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PiL'^n
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA

^

•: P:2:C5

Alexandria Division
UNDER SEAL

(Pursuant to Local Criminal Rule 49 and
Fed. R. Crim. P. 6(e))

IN RE:
GRAND JURY CASE NO. lO-GJ-3793

Case No. l:19-DM-3
GRAND JURY NO. 18-4

GOVERNMENT'S RESPONSE IN OPPOSITION TO

CHELSEA MANNING'S MOTION TO OUASH GRAND JURY SUBPOENA

A grand jury ofthe Eastern District of Virginia has lawfully subpoenaed Chelsea
Manning to testify in connection with an ongoing criminal investigation. The Court has ordered

Manning to testify in front ofthe grand jury. The Court and a convening authority within the
Department ofthe Army have also granted Manning full use and derivative use immunity to
ensure that her testimony cannot be used against her. After a one-month postponement at her
request, Manning has been directed to appear in front ofthe grand jury on March 5, 2019. Four
days before her scheduled appearance, she filed the pending motion to quash the subpoena,

speculating that the questioning will violate her constitutional, common-law,and statutory rights.
The motion should be denied. As a general matter, it is premature. The nature of
Manning's claims requires that she hear the questioning before determining whether it violates

her rights. Until then, she can rely only on conjecture, which is an inadequate basis for a motion

to quash. In addition to being premature. Manning's claims fail on their merits. The subpoena
was lawfully issued in the normal course ofthe grand jiuy proceedings. Manning was

subpoenaed because her testimony is highly relevant to an ongoing criminal investigation. Like

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any other citizen, Manning must appear before the grand jury as scheduled, and she must testify
fully and truthfully as this Court has ordered her to do.
BACKGROUND

Manning is a former all-source intelligence analyst in the United States Army who may
remain subject to military jurisdiction, despite her dishonorable discharge, because ofan ongoing
appeal relating to the following. In the 2009 to 2010 timeframe. Manning illegally leaked

hundreds ofthousands of classified documents ofthe United States Government. She provided
the classified documents to one or more agents of WikiLeaks for public disclosure on its website.
Manning was arrested for these crimes in May 2010. She was convicted ofEspionage Act and
other related offenses in a military court-martial. In 2013, Manning was sentenced to 35 years of
imprisonment. In January 2017, however. President Barack Obama commuted Manning's
sentence so that she would be released in May 2017, after serving approximately 7 years in
prison.

In January 2019, Manning was served through counsel with a subpoena to testify on
February 5 before a grand jury empaneled in the Eastern District of Virginia. Manning has been
further ordered to testify in front ofthe grand jury by this Court and a general court-martial

convening authority.' See Ex. A; Ex. B. In the compulsion orders, both authorities have granted
her full use and derivative use immunity. See Ex. A; Ex. B.
At the request of Manning's counsel, the original appearance date was moved back
approximately one month. Manning is now scheduled to appear in front ofthe grand jury on

'The Court's original immunity order dated January 22,2019, erroneously referenced "Grand
Jury 19-1" in the caption. On February 25, 2019,the Court signed an identical immunity order
that simply corrected the caption to reference "Grand Jury 18-4."

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March 5. Manning filed the pending Motion to Quash on March 1, four days before her
scheduled appearance.
DISCUSSION

The Court"may quash or modify [a] subpoena ifcompliance would be unreasonable or

oppressive." Fed. R. Grim. P. 17(c). While the Court oversees that the grand jury uses its
powers for legitimate purposes,the Court "should not intervene in the grand jury process absent
a compelling reason." United States v. (Under Seal), 714 F.2d 347, 350(4th Cir. 1983). "The
investigative power ofthe grand jury is necessarily broad if its public responsibility is to be
adequately discharged." Branzburg v. Hayes,408 U.S. 665, 700(1972). As the Fourth Circuit

has explained,"in the context of a grand jury subpoena, the longstanding principle that the public
has a right to each person's evidence is particularly strong." In re Grand Jury Subpoena,646
F.3d 159,164(4th Cir. 2011)(quoting In re Grand Jury Proceedings #5 Empanelled Jan. 28,

2004,401 F.3d 247,250(4th Cir. 2005)). "[T]he grand jury's authority to subpoena witnesses is
not only historic, but essential to its task." Branzburg,408 U.S. at 688.
A party faces a heavy burden in moving to quash a grand jury subpoena. "[A] grand jury
subpoena issued through normal channels is presumed to be reasonable, and the burden of

showing unreasonableness must be on the recipient who seeks to avoid compliance." United
States V. R. Enters,, Inc., 498 U.S. 292, 301 (1991). A "presumption ofregularity" attaches to
the grand jury's proceedings, including its issuance ofsubpoenas. See Grand Jury Subpoena,
646 F.3d at 164. To prevail on a motion to quash, the subpoena recipient "bears the burden of

rebutting th[at]'presumption ofregularity.'" Id. For the reasons explained below. Manning has
failed to carry that burden.

