the story. 24 ever happened. 25 The idea that Jim Risen There's no evidence that then he called Bill Harlow There's absolutely no evidence whatsoever that that The evidence is that Risen called Harlow, that there Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 91 of 162 PageID# 6223 1506 1 was a meeting at the White House. That was the interaction 2 between the CIA and James Risen in April about this story. 3 The idea that Risen was able to write this chapter of 4 this book based on other sources, on other information, without 5 the defendant, without the help of the defendant, the one who 6 had a motive, the one who said he was going to come after the 7 CIA, the one who had an ongoing -- 8 9 10 11 MR. POLLACK: object. Your Honor, I'm sorry, I have to That statement is not even coming in for the truth. He can't argue it. THE COURT: The jury's recollection of the evidence 12 is what will govern them in their deliberations. 13 have misstated the evidence, the jury will remember that. 14 Go ahead, Mr. Trump. 15 MR. TRUMP: If counsel The one who had an ongoing relationship 16 with Risen since 2001, a relationship that abruptly ends with 17 the publication of the book in 2006, who was the case officer 18 assigned to this operation during the relevant time frame, who 19 was a participant and knowledgeable, who did have access while 20 he worked at the CIA to all of the cables that Bob had access 21 as well, as well as all the other case officers, who is the 22 only person who had knowledge of every fact known to Risen, 23 from the true name of the asset to his $5,000 salary, to the 24 technical and logistical aspects of the operation, who had 25 received a copy of the letter quoted in the book from Merlin a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 92 of 162 PageID# 6224 1507 1 week or two prior to the Vienna trip. 2 Now, counsel can say that it didn't happen, but the 3 only evidence in the record is that Merlin said he gave a copy 4 of that letter to the defendant, who, like Risen, did not know 5 about the ongoing operations, and even though, yes, Mr. Risen 6 said that it was an ongoing program, but when he actually wrote 7 the book, he didn't. 8 Sterling. 9 He wrote it in the time frame of Jeffrey The 2000 PAR, there is absolutely no way, and you 10 will have it in evidence, there is no way without the defendant 11 telling Risen that this PAR relates to Merlin and this 12 operation, that he would be able to figure that out on his own. 13 Look at it. 14 He's the only person who said, falsely, that the 15 operation may have given nuclear secrets to the Iranians. 16 why did he wait five years? 17 had lost all hope of a financial settlement with the agency. 18 It was done. 19 Because at this point in time, he Now, yes, he had ongoing litigation with respect to 20 the PRB, but the prospect of getting money was done. 21 over. 22 And It was And as of March 10, 2003, he sent Risen an e-mail 23 about the CNN article, just five days after his trip to SSCI. 24 Now, you saw a comparison of the Harlow memo and the Stone 25 memo, and yes, there's similar information in there because the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 93 of 162 PageID# 6225 1508 1 information comes from the same source. 2 Sterling to SSCI, it comes from Jeffrey Sterling to James 3 Risen, but Risen had more detailed information. 4 talked with the defendant. 5 more information. 6 It comes from Jeffrey He had, he had By this time, he's getting more and He's preparing to write the article. And again, look at the phone calls. Look at the 7 phone records. 8 continuing contact in March and April between the defendant and 9 James Risen. 10 There's a whole cluster of records indicating The other suspects. Merlin. There is absolutely no 11 evidence whatsoever that Merlin had any sort of relationship 12 with James Risen, none. 13 ruined his relationship with the CIA. 14 essentially. 15 suggest that Merlin had any contact whatsoever with James 16 Risen, that he was tasked by the CIA with Bob to try to kill 17 the story. 18 No motive whatsoever. None. It He lost his job There is absolutely no evidence in this record to Nothing. Merlin never knew about the deeply embedded flaws. 19 They kept that from him. 20 efforts. 21 He doesn't know anything about the PAR. 22 anything about the SSCI meeting. 23 He didn't know about the Red Team That was information that was never provided to him. The note? He doesn't know There was a discussion of a handwritten 24 note. In fact, it was something that was raised by the 25 defendant as an additional suggestion to the cover letter. It Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 94 of 162 PageID# 6226 1509 1 was raised, it was discussed in the cable that the defendant 2 had brought up having two notes, two documents, one a 3 typewritten letter addressed to the official that he had 4 engaged with in terms of the e-mails, and then a note on the 5 top -- on the outside of the package to the person in Vienna so 6 that they could get in touch. 7 actually suggested by the defendant. 8 9 It was something that was The quotes, we don't know how it was that Risen purportedly quotes a report of Merlin's trip to Vienna. Bob S. 10 testified he had never seen such a report. 11 not prepare a written report. 12 the book by the defense counsel, Merlin stated, "Well, maybe 13 the defendant secretly taped me; I don't know." 14 Plausible? Merlin said he did When asked about the passage in Perhaps. More plausible than Bob S. 15 getting tasked to write an after-the-fact document by the CIA 16 in order to feed it to James Risen in order to kill the story. 17 Again, Bob S., as my cocounsel explained, this was 18 his baby. 19 Risen. 20 He is not going to leak the information to James This is ten years of his life. And again, there's absolutely no evidence that he had 21 any sort of relationship with James Risen. 22 of the defendant's PAR, no knowledge of the SSCI meeting. 23 He had no knowledge How do the details get into the book about Vienna? 24 James Risen went to Vienna. He walked those streets. 25 looked at those streetcars. He went to that building. He He saw Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 95 of 162 PageID# 6227 1510 1 the same things that Merlin saw. 2 up in the book. That's how it gets up -- ends 3 And what's interesting is that defense counsel pulls 4 information from interviews, from testimony, from facts in the 5 record. 6 You should believe Don Stone when he says this. 7 believe Bob when he talks about fire set or firing set. 8 should believe Merlin when he says this because it fits into 9 his narrative. 10 You should believe Vicki Divoll when she says this. You should You But when they say they did not provide information to 11 James Risen, when they say they had no relationship with James 12 Risen, then don't believe them. 13 Phone calls and the e-mail. Counsel came up with a 14 story to try to explain the series of phone calls and e-mails 15 from 2003 through 2005. 16 of communications between the defendant and Risen. 17 Look carefully at each of the clusters There's a group of communications in March and April 18 of 2003. 19 going to the CIA. 20 complete; he's ready to publish. 21 What is happening at that point? James Risen is He says he has a story; it's nearly There's a second cluster, primarily in 22 April-May-June, mostly June. 23 submits a book proposal to Simon & Schuster. 24 25 Right before what happens? Risen Look at the June 10, June 11, June 13 series of events, the Federal Express, and then four calls at the end of, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 96 of 162 PageID# 6228 1511 1 end of June. 2 a long period. 3 And then what happens? Very little activity for Then another cluster of calls in August of 2005 and 4 then in November of 2005, and what is happening at that point? 5 Final touches to the book, which is then published and released 6 in 2006. 7 This case is not about politics. 8 salvaging the reputation of the CIA. 9 big deal. It's not about What happened here was a Nuclear weapons, the capabilities of our 10 adversaries, that's a big deal. The compromise of this 11 operation, this asset, ruining ten years of work under two 12 different administrations, wasting millions of dollars, giving 13 away our secrets, our strategic advantages, endangering the 14 lives of an asset, his family, that all is a big deal. 15 THE COURT: One minute. 16 MR. TRUMP: You were given a very rare, a very unique 17 glimpse into the lives of those who work for the CIA. 18 heard from case officers who toil for years in the shadows. 19 I'm sure they find their work rewarding, fascinating at times, 20 but it comes with a heavy, heavy price: 21 no discussion with friends and family, sometimes not even with 22 their colleagues. 23 country's secrets. 24 25 You no public accolades, And they must forever, forever keep their That's their solemn promise. But they serve, and we rest easier as a result. Sometimes they stand in harm's way so that we don't have to. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 97 of 162 PageID# 6229 1512 1 They are true patriots. 2 On April 5, 1999, Merlin and the defendant met, 3 Exhibit 24. 4 would happen if his work for CIA would ever get exposed? 5 defendant assured him he should not worry, that will never 6 happen. 7 At that meeting, Merlin asked the defendant what The Jeffrey Sterling could not keep his promises. 8 Jeffrey Sterling betrayed his country. 9 He betrayed his colleagues. 10 Sterling is not a patriot. 11 guilty. 12 THE COURT: He betrayed the CIA. He betrayed Merlin. Jeffrey He is the defendant, and he is All right, ladies and gentlemen, you've 13 now heard all of the closing arguments. 14 no means finished because you have not gotten the instructions 15 from the Court. 16 I'll ask you to be back here approximately 25 after, and then 17 you'll get the instructions. 18 Again, the case is by So I want you to now take your lunch break, Please do not begin any deliberations, and continue 19 to follow my cautions about not interacting with anything 20 outside of the courtroom that could possibly taint your thought 21 process, and we'll see everybody back here at 25 after. 22 you. 23 Thank (Recess from 12:25 p.m., until 1:25 p.m.) 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 98 of 162 PageID# 6230 1513 1 A F T E R N O O N 2 S E S S I O N (Defendant present, Jury out.) 3 THE COURT: All right, before we bring in the jury, 4 again the ground rules are while the Court's instructing, no in 5 and out of the courtroom, so I assume that's going to be taken 6 care of. 7 We gave you over the lunch break, there are four jury 8 instructions that have been slightly changed, and there's a new 9 one. Let me take 11(a), the classification markings had been 10 submitted by the government, I think, earlier, but I needed 11 also -- and this comes from our court security people -- to 12 advise the jury as to how they must approach the three still 13 classified exhibits, so I want to know whether there's any 14 objection to the language. 15 small, independent package that each of you have, if there's 16 any objection to that additional language. 17 It's 11(a). It should be in the So what I've added there is, "Because Exhibits 142, 18 143, and 144 remain classified as Secret, you may not 19 communicate the contents of these exhibits to anyone after this 20 trial is concluded. 21 guilt or innocence of the defendant from the fact that you 22 cannot communicate anything about these exhibits." You should draw no inference as to the 23 Is there any objection to that? 24 MR. MAC MAHON: 25 No objection from the defense, Your Honor. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 99 of 162 PageID# 6231 1514 1 THE COURT: I assume -- 2 MR. TRUMP: That's fine. 3 THE COURT: All right, good. 4 5 All right, so that's 11(a) if you want to put it in your packet. Then if you look at, we've made the modifications we 6 talked about to Exhibit -- to instruction page 24. 7 the exhibit numbers 142 through 145. 8 evidence exhibit -- I'm sorry, instruction, and we in the last 9 paragraph struck out "or crimes." 10 We've added That's the 404(b) So "the defendant is not on trial for any acts not alleged in the indictment," all right? 11 MR. MAC MAHON: 12 THE COURT: 13 Okay. Thank you, Your Honor. No objection to that, correct? Possession, which is 31, we have changed the 14 tense to the past tense in the paragraph for Counts 1, 4, and 15 6, so it says, "by a person who held an appropriate security 16 clearance and had a need to know at the time the person 17 acquired the classified information," and then we've added the 18 "namely, a letter related to Classified Program No. 1" in the 19 next paragraph. 20 Any problem with that new instruction? 