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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________
:
UNITED STATES OF AMERICA
:
:
:
v.
:
Criminal No. 18-170 (KBJ)
:
Sentencing Date: December 20, 2018
:
JAMES A. WOLFE
:
:
:
____________________________________ :

DEFENDANT’S SENTENCING MEMORANDUM

In accordance with 18 U.S.C. § 3553(a) and Fed. R. Crim. P. 32(i), James A. Wolfe,
through counsel, respectfully submits this memorandum to aid the Court in determining an
appropriate sentence. “A just sentence is one that is sufficient but not greater than necessary.”
United States v. Williamson, 83 F. Supp. 3d 394, 404 (D.D.C. 2015) (Collyer, J.). For the reasons
stated herein, we respectfully request that the Court impose a non-incarcerative sentence of
probation with a community service obligation.
Mr. Wolfe lied to FBI agents in a December 2017 interview in connection with the FBI’s
probe of leaks of information regarding the activities of the Senate Select Committee on
Intelligence (“SSCI”) to various reporters. It is a decision, along with his breaking his marital
vows and violating his former employer’s rules regarding contacts with the media, that he deeply
regrets—and the consequences of those failings will follow him for the rest of his life. The FBI’s
investigation was initially focused on the unauthorized release of Classified Information related to
media reports concerning a FISA warrant and its subject, described as MALE-1 in the Indictment

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and Statement of Offense. At the time of his December 2017 interview, Mr. Wolfe had already
met with the FBI once but was not aware that the government, through a surreptitious search of
his mobile phone and other investigative steps, already knew that he had undisclosed and
unauthorized contacts with certain reporters and about his personal relationship with Reporter # 2.
As we will address more fully herein, Mr. Wolfe falsely denied his contacts with several
reporters, largely because he had been involved in an inappropriate personal relationship with
Reporter # 2 for several years which he was afraid to reveal. The agents confronted Mr. Wolfe
during that interview with proof that they were already aware of that inappropriate relationship,
and Mr. Wolfe thereafter, in the very same interview, acknowledged that relationship. He later
acknowledged other unauthorized contacts with reporters, despite having falsely denied them
during the December interview. Consistent with what Mr. Wolfe also said during all of his
interviews, though, at no time did he provide Classified Information to reporters or improperly
share such information with any other individuals. He has not been charged with doing so, despite
numerous false media and social media articles and commentary suggesting the contrary.
Mr. Wolfe, with undersigned counsel, has carefully reviewed the draft Presentence
Investigation Report (“PSR”) prepared by United States Probation Officer Kelli Willett. We have
no material objections to the facts set forth in the draft PSR or its Guidelines calculations.1 The

1

We provided to Ms. Willett some minor factual corrections and also our objections to the
inclusion and/or characterization of a 2004 traffic infraction and certain legal proceedings from
2004-08 related to Mr. Wolfe’s contentious divorce from his first wife. See PSR ¶¶ 67-69. We
are advised that inclusion of such information is standard practice by the Probation Office. We do
not know, given the briefing schedule, whether or how those points will be resolved in the final
PSR so we address them here briefly. None of these matters, including a nolle prossed
misdemeanor allegation from 2004, affect the calculation of his Criminal History of zero points,
form the basis for any departure, nor, we respectfully submit, bear on any other appropriate
sentencing consideration. See U.S.S.G. § 4A1.2 (c)(2) (minor traffic offenses are never counted
in Criminal History). As such, we respectfully submit that the Probation Office’s apparent
standard practice of automatically including traffic infractions or civil protective orders in PSRs is
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PSR calculates the applicable Sentencing Guidelines level under the 2018 edition of the United
States Sentencing Guidelines (the “Guidelines”), yielding a final adjusted offense level of 4 (0-6
months), with a corresponding Criminal History of zero points, in Zone A, which is consistent
with the parties’ shared position regarding the appropriate Guidelines analysis as set forth in the
Plea Agreement. PSR ¶¶ 55-66; Plea Agreement (Dkt. 36) at 3. Probation is expressly permitted
for Zone A defendants. See U.S.S.G. § 5B1.1(a)(1). As we will address more fully herein, a nonincarcerative sentence is also fully consistent with the legislative directives undergirding the
enactment of the Guidelines, recent guidance from the Sentencing Commission, and the factors
outlined in 18 U.S.C. § 3553(a).2
Until his formal retirement earlier this year, Mr. Wolfe ably served this country for his
entire adult life, first in the U.S. Army and then, for the past three decades, as the Director of
Security for the United States Senate Select Committee on Intelligence. He tarnished that
unblemished service by engaging in undisclosed interactions with members of the media, in
violation of the very Committee regulations he helped establish and was tasked with enforcing.
His initial denials of those contacts reflected an understandably human, but nonetheless improper,

inconsistent with the Guidelines, inappropriate, and prejudicial.
2

In its objections to the draft PSR, the government advised the Probation Office that it would be
seeking an upward departure under U.S.S.G. § 5K2.0(a)(4) (Departures Based on Circumstances
Identified as Not Ordinarily Relevant) and an upward variance based on § 3553(a). The
government changed its position several days later, and informed the Probation Office of its intent
to rely instead on U.S.S.G. § 5K2.7 (Disruption of Governmental Function) and U.S.S.G. § 5K2.14
(Public Welfare) for an upward departure. The government did not articulate any basis for these
departures or variance. We will respond to the government’s arguments once we become aware
of them, including potentially seeking a corresponding downward departure pursuant to U.S.S.G.
§ 5K2.20 (Aberrant Behavior). Our sentencing memorandum assumes that the draft PSR’s
calculations and recommendations will not change but we will address any changes in the final
PSR in our reply memorandum.