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I.

The Grand Jury Subpoena Does Not Infringe on Manning's Fifth Amendment
Rights

The Fifth Amendment right against self-incrimination applies to grand jury proceedings.
See Kastigar v. United States, 406 U.S. 441,444(1972). Federal law, however, allows district

courts to immunize witnesses and compel them to testify before a grand jury. See 18 U.S.C.

§ 6003(a). Under those circumstances, the witness's testimony cannot be used, or derivatively
used, against the witness "in any criminal case, except a prosecution for perjury, giving a false
statement, or otherwise failing to comply with the order." Id. § 6002. In the military courts, the
Rules for Court-Martial(R.C.M.)likewise allow a general court-martial convening authority to
grant such use and derivative use immunity. See Manual for Courts-Martial, United States,
R.C.M. 704(2016 ed.)(Ex. C.)

It is well established that, where such immunity has been conferred, the government may
compel the immunized witness to testify in front ofthe grand jury, even if her testimony would
otherwise incriminate her. See Kastigar,406 U.S. at 462. As the Supreme Court has explained,
"the immunity... leaves the witness and the prosecutorial authorities in substantially the same

position as ifthe witness had claimed the Fifth Amendment privilege." Id. "The immunity
therefore is coextensive with the privilege and suffices to supplant it." Id.
In light ofthis precedent. Manning's Fifth Amendment claim fails. Both the Court and a

general court-martial convening authority have issued orders compelling her to testify before the
grand jury. See Ex. A; Ex. B. Both orders expressly grant Manning use and derivative use

immunity in connection with her testimony. See Ex. A; Ex. B. Under Kastigar, those orders
eliminate any Fifth Amendment concems.

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Manning's primary argument is that she is still subject to military criminal jurisdiction,
where she claims that her grand jury testimony could be used against her. See Mot. to Quash 710(Mar. 1, 2019). But the Army's immunity order definitively resolves that issue. It explicitly
extends the immunity to court-martial proceedings:"no testimony or other information given by
you pursuant to this order or any information directly or indirectly derived from such testimony
or other information shall be used against you in a criminal case, to include any courts-martial^
except as permitted by 18 U.S.C. § 6002." Ex. B (emphasis added). There is no question that
Manning's grand jury testimony cannot be used against her in a court-martial proceeding.
Accordingly, the alleged threat of military prosecution does not present Fifth Amendment
concerns.

The case relied on by Manning, United States v. Villines, 13 M.J. 46(C.M.A. 1982), is
distinguishable on that basis. In that case, unlike here, the court refused to immunize the
potential witness. See id. at 50. In fact, a primary issue on appeal was whether the court erred in

refusing to immunize the potential witness so he could testify without Fifth Amendment
concerns. See id. at 54. Manning, however, has been immunized so she can testify. Villines is
therefore inapplicable.

Manning also urges (at 3)the Court to quash the subpoena based on "the threat offoreign
prosecution" that is "unaffected by an immunity order." But the Supreme Court squarely
rejected this argument in United States v. Balsys, 524 U.S. 666(1998). There, the defendant was
administratively subpoenaed to testify "about his wartime activities between 1940 and 1944."

Id. at 669. He refused "to answer such questions, claiming the Fifth Amendment privilege

against self-incrimination, based on his fear ofprosecution by a foreign nation." Id. In ruling
that the defendant had to testify, the Supreme Court held that "concern with foreign prosecution
5

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is beyond the scope ofthe Self-Incrimination Clause." Id. Manning's concern about potential
foreign prosecution,therefore, is no defense to her obligation to comply with the grand jury
subpoena. See, e.g..In re Grand Jury Proceedings ofthe Special April 2002 Grand Jury, ZAl
F.3d 197,208 (7th Cir. 2003)(holding that"any Fifth Amendment claim based on fear of

prosecution by a foreign government would provide no defense to contempt in a grand jury
proceeding");In re Grand Jury Investigation John Doe,542 F. Supp. 2d 467,469(E.D. Va.
2008)("The Fourth Circuit has also held that a witness is required to testify under a grant of
immunity in the United States even ifthat witness's testimony would result in a possible criminal
conviction in a foreign country.").