21 MR. MAC MAHON: 22 THE COURT: 23 24 25 No, Your Honor. All right? So make sure you replace that in your packets. And then the only change we made to 41, we had intended to have the date so that the jury doesn't have to go Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 100 of 162 PageID# 6232 1515 1 back and forth rummaging through the instructions, so we've 2 just added the dates that were alleged in that count. 3 right, any problem with that? 4 MR. MAC MAHON: 5 THE COURT: No? Not from the defense, Your Honor. All right, then I believe we are about 6 ready to bring the jury in. 7 matters? 8 business yesterday? 9 physical exhibits? Are there any other last-minute Were all the exhibits taken care of at the close of Was there any issue with any of the 10 MR. FITZPATRICK: 11 THE COURT: 12 MR. FITZPATRICK: 13 THE COURT: 14 MR. OLSHAN: 15 THE COURT: 16 MR. OLSHAN: 17 It's the last one we moved in. 18 THE COURT: I'm sorry? No? No, Your Honor. Mr. Olshan? As a housekeeping matter -Yes, sir. -- Exhibit 176 was a stipulation. The exhibit that goes Let's do that right now. 176 pulled out of the stack. 21 22 No, Your Honor. to the jury just needs to be executed by the parties. 19 20 All MR. OLSHAN: So let me have Do you have them? We don't have the official evidence binder. 23 THE CLERK: 24 MR. OLSHAN: 25 THE COURT: No, I have it. May I approach? Yes. So you -- have you signed it? Has Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 101 of 162 PageID# 6233 1516 1 anybody signed it? 2 MR. OLSHAN: 3 THE COURT: 4 Mr. MacMahon, while that's being done, was there some 5 I don't believe so. All right. issue you had as well? 6 MR. MAC MAHON: 7 THE COURT: 8 MR. MAC MAHON: 9 THE COURT: I'll be fine, Your Honor. Thank you very much. THE COURT: I mean, frankly, you don't even have to be here for the charge. 16 17 I'm just taking the chance to stand You can do that during, during the charge MR. MAC MAHON: 14 15 Okay. if you want. 12 13 No, Your Honor. up. 10 11 So just pull 176 out. You know what I'm going to say. MR. MAC MAHON: I know, but I wouldn't do that, Your Honor. 18 THE COURT: 19 MR. OLSHAN: 20 THE COURT: 21 MR. OLSHAN: All right, that's fine. One moment, Your Honor? Yes, sir. We need to grab a copy of that one. 22 It's just a stipulation. 23 easier to -- 24 THE COURT: 25 MR. OLSHAN: It shouldn't be an issue. I'm sorry? If it's You need a copy? The formal exhibit binder does not have Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 102 of 162 PageID# 6234 1517 1 a version of it, have the exhibit. 2 we can just sign it. 3 MR. MAC MAHON: 4 THE COURT: 5 We'll see if we have one. All right. Did you-all do your indexes of the exhibits? 6 MR. OLSHAN: 7 THE COURT: 8 If the defense has a copy, Mr. Olshan. 9 Yes. You're looking over your shoulder, Is it in the courthouse -- courtroom? MR. FRANCISCO: Yes. 10 THE COURT: We have it? 11 Did you show it to defense counsel? Is there any 12 objection to the form of the index? 13 counsel actually initial it just to make sure there's no 14 argument that there's something that was said in the index that 15 could be an issue. 16 17 All right, so 176 is fully endorsed now? MR. OLSHAN: 19 THE COURT: Thank you, Your Honor. All right. 20 no objections to the index? 21 Mr. Pollack? 22 24 25 It's all set. 18 23 I usually have defense MR. POLLACK: And the -- again, the index, Are you still looking at that, Your Honor, if I can have just a minute? THE COURT: All right. And the defense list is so short, I'm assuming there's no objection to -- we don't have a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 103 of 162 PageID# 6235 1518 1 defense index. Do you have one? 2 MS. HAESSLY: 3 THE COURT: 4 Ms. Copsey, would you go get that? 5 All right, any objection, Mr. Trump? 6 MR. TRUMP: No. 7 THE COURT: All right, that's fine. 8 Yes, we have one, Your Honor. All right. Hold on. So the defense list is in. 9 Well, I'll tell you what, I want to start charging 10 the jury. 11 time. 12 the jury, and we can correct that afterwards, all right? If there's an objection, we still haven't sent it in to 13 14 MR. POLLACK: THE COURT: All right. Mr. Wood, let's bring the (Jury present.) 18 20 There are a couple of issues, but jury in. 17 19 Yes. we can take them up later. 15 16 Mr. Pollack, you can be looking at that at the same THE COURT: Have a seat, ladies and gentlemen. Thank you. All right, now that you have heard all of the 21 evidence to be received in this trial and each of the arguments 22 of counsel, it becomes my duty to give you the final 23 instructions of the Court as to the law that is applicable to 24 this case and which will guide you in your decisions. 25 All of the instructions of law given to you by the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 104 of 162 PageID# 6236 1519 1 Court -- those given to you at the beginning of the trial, 2 those given to you during the trial, and these final 3 instructions -- must guide and govern your deliberations. 4 It is your duty as jurors to follow the law as stated 5 in all of the instructions of the Court and to apply these 6 rules of law to the facts as you find them from the evidence 7 received during the trial. 8 9 Counsel have quite properly referred to some of the applicable rules of law to you in their closing arguments. 10 however, any difference appears to you between the law as 11 stated by counsel and that as stated by the Court in these 12 instructions, you are, of course, to be governed by the 13 instructions given to you by the Court. 14 If, You are not to single out any one instruction alone 15 as stating the law but must consider all of the instructions as 16 a whole in reaching your decisions. 17 Neither are you to be concerned with the wisdom of 18 any rule of law stated by the Court. Regardless of any opinion 19 you may have as to what the law ought to be, it would be a 20 violation of your sworn duty to base any part of your verdict 21 upon any other view or opinion of the law than that given in 22 these instructions of the Court, just as it would be a 23 violation of your sworn duty as judges of the facts to base 24 your verdict upon anything but the evidence received in the 25 case. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 105 of 162 PageID# 6237 1520 1 You were chosen as jurors for this trial in order to 2 evaluate all of the evidence received and to decide each of the 3 factual questions presented by the allegations brought by the 4 government in the indictment and the pleas of not guilty of the 5 defendant. 6 In deciding the issues presented to you for decision 7 in this trial, you must not be persuaded by bias, prejudice, or 8 sympathy for or against any of the parties to this case or by 9 any public opinion. 10 Justice through trial by jury depends upon the 11 willingness of each individual juror to seek the truth from the 12 same evidence presented to all of the jurors here in the 13 courtroom and to arrive at a verdict by applying the same rules 14 of law as are now being given to each of you in these 15 instructions. 16 During this trial, I permitted you to take notes. As 17 I advised you at the beginning of the trial, many courts do not 18 permit note taking by jurors. 19 notes are only a tool to aid your own individual memory, and 20 you should not compare your notes with those of other jurors in 21 determining the content of any testimony or in evaluating the 22 importance of any evidence. 23 You are instructed that your Moreover, you are 12 coequal judges of the facts. 24 The memory or opinions about the evidence of a juror who took 25 extensive notes is no more or less deserving of consideration Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 106 of 162 PageID# 6238 1521 1 than the memory or opinions about the evidence held by a juror 2 who took few or no notes. 3 by no means a complete outline of the proceedings or even a 4 list of the highlights of the trial. 5 should be your greatest asset when it comes time to deliberate 6 and render a decision in this case. 7 Your notes are not evidence and are Above all, your memory Now, the evidence in this case consists of the sworn 8 testimony of the witnesses, regardless of who may have called 9 them, all exhibits received in evidence, regardless of who may 10 have produced them, and all stipulations of fact agreed to by 11 the parties. 12 Any proposed testimony or proposed exhibit to which 13 an objection was sustained by the Court and any testimony or 14 exhibit ordered stricken by the Court must be entirely 15 disregarded. 16 courtroom is not proper evidence and must be entirely 17 disregarded. 18 Anything you may have seen or heard outside the Questions of the lawyers are not evidence. Only a 19 witness's answer to a question is evidence. 20 statements, and arguments of counsel are not evidence in the 21 case. 22 Objections, You are to base your verdict only on the evidence 23 received during the trial. In your consideration of the 24 evidence received, however, you are not limited to the literal 25 statements of the witnesses or to the literal assertions in the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 107 of 162 PageID# 6239 1522 1 exhibits. 2 you see and hear as the witnesses testify or as the exhibits 3 are admitted. 4 testimony and exhibits which you find reliable such reasonable 5 inferences as you find justified in the light of your 6 experience and common sense. 7 which can reasonably be drawn from the evidence received during 8 the trial. 9 In other words, you are not limited solely to what Instead, you are permitted to draw from the Inferences are simply conclusions There is nothing particularly different in the way 10 that a juror should consider the evidence in a trial from that 11 in which any reasonable and careful person would treat any very 12 important question that must be resolved by examining facts, 13 opinions, and evidence. 14 sense in considering and evaluating the evidence in the case 15 for only those purposes for which it has been received and to 16 give such evidence a reasonable and fair construction in the 17 light of your common knowledge of the natural tendencies and 18 inclinations of human beings. 19 You are expected to use your good If any reference to a witness's testimony or the 20 exhibits either by the Court or by counsel does not coincide 21 with your own memory of the evidence, it is your memory of the 22 evidence which controls during your deliberations and not that 23 of the Court or of counsel. 24 25 It is the duty of the Court to admonish an attorney who out of zeal for his or her cause does something which I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 108 of 162 PageID# 6240 1523 1 feel is not in keeping with the rules of evidence or procedure. 2 You are to draw absolutely no inference against the side to 3 whom an admonition of the Court may have been addressed during 4 the trial of this case. 5 And during the course of the trial, I occasionally 6 asked questions of a witness. Do not assume that I hold any 7 opinion on the matters to which my questions may relate. 8 Court may ask a question simply to clarify a matter, not to 9 help one side of the case or hurt the other side. The 10 It is the sworn duty of an attorney on each side of a 11 case to object when the other side offers testimony or exhibits 12 which that attorney believes is not entirely admissible -- or 13 properly admissible. 14 request and obtain a ruling from the Court on the admissibility 15 of the evidence being offered by the other side. 16 not be influenced against an attorney or the attorney's client 17 because the attorney has made objections. 18 Only by raising an objection can a lawyer You should Moreover, do not attempt to interpret my rulings on 19 objections as somehow indicating to you who I believe should 20 win or lose the case. 21 Now, I'm going to talk in these next set of 22 instructions a little bit about evidence. There are two types 23 of evidence which are generally presented during a trial -- 24 direct evidence and circumstantial evidence. 25 is the testimony of a person who asserts or claims to have Direct evidence Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 109 of 162 PageID# 6241 1524 1 actual knowledge of a fact, such as an eyewitness. 2 Circumstantial evidence is proof of a chain of facts and 3 circumstances indicating the existence of a fact. 4 And I have a standard example I always give to juries 5 about circumstantial evidence. 6 in, let's say it's February. 7 front yard is bare. 8 leave, let's say, at 9:00 in the morning, and you come home at 9 1:00 in the afternoon. 10 You leave your home one morning It's been cold out, but your There's no snow on the ground. And you Now, in the meantime, it has snowed, and when you 11 come home at 1:00, there's a white blanket of snow in your 12 front yard, and you see a footprint in that snow. 13 see a person, but you see the facts -- you have the facts I've 14 just given you. 15 You do not Now, you have direct evidence that it has snowed. 16 You know what time you left the house, you know what time 17 you've come back, you see the footprint, and you know from 18 ordinary human experience a human being normally is associated 19 with a footprint. 