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attempt to conceal his extramarital personal relationship with a reporter and to preserve his job.
But his personal indiscretions and his contacts with certain reporters in which he shared limited,
unclassified information about matters occurring before the Committee violated no federal law.3
Instead, when confronted by the FBI about these relationships, Mr. Wolfe initially lied, before
ultimately acknowledging minutes later in the same interview that he had indeed had such a
personal relationship with “Reporter # 2”—something the agents clearly knew already with proof
they had obtained from Mr. Wolfe’s own communications, along with the fact that he had had
undisclosed contacts with other reporters. It was those lies that have brought him before this
Court—not the underlying conduct about which he was answering questions.
Mr. Wolfe has paid and will continue to pay a very heavy price for his conduct. He lost
his job and career, he betrayed his commitment to his wife and family and country, and he has
been the subject of numerous articles falsely damning him for purportedly betraying his
responsibilities regarding Classified Information. His rights and opportunities have also been
altered for the rest of his life due to his status as a felon. Those consequences, while very real and
very humbling, are separate from the punishment the Court must now consider.
Mr. Wolfe has much to do in attempting to repair his marriage and he will almost certainly
never regain his reputation given the very public shaming he has endured nor have any meaningful
employment opportunities in the field where he has worked for the past 30 years. But his foolish
decision to lie about his affair was corrected almost immediately in the same fateful interview last
December and he later acknowledged other unauthorized contacts with the media that he first

3

The underlying conduct behind the false statement in Count 3 of the Indictment, the particular
charge to which Mr. Wolfe pleaded guilty, relates to his having told “Reporter # 3” the identity of
a person who had been subpoenaed by the SSCI, and then the timing of that same person meeting
with SSCI staff.
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falsely denied. We do not condone lying to federal agents. And his offense conduct is contradicted
sharply by his longstanding and highly-regarded service to his country, his community, and his
family as documented in the many attached letters.
Indeed, the attached letter, Exhibit 1, from the bipartisan present and past U.S. Senators
who lead SSCI, whose internal policies and procedures Mr. Wolfe violated with his unreported
and unapproved contacts with reporters, expresses the Senators’ belief that there is “[no] public
utility in depriving [Mr. Wolfe] of his freedom.” Exhibit 1. Their letter urges the Court to impose
a sentence that achieves justice through the “imposition of probation or community service.” Id.
We respectfully submit that these factors distinguish him from other recent false statement cases
before this Court and in this District and warrant—consistent with the Guidelines, recent
amendments to their commentary, and Section 3553—imposition of a non-incarcerative,
probationary sentence that requires Mr. Wolfe to continue his life of public service with a
meaningful community service obligation.
BACKGROUND
James A. Wolfe will appear before the Court for sentencing on December 20, 2018. He
entered his guilty plea on October 15, 2018, to Count 3 of the Indictment, which charged him
under 18 U.S.C. § 1001 with making certain false statements to the FBI, namely falsely denying
having had unauthorized contacts with Reporter # 3.4 The underlying facts are set forth in the

4

Though the allegations from the Indictment are set forth in full in the PSR, as we emphasized to
the Court at the Plea Hearing, Mr. Wolfe did not plead guilty to, and does not admit, having shared
any information from a Classified Document—even unclassified information—in March or April
2017, as had been alleged originally in Count 2 of the Indictment, and we believe that the
government would not be able to prove any such sharing of information by even a preponderance
of the evidence. To that point, it is our understanding that Mr. Wolfe was never given access to
the contents of the Classified Document in question during any relevant time period—though that
document has subsequently been declassified.
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Statement of the Offense accompanying Mr. Wolfe’s plea and in the PSR. In his December 15,
2017, FBI interview, he falsely denied having had unauthorized contact with several reporters in
contravention of SSCI rules. As set out in the Statement of the Offense, those contacts ranged
from unremarkable undisclosed contact with Reporter # 1 (about items like public wifi passwords)
to tipping off Reporter # 3 as to an individual whom SSCI had subpoenaed or met with. While
these undisclosed contacts were not appropriate under Committee rules, at no time did Mr. Wolfe
share Classified Information or substantive information with any of the Reporters. Mr. Wolfe
acknowledged that he had lied with respect to Reporter # 2 during that same interview after the
agents confronted him with photographs and other documentation demonstrating that he had not
been truthful. He later acknowledged in January 2018 that he had contacts with the other reporters
referenced in the Indictment.
During the December interview, Mr. Wolfe’s access to his SSCI documents and emails
was terminated by his employer and, although he technically remained on the SSCI staff until his
retirement the following May, he did not return to work substantively after his FBI interview. Six
months later, he was indicted and arrested in his home on June 7, 2018, and jailed overnight
pending his initial appearance in U.S. District Court in Baltimore, MD, where he was released
from custody. Following his presentment in this Court, Mr. Wolfe, through counsel, promptly
negotiated a resolution of this matter, which is detailed in the Plea Agreement.
In addition to having agreed to the facts set forth in the Statement of Offense (Dkt. 37) and
his acknowledgement of his conduct and acceptance of responsibility in his discussions with the
Probation Officer, Mr. Wolfe will address the Court directly at sentencing and attempt to further
explain in his own words and to the best of his ability how he erred from a life dedicated to serving
his country and engaged in the foolish and illegal actions that bring him before the Court. The