In addition to being meritless. Manning's Fifth Amendment claim is premature. A
person subpoenaed to testify before the grand jury may not claim the Fifth Amendment"as a

blanket defense." In re Grand Jury Subpoena,739 F.2d 1354, 1359(8th Cir. 1984). "Rather,
the witness must make specific objections in response to specific questions." Id. Because

Manning has not yet appeared before the grand jury, the Fifth Amendment provides no grounds
for quashing the subpoena.
II.

Manning's First Amendment Claims Are Premature and Lack Merit
Even though Manning has not yet appeared before the grand jury, she asserts that the

grand jury questioning will infringe upon her First Amendment rights. Specifically, Manning
speculates that she may be questioned about her prior disclosures ofclassified information, for

which she was convicted. See Mot. to Quash 9-10; Manning Aff. H 4(Mar. 1, 2019). Manning
claims "that questioning... will focus on activities protected by the First Amendment such as

news gathering." Mot. to Quash 5. According to Manning,such questioning would "disrupt the
integrity ofthe journalistic process by exposing journalists to a kind ofaccessorial liability for
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leaks attributable to independently-acting journalist sources." Id. at 12. In addition, Manning
speculates that the grand jury may ask her questions about her political associations and
activities. See id. at 12-13. These claims are wholly without merit.

As a threshold matter, Manning's arguments are premature, and the Court should deny
the motion on that basis alone. As Justice Powell explained in Branzburg v. Hayes, district
courts should address First Amendment concerns only after the witness appears and is subject to
"improper or prejudicial questioning." 408 U.S 665,710 n.*(1972)(Powell, J,, concurring).
The Fourth Circuit has adopted Justice Powell's concurrence, reaffirming "that witnesses carmot
litigate the state's authority to subpoena them 'at the threshold'" based on First Amendment

concerns. In re Grand Jury 87-3 Subpoena Duces Tecum,955 F.2d 229,233(4th Cir. 1992).
Manning must therefore appear before the grand jury and subject herself to questioning before
challenging it on First Amendment grounds. The time for her to raise a First Amendment

defense is only in response to a particular question.^ Until that time, her First Amendment
claims are premature. See In re Grand Jury Investigation, 431 F. Supp. 2d 584,592(E.D. Va.
2006)(holding that an assertion of marital privilege was "premature" and that the witness "must

appear and testify, but may assert the privilege in response to specific questions").

Moreover, even assuming the grand jury were to inquire about Manning's prior
disclosures of classified information, any motion to quash such inquiry would fail on its merits.

Questions about those disclosures would not affect her First Amendment rights. Manning was

^ If Manning asserts a First Amendment challenge to a particular question, the Court should
reject her invitation (at 12) to adopt the "substantial relationship" test from Bursey v. United
States, 466 F.2d 1059 (9th Cir. 1972). The Fourth Circuit previously recognized that "the
Supreme Court has twice declined to apply the substantial relationship test in cases involving
subpoenas challenged on First Amendment grounds." Grand Jury 87-3 Subpoena Duces Tecum,
955 F.2d at 232. Instead, the Fourth Circuit has adopted a simple balancing test that does not
place "any special burden on the government." Id. at 234.

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an intelligence analyst in the U.S. Army—a government insider who signed a nondisclosure
agreement—^when she disclosed the classified information. As such, the law is clear that

Manning had no First Amendment protections in disclosing the information. See Snepp v.
United States^ 444 U.S. 507, 509 n.3 (1980); Wilson v. CIA, 586 F.3d 171, 183-84 (2d Cir.
2009); Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003); United States v. Morison, 844 F.2d