20 From those facts, you can draw the inference that 21 there was a person in your yard sometime between nine and one, 22 although you never saw the person. 23 circumstantial evidence. 24 25 That's an example of Now, the law makes absolutely no distinction between the weight or value to be given to either direct or Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 110 of 162 PageID# 6242 1525 1 circumstantial evidence, nor is a greater degree of certainty 2 required of circumstantial evidence than of direct evidence. 3 In other words, you should weigh all the evidence in the case 4 in reaching your verdict. 5 During this trial, documents have been entered into 6 evidence that have had words and phrases and sometimes entire 7 paragraphs redacted or deleted. 8 seen that there have been words or phrases substituted for the 9 original words or phrases that may appear in a document. 10 In other instances, you have I have decided to allow substitutions and redactions 11 in this fashion to protect national security interests. 12 of the substitutions and redactions pertain to names and 13 specific locations, and those specific names themselves are 14 simply not relevant to the issues at hand. 15 permitted substitutions and redactions to protect sensitive and 16 highly classified matters, most of which have nothing to do 17 with this case. 18 Many Sometimes I have I caution you that you should not consider the manner 19 in which substitutions and redactions have been used as an 20 expression of my opinion regarding the facts of this case. 21 is your job and your job alone to decide the facts of this 22 case. 23 It A number of the exhibits received in evidence contain 24 their original classification markings, such as Secret. Except 25 for Exhibits 142, 143, and 144, which I will address shortly, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 111 of 162 PageID# 6243 1526 1 all of these exhibits are now unclassified. 2 exhibits are public, are public record documents and do not 3 require any special handling procedures. 4 These unclassified Because Exhibits 142, 143, and 144 remain classified 5 as Secret, and you're going to know that because they have a 6 red cover on them when you see them in the jury room, you may 7 not communicate the contents of these exhibits to anyone after 8 this trial is concluded. 9 the guilt or innocence of the defendant from the fact that you 10 You should drew no inference as to cannot communicate anything about these exhibits. 11 Now, certain charts and summaries have been shown to 12 you in order to help explain the facts disclosed by the books, 13 records, and other documents which are in evidence in the case. 14 Such charts or summaries are not in and of themselves evidence 15 or proof of any facts. 16 correctly reflect the facts or figures shown by the evidence in 17 the case, you should disregard them. 18 If such charts or summaries do not In other words, such charts and summaries are used 19 only as a matter of convenience. 20 you find they are not in truth summaries of facts or figures 21 shown by the evidence in the case, you are to disregard them 22 entirely. 23 So if, and to the extent that The next group of instructions talk about witnesses 24 and how you go about approaching and evaluating witnesses, and 25 this next instruction also addresses evidence. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 112 of 162 PageID# 6244 1527 1 In evaluating the evidence, always consider the 2 quality of the evidence over the quantity. 3 to decide any issue of fact in accordance with the testimony of 4 any number of witnesses which does not produce in your minds 5 belief in the likelihood of truth, as against the testimony of 6 a lesser number of witnesses or other evidence which does 7 produce such belief in your minds. 8 not which side brings the greater number of witnesses or 9 presents the greater quantity of evidence but which witness and 10 which evidence appeals to your minds as being most accurate and 11 otherwise trustworthy. 12 You are not bound In other words, the test is The testimony of one witness or just a few witnesses 13 in whom you have complete confidence may outweigh the testimony 14 of several witnesses in whom you do not have such confidence. 15 Similarly, one or two exhibits which you find compelling may 16 outweigh numerous exhibits which you find less compelling. 17 it is the quality of the evidence, not the quantity of the 18 evidence, that you should be concerned with. So 19 Now, you as jurors are the sole and exclusive judges 20 of the credibility of each of the witnesses called to testify. 21 Only you determine -- excuse me -- only you determine the 22 importance or the weight that their testimony deserves. 23 evaluating the credibility of a witness, you may decide to 24 believe all of that witness's testimony, only a portion of it, 25 or none of it at all. After Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 113 of 162 PageID# 6245 1528 1 In evaluating a witness's credibility, you should 2 carefully consider all of the testimony given, the 3 circumstances under which each witness has testified, and every 4 matter in evidence which tends to show whether a witness in 5 your opinion is worthy of belief. 6 intelligence, motive to falsify, state of mind, and appearance 7 and manner while on the witness stand. 8 ability to observe the matters as to which he or she has 9 testified, and consider whether the witness impresses you as Consider each witness's Consider the witness's 10 having an accurate memory or recollection of these matters. 11 Consider also any relation a witness may bear to either side of 12 the case, the manner in which each witness might be affected by 13 your verdict, and the extent to which, if at all, each witness 14 is either supported or contradicted by other evidence in the 15 case. 16 Inconsistencies or discrepancies in the testimony of 17 a witness or between the testimony of different witnesses may 18 or may not cause you to disbelieve or discredit such testimony. 19 Two or more persons witnessing an incident may simply see or 20 hear it differently. 21 something is not an uncommon human experience. 22 the effect of a discrepancy, however, always consider whether 23 it pertains to a matter of importance or to an insignificant 24 detail, and consider whether the discrepancy results from 25 innocent error or from intentional falsehood. Innocent mistakes in remembering In evaluating Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 114 of 162 PageID# 6246 1529 1 After making your own judgment concerning the 2 believability of a witness, you can then attach such importance 3 or weight to that testimony, if any, that you feel it deserves. 4 The rules of evidence ordinarily do not permit 5 witnesses to testify as to opinions or conclusions. An 6 exception to this rule exists as to those whom we call expert 7 witnesses. 8 become expert in some art, science, profession, or calling may 9 state their opinions as to relevant and material matters in Witnesses who by education and experience have 10 which they profess to be expert and may also state their 11 reasons for the opinions. 12 You should consider each expert opinion received in 13 evidence and give it such weight as you think it deserves. 14 you should decide that the opinion of an expert witness is not 15 based upon sufficient education and experience or if you should 16 conclude that the reason given in support of the opinion -- 17 reasons given in support of the opinion are not sound, or if 18 you feel that it is outweighed by other evidence, you may 19 disregard the opinion entirely. 20 If A witness may be discredited -- and the technical 21 term is "impeached" -- by contradictory evidence or by evidence 22 that at some other time, the witness has said or done something 23 or has failed to say or do something that is inconsistent with 24 the witness's present testimony. 25 If you believe any witness has been impeached and Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 115 of 162 PageID# 6247 1530 1 thus discredited, it is your exclusive province to give the 2 testimony of that witness such credibility, if any, as you may 3 think it deserves. 4 If a witness is shown knowingly to have testified 5 falsely concerning any material matter, you have a right to 6 distrust such witness's testimony in other particulars, and you 7 may reject all the testimony of that witness or give it such 8 credibility as you may think it deserves. 9 An act or omission is knowingly done if voluntarily 10 and intentionally done and not done because of a mistake or 11 accident or other innocent reason. 12 Now, during the trial of this case, the testimony of 13 Mr. Merlin was presented to you by way of video deposition 14 which consisted of sworn recorded answers to questions asked of 15 the witness in advance of the trial by the attorneys for the 16 parties to the case. 17 reason cannot be present to testify from the witness stand may 18 be presented through a video recording played on a television 19 set. 20 is to be judged as to credibility and weighed and otherwise 21 considered by the jury insofar as possible in the same way as 22 if the witness had been physically present in the courtroom and 23 had testified from the witness stand. 24 25 The testimony of a witness who for some Such testimony is entitled to the same consideration and During this trial, you heard testimony from witnesses who are currently employed by the Central Intelligence Agency. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 116 of 162 PageID# 6248 1531 1 You also heard testimony from former employees of the Central 2 Intelligence Agency, some of whom continue to work for the 3 agency as contractors, and you heard the testimony of Human 4 Asset No. 1 by video deposition and that of his wife. 5 witnesses testified either by using only initials or using a 6 made-up name -- Merlin, that's a made-up name -- if you were 7 not told their true names. 8 a screen preventing the general public from seeing them. 9 These These witnesses also testified with The disclosure of the witnesses' names and their 10 physical identity could potentially compromise either their 11 continued work for the CIA or expose them to safety issues. 12 As I have explained to you, one of your roles as 13 jurors will be to assess the credibility of each witness who 14 has testified during this trial. 15 judgments about the credibility of those witnesses simply 16 because you do not know their full names or because they 17 testified with the screen. 18 the manner in which such witnesses testified as an expression 19 of my opinion as to any of the facts of this case. 20 is your job and your job alone to decide the facts of this 21 case. 22 You should not make any Moreover, you should not consider Again, it The defendant in a criminal case has an absolute 23 right under our Constitution not to testify. The fact that the 24 defendant, Jeffrey Alexander Sterling, did not testify must not 25 be discussed or considered by the jury in any way when Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 117 of 162 PageID# 6249 1532 1 deliberating and in arriving at your verdict. 2 any kind may be drawn from the fact that a defendant decided to 3 exercise his privilege under the Constitution and did not 4 testify. 5 No inference of As I stated earlier, the law never imposes upon a 6 defendant in a criminal case the burden or duty of calling any 7 witnesses or of producing any evidence. 8 9 Now, the next series of instructions are going to talk about the indictment, which is the document used to bring 10 the charges, and then the specific charges involved in this 11 case, and we'll also be giving you some definitions of some of 12 the terms that are involved in those charges. 13 An indictment is a formal method used by the 14 government to accuse a person of a crime. 15 of any kind against a person. 16 innocent of the crimes charged. 17 been returned against Mr. Sterling, he begins this trial with 18 absolutely no evidence against him. 19 It is not evidence Mr. Sterling is presumed to be Even though the indictment has Mr. Sterling has pleaded not guilty to all the 20 charges in this indictment and therefore denies that he is 21 guilty of the charges. 22 A separate crime is alleged against the defendant in 23 each count of the indictment. Each alleged offense and any 24 evidence pertaining to it should be considered separately by 25 the jury. The fact that you find the defendant guilty or not Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 118 of 162 PageID# 6250 1533 1 guilty of one of the offenses charged should not control your 2 verdict as to any other offense charged against the defendant. 