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impact of Mr. Wolfe’s conduct and his conviction on him and his family have already been
profound, and he will continue to suffer the collateral consequences of his transgressions
personally and professionally for years to come.
This sentencing memorandum is divided into several sections. Part I addresses the
application of the Sentencing Guidelines. Part II addresses Mr. Wolfe’s history and characteristics.
And Part III explains why we believe that a non-incarcerative sentence is appropriate.
APPLICATION OF STATUTORY SENTENCING FACTORS
18 U.S.C. § 3553(a) requires federal courts to impose sentences that are “sufficient, but not
greater than necessary.” Accord Williamson, 83 F. Supp. 3d at 404.5 The primary directive of
§ 3553(a) is the imposition of a sentence that is sufficient, but not greater than necessary, to comply
with the purposes articulated in § 3553(a)(2), namely:
(A)
(B)
(C)
(D)

to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense;
to afford adequate deterrence to criminal conduct;
to protect the public from further crimes of the defendant; and
to provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner.

In determining a minimally sufficient sentence, § 3553(a) further directs sentencing courts
to consider the following factors:
1)
2)
3)
4)
5)
6)

the nature and circumstances of the offense and the history and characteristics of
the defendant (§ 3553(a)(1));
the kinds of sentences available (§ 3553(a)(3));
the advisory sentencing guidelines range (§ 3553(a)(4));
any pertinent policy statement issued by the Sentencing Commission
(§ 3553(a)(5));
the need to avoid unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct (§ 3553(a)(6)); and
the need to provide restitution to any victims of the offense. (§ 3553(a)(7)).

5

The Court is well familiar with the post-Booker sentencing standards and they will not be
repeated here unnecessarily. See generally United States v. Booker, 543 U.S. 220 (2005).
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Accord Williamson, 83 F. Supp. 3d at 401. Pursuant to the applicable sentencing Guidelines and
the § 3553(a) considerations in this matter, we respectfully submit that those factors all support
the imposition of a sentence on Mr. Wolfe that does not involve incarceration but, instead,
obligates him to provide a meaningful amount of community service as part of a term of probation.
I.

The Sentencing Guidelines Calculations (18 U.S.C. § 3553(a)(4)).
As set forth in the Plea Agreement, and confirmed in the PSR, the following Guidelines

calculation is applicable under the 2018 United States Sentencing Guidelines:
Base Level
Acceptance of Responsibility

6
(2)

Total Offense Level and Range

4 (0-6 months)

See PSR ¶¶ 55-63. With this calculation and the lack of any Criminal History points, see id. ¶¶ 66,
115-16, Mr. Wolfe falls squarely into Zone A of the Guidelines, permitting a probationary
sentence.
The government has advised the Probation Office of its intention to seek an upward
departure or variance.

Beyond its barebones citation to U.S.S.G. § 5K2.7 (Disruption of

Governmental Function) and U.S.S.G. § 5K2.14 (Public Welfare) in its objections to the PSR, the
government has not provided any further information regarding its position. Mr. Wolfe will
respond once the government files its sentencing memorandum and presumably articulates its
position. That response may, if warranted, seek a downward departure for Aberrant Behavior. See
U.S.S.G. § 5K2.20.
Mr. Wolfe is also a nonviolent first offender within Zone A, which brings him within the
ambit of the most recent Guidelines amendments and recent commentary from the Commission,
which emphasize that sentencing courts are encouraged to consider imposing sentences other than

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imprisonment for such defendants. See U.S.S.G. §5C1.1 (comment n. 4) (effective Nov. 1, 2018).
In explaining this amendment, the Commission stated:
This new application note is consistent with the statutory language in 28 U.S.C.
§ 994(j) regarding the ‘general appropriateness of imposing a sentence other than
imprisonment’ for ‘a first offender who has not been convicted of a crime of violence
or an otherwise serious offense’ and cites the statutory provision in support.
U.S. Sentencing Commission, Amendments to the Sentencing Guidelines, at 73 (Apr. 30, 2018)
(emphasis added).6 As set forth more fully herein, notwithstanding the availability of a purely
probationary sentence, we believe Mr. Wolfe should fulfill a meaningful amount of community
service as part of any punishment. He has likely forever lost his ability to serve his country, a role
he cherished, and such a sentence will not only serve as a reminder of the kind of service he once
provided but also harness what Mr. Wolfe has to offer his community in a more productive manner
than simply serving a jail term.7
II.