1057, 1069-70 (4th Cir. 1988); Alfred A. Knopf Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir.
1975); United States v. Rosen, 445 F. Supp. 2d 602, 635-36 (E.D. Va. 2006). Her successful

prosecution at the court-martial evidences that she had no First Amendment protections. Quite

simply. Manning broke the law in disclosing classified information, and therefore, the grand jury
properly could inquire about that offense, just as it properly could inquire about any other

potential offense that Manning committed or witnessed.
Similarly, Manning's speculation about the need for her to protect the concems of

journalists would not preclude questioning about her illegal disclosures. It is unclear how any
questioning on this topic alone, within the confines of the secrecy of the grand jury proceeding,

would "disrupt the integrity of the journalistic process." Mot. to Quash 12. Manning fails to
explain how it would. See Branzburg, 408 U.S. at 693-94 (emphasizing that the asserted
"inhibiting effect" that subpoenas to reporters would have in recruiting sources was "to a great

extent speculative"). Regardless, Manning does not have standing to raise the First Amendment
rights ofjoumalists.
Even if Manning did have standing, her argument would fail. Reporters enjoy no special
solicitude vis-a-vis the grand jury. See id. at 690; United States v. Sterling, 724 F.3d 482, 499,

505 (4th Cir. 2013). The First Amendment does not "relieve a newspaper reporter of the
obligation shared by all citizens to respond to a grand jury subpoena and answer questions
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relevant to a criminal investigation, even though the reporter might be required to reveal a
confidential source." Cohen v. Cowles Media Co., 501 U.S. 663,669(1991). It is "the duty of a
citizen, whether reporter or informer, to respond to [a] grand jury subpoena and answer relevant

questions put to him." Branzburg, 408 U.S at 697; see also Citizens United v. FEC, 558 U.S.
310, 352 (2010)("We have consistently rejected the proposition that the institutional press has
any constitutional privilege beyond that of other speakers."); Dahlstrom v. Sun-Times Media,
LLC, 111 F.3d 937, 946 (7th Cir. 2015)(recognizing that "the First Amendment provides no
special solicitude for members of the press"); In re Greensboro News Co., 121 F.2d 1320, 1322
(4th Cir. 1984)(recognizing that "the rights of the news media... are co-extensive with and do
not exceed those rights of members ofthe public in general").
Nor is the topic of newsgathering immune from criminal investigation, as Manning's

argument suggests (at 5). It is well settled that journalists cannot break the law to obtain
information. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 532 n.l9 (2001) ("It would be
frivolous to assert—^and no one does in these cases—^that the First Amendment, in the interest of

securing news or otherwise, confers a license on either the reporter or his news sources to violate
valid criminal laws.

Although stealing documents or private wiretapping could provide

newsworthy information, neither reporter nor source is immune from conviction for such
conduct, whatever the impact on the flow of news." (quoting Branzburg, 408 U.S. at 691));
Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971)("The First Amendment has never

been construed to accord newsmen immunity from torts or crimes committed during the course

of newsgathering. The First Amendment is not a license to trespass, to steal, or to intrude by
electronic means into the precincts of another's home or office."). Criminal acts committed by

citizens and journalists alike in obtaining information is a proper subject of inquiry by a grand
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jury. For all of these reasons, even assuming that Manning were asked about her disclosure of

classified information, the First Amendment would not preclude the inquiry.
In the end, the government is confident that its questioning will pose no legitimate First

Amendment concerns. As will become clear during the questioning. Manning's testimony is
highly relevant to an ongoing criminal investigation. The questioning will be properly tailored to
that investigation. Under the Supreme Court's and Fourth Circuit's precedent, it will not violate
Manning's First Amendment rights.
III.

The Grand Jury Subpoena Is Not Improper or Abusive

In addition to her constitutional claims. Manning alleges that the grand jury subpoena
was issued for improper purposes. Throughout her papers, she offers a series oftheories

maligning the government's motives: that the purpose ofthe subpoena is to harass her, to
retaliate against her, to set up a pequry trap for her, or to obtain otherwise "inaccessible"
information. See Mot. to Quash 17-20. She has no evidence, however, of any foul play at the
grand jury. Her arguments are pure conjecture.
Manning's allegations fail to rebut the presumption ofregularity that attaches to grand

jury subpoenas. "[T]he law presumes, absent a strong showing to the contrary, that a grand jury
acts within the legitimate scope ofits authority." United States v. R. Enters., Inc., 498 U.S. 292,
300-01 (1991). The "recipient who seeks to avoid compliance" bears the burden ofshowing
otherwise, id. at 301, and has the "initial task of demonstrating ...some valid objection to

compliance,"In re Grand Jury Matter (Special Grand Jury Narcotics December Term, 1988,
Motion to Quash Subpoena),926 F.2d 348, 350(4th Cir. 1991)(quotingi?. Enters.,498 U.S. at