3 4 5 In other words, you must give separate and individual consideration to each charge against the defendant. The indictment charges that the alleged offenses were 6 committed between on or about certain dates. Although it is 7 necessary for the government to prove beyond a reasonable doubt 8 that each offense was committed on a date reasonably near the 9 date or dates alleged in the specific count being considered, 10 it is not necessary for the government to prove that each 11 offense was committed precisely on the dates charged. 12 13 14 The defendant is not on trial for any act or any conduct not specifically charged in the indictment. Now, the government has introduced evidence that 15 defendant had classified documents, and these are Exhibits 142 16 through 145, in his custody when his residence was searched. 17 Evidence that an act was done by the defendant at some other 18 time is not, of course, any evidence or proof whatever that at 19 another time, the defendant performed a similar act, including 20 the offenses charged in this indictment. 21 Evidence of a similar act may not be considered by 22 the jury in determining whether the defendant actually 23 performed the physical acts charged in this indictment. 24 may such evidence be considered for any other purpose 25 whatsoever unless the jury first finds beyond a reasonable Nor Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 119 of 162 PageID# 6251 1534 1 doubt from other evidence in the case standing alone that the 2 defendant did the acts charged in the indictment. 3 If the jury should find beyond a reasonable doubt 4 from other evidence in the case that the defendant did the act 5 or acts alleged in the particular count under consideration, 6 the jury may then consider evidence as to an alleged earlier 7 act of a like nature in determining the state of mind or intent 8 with which the defendant actually did the act or acts charged 9 in that particular count. 10 As previously stated, the defendant is not on trial 11 for any acts not alleged in the indictment. 12 defendant be convicted of the crimes charged even if you were 13 to find that he committed other acts, even acts similar to the 14 one charged in this indictment. 15 Nor may a Now, the defendant has been charged in the indictment 16 with knowingly and willfully communicating national defense 17 information to another not entitled to receive such information 18 while being in lawful possession of such information. 19 charges specifically that the defendant caused national defense 20 information, namely, information about Classified Program No. 1 21 and Human Asset No. 1, to be communicated, delivered, and 22 transmitted to any person of the general public not entitled to 23 receive this information, including foreign adversaries, 24 through the publication, distribution, and delivery of State of 25 War into the Eastern District of Virginia in approximately late Count 1 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 120 of 162 PageID# 6252 1535 1 2 December and early January of 2006. It's further alleged in Count 1 that the defendant 3 did so while having reason to believe that this national 4 defense information could be used to the injury of the United 5 States or to the advantage of any foreign nation. 6 Count 4 charges that the defendant communicated, 7 delivered, and transmitted national defense information, 8 namely, information about Classified Program No. 1 and Human 9 Asset No. 1, directly and indirectly to James Risen, a person 10 of the general public not entitled to receive this information, 11 between February 12 and April 30 of 2003. 12 that the defendant did so while having reason to believe that 13 this national defense information could be used to the injury 14 of the United States or to the advantage of any foreign nation. 15 Finally, Count 6 charges that the defendant attempted It's further alleged 16 to communicate, deliver, and transmit national defense 17 information, namely, information about Classified Program No. 1 18 and Human Asset No. 1, to any person of the general public not 19 entitled to receive this information, including foreign 20 adversaries, through the publication, distribution, and 21 delivery of a New York Times article in the Eastern District of 22 Virginia between February 27, 2003, and April 30, 2003. 23 it's further alleged that the defendant did so while having 24 reason to believe that this national defense information could 25 be used to the injury of the United States or to the advantage And Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 121 of 162 PageID# 6253 1536 1 of any foreign nation. 2 Now, the statute defining the offenses charged -- the 3 offense charged in Counts 1, 4, and 6 is Title 18 of the United 4 States Code, Section 793(d), and that code provides in part: 5 Whoever, lawfully having possession of, access to, 6 control over, or being entrusted with any document, 7 writing, . . ., or note relating to the national defense, or 8 information relating to the national defense which information 9 the possessor has reason to believe could be used to the injury 10 of the United States or to the advantage of any foreign nation, 11 willfully communicates, delivers, transmits, or causes to be 12 communicated, delivered, or transmitted . . . the same to any 13 person not entitled to receive it . . . shall be guilty of an 14 offense against the United States. 15 The defendant -- and I'm going to now talk about 16 Counts 2, 5, and 7. The defendant has been charged in the 17 indictment with knowingly and willfully disclosing -- I'm 18 sorry, communicating national defense information to another 19 not entitled to receive said information while not being in 20 lawful possession of this information. 21 Count 2 charges that the defendant caused national 22 defense information, namely, a letter relating to Classified 23 Program No. 1, to be communicated, delivered, and transmitted 24 to any person of the general public not entitled to receive 25 this information, including foreign adversaries, through the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 122 of 162 PageID# 6254 1537 1 publication, distribution, and delivery of State of War into 2 the Eastern District of Virginia in approximately late December 3 and early January 2006. 4 reason to believe that this national defense information -- I'm 5 sorry, it's alleged that the defendant did so while having 6 reason to believe that this national defense information could 7 be used to the injury of the United States or to the advantage 8 of any foreign nation. 9 The defendant did so while having Count 5 charges that the defendant communicated, 10 delivered, and transmitted national defense information, 11 namely, a letter relating to Classified Program No. 1, directly 12 and indirectly to James Risen, a person of the general public 13 not entitled to receive this information, between February 12, 14 2003, and April 30, 2003. 15 defendant did so while having reason to believe that this 16 national defense information could be used to the injury of the 17 United States or to the advantage of any foreign nation. 18 And it's further alleged that the Finally, Count 7 charges that the defendant attempted 19 to communicate, deliver, and transmit national defense 20 information, namely, a letter about Classified Program No. 1, 21 to any person of the general public not entitled to receive 22 this information, including foreign adversaries, through the 23 publication, distribution, and delivery of a New York Times 24 article in the Eastern District of Virginia between February 27 25 and April 30 of 2003. And it's further alleged that the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 123 of 162 PageID# 6255 1538 1 defendant did so while having reason to believe that this 2 national defense information could be used to the injury of the 3 United States or to the advantage of any foreign nation. 4 Now, Counts 2, 5, and 7 involve a different 5 subsection of Section 793 of Title 18 of the United States 6 Code, and (e) provides in relevant part that: 7 unlawfully having possession of, access to, control over, or 8 being entrusted with any document, writing, . . ., or note 9 relating to the national defense, or information relating to Whoever, 10 the national defense which information the possessor has reason 11 to believe could be used to the injury of the United States or 12 to the advantage of any foreign nation, willfully communicates, 13 delivers, transmits, or causes to be communicated, delivered, 14 or transmitted . . . the same to any person not entitled to 15 receive it . . . shall be guilty of an offense against the 16 United States. 17 Now, every crime has what are called elements. These 18 are actually the essential components of that crime, and in a 19 criminal case, in order for a person to be found guilty of a 20 particular crime, the government must produce enough evidence 21 to establish each and every element beyond a reasonable doubt. 22 So if you have a crime with four elements and you're satisfied 23 the government has proven three of those four elements beyond a 24 reasonable doubt but not the fourth element, the government has 25 not met its burden, and you would have to acquit the defendant Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 124 of 162 PageID# 6256 1539 1 for that particular count. 2 So in order to meet its burden of proof on Counts 1, 3 2, and 4 through 7, that is, the counts I've just summarized 4 for you, the government must prove beyond a reasonable doubt 5 the following elements: 6 First, for Counts 1, 4, and 6, that the defendant 7 lawfully had possession of, access to, control over, or was 8 entrusted with intangible or oral information relating to the 9 national defense. 10 For Counts 2, 5, and 7, the first element is that the 11 defendant had unauthorized possession of, access to, control 12 over, or was entrusted with a document, writing, or note 13 relating to the national defense. 14 So the first element is different for Counts 1, 4, 15 and 6. It's one first element. There's a different first 16 element for Counts 2, 5, and 7. 17 fourth elements for these offenses are the same. But the second, third, and 18 The second element -- this applies then to all of 19 those counts -- is that the defendant had reason to believe 20 that this national defense information could be used to the 21 injury of the United States or to the advantage of any foreign 22 nation. 23 The third element that's common to all of those 24 counts is that the defendant willfully communicated, delivered, 25 transmitted, or caused to be communicated, delivered, or Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 125 of 162 PageID# 6257 1540 1 transmitted this national defense information. 2 And the fourth element common to all of those counts 3 is that the defendant did so to a person not entitled to 4 receive it. 5 information if he did not hold a security clearance or if he 6 holds a security clearance but has no need to know the 7 information. 8 9 10 A person is not entitled to receive classified Now, the word "possess" means to own or to exert control over something. The word "possession" can take on several different but related meanings. 11 The law recognizes two kinds of possession -- actual 12 possession and constructive possession. 13 has direct physical control over a thing at a given time is in 14 actual possession of it. 15 pen in my hand. 16 blue pen. 17 A person who knowingly The example is I'm holding this blue I have actual, physical possession of this Now, a person who although not in actual possession, 18 knowingly has both the power and intention at a given time to 19 exercise dominion or control over a thing, either directly or 20 through another person or persons, is said to have constructive 21 possession of it. 22 right here, works for me. 23 her to send an e-mail message to my secretary, I at that time 24 have constructive possession of that computer because I'm in 25 the position to control how it's being used. My courtroom deputy, Ms. Guyton, sitting She's got the computer. If I direct Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 126 of 162 PageID# 6258 1541 1 Now, you may find that the element of possession as 2 that term is used in these instructions is present if you find 3 beyond a reasonable doubt that the defendant had actual or 4 constructive possession of the thing at issue. 5 For Counts 1, 4, and 6, I'm now going to define two 6 key terms: "lawful possession" and "unlawful possession," 7 because that's what differentiates that first element for these 8 counts. 9 possession of something if he is entitled to have it. So for Counts 1, 4, and 6, a person has lawful In this 10 case, lawful possession of classified information means 11 possession of classified information by a person who held an 12 appropriate security clearance and had a need to know at the 13 time the person acquired the classified information. 