Mr. Wolfe’s History and Characteristics (18 U.S.C. § 3553(a)(1)).
After Booker, a defendant’s history and characteristics are once again important factors for

the sentencing court’s consideration.8 Mr. Wolfe does not take lightly the gravity of his offense

6

This perspective echoes other recent guidance from the Commission on the issue of appropriate
sentences for first-time, nonviolent offenders. “Sentences [for Zone A offenders] that involve any
amount of incarceration are in excess of the least restrictive sentence available, and so cannot be
said to be an ‘alternative’ to the sentence that would otherwise be imposed.” Alternative
Sentencing in the Federal Criminal Justice System, U.S. Sentencing Commission, p.6 (May
2015). In providing this guidance, the Commission noted that their 2015 definition modified the
2009 definition of alternative sentences. See id. n.32.
7

Mr. Wolfe has, in fact, served a night in jail in this matter as a result of being arrested in his home
and detained pending his initial appearance in federal court in Baltimore, MD.
8

See Rita v. United States, 551 U.S. 338, 364-65 (2007) (Stevens, J., concurring) (“Matters such
as age, education, mental or emotional condition, medical condition (including drug or alcohol
addiction), employment history, lack of guidance as a youth, family ties, or military, civil,
charitable, or public service are not ordinarily considered under the Guidelines. These are,
however, matters that § 3553(a) authorizes the sentencing judge to consider.”) (citations omitted);
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conduct nor his personal conduct underlying his offense. His illegal activity is well-documented
in the Statement of the Offense. But Mr. Wolfe’s offense conduct tells only part of his story, as
the numerous accompanying letters in support of Mr. Wolfe and the additional information set
forth in the PSR demonstrate.9
A.

Background and Career

Mr. Wolfe grew up in a stable, working class family in northern Kentucky, just outside
Cincinnati, Ohio. He will turn 58 on the day the Court is scheduled to impose his sentence. His
father was a construction equipment operator and his mother held various jobs, including working
for a florist, in a machine shop, and as a medical assistant. He and his elder brother, now deceased,
grew up in a trailer park in the Florence, Kentucky area. His parents divorced when Mr. Wolfe
was a teenager. His mother eventually remarried and was able to move into a single family home.
Following his graduation from high school, Mr. Wolfe enlisted in the U.S. Army, serving
approximately four years before his honorable discharge with the rank of Sergeant in 1987. He
continued to serve in the Army Reserve for another six years, earning a final promotion to Staff
Sergeant. See PSR ¶ 94. Mr. Wolfe was awarded several medals and commendations during his
military service, summarized in the PSR. See id. ¶ 95.

see United States v. Preacely, 628 F.3d 72, 84 (2d Cir. 2010) (Lynch, J., concurring) (“[Section
3553(a)(1)] requires sentencing courts to treat the Guidelines only as a starting point, and then to
craft an appropriate sentence taking full account of ‘the history and characteristics of the
defendant.’”).
9

The accompanying letters from Mr. Wolfe’s family, former colleagues, supporters, and friends
are collected as Exhibits 1-4. Specifically, the letter from the SSCI leadership is attached as
Exhibit 1; the letter from Jane Rhodes Wolfe, his wife, is attached as Exhibit 2; the letters from his
sons are attached as Exhibit 3; and letters from other supporters, family members and former
colleagues are attached as Exhibit 4. These letters have been redacted in accordance with Fed. R.
Crim. P. 49.1. Undersigned counsel has retained the originals and will provide them to the Court
or government counsel upon request. Some documents were sent to counsel electronically so a
PDF or fax version is the only “original” in our possession.
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During his military service and continuing while he was working for the Senate, Mr. Wolfe
pursued a college education at night and ultimately earned a degree in Management Studies from
the University of Maryland in 1991. In 1987, Mr. Wolfe began working for the U.S. Senate Select
Committee on Intelligence (SSCI) and was soon named its Director for Security. He held that
non-partisan position for some 30 years, ably serving both Democrat and Republican leadership.
Mr. Wolfe served his country his entire adult employment life, both in the military and as a civilian.
Notwithstanding the contentious dissolution of his first marriage, which had lasted 20
years, Mr. Wolfe helped raise two fine sons, one of whom is currently stationed in South Korea
with the U.S. Army, and the other who is training in South America to become a mountain climbing
guide. Their heartfelt letters to the Court reflect Mr. Wolfe’s dedication to his sons and to his
example of service and hard work. Their passion, support and respect for their father is vividly
captured in those letters, attached as Exhibit 3. His devotion to his family is also captured in letters
from his aunt and his mother’s first cousin. See Exhibit 4 (Bishop and Hensley letters).
During his time working for the Senate, Mr. Wolfe earned a well-founded reputation for
taking seriously his job and the sensitive issues that were discussed before the SSCI. Letters from
James Clapper, the former Director of the Office of National Intelligence, Robert S. Litt, the former
General Counsel for the Office of the Director of National Intelligence and a former federal
prosecutor, and Denis McDonough, former White House Chief of Staff and a former member of
the National Security Council, attest to Mr. Wolfe’s dedication to the mission of the Committee
and respect for the sensitivity of classified matters occurring before it. See id. (Clapper, Litt, and
McDonough letters). Numerous letters from former colleagues on the Committee staff, including
its former General Counsel and a former Staff Director, confirm Mr. Wolfe’s dedication to
ensuring that sensitive matters before Committee were protected and that its credibility was