305 (Stevens, J., concurring in part and concurring in the judgment)). It is well established that
mere conjecture and speculation about the government's motives do not satisfy that burden. See
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United States v. Leung,40 F.3d 577,582(2d Cir. 1994)(holding that "speculations about
possible irregularities in the grand jury investigation were insufficient to overcome the
presumption that this investigation was for a proper purpose"); United States v. Bellomo, No.02-

CR-140(ILG), 2002 WL 1267996, at *2(E.D.N.Y. Apr. 10, 2002)(rejecting a motion to quash a
subpoena because there was no "particularized proofthat the government acted arbitrarily and
for an improper purpose"); United States v. Bin Laden, 116 F. Supp. 2d 489,493(S.D.N.Y.
2000)(recognizing that "speculations about the Government's motives are insufficient to

overcome the presumption ofregularity"); United States v. McVeigh, 896 F. Supp. 1549,155758(W.D. Okla. 1995)("Such rank speculation or supposition is insufficient to overcome the
presumption ofregularity that attaches to the grand jury's acts or to raise a substantial factual
issue as to the purpose for which the subpoena and directive were issued."). Since that is all she
offers. Manning has failed to carry her burden.

On the contrary, the circumstances reflect that the issuance ofthe subpoena to Manning
was for a legitimate purpose. Manning was validly convicted of high-profile unauthorized
disclosure offenses after she committed one ofthe largest leaks of classified information in
American history. Even assuming that Manning is correct that she will be asked about those

offenses, such activity would fall squarely within the purview of a legitimate grand jury
investigation.
The fact that the Department of Justice requested immimity for Manning further
reinforces that the subpoena was for a legitimate purpose. The decision to grant a witness
immunity is not taken lightly. Under federal law,the Department must request use and
derivative use immunity before the court can grant it. See 18 U.S.C. § 6003(a). Such an

application must be approved by statutorily designated leadership within the Department, and it
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can be approved only when "the testimony or other information from such individual may be
necessary to the public interest.'" Id. § 6003(b)(emphasis added). All ofthose steps were
followed here. In fact, the Court's immunity order reflects that it was "satisfied that the

testimony or other information from [Manning] may be necessary in the public interest." Ex. A.

The solemn decision to provide Manning with immunity reflects the importance of her testimony
to an ongoing investigation.

The government, moreover, offered to meet Manning in advance ofthe grand jury to ask
the questions and obtain answers in the presence of her attorneys. This would have given
Manning insight into the proper purpose ofthe subpoena. While Manning had the right to

decline that voluntary meeting, her effort to quash the subpoena on the basis ofconjectured

improprieties and ulterior motives is nothing more than an attempt to unnecessarily "saddle [the]
grand jury with minitrials and preliminary showings [that] would assuredly impede its
investigation and fi-ustrate the public's interest in the fair and expeditious administration ofthe
criminal laws." R. Enters.., 498 U.S. at 298-99(quoting United States v. Dionisio, 410 U.S. 1,17
(1973)).

It is worth noting that Manning's primary arguments are premised on a false and
misleading factual premise. In her papers, Manning suggests that she "has already given
exhaustive testimony" at her court-martial proceeding. Mot. to Quash 17. Manning further
represents that,"[a]t that time, the military, in consultation with the Department of Justice, crossexamined her and elicited testimony from her." Id. at 3.

These representations do not withstand scrutiny. During her court-martial. Manning

pleaded guilty to some ofthe charges. In connection with her guilty plea, the military judge
conducted a "providence inquiry"—"a more elaborate relative ofthe Rule 11 proceeding under
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the Federal Rules of Criminal Procedure" that serves to "ensure that a plea is voluntary and that
there is a factual basis for the plea." Partington v. Houck,723 F.3d 280,282-83(D.C. Cir.

2013). The Rules for Courts-Marital provided that "[t]he militaryjudge shall not accept a plea
of guilty without making such inquiry ofthe accused as shall satisfy the military judge that there
is a factual basis for the plea." Manual for Courts-Martial, United States, R.C.M. 910(e)(2012

ed.)(Ex. D). As the notes to the rule explain,"[t]he accused need not describe from personal
recollection all the circumstances necessary to establish a factual basis for the plea. Nevertheless
the accused must be convinced of, and able to describe all the facts necessary to establish guilt."
Id.