14 For Counts 2, 5, and 7, a person has unauthorized 15 possession of something if he is not entitled to have it. 16 this case, unauthorized possession of classified information, 17 namely, a letter related to Classified Program No. 1, means 18 possession of classified information by a person who does not 19 hold a security clearance or by a person who holds a security 20 clearance without the need to know, or by a person who holds a 21 security clearance, has a need to know, but removed the 22 classified information from the official premise without 23 authorization. 24 25 In The term "need to know" means a determination made by an authorized holder of classified information that a Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 127 of 162 PageID# 6259 1542 1 prospective recipient requires access to specific classified 2 information in order to perform or assist in a lawful and 3 authorized government function. 4 For those first six counts, that is, for Counts 1, 2, 5 and 4 through 7, the term "information relating to the national 6 defense" broadly refers to all matters that directly or may 7 reasonably be connected with the national defense of the United 8 States against any of its enemies, including matters relating 9 to the nation's intelligence capabilities. 10 The term "national defense" is a generic concept of 11 broad connotation referring not only to military, naval, and 12 air establishments, but also to all related activities of 13 national defense preparedness. 14 can be oral or intangible information. 15 National defense information To prove that documents, writings, or intangible 16 information relate to the national defense, there are two 17 things that the government must prove. 18 that the disclosure of the material would be potentially 19 damaging to the United States or might be useful to an enemy of 20 the United States. 21 closely held by the United States government. 22 First, it must prove Second, it must prove that the material is The disclosure of the information relating to the 23 national defense need not cause actual damage or harm to the 24 United States. 25 States is sufficient to establish this prong of the essential Instead, potential damage or harm to the United Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 128 of 162 PageID# 6260 1543 1 2 element. In determining whether material is closely held, you 3 may consider whether it has been classified by appropriate 4 authorities and whether it remained classified on the date or 5 dates pertinent to the indictment. 6 been made public by the United -- I'm sorry, where the 7 information has been made public by the United States 8 government and is found in sources lawfully available to the 9 general public, it does not relate to the national defense. Where the indictment has 10 Similarly, where the sources of information are lawfully 11 available to the public and the United States government has 12 made no effort to guard such information, the information 13 itself does not relate to the national defense. 14 In deciding this issue, you should examine the 15 information and also consider the testimony of witnesses who 16 testified as to the content and significance of the information 17 and who described the purpose and the use to which the 18 information contained therein could be put. 19 During the trial, you may have heard the attorneys 20 refer to certain evidence or materials as classified 21 information or that certain information was classified. 22 Classified information is information that has been determined 23 pursuant to a system established by the Executive Branch to 24 require protection against unauthorized disclosure. 25 As I have previously instructed you, when considering Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 129 of 162 PageID# 6261 1544 1 Counts 1, 2, and 4 through 7, you are to determine whether 2 certain information in this case was national defense 3 information. 4 However, you may consider the fact that information was 5 classified in determining whether the information at issue was 6 national defense information. That is not the same as classified information. 7 For Counts 1, 2, and 4 through 7, the phrase "with 8 reason to believe that it could be used to the injury of the 9 United States or to the advantage of a foreign nation" means 10 that the defendant knew facts from which he concluded or 11 reasonably should have concluded that the documents, writings, 12 or intangible information relating to the national defense 13 could be used for the prohibited purposes. 14 whether or not the defendant acted with the intent or having 15 reason to believe that the material could be used to the injury 16 of the United States or to the advantage of a foreign country, 17 you may consider the nature of the documents or information 18 involved. 19 In considering The government does not have to prove that the 20 documents or information could be used both to injure the 21 United States and to the advantage of a foreign country. 22 statute reads in the alternative, so proof of either will 23 suffice. The 24 If a defendant willfully causes an act to be done by 25 another, the defendant is responsible for those acts as though Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 130 of 162 PageID# 6262 1545 1 he personally committed them. 2 caused an act to be done, the government must prove beyond a 3 reasonable doubt: 4 To establish that the defendant First, that another person performed the acts that 5 constituted the crime of unauthorized communication of national 6 defense information or committed an indispensable element of 7 that crime; and 8 9 Two, that the defendant willfully caused these acts even though he did not personally commit these acts. 10 The government need not prove that the person who 11 performed the acts that constituted the crime of unauthorized 12 communication of national defense information did so with 13 criminal intent. 14 or pawn. 15 That person may be an innocent intermediary The defendant need not perform acts that constitute 16 the crime of unauthorized communication of national defense 17 information, be present when it was performed, or be aware of 18 the details of its execution to be guilty of causing an act to 19 be done by another. 20 act may occur or that something criminal is happening is not 21 enough. 22 national defense information is being committed without more is 23 also not sufficient to establish causing an act to be done 24 through another. 25 However, a general suspicion that a lawful Mere knowledge that the unauthorized communication of As I have instructed you, an act is done willfully if Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 131 of 162 PageID# 6263 1546 1 done voluntarily and intentionally with the intent that 2 something the law forbids be done, that is to say, with bad 3 purpose, either to disobey or disregard the law. 4 For Counts 1, 2, and 4 through 7, an act is done 5 willfully -- and I'm just going to repeat this because it comes 6 through all the instructions -- if it is done voluntarily and 7 intentionally and with the specific intent to do something the 8 law forbids, that is, with a purpose to disobey the law. 9 Now, for Counts 1, 2, and 4 through 7, the government 10 must prove beyond a reasonable doubt each and every element of 11 these offenses as I have explained them to you. 12 government, however, does not have to prove that the defendant 13 was the only person who communicated the national defense 14 information alleged in the indictment. 15 limited to determining whether the government has proved beyond 16 a reasonable doubt that the defendant committed the offenses 17 charged, irrespective of whether other persons may have 18 communicated the same or similar information. 19 The Your duty as jurors is Now, we're moving on to Count 3. The defendant has 20 been charged in Count 3 of the indictment with knowingly and 21 willfully retaining national defense information while having 22 unauthorized possession of that information. 23 Count 3 charges specifically that the defendant 24 unlawfully retained a document relating to the national 25 defense, namely, a letter relating to Classified Program No. 1, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 132 of 162 PageID# 6264 1547 1 at his residence beginning in or about January 31, 2002, and 2 continuing through approximately April 30 of 2003. 3 The statute, and this is another section of 793 -- of 4 Title 18, United States Code, 793(a) -- (e), 793(e), provides 5 that: 6 document . . . relating to the national defense . . . willfully 7 retains the same and fails to deliver it to the office or 8 employee of the United States entitled to receive it . . . 9 shall be guilty of an offense against the United States. 10 11 12 Whoever having unauthorized possession of . . . any And for this offense, for Count 3, there are two essential elements: First, that beginning in or about January 31 of 13 2012 -- that's 2002; that's a typo -- and continuing thereafter 14 through on or about April 20 of 2003, the defendant had 15 unauthorized possession or control over a document relating to 16 the national defense of the United States; and 17 Two, that the defendant willfully retained the same 18 document and failed to deliver the document to an officer or an 19 employee of the United States who was entitled to receive it. 20 The first element the government must prove for this 21 defense is that the defendant had unauthorized possession of or 22 control over information that relates to the national defense. 23 The definitions I previously provided you with respect to 24 unauthorized possession and information relating to the 25 national defense apply equally to this count. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 133 of 162 PageID# 6265 1548 1 The second element the government must prove beyond a 2 reasonable doubt is that the defendant willfully retained the 3 document in question and failed to deliver it to an officer or 4 employee of the United States authorized to receive the 5 document. 6 As I've instructed you already, an act is done 7 willfully if it is done voluntarily and intentionally and with 8 the specific intent to do something the law forbids, that is, 9 with a bad purpose either to disobey or disregard the law. 10 Unlike the intent element for Counts 1, 2, and 4 through 7, for 11 Count 3, the government does not have to prove that the 12 defendant acted with the intent or reason to believe that his 13 retention of the document could be used to the injury of the 14 United States or to the advantage of any foreign nation. 15 Instead, the government only must prove that the defendant 16 acted willfully as defined above. 17 Now, Count 9 of the indictment charges that between 18 on or about December 24, 2005, and on or about January 5, 2006, 19 the defendant caused to be conveyed without authority property 20 of the United States, namely, classified information about 21 Classified Program No. 1, which had a value of more than 22 $1,000, and came into the defendant's possession by virtue of 23 his employment with the Central Intelligence Agency, to any 24 member of the general public not entitled to receive said 25 information, including foreign adversaries, through the Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 134 of 162 PageID# 6266 1549 1 publication, distribution, and delivery of the State of War for 2 retail sale in the Eastern District of Virginia. 3 Title 18 of the United States Code, Section 641, 4 provides: 5 disposes of any record, voucher, money, or thing of value of 6 the United States or of any department or agency thereof, or 7 any property made or being made under control for the United 8 States or any department or agency thereof . . . shall be 9 guilty of an offense against the United States. 10 Whoever . . . without authority sells, conveys, or And there are four essential elements for this 11 offense. 12 of these beyond a reasonable doubt: 13 14 15 16 17 18 Again, the government must prove each and every one First, that the defendant conveyed a thing of value of the United States; Second, that the defendant did not have the legal authority to do so; Third, that the thing of value referred to in the indictment was of a value greater than $1,000; and 19 Four, that the defendant acted knowingly. 20 The word "convey" means to transfer or deliver or 21 caused to be transferred or delivered to another. 22 term "without authority" means without actual permission from 23 someone who has the legal capacity to give permission. 24 25 The The term "value" can mean face value, par value, market value, or cost price, either wholesale or retail, Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 135 of 162 PageID# 6267 1550 1 whichever is greater. 2 including oral information or intangible property, that has 3 value. 4 A thing of value can be any thing, An individual acts knowingly if he was conscious and 5 aware of his actions, realized what he was doing or what was 6 happening around him, and did not act because of ignorance, 7 mistake, or accident. 