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maintained. See, e.g., id. (L. Britt Snider and Andrew W. Johnson letters). He is described by
another former colleague as the best security officer he has worked with in 35 years. Id. (Bryan
Smith letter).
Exhibit 1, the letter from SSCI itself, signed by Chairman Burr, Vice Chairman Warner,
and former Chairman Feinstein, is a powerful, bipartisan testament to Mr. Wolfe’s service and the
high esteem in which he was held by Committee leadership. As reflected in the letter, SSCI
leadership respectfully urges the Court to impose a non-incarcerative sentence notwithstanding
Mr. Wolfe’s violation of the Committee’s rules and his failing during his FBI interview.
The letters also share Mr. Wolfe’s dedication to enriching the lives of others, particularly
in ways that celebrated the work of the United States Senate, including through the Senate tours
he regularly gave to friends and others he has known throughout his life, and even to those he did
not know but who were referred to him. See Exhibit 4 (Peeler and Byrnes letters). He reveled in
giving these tours, totally separate from his job requirements, offering anecdotes and stories that
have made lasting positive impressions as detailed in the attached letters.
Mr. Wolfe has also supported neighbors and former colleagues and their families. Id.
Veteran Marine and CIA Officer David Byrnes relates how Mr. Wolfe reached out to help Mr.
Byrnes’s family during his overseas deployments. Id. (Byrnes letter). Mr. Wolfe and his sons
raised $5,000 to support wounded soldiers, sponsoring a climb of Mt. Whitney. See id. (Smith
letter). As documented by Reverend Erik J. Arnold and Dawn Weglein in their letters, in addition
to his responsibilities at work and in helping to raise his sons, Mr. Wolfe also volunteered in the
Ellicott City community for many years, helping to feed the homeless through an organization
called Our Daily Bread. See id. (Arnold and Weglein letters). Ms. Weglein describes a particular
example from six years ago when Mr. Wolfe stepped in to deliver food for Our Daily Bread at the

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last minute when Ms. Weglein’s father passed away. Mr. Wolfe has recently been able to intensify
his pre-existing commitment to Our Daily Bread as a result of being unemployed and unable to
work as a result of the charges against him. These documented examples all point to a man who
has given time and effort to his community selflessly over the past several decades.
In 2008, Mr. Wolfe remarried. Ultimately and directly pertinent to the criminal conduct
before the Court, Mr. Wolfe strayed from his vows to his wife and his behavior has severely tested
their marriage. But as noted in her letter to the Court, Ms. Rhodes Wolfe, a former FBI agent
herself, has continued to stand behind Mr. Wolfe and they have begun the hard work together to
try to salvage their marriage. We note the force and passion of her perspective on how Mr. Wolfe
was treated during the investigation and his arrest, the views not only of a supportive spouse but
of a former FBI agent.
III.

A Non-Incarcerative Sentence is Consistent with the Section 3553(a) Factors.
Following Booker, the D.C. Circuit has stated that the Guidelines are no longer binding

sentencing edicts, “but rather are one factor that a district court must consider when imposing a
sentence.” United States v. Gardellini, 545 F.3d 1089, 1092 (D.C. Cir. 2008). Pursuant to 18
U.S.C. § 3553(a)(2), the sentencing court must impose a sentence that is minimally sufficient to
achieve the goals of sentencing based on all of the § 3553(a) factors present in a case. This socalled parsimony provision serves as the “overarching instruction” of the statute. See Kimbrough
v. United States, 552 U.S. 85, 111 (2007). A sentencing court has unique competence to make the
“defendant-specific determinations” relevant to the § 3553(a) analysis. Gardellini, 545 F.3d at
1095. We respectfully submit that the § 3553(a) factors present in Mr. Wolfe’s case demonstrate
that a sentence which does not result in incarceration will reasonably and appropriately result in a

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sentence that provides just punishment, offer adequate deterrence, and recognize the unlikelihood
of Mr. Wolfe’s recidivism.
A.

Mr. Wolfe’s history and characteristics justify a lenient sentence

As discussed above, Mr. Wolfe served his country honorably and supported and cared for
his family and his community for almost his entire adult life. His fateful decision to conceal an
affair and generally deny improper contacts with other reporters, the most significant of which
were tips about the status of a witness before the SSCI, see, e.g., Statement of Offense (Dkt. 37)
at ¶ 13, stands in stark contrast to a man who, as attested by his peers and other members of the
Intelligence Community, had an unblemished devotion to preserving and protecting Classified
Information through three decades of non-partisan service to the Senate regardless of the majority
party. We respectfully submit that these personal characteristics provide ample support for a
sentence that does not involve incarceration.
B.