The government has attached the colloquy from Manning's providence inquiry. See Ex.
E. As it reflects. Manning first read a voluntary statement providing a factual basis for her plea.
See Ex. E, at 6739-85. That statement was also entered as an exhibit in the record. See Ex. F.

Then,the court questioned her specifically about the factual basis for certain elements to which
she was pleading guilty. See id. Ex. E,at 6786-916.
Thus, Manning's representation that she gave exhaustive testimony and was "cross-

examined" is misleading. Manning chose what facts to admit to support her guilty pleas. And
the military court engaged in a limited inquiry to ensure the factual basis for the pleas. There is

no evidence that the Department of Justice was involved in the military court's questioning of
her.

IV.

Manning Has Failed to Demonstrate that She May Have Been Subjected to
Unlawful Electronic Surveillance

Manning claims that she may have been subjected to unlawful electronic surveillance.

While Manning recognizes that it is premature to request a hearing to determine whether it

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affected the grand jury subpoena or any questioning, she insists that the government must affirm

or deny that such surveillance occurred. See Mot. to Quash 21,23. As explained below.
Manning's claim is meritless.
Upon a claim of a party aggrieved by unlawfiil electronic surveillance under Title III of

the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522("Title III"),
the government is required by 18 U.S.C. § 3504(a)(1)to affirm or deny the occurrence ofthe
alleged unlawful act. Specifically, the statute provides as follows:

(a) In any trial, hearing, or other proceeding in or before any court [or] grand jury
...ofthe United States—

(1)upon a claim by a party aggrieved that evidence is inadmissible because it
is the primary product of an unlawful act or because it was obtained by the
exploitation of an unlawful act, the opponent ofthe claim shall affirm or deny
the occurrence ofthe alleged unlawful act.
18 U.S.C. § 3504(a)(1). An "unlawful act" includes the use of electronic surveillance—as
defined in Title III—^in violation ofthe Constitution or the laws ofthe United States. Id.

§ 3504(b).

Under this statute. Manning must satisfy a two-part test. First, to establish standing, she
must make a "claim" that there actually was electronic surveillance and that she was a party

"aggrieved" by its use. See United States v. Apple,915 F.2d 899,905 (4th Cir. 1990). Second,
she must show a plausible causal link between the electronic surveillance she alleges to have
occurred and the evidence that the government intends to use against her in the grand jury. See

In re Grand Jury Investigation, 2003R0I576,437 F.3d 855,858(9th Cir. 2006); United States v.
Robins, 978 F.2d 881,887(5th Cir. 1992). Only ifshe satisfies both conditions may the

government be required to affirm or deny any surveillance. Manning has failed to satisfy either.

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A,

Manning Does Not Have Standing.

As the Fourth Circuit has explained,"a party claiming to be the victim ofillegal
electronic surveillance must first demonstrate that his interests were affected before the

government's obligation to affirm or deny is triggered." Apple,915 F.2d at 905. "This

'standing' requirement is met ifa definite 'claim' is made by an 'aggrieved party.'" Id.
Manning has failed to make a definite claim or demonstrate that she is an aggrieved party.
L Manning has not made a sufficient "claim"under§3504.

To satisfy the "claim" requirement under § 3504, the Fourth Circuit has held that a party
must make "a positive statement that illegal surveillance has taken place." Id. Equivocal
statements are insufficient. The "mere allegation that such surveillance 'may' have occurred

does not warrant any response from the government." In re Grand Jury Proceedings,831 F.2d
228,230(11th Cir. 1987). Similarly,"a motion alleging only a 'suspicion' ofsuch surveillance,
or that the movant has 'reason to believe' that someone has eavesdropped on his conversations,
does not constitute a positive representation giving rise to the government's obligation to

respond." Robins,978 F.2d at 886.
Manning never positively states in her papers that illegal electronic surveillance took

place. Instead, Manning makes only equivocal assertions. She consistently qualifies her
statements with language that she "believed" or had "reason to believe" that illegal surveillance
occurred. See, e.g.. Mot. to Quash 5(asserting Manning "has reason to believe" that she was

subject to unlawful electronic surveillance); id. at 20(asserting that the "facts tend[] to suggest
that she ... ha[s] been subjected to unlawful electronic surveillance"); id. (asserting a "reason to
believe" she was subject to electronic surveillance); id. at 21 ("It would be difficult to deny that a

great deal of electronic surveillance has taken place and been directed at Ms. Manning.");
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Manning Aff. HH 16-17(stating she "believ[ed]" and had "reason to believe" unlawful electronic

surveillance had taken place). In the absence of a positive statement that unlawful electronic

surveillance actually occurred. Manning's motion under § 3504 must be denied.
2. Manning has not sufficiently alleged that she was an aggrieved party.