8 faith, he cannot be guilty of the crime. 9 intent, as with all other elements of the crime, rests with the 10 Thus, if the defendant acted in good The burden to prove government. 11 Intent or knowledge may not ordinarily be proven 12 directly because there's no way of directly scrutinizing the 13 workings of the human mind. 14 knew or intended at a particular time, you may consider any 15 statements made or acts done or omitted by the defendant and 16 all other facts and circumstances received in evidence that may 17 aid in your determination of the defendant's knowledge or 18 intent. 19 infer, that a person intends the natural and probable 20 consequences of acts knowingly done or knowingly omitted. 21 is entirely up to you, however, to decide what facts are proven 22 by the evidence received during this trial. 23 In determining what the defendant You may infer, but you certainly are not required to It Intent and motive are different concepts and should 24 not be confused. 25 fail to act. Motive is what prompts a person to act or Intent refers only to the state of mind with Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 136 of 162 PageID# 6268 1551 1 which the act is done or omitted. 2 Good motive alone is never a defense where the act 3 done or omitted is a crime. The motive of the defendant is 4 therefore immaterial except insofar as evidence of motive may 5 aid in the determination of state of mind or the intent of the 6 defendant. 7 This is now the last count that you have to consider: 8 Count 10 of the indictment charges that the defendant knowingly 9 and corruptly destroyed the March 10, 2003, e-mail from himself 10 to James Risen that had a link to a CNN article about the 11 Iranian nuclear weapons program. 12 have deleted this e-mail from his e-mail account with the 13 intent to impair the e-mail's integrity and availability for 14 use in an investigation before a federal grand jury empaneled 15 in the Eastern District of Virginia between approximately April 16 18, 2006, and July 28, 2006. 17 The defendant is alleged to Title 10 involves a violation of section 1512(c) of 18 Title 18 of the United States Code, which provides in part: 19 Whoever corruptly alters, destroys, mutilates, or conceals a 20 record, document, or other object, or attempts to do so with 21 the intent to impair the object's integrity or availability for 22 use in an official proceeding; or otherwise obstructs, 23 influences, or impedes any official proceeding, or attempts to 24 do so, shall be guilty of an offense against the United States. 25 There are three essential elements, again, all of Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 137 of 162 PageID# 6269 1552 1 which must be proven beyond a reasonable doubt in order for 2 there to be a conviction on Count 10. 3 First is that the defendant altered, destroyed, 4 mutilated, or concealed a record, document, or other object, or 5 attempted to do so, or otherwise obstructed, influenced, or 6 impeded an official proceeding; 7 Two, that the defendant did so with the intent to 8 impair the object's integrity or availability for use in an 9 official proceeding; and 10 Third, that the defendant did so corruptly. 11 The document destroyed need not, need not be material 12 to the official proceeding. 13 14 An "official proceeding" means any proceeding, including an investigation before a federal grand jury. 15 To act "corruptly" as that word is used in these 16 instructions means to act voluntarily and deliberately and for 17 the purpose of improperly influencing, or improperly 18 obstructing, or improperly interfering with the administration 19 of justice. 20 probable effect of interfering with the due administration of 21 justice. 22 the act of obstruction in fact obstructed the official 23 proceeding or was successful. The defendant's conduct must have the natural and The government, however, does not have to prove that 24 In addition to the elements of the specific charges 25 which the government must prove beyond a reasonable doubt, as Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 138 of 162 PageID# 6270 1553 1 to each charge, the government must also establish the venue of 2 that charge in the Eastern District of Virginia because a 3 defendant has a right to be tried in the district where the 4 offense was committed. 5 Although, although the government has the burden to 6 prove venue, it is not required to prove venue beyond a 7 reasonable doubt. 8 by a preponderance of the evidence, which is a lower standard 9 of proof and requires that it is more likely than not that at Rather, the government must establish venue 10 least one act in furtherance of that offense occurred in the 11 Eastern District of Virginia. 12 venue as to each charged offense. 13 The government must establish If the government fails to establish venue for a 14 particular charge, the jury must acquit the defendant of that 15 charge. 16 I instruct you that you must presume the defendant to 17 be innocent of the crimes charged. Thus, the defendant, 18 although accused of crimes in the indictment, begins the trial 19 with a clean slate, that is, with no evidence against him. 20 indictment, as you already know, is not evidence of any kind. 21 The defendant is, of course, not on trial for any act or crime 22 not contained in the indictment. 23 legal evidence presented before the jury in court to be 24 considered in support of any charge against the defendant, and 25 the presumption of innocence alone therefore is sufficient to The The law permits nothing but Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 139 of 162 PageID# 6271 1554 1 acquit the defendant. 2 The burden is always upon the prosecution to prove 3 guilt beyond a reasonable doubt. 4 the defendant for the law never imposes upon a defendant in a 5 criminal case the burden or duty of calling any witnesses or 6 producing any evidence. 7 produce any evidence by cross-examining the witnesses for the 8 government. 9 The defendant is not even obligated to It is not required that the government prove guilt 10 beyond all possible doubt. 11 doubt. 12 are not technical legal terms. 13 That burden never shifts to The test is one of reasonable And I can't give you a definition for that term. Those English language. Unless the government proves beyond a reasonable 14 doubt that the defendant has committed each and every element 15 of the offenses charged in the indictment, you must find the 16 defendant not guilty of the offenses. 17 evidence in the case as reasonably permitting either of two 18 conclusions, one of innocence and one of guilt, the jury must, 19 of course, adopt the conclusion of innocence. 20 If the jury views the Now, this is the last instruction, and I know you've 21 been with this for almost an hour. Upon retiring to the jury 22 room to begin your deliberations, you will elect one of your 23 members to act as your foreperson. 24 over your deliberations, will be your spokesperson here in 25 court, and will sign the verdict form on your behalf. The foreperson will preside Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 140 of 162 PageID# 6272 1555 1 Your verdict must represent the collective judgment 2 of the jury. In order to return a verdict, it is necessary 3 that each juror agree to it. 4 other words, your verdict must be unanimous. That is what unanimity means. In 5 It is your duty as jurors to consult with one another 6 and to deliberate with one another with a view towards reaching 7 an agreement if you can do so without violence to your 8 individual judgment. 9 yourself, but do so only after an impartial consideration of Each of you must decide the case for 10 all the evidence in the case with all the other jurors. 11 course of your deliberations, do not hesitate to reexamine your 12 own views and to change your opinion if convinced it is 13 erroneous. 14 solely because of the opinion of the other jurors or for the 15 mere purpose of returning a verdict. 16 Do not surrender your honest conviction, however, Remember at all times you are not partisans. 17 don't represent the government; you don't represent the 18 defendant. 19 the facts of this case. 20 truth from the evidence received during the trial. 21 In the You Instead, you are judges, specifically, judges of And your sole interest is to seek the Your verdict must be based solely upon the evidence 22 received in the case. Nothing you have seen or read outside of 23 court may be considered. 24 during the course of this trial is intended in any way to 25 somehow suggest to you what I think your verdict should be. Nothing that I have said or done Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 141 of 162 PageID# 6273 1556 1 The punishment provided by law for the offenses 2 charged in the indictment is a matter exclusively within the 3 province of the Court and should never be considered by the 4 jury in any way in arriving at an impartial verdict as to the 5 offenses charged. 6 Nothing said in these instructions and nothing in the 7 verdict form prepared for your convenience is to suggest or 8 convey to you in any way or manner any intimation as to what 9 verdict I think you should return. What the verdict shall be 10 is the exclusive duty and responsibility of the jury. 11 told you many times before, you are the sole judges of the 12 facts. 13 As I've Now, a verdict form has been prepared for your 14 convenience, and you will notice that it skips from Count 7 to 15 Count 9. 16 worry about the missed number. 17 There is no Count 8 at issue in this case, so don't You will take this verdict form to the jury room, and 18 when you have reached your unanimous agreement as to your 19 verdict, the foreperson will write your verdict, date and sign 20 the form, and return with your verdict to the courtroom. 21 Let me go over the verdict form with you right now. 22 So it begins with the caption of the case, United States of 23 America v. Jeffrey Alexander Sterling, and it has the case 24 number, and then we've listed each count. 25 Count 1 -- and you can go back to the jury Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 142 of 162 PageID# 6274 1557 1 instructions and find exactly what that count is referring to. 2 And it just says: 3 disclosure of national defense information," and then it has 4 the code section, "we, the jury, unanimously find the 5 defendant, Jeffrey Alexander Sterling," and there are two 6 choices: 7 that Guilty is listed first in no respect suggests that that 8 should be your answer, but we have to put the thing someplace, 9 and alphabetical seems as easy as any other way of doing it. 10 "With respect to Count 1, unauthorized Guilty/Not Guilty. "G" comes before "N," so the fact And then we go through each count that way, so then 11 there's a separate line for Count 2. 12 gets an individual evaluation and individual decision, and 13 again, any decision as to any count must be unanimous. 14 Each one of these counts At the very end then, the foreperson will date the 15 verdict form with the date the decision, the final decision is 16 made. 17 then please print it underneath since we often can't read your 18 signatures. 19 We'll ask the foreperson to sign his or her name and Now, you will take this verdict form into the jury 20 room. 21 were entered into evidence, and I asked the attorneys to 22 provide you with an index of those, so you'll have the exhibit 23 number and a little title of what the exhibit is to help you 24 find them because you have a lot of evidence in this case. 25 You will also have all of the physical exhibits that I will also, I have to correct a few typos, but I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 143 of 162 PageID# 6275 1558 1 will have for you a couple of copies of these written jury 2 instructions as well so you can refresh yourselves as to any 3 matter that we've talked about in these instructions. 4 take your notebooks with you as well. 5 You may If it becomes necessary during your deliberations to 6 communicate with the Court, you may send a note signed and 7 dated by your foreperson or by any of the other members of the 8 jury, and you do that by knocking on the door and giving the 9 note folded over to Mr. Wood, my court security officer. Of 10 course, he is forbidden to communicate in any way or manner 11 with any member of the jury on any subject touching the merits 12 of the case. 13 No member of the jury should ever attempt to 14 communicate with the Court by any means other than a signed 15 writing, and the Court will never communicate with any member 16 of the jury on any subject touching the merits of the case 17 other than via writing or orally here in court. 18 Also, please bear in mind that you are never to 19 reveal to any person, not even the Court, how the jury stands 20 numerically or otherwise on any issue until after you've 21 reached the unanimous verdict. 22 All right, counsel, approach the bench. 