The objectives of § 3553(a)(2) can be satisfied by a non-incarcerative sentence

A non-incarcerative sentence is not inconsistent with the sentencing objectives set forth in
18 U.S.C. § 3553(a)(2). We certainly agree that lying to FBI agents cannot be countenanced. The
nature of those lies is, however, a factor the Court should consider and we address that in greater
detail in our discussion of arguably comparable cases. Though his affair with Reporter # 2 was
not a criminal offense, he tried to conceal it from the agents in his December 2017 interview. The
FBI agents, of course, were already well aware of the affair and his unauthorized contact with
other reporters, as evidenced in their preparation of a Questionnaire prior to the interview which
they walked him through prior to confronting him with certain evidence after he lied. Regardless
of the actual impact of Mr. Wolfe’s false denials, though, Mr. Wolfe, to his credit, admitted to the
FBI during the very same interview that he had, in fact, lied with respect to Reporter # 2 and he

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later acknowledged, albeit in discussions that were not detailed, other improper contact and
communications with other reporters.
Through his conduct and felony conviction, Mr. Wolfe has caused himself significant
devastation, both personally and professionally. He has faced a barrage of highly negative (and
largely false) media attention, forever damning his reputation well beyond what an ordinary
defendant faces. He was publicly branded a leaker by the President of the United States in a
context that falsely suggested he had compromised Classified Information. 10 He has been
subjected to a blistering set of articles regarding his affair. 11 Those were and are very real
punishments but, aside from the high octane media attention, they are, of course, natural
consequences of the poor choices that he made when he decided to lie to the agents that day.
There was not, however, a significant impairment to the government’s investigation as a
result of the false denials—including because the FBI already knew the answers to many of the
questions they were asking (and indeed had photographic proof regarding certain issues)—and
certainly there has been no financial loss or tangible harm to any victim. To the extent one may
consider either his wife (a former FBI agent) or the SSCI (including the current Ranking Member
of the Judiciary Committee) as victims here, it is notable that they both urge the Court to impose
a lenient, non-penal sentence. A prison sentence in this context would achieve only purely punitive
goals and substantially discount the other important sentencing goals set forth in the statute. The
Court has at its disposal sentencing options completely consistent with the Guidelines, and in line
with recent amendments to the commentary, that would better serve Mr. Wolfe and the ultimate

10

See Eileen Sullivan & Katie Brenner, Trump praises arrest of former Senate Committee Aide in
Leaks Inquiry, N.Y. Times (June 8, 2018).
11
See generally Def.’s Reply in Supp. of Mot. for Order Governing Extrajudicial Statements at 34 (Dkt. 20).
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community interests, including probation with a term of community service (or, if some restraint
on his liberty appears required to the Court, time-served). To put it simply, even without a sentence
that includes actual incarceration, the twin goals of incarceration—punishment and
rehabilitation—have in some measure already been and can continue to be met fully outside of the
bars and fences of a penal institution.
1. Seriousness of the Offense; Promoting Respect for the Law; and Just Punishment
for the Offense
Pursuant to § 3553(a)(2)(A), a sentencing court must impose the most parsimonious
sentence consistent with the seriousness of the offense, the need to promote respect for the law,
and the need to provide just punishment. To be sure, the offense conduct here is serious, and we
obviously respect the law enforcement goal of prosecuting and punishing those who lie to agents
conducting important investigations. Until the time he engaged in the offense conduct, Mr. Wolfe
had no convictions for criminal conduct.12 We respectfully submit that given Mr. Wolfe’s personal
characteristics, a “just punishment” in this case may reasonably include a non-incarcerative
sentence—a point reinforced by the Guidelines and commentary applicable to this case.
2. Affording Adequate Deterrence to Criminal Conduct
Under § 3553(a)(2)(B), a sentencing court must also consider the goals of specific
deterrence and general deterrence. A term of incarceration for Mr. Wolfe is not necessary to
12

As described in the draft PSR, in the midst of a very bitter divorce, his ex-wife made certain
allegations against Mr. Wolfe that he strongly denies. Mr. Wolfe was never arrested, and the case
she initiated was nolle prossed by the government. See PSR ¶ 67. Tellingly, there was no
impairment of his security clearance as a result of these allegations. Given the circumstances, we
do not believe it appropriate to include this bare record in the PSR, much less for the Court to
consider it in any way in assessing Mr. Wolfe’s sentence or Criminal History, which was properly
determined to have no points, or his background. Further, the draft PSR also improperly included
a Virginia HOV traffic infraction from over 14 years ago as “other criminal conduct”—it is not
criminal conduct and should not be considered as part of Mr. Wolfe’s Criminal History. See PSR
¶ 68; but see Va. Code § 33.2-501(B) (HOV violations are defined as traffic infractions) and Va.
Code § 18.2-8 (“Traffic infractions are . . . not deemed to be criminal in nature.”).
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advance either goal. Through the powerful process of recognizing and admitting publicly his
improper personal, professional, and criminal conduct and accepting a felony conviction, Mr.
Wolfe has faced immense guilt and shame. He will almost certainly be unable to work again in
his field of experience or to hold a security clearance. Indeed, his felony conviction will
substantially impair any other employment opportunity, which plays a substantial role in punishing
him. As a government employee his entire adult life, Mr. Wolfe has a limited retirement benefit
to support himself from now through the remainder of his life. He has undertaken the hard work
to begin to repair the damage he caused to his marriage, a marriage he cares about deeply, and he
has much more work to do in that respect. He has also expanded his longstanding support of a
community charity in light of his recently increased opportunities to do so. And he has even
attempted to repay to the identifiable contributors to his legal defense fund nearly $10,000 in
contributions. This is not the profile of a man who is likely to re-offend; rather, this is a man who
is working hard to regain the trust of his family and his community and who hopes to lead a quiet,
honorable life. Incarceration is unnecessary to promote specific deterrence here.
Further, the goal of general deterrence for others who might be inclined to commit similar
crimes does not require Mr. Wolfe’s incarceration. This case has garnered a significant amount of
media attention and plainly sends a loud message to the public that lying to federal agents—even
when those lies were denials animated by a desire to conceal a personal failing—has profound
consequences. While that media attention has been unfair at times, in this sense alone, the goal of
general deterrence has been attained. To the extent that this case is also about improperly sharing
information with the media, even if that action is not itself a crime, this case also provides general
deterrence in making it clear that the conduct will be investigated and that there are consequences,
both from an employment standpoint and possibly from a prosecution standpoint.