The standard for establishing that she is an aggrieved party is even "more demanding"
than the requirements for making a claim. In re Grand Jury Investigation^ 431 F. Supp. 2d 584,

590(E.D. Va. 2006). To satisfy this requirement. Manning must"make a prima facie showing
that [s]he was 'aggrieved' by the surveillance; that is, that [s]he was a party to an intercepted
commxmication, that the government's efforts were directed at [her], or that the intercepted

communications took place on [her] premises." Apple^ 915 F.2d at 905. "This critical showing
may not be based on mere suspicion; it must have at least a 'colorable basis.'" Id.

Manning's allegations fall decidedly short of satisfying this "demanding standard."
Grand Jury Investigation, 431 F. Supp. 2d at 591 n.l4. Her allegations, at most, suggest that she

was subjected to physical surveillance (i.e., the alleged van outside of her house and the alleged
men on the Amtrak). None of the allegations provides a colorable basis that the government was

intercepting her communications. In that regard. Manning has not offered anything more than
"mere suspicion" to suggest that she was subjected to illegal electronic surveillance.
The Fourth Circuit's decision in United States v. Apple demonstrates how far short
Manning's allegations fall. There, a defendant stated that he called a third party whose phone

was tapped. See Apple,915 F.2d at 906. The defendant specified where he called the third
party—in Fluvanna County, Virginia. See id. The defendant approximated when he called the
third party—^in May,June, or July 1985. See id. And the defendant stated that he "spoke

'regularly' on the telephone" with the third party. Id. The Fourth Circuit held that this showing
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was nevertheless insufficient to establish that the defendant was an aggrieved party because the
defendant "never averred that he completed telephone calls to the number known to have been
tapped during the period that surveillance took place." Id. at 907. The defendant's "failure to

aver that he was involved in telephone conversations on the tapped line [was]...fatal to his
claim." Id.

Manning's allegations are less compelling than the Apple defendant's claim. Unlike the

Apple defendant. Manning cannot clarify when, where, and on what medium her

communications were allegedly intercepted. Whereas the Apple defendant specified that the
intercepts involved telephone communications. Manning speculates that she was intercepted on
two cell phones and an email address. See Manning Aff. ^18. Whereas the Apple defendant

pinpointed the area in which the wiretap occurred. Manning claims that she thought she was
intercepted in New York, Maryland, and San Francisco, See id. Whereas the Apple defendant

specified that the intercepts occurred during a three-month timeffame. Manning broadly states
that the intercepts ofher various devices occurred over nine months. See id. Manning's kitchen-

sink allegations underscore that she has no idea whether electronic surveillance occurred and,if
so, whether she was subjected to it. As a result, the Court has even less of a basis to conclude

that she is an aggrieved party than the Fourth Circuit had in Apple.
B.

Manning Has Failed to Show a Connection Between the Grand Jury
Proceedings and Any Intercepted Electronic Communications.

Section 3504 also contains an express requirement that there be a connection between the
unlawful surveillance and the questions asked or evidence used at a grand jury proceeding. See
18 U.S.C. § 3504(a)(1)(requiring a "claim ... that evidence is inadmissible because it is the

primary product of an unlawful act or because it was obtained by the exploitation of an unlawful

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act"). The statute, after all, is meant "to provide procedures by which a witness may attempt to
demonstrate that the questions posed to him fail to comply with the mandate ofsection 2515," a

provision that "proscribes the use in an official proceeding ofevidence tainted by illegal
surveillance." In re Grand Jury Matter^ 906 F.2d 78,91 (3d Cir. 1990). It "is not a discovery
tool to be used to determine the existence or validity of wiretaps completely unrelated in time or

substance to the on-going proceeding." Id. at 93.
The Ninth Circuit's decision in In re Grand Jury Investigation, 2003R01576,437 F.3d