23 (Bench conference on the record.) 24 THE COURT: 25 All right, you may have noticed as I read I'm going to switch the word "communicate" on two of those Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 144 of 162 PageID# 6276 1559 1 instructions. That's how I read them. 2 wrong, okay, for those counts. 3 "communicate" rather than "disclose." 4 MR. OLSHAN: 5 THE COURT: 6 They're just typed Because we were using the word That's fine. Any objection from the government to the charge that's just been given to the jury? 7 MR. OLSHAN: 8 MR. TRUMP: No. 9 THE COURT: Are there any changes, corrections, 10 No, Your Honor. anything you want the Court to change? 11 MR. OLSHAN: No. 12 THE COURT: 13 How about the defense? No? Other than the objections 14 you've already put on the record, are there any additional 15 objections to the charge other than what you've already 16 objected to? 17 MR. MAC MAHON: 18 THE COURT: 19 me to tell the jury? No, Your Honor. Are there any additional things you want 20 MR. MAC MAHON: 21 THE COURT: 22 MR. MAC MAHON: 23 THE COURT: No, Your Honor. We're set to go then, right? We have to get rid of two jurors. I know. We have to do the alternates. 24 That's the next thing, okay. The practice here is that 25 Ms. Guyton should have all 14 jurors' names in the box. Are Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 145 of 162 PageID# 6277 1560 1 you ready to do it? 2 Is everyone watching? All right. 3 No, you do it. 4 All right, who is that? All right, the first one is 5 David Harrison, Juror No. 42, all right? 6 No. 1. 7 She's No. 2. So he's the alternate And the second one is Suzanne Yerks, Juror No. 101. All right? 8 Why don't you go back, and I'll excuse them. 9 MR. MAC MAHON: Thank you, Your Honor. 10 (End of bench conference.) 11 THE COURT: Now, ladies and gentlemen, I know you've 12 been a very smart and attentive jury, and I bet at least one of 13 you has been wondering, There are 14 of us, but juries are only 14 made up of 12 people. 15 selected to be alternates, and, Mr. Harrison, you're alternate 16 No. 1; Ms. Yerks, you are alternate No. 2. 17 Where's Ms. Yerks? 18 19 It turns out two of you have been (Juror Yerks raised hand.) THE COURT: I want to first of all tell you folks we 20 really appreciate the time you've spent listening to this case. 21 Now, your job is not over yet. 22 deliberate with the 12 people who remain in the jury. 23 to have alternates because should any of you have had a family 24 emergency or, you know, get sick, the flu is around, and would 25 have been unable to come to the courthouse, we have to have 12 You will not be able to We have Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 146 of 162 PageID# 6278 1561 1 jurors in a criminal case. 2 people here to make sure we could get this case finished, but 3 at this point, I can't have more than 12 people in the jury 4 room. 5 We would have had enough extra If, however, during the course of the deliberations a 6 juror should get ill or for some reason before the jury is 7 finished we lose somebody, then, Mr. Harrison, we would call 8 you to come back in. 9 then we'd have to call you back in. 10 And, Ms. Yerks, if we lost two jurors, Therefore, it's extremely important, and I know this 11 is terribly unfair, but I have to keep you under the same 12 caution: 13 this case. 14 Washington Post this morning, so stay away from the paper or at 15 least go to the sports section. 16 17 18 You must still continue to avoid any publicity about It was discussed on the first page of The Do not discuss this case. The 12 of you can't e-mail or send any notes or have any communication with your two former colleagues. If you will leave your phone numbers with Ms. Guyton, 19 we will call you so that you know either that we need you back 20 here or the case is over so that you can then read the paper, 21 and other than anything you might remember about those three 22 classified exhibits, there's nothing that prohibits you from 23 talking about this case, although again, you may want to 24 respect the thoughts of your fellow jurors and not. 25 But at this point, we're going to let Mr. Harrison Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 147 of 162 PageID# 6279 1562 1 and Ms. Yerks go. 2 so that should you have to come back and deliberate -- and as I 3 said, do leave us a note with your phone number on it, okay? 4 And I think we can let you folks go right now, all right? 5 Thank you. 6 Leave your notebooks here. We'll keep them We'll stay in session for another minute. You should check out with the Clerk's Office, 7 Ms. Yerks and Mr. Harrison. 8 alternates so that you're not going to be coming back unless we 9 have to call you back, and just leave your phone numbers, 10 Let them know that you are unless we already have them. 11 Is there a problem? 12 (Discussion off the record between the Court and the 13 14 Court Security Officer.) THE COURT: All right. Well, you're going to get a 15 break now anyway, so what we'll do is this: We're going to 16 give you your afternoon break. 17 once the two alternates have left, so you need to step outside 18 while this is being done, the 12 of you decide who wants to be 19 the foreperson, all right? 20 let me know in a written note how long a break you want to 21 take, all right? 22 cell phone from the car of one of the rest of you, all right? 23 And then you might want to decide how long you want What I would like you to do, And then if the foreperson could During that time, Ms. Yerks can retrieve her 24 to deliberate today. There's -- once a jury starts 25 deliberating, the schedule can change dramatically. If you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 148 of 162 PageID# 6280 1563 1 want to stay past 5:30, that's fine. 2 much later than that, I need to know so I can keep some heat on 3 in the room for you. 4 been our normal time, that's also fine. 5 If you're going to stay If you want to stop at 5:30, which has You should know also that if you have a question, I 6 can't answer your question without running it by the attorneys, 7 and so I require at least one lawyer per side to always stay in 8 my courtroom. 9 to be on a break, I can let those lawyers leave the courtroom 10 11 That does mean, however, that if you are going for that time period. So anytime you take a lunch break or a coffee break, 12 I want you to let me know, you know: 13 time for 15 minutes, and that way I'll let everybody go so that 14 we don't waste your time. 15 track lawyers down, you know, you might wait a half an hour for 16 an answer, and we don't want to do that, all right? 17 We're breaking at this If you have a question and I have to You also might want to think about what time you want 18 to start tomorrow morning. 19 unrelated to this case in my courtroom. 20 priority, but the point is you can start at 9:00, you can start 21 at 8:30, frankly, whenever you want to start, but you can't 22 start until you're all together. 23 As I told you, I have other matters You'll be my first Jury deliberation is a collaborative process, and it 24 means that each of you must be listening to the other 25 discussing the evidence, so if someone's in the restroom, you Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 149 of 162 PageID# 6281 1564 1 should stop deliberating. 2 coffee, you've got to stop deliberating because it's important 3 that you hear each other, all right? 4 If someone's run downstairs to get a All right, we're going to let the jury go now, and if 5 you'd let us know who's going to be the foreperson, how long a 6 break you want, that will be just fine. 7 We'll recess court. 8 (Recess from 2:46 p.m., until 4:22 p.m.) 9 (Defendant present, Jury out.) 10 THE COURT: Well, I told you-all this was a smart 11 jury. I just, I love the questions that we get. 12 they're reading and thinking. 13 It shows that All right, the answer for the first question is easy. 14 "The jury would like further clarification on 'venue' (page 56 15 of the jury instructions). 16 venue determined?" 17 More directly, Count 10, how is And there is a Fourth Circuit case that I think is 18 right on point. 19 States, but they both seem to hold the proposition that venue 20 is proper in the district where the effects of the offense 21 would be felt, concluding that because the effects of the 22 materially false statements were felt by those conducting a 23 federal investigation in Maryland, venue was proper in that 24 district. 25 It's Rodriguez-Moreno and Bowens v. United So the effect for Count 10 would be felt by the grand Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 150 of 162 PageID# 6282 1565 1 jury in the Eastern District of Virginia, and that's why that's 2 a relatively easy answer. 3 MR. TRUMP: Yes, it's -- 4 THE COURT: Because they're specifically concerned 5 6 about Count 10. MR. TRUMP: Yeah, it's in the statute, Judge. A 7 prosecution under this section may be brought in the district 8 in which the official proceeding was intended to be affected. 9 THE COURT: That's even easier. 10 11 Hold on a second. (Laughter.) THE COURT: 12 correct, Mr. Trump. 13 section for that? Always start with the statute. All right, let me -- what's our code 14 MR. TRUMP: 1512(g) -- excuse me, (h)(i). 15 THE COURT: All right, 1512(g)? 16 MR. TRUMP: (H). 17 THE COURT: I'm sorry, (h). 18 MR. TRUMP: 1512(h)(i). 19 20 misreading that. You're Excuse me, it's just -- I'm It's 1512(i). THE COURT: Correct, you're right. So a prosecution 21 under -- the prosecution under Count 10 may be brought in the 22 district in which the official proceeding was intended to be 23 affected, all right? 24 it that way, all right? 25 Or in the district. So I'm going to read That's from the statute. And I think that's the only answer they are Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 151 of 162 PageID# 6283 1566 1 requesting at this point. 2 MR. MAC MAHON: Well, Your Honor, if I may, I think 3 that the question about clarification on venue, I know they're 4 just asking about Count 10 here, and, and I think that the 5 instruction that we proffered before about where the element of 6 these other offenses where the information was disclosed or 7 where somebody was when they heard it is the proper venue in 8 the 793 counts, and I think that's what they're asking as well, 9 and I think that's what they should be told. 10 THE COURT: Well, I'm not going to go beyond the 11 specifics of the question, and because they did it 12 specifically, I'm going to address that. 13 questions, they are not going to be shy about coming back, all 14 right? 15 MR. MAC MAHON: If they have further Your Honor, your answer is just, 16 you're going to be very clear that it pertains only to Count 17 10? 18 THE COURT: 19 MR. MAC MAHON: 20 21 To Count 10, yes. All right? It doesn't affect venue for any other count. THE COURT: Correct. I will say, though, in doing a 22 quick check of my book on Fourth Circuit criminal law, the 23 concept on venue does seem to be very statute specific, so I 24 suggest since this issue may come up again, the government -- 25 both sides may want to do some specific research on these -- on Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 152 of 162 PageID# 6284 1567 1 the other counts for venue issues. 2 Again, what I said years ago in the context of, you 3 know, deciding on the Risen issue is not necessarily a complete 4 or full instruction. 5 back then. 6 myself; I just want to -- there must be other judges who have 7 also addressed the issue of venue for these statutes, maybe 8 not. 9 10 That was never the intention of the Court You've been citing me to me. MR. MAC MAHON: I'm not reversing We'd like the cite Brinkema on venue, Your Honor. 11 THE COURT: 12 But anyway, let's get the jury in. 13 home at 5:15 tonight. 14 them home. 15 MR. OLSHAN: 16 THE COURT: 17 MR. OLSHAN: 18 Yeah, Brinkema on venue, right. I will bring them in here before I send Your Honor? Yeah. There was a second question that just came out? 19 THE COURT: 20 the wall, all right? 21 They have to use the board. 22 23 24 25 They want to go Yeah. They want to stick sticky notes on We're telling them they can't do that. We're giving you every note that we get, and I don't -- if you didn't get those yet -MR. OLSHAN: I think it literally just came out as the Court was coming out. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 153 of 162 PageID# 6285 1568 1 2 THE COURT: Yeah. Do you like our snazzy new forms? We're giving them some structure. 3 Okay. (Jury present.) 4 THE COURT: Again, folks, you can really sit anywhere 5 in the box where you're comfortable. 6 like your seats. 7 That's all right. You Have a seat, please. I was just telling the attorneys I knew you were a 8 sharp jury, and that was a very smart question you sent. 9 me address the easier question. Let You can have all the Post-it 10 notes you want, but you can't put masking tape on my walls, 11 okay? 12 A JUROR: 13 THE COURT: I thought you might say that. Okay. You can put masking tape on the 14 tripod; you know, we've given you an easel; and the sticky 15 notes, the Post-it notes won't hurt the walls. I don't care if 16 you want to put those on the walls, all right? But, you know, 17 it's government property. 