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3. Incapacitation of Mr. Wolfe is Not Necessary to Protect the Public
Under § 3553(a)(2)(C), a sentencing court must evaluate the need to “protect the public
from further crimes of the defendant[.]” Section 3553(a)(2)(C) implements the penological
concept of “incapacitation (physically preventing the defendant from committing crimes on ‘the
outside,’ by imprisoning him) . . . .” United States v. Kubeczko, 660 F.3d 260, 262 (7th Cir. 2011);
see also Rita, 551 U.S. at 347-48. There is no information whatsoever suggesting that Mr. Wolfe
will commit crimes in the future or that his incapacitation is necessary to protect the public. He
stands before the Court humbled by his actions and their consequences.
Mr. Wolfe has had ample opportunity to review and reflect upon his actions.

As

demonstrated by the letters of support attached hereto (Exhibits 1-4), Mr. Wolfe is well-loved,
respected, and supported by members of his community. To the extent that the Court perceives
some value in even a relatively modest term, we also note that Mr. Wolfe did serve a night in jail
following his arrest. His formal arrest in his own home and having to spend a night in jail were
powerful and sobering experiences.
In sum, Mr. Wolfe is exceedingly unlikely to engage in any criminal conduct, regardless
of the sentence imposed. We respectfully submit that incarceration does not relate to any
meaningful concept of protecting the public from Mr. Wolfe.
4. Need for Education or Vocational Training, Medical Care, or Other Correctional
Treatment
Pursuant to § 3553(a)(2)(D), a sentencing court must also assess the need for the sentence
imposed “to provide the defendant with needed educational or vocational training, medical care,
or other correctional treatment in the most effective manner.” These factors do not apply
meaningfully to Mr. Wolfe; he very much wants to work but will almost certainly never work
again in the area where he has the most relevant experience. He does not face any significant

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medical care issues at this stage of his life.
5. Other 3553(a) Factors
A non-incarcerative sentence is also consistent with similar prosecutions and does not
promote unwarranted disparity. See 18 U.S.C. § 3553 (a)(6). Mr. Wolfe’s Guidelines, the
November 1, 2018, amendments to the Guidelines commentary regarding nonviolent first
offenders, and the factual circumstances of his false statements all distinguish his case from other
recent false statement prosecutions in this District.
In United States v. Jeffrey Kahn, the Court imposed a one month term of incarceration with
five months of home confinement where the Guidelines were determined to be at a Level 10 (Zone
B) and there was a financial loss to the Office of Personnel Management of nearly $80,000.00.
Mr. Kahn’s offense conduct consisted of claiming falsely that he had performed thorough
background checks for the government, which caused the government to have to re-examine many
dozens of personnel files for other deficiencies that presented significant risk that otherwise
ineligible individuals might obtain government employment or security clearances. See Judgment
as to Jeffrey Kahn at 2-3, United States v. Jeffrey Kahn, No. 18-CR-00056 (D.D.C. Aug. 28, 2018),
ECF No. 39; see also Government’s Mem. in Aid of Sentencing at 3-4, United States v. Jeffrey
Kahn, No. 18-CR-00056 (D.D.C. July 23, 2018), ECF No. 28. Indeed, 55 false statements over
many months were identified in that process. Here, of course, Mr. Wolfe is in a substantially lower
Guidelines level and Zone, and his false denials caused no actual harm as the government already
knew about his relationship with the primary reporter at issue (and Mr. Wolfe admitted during the
same interview that he had that relationship). The nature of his other past media contacts did not
affect SSCI nor the investigation in any material way we are aware of, and Mr. Wolfe was
effectively suspended from his work that day and for the remaining pendency of the investigation.