18 All right. 19 You don't want to be destroying it. Now, in terms of the substantive question, you've 20 asked: 21 More directly, Count 10, how is venue determined?" 22 "The jury would like further clarification on 'venue.' I understand that's your question. And for Count 10, 23 which is again the obstruction charge, that's actually -- the 24 venue provision is actually in the statute, and I probably 25 should have given that to you. So a prosecution under this Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 154 of 162 PageID# 6286 1569 1 section may be brought in the district in which the official 2 proceeding (whether or not pending or about to be instituted) 3 was intended to be affected or in the district in which the 4 conduct constituting the alleged offense occurred. 5 And what I'll do is I'm going to photocopy just that 6 section to give to the jury so they have it as an additional 7 instruction along with the other ones. 8 Any objection to doing that? 9 MR. MAC MAHON: No objection. 10 MR. TRUMP: (Shaking head.) 11 THE COURT: All right. So this additional 12 instruction, I'll put another -- I'll put it in the, give you a 13 page number so it's sort of logical, and it will say for Count 14 10, so you don't mix it up with anything else, but for Count 15 10, there's actually a statutory provision, all right? 16 I'll get that to you, all right? And 17 The other thing is, folks, I know you want to leave 18 at 5:15 today, and that's fine, but our, our practice will be 19 before any session is ended for the day, I always want to bring 20 you back in just to make sure I remind you about, you know, how 21 you have to behave from here on out, all right? 22 So we'll recess court to await your decision. 23 (Recess from 4:30 p.m., until 5:18 p.m.) 24 25 (Defendant and Jury present.) THE COURT: Ah, the jury has indicated they want to Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 155 of 162 PageID# 6287 1570 1 start at 8:30 tomorrow morning, bright and early, so I'll 2 require at least one attorney for each side to be in the 3 courtroom. 4 5 That's great, ladies and gentlemen. Now, it's pretty cold in the courtroom right now. Was the jury room comfortable when you were in there? 6 (Jurors nodding heads.) 7 THE COURT: All right. Don't be -- you won't be shy, 8 I don't even have to say that, about sending us notes. 9 temperature is tough to keep under control, but we'll try to 10 The make it as comfortable for you as possible. 11 All right, so I'm going to send you home for the 12 evening. 13 communicate with each other or your two former colleagues. 14 Don't discuss this case with anyone. 15 family may know what case you're sitting on. 16 talk to you about the article in The Post or anything else, 17 you've got to tell them, "Judge said absolutely no." 18 it. 19 Please remember my cautions: You must not try to Again, some of your If they want to Do not do And don't take any of the evidence home with you. 20 You can't be studying it overnight. 21 chapter, Exhibit 132, you need to read it here in the jury 22 room. 23 If you're reading the So just -- you've been a great jury. 24 anything mess up our case at this point. 25 back here at 8:30. Don't let And we'll see you I'm not going to bring you back into court. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 156 of 162 PageID# 6288 1571 1 You can just report to the jury room, and once all 12 of you 2 are there, you can start deliberating. 3 12 in the room, you can make pleasantries about the weather or 4 the upcoming weekend, but do not discuss the case, all right? 5 Thank you. Again, until you're all We'll let you-all go. 6 I'll stay in session for a few minutes. 7 MR. MAC MAHON: 8 (Jury out.) 9 10 THE COURT: Mr. MacMahon, you had an issue you wanted to raise? 11 12 MR. MAC MAHON: Yes, Your Honor. You invited us to go do some more research on the venue question. 13 THE COURT: 14 MR. MAC MAHON: 15 THE COURT: 16 Thank you, Your Honor. Yeah. And -- Have you shared your results with the government, or are they hearing it for -- 17 MR. MAC MAHON: 18 THE COURT: 19 MR. MAC MAHON: It's hot off the press, Your Honor. All right. And I'm happy to share it with them 20 now as well, and I have a copy for you, but the Truong, I think 21 it's the Truong case -- 22 23 24 25 THE COURT: Oh, that's an old case out of the Vietnam War, yep. MR. MAC MAHON: Well, this, this -- we have a copy for the Court as well. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 157 of 162 PageID# 6289 1572 1 2 THE COURT: All right, if you'd give it to Mr. Wood? Yeah. 3 They have an exhibit for me. 4 MR. MAC MAHON: Judge, it's footnote 11. The way 5 this printed out is not -- but this is U.S. v. Truong, 6 T-r-u-o-n-g. 7 8 THE COURT: I know the case. I was around in those days, yeah. 9 MR. MAC MAHON: 10 reporter, Your Honor. 11 reporter. I was just giving it for the court I was getting that look from the court 12 THE COURT: Oh, I'm sorry. Go ahead. 13 MR. MAC MAHON: 14 But, Judge, in footnote 11 in the Truong case, there 15 was -- and this was a search for venue questions in espionage, 16 and this was a 793 conviction and a 794 case, but what the 17 Fourth Circuit did in affirming in that case was language in a 18 footnote which is found on page 18, footnote 11 -- and it came 19 out double-sided; I'm sorry, Your Honor -- but the defendant in 20 that case complained about venue in an espionage case, and 21 there's the language about how it's constitutional and why it's 22 important that venue be established since the defendant has the 23 right to be charged in the district where the crime occurred, 24 and it says in 11 that since Krall was the means by which the 25 documents were carried to the Vietnamese in Paris, the And it's 629 F.2d 908. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 158 of 162 PageID# 6290 1573 1 proscribed act, the act of transmission took place in 2 Alexandria. 3 So in that case, albeit in a footnote, there is a 4 Fourth Circuit opinion that says the proscribed act under 793 5 is the act of transmission, which is what we've been arguing to 6 the Court. 7 happened or may have happened in this case or even in the 8 Truong case. It's not all the other peripheral instances that 9 And the cite there is to U.S. v. Walden, which I 10 think you cited to us a couple days before, and the Walden 11 case, which we pulled up, also, deals with how it's -- it is 12 element specific, the acts of venue, because of the 13 constitutional right to be tried in the, in the district where 14 the crime is committed. 15 THE COURT: They cite -- But, you know, the other issue -- and 16 again, I'm going to let the government research this overnight. 17 It's early enough in the jury's deliberations if we have to 18 refine the venue instruction, it's not going to be a problem, 19 but there's also a pretty well-established principle that 20 where, where a -- where the effects of a crime are felt can be 21 part of the continuity of venue. 22 has alleged that these disclosures, among the places where 23 there was an unlawful disclosure are here in Virginia. 24 25 MR. MAC MAHON: I mean, again, the government All right, Judge. There's a couple counts that deal with that but not every count, and really, I Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 159 of 162 PageID# 6291 1574 1 don't think that in -- if the government needs time to research 2 it, it's fine, but what these, what these cases are saying is 3 that it's the proscribed act in the case. 4 ephemeral concept that we decide where, where a crime -- in 5 very few cases is there an issue of venue. 6 our plea agreements or cases we have, someone says, "I was in 7 the Eastern District of Virginia." 8 almost any case that we've ever had -- that I've ever had in 9 front of you. 10 11 12 It's not an Normally in all of It's never an issue in I've never had the issue come up. THE COURT: But I've had the issue come up. I mentioned a couple examples to you yesterday. MR. MAC MAHON: But I don't, I don't believe -- I 13 think when you read Walden and you read this Truong case, that 14 you have to find an act that was element specific. 15 this Truong footnote -- 16 THE COURT: Wait. It says in But why is not at least, for 17 example, causing the disclosure or causing the communication -- 18 part of the problem is the communication occurs, part of the 19 communication is in the Eastern District of Virginia. 20 when the book enters Virginia, there has been -- 21 MR. MAC MAHON: 22 THE COURT: 23 MR. MAC MAHON: 24 25 That is, And that's very few counts, Judge. I'm sorry? Not every count deals with the publication of the book in Virginia. THE COURT: No, I recognize that. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 160 of 162 PageID# 6292 1575 1 MR. MAC MAHON: There's attempts. There's conveyance 2 of property. 3 could -- I mean, we would again renew the Rule 29 on this 4 issue, and I don't expect the Court to grant it at this time, 5 but there isn't any evidence of transmission of this 6 information. 7 and it has to be element-specific. 8 9 There's other counts that it's possible you The four phone calls add up to about a minute, It can't just be the sale of the book. If it's just the sale of the book, then every count but that has to go out 10 because there isn't any evidence of venue, and that was the 11 instruction that we gave you before, which is they have -- the 12 government has to prove where the act of transmission or 13 receipt took place here in the Eastern District of Virginia, 14 and there's no evidence of that whatsoever. 15 16 THE COURT: All right, what I'm going to do, I mean, the jury has this case now. 17 Mr. Trump, are you ready to respond? 18 MR. TRUMP: 19 Your Honor, in the Truong case, it was a conspiracy case, and Truong and Humphrey were coconspirators. 20 THE COURT: I know. 21 MR. TRUMP: They were arguing the case that they 22 should have been charged in D.C. because that's where the 23 conspiracy was located, but they were prosecuted in Virginia 24 because they transferred the documents to the unwitting person 25 who then flew to Paris from Virginia. Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 161 of 162 PageID# 6293 1576 1 So it was a question of in that case, that the 2 defendant was claiming I should have been charged in D.C., and 3 the court said no, there was an act of transmission occurring 4 in Virginia. 5 weren't. 6 7 8 9 10 11 You could have been charged in D.C., but you You were charged in Virginia. So it's not, it's not a definitive statement that the only place the case could have been charged was in Virginia. THE COURT: And the even more general proposition of law was that there was an act in furtherance of the conspiracy that occurred in the Eastern District of Virginia in that case. MR. TRUMP: Well, there was also conspiracy to 12 violate 793, but even in the 793 context, it wasn't a 13 definitive statement that the only place it could have been 14 charged was, was Eastern District of Virginia, but there's also 15 a fundamental point that the jury has been instructed and we 16 argued the case based upon the proffered instruction. 17 I think at this point, if it's error, it's error, and 18 we'll find out at some point if the defendant is convicted, but 19 if we are to revise the instruction now, we can't go back and 20 reargue the case. 21 THE COURT: Well, I don't think it was that major an 22 argument in the case, but I'll let it be as it is. As I said, 23 if we get questions, we'll have to address the specific 24 questions that come up from the jury, and at this point, as I 25 said, I'm not uncomfortable with the venue instruction, and Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595 Case 1:10-cr-00485-LMB Document 493 Filed 08/17/15 Page 162 of 162 PageID# 6294 1577 1 that's what it is. 2 3 So you've made the record, Mr. MacMahon, and I'm not changing -- 4 5 MR. MAC MAHON: if you want us to. 6 We'll do more research, Your Honor, We'll go back to the library. THE COURT: I never discourage counsel from reading 7 the law; that's wonderful; but in any case, I do think, though, 8 out of fairness to the government and to the Court, you need to 9 send it to us in writing so that we have a chance to look at it 10 and not just have to, you know, think about it from the bench, 11 okay? 12 MR. MAC MAHON: 13 THE COURT: 14 We'll recess court until then. 15 We'll draft something. All right. So tomorrow morning, 8:30. (Recess from 5:28 p.m., until 8:30 a.m., January 23, 2015.) 16 17 18 19 CERTIFICATE OF THE REPORTER I certify that the foregoing is a correct transcript of the record of proceedings in the above-entitled matter. 20 21 22 /s/ Anneliese J. Thomson 23 24 25 Anneliese J. Thomson OCR-USDC/EDVA (703)299-8595