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The Special Counsel investigation has also yielded two other recent false statement
prosecutions in this courthouse, of Alex van der Zwaan and George Papadopoulos. van der Zwaan
was sentenced by Judge Amy B. Jackson to a term of 30 days in prison, and Papadopoulos was
sentenced by Judge Randolph D. Moss to 14 days of incarceration. Both cases have exactly the
same Guidelines calculation as Mr. Wolfe (0-6 months), though both were sentenced prior to the
recent amended Guidelines commentary emphasizing the applicability of non-prison sentences for
nonviolent first offenders. Those cases share key characteristics that distinguish them from Mr.
Wolfe’s situation, including that their false statements had a much more significant actual impact
on the course of the government’s respective investigations.
For example, van der Zwaan was represented by counsel during his interview (and,
therefore, was presumably prepared for and anticipated his interview, unlike Mr. Wolfe). His false
statements during that interview included affirmatively false narratives and concealing his prior
destruction of evidence, acts that impaired significantly the Special Counsel’s investigation. See
Statement of the Offense at ¶¶ 5-7, United States v. van der Zwaan, No. 18-CR-00031 (D.D.C.
Feb. 20, 2018), ECF No. 9. He did not acknowledge any of his lies until two weeks later. Judge
Jackson also noted, in imposing the prison term, that given van der Zwaan’s family’s substantial
wealth, the punitive impact of a simply imposing fine was diluted.
Papadopoulos also did not acknowledge his lies until much later, despite having the benefit
of counsel at a second interview in which he still “did not correct the record.” See Government’s
Sentencing Mem. at 6, United States v. Papadopoulos, No. 17-CR-00182 (D.D.C. Aug. 17, 2018),
ECF No. 44. Like van der Zwaan, Papadopoulos’s false statements were not simply denials but
included confecting elaborate false narratives, see Statement of the Offense at ¶¶ 2, 22-31, United
States v. Papadopoulos, No. 17-CR-00182 (D.D.C. Oct. 5, 2017), ECF No. 19, that materially

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impacted the Special Counsel’s investigation, including by impairing the government’s ability to
contact or detain a key foreign witness during that witness’s brief travel through the United States.
See Government’s Sentencing Mem. at 6, Papadopoulos. We note that Papadopoulos has also
persisted, both before his sentencing and after, in suggesting that he intends to withdraw his plea,
calling into question whether he has ever truly accepted responsibility. No such investigatory
damage flowed from Mr. Wolfe’s actions and he has fully embraced his guilt.13 What is more,
Mr. Wolfe, who did not have counsel at any time during any of his FBI interviews, admitted his
relationship with Reporter # 2 during the same December interview and acknowledged other
unauthorized contacts with other reporters during a follow up interview a few weeks later while
his home was being searched.
C.

Financial Punishment Considerations

As discussed in the PSR at ¶¶ 96-99, 102, Mr. Wolfe is a retired career government servant
living on his pension and savings who, at the age of 58, has no meaningful employment prospects
in his area of experience and expertise. Despite his limited financial resources, he has mailed
checks attempting to refund the generous contributions made to his legal defense fund. A fine may
well be an appropriate component of the punishment here but given Mr. Wolfe’s financial
circumstances, we respectfully submit that any such fine should be consistent with, and at the

13

Another case for comparison is the prosecution of former CIA Director General David Petraeus.
General Petraeus improperly shared Classified Information with his mistress while she was writing
a book. He lied to agents when confronted about his illegal disclosures, but he was permitted by
the government to resolve his case with a misdemeanor charge and he received a probationary
sentence. General Petraeus, of course, was a highly decorated and widely admired war hero but
Mr. Wolfe has also served the country with distinction for over 30 years, was not afforded the
same charging leniency and, as we have emphasized, there is no charge nor evidence of his having
compromised Classified Information, unlike General Petraeus.

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lower end of, the Guidelines range determined for this case, between $500 and $9,500.14
CONCLUSION
For the foregoing reasons, we respectfully ask the Court to impose a non-incarcerative
sentence and, instead, impose a sentence of probation with a community service obligation in
addition to the one day in jail that Mr. Wolfe has already served. Mr. Wolfe, despite the conduct
that brings him before the Court, has long been and can again be a good and productive member
of society. He has much to do in attempting to repair his marriage and he will almost certainly
never regain his reputation or have any meaningful employment in the area where he has worked
for the past 30 years. But his foolish decision to pursue an affair and then lie about it was corrected
almost immediately during the very same fateful interview last year. We do not condone lying to
federal agents. But Mr. Wolfe’s conduct is contradicted sharply by the character of the man that
his family and community and country relied upon and loved and respected, as documented in the
attached letters, including a remarkable bipartisan letter from the Senators leading SSCI. Mr.
Wolfe has committed serious mistakes for which he has paid dearly, and we respectfully urge the
Court to consider the Guidelines, the totality of Mr. Wolfe’s life, the very public shaming he has
endured, and his dedication to rehabilitating himself in determining an appropriate sentence.

14

Mr. Wolfe has submitted his required financial disclosures and paid his $100 Special
Assessment.
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Respectfully submitted,

__/s/____________
Preston Burton (D.C. Bar No. 426378)
Benjamin B. Klubes (D.C. Bar No. 428852
Lauren R. Randell (D.C. Bar No. 503129)
Buckley Sandler LLP
1250 24th Street, N.W.
Washington, D.C. 20037
Telephone: (202) 349-8000
Email: pburton@buckleysandler.com
Counsel for James A. Wolfe

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CERTIFICATE OF SERVICE
I hereby certify that on the 11th day of December 2018, I caused a true and correct copy of
the foregoing Sentencing Memorandum of Defendant James A. Wolfe, to be filed with the Clerk
of Court using the CM/ECF filing system.

_____/s/_________
Lauren R. Randell, (D.C. Bar No. 503129)
Buckley Sandler LLP
1250 24th Street N.W., Suite 700
Washington, D.C. 20037
Telephone: (202) 349-8000
Email: lrandell@buckleysandler.com

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