855(9th Cir. 2006), is instructive. There, a district court held a grand jury witness in contempt
after he refused to answer questions posed to him. Id. at 857. The witness asserted § 3504 as a

defense, claiming that "the government did not meet its burden of proofin responding to his
allegations that he ha[d] been the subject ofillegal surveillance." Id. The Ninth Circuit

disagreed. While it concluded that he sufficiently showed he was an aggrieved party, the court
determined that he did not demonstrate "that the government's questions were the 'primary

product' of unlawful surveillance or were 'obtained by the exploitation' ofany unlawful
surveillance." Id. at 858 (quoting § 3504(a)(1)). The Ninth Circuit emphasized that there must

be at least "an arguable causal connection between the questions being posed to the grand jury
witness and the alleged unlawful surveillance." Id. The court noted that "[t]he nature ofthe

questions posed to [the witness] before the grand jury[was] so generic that the questions d[id]
not suggest any reliance on surveillance of any sort." Id.
In her papers, Manning recognizes that she cannot demonstrate that the subpoena or any

questioning will be based on unlawful electronic surveillance. In fact, she recognizes that "it is
well-settled that electronic surveillance is relevant to a grand jury proceeding only where it is

unlawful, and directly connected to [the] subpoena or questions." Mot. to Quash 23. And she
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acknowledges that "it is not at this time necessary to request such a hearing." Id. Instead, she
asks the Court to compel the government to affirm or deny any such surveillance. Id.

The text ofthe statute undermines Manning's request. Under the clear language ofthe

statute, the government does not have to affirm or deny until Manning shows that the subpoena
or questioning was a "primary product" of unlawful surveillance or "was obtained by the
exploitation" of unlawful surveillance. § 3504(a)(1). She has offered nothing to suggest that the
subpoena was the product of unlawful surveillance. And,given that Manning has not appeared
before the grand jury, she has no basis for arguing that the questioning is a product of unlawful
surveillance. In short. Manning has failed to assert a connection between the alleged unlawful
surveillance and the grand jury proceedings. As a result, her motion must be denied. See also In

re Grand Jury Subpoena (T-112), 597 F.3d 189,196-200(4th Cir. 2010)(holding that a grand
jury enforcement action is not the proper forum for litigating whether surveillance violated the
Fourth Amendment or FISA).

V.

Manning Has No Right to Disclosure of ^'Ministerial" Grand Jury Records

Manning is not entitled to so-called "ministerial" records ofthe grand jury. Federal Rule

of Criminal Procedure 6(e) codifies the "long-established policy of maintaining the secrecy of
grand jury proceedings." United States v. Penrod,609 F.2d 1092, 1098(4th Cir. 1979). The
rule sets forth the exceptions under which the Court may "lift the veil of secrecy." See Fed. R.

Crim. P. 6(e)(3)(E); United States v. Loc Tien Nguyen^ 314 F. Supp. 2d 612,615(E.D. Va. 2004)
(addressing exceptions under prior version of Rule 6(e)).

Manning does not point to any of Rule 6(e)'s exceptions as allowing for a right to the

purportedly "ministerial" records she seeks. Instead, she cites(at 25)the Ninth Circuit's opinion
in In re Special Grand Jury (for Anchorage, Alasaka),674 F.2d 778(9th Cir. 1982), where the
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court held that members ofthe public "have a right, subject to the rule ofgrand jury secrecy, of
access to the ministerial records" ofthe grand jury. Id. at 781. Courts in this district, however,

have rejected that holding. "[T]here is no rule in the Fourth Circuit that some grand jury records
may be labeled as ministerial and disclosed to the public ifthey do not fall within the bounds of

Rule 6(e)or otherwise offend the goals ofthe grand jury secrecy doctrine." Nguyen,314 F.
Supp. 2d at 618.

Manning's attempt to invoke (at 25)cases involving the public's "general right of access

to court records" fares no better. Even the court in In re Special Grand Jury recognized that the
common-law right of access to court records was "subject to the rule of grand jury secrecy." 674
F.2d at 781;see also Douglas Oil Co. ofCal. v. Petrol Stops N.W.,AA\ U.S. 211,218 n.9(1979)
(describing grand jury secrecy as dating to the 17th century and "imported into our federal
common law" as "an integral part ofour criminal justice system").
Moreover, Manning has not even attempted to meet the standard required for disclosure

of grand jury records under Rule 6(e)(3)(B)(i)—^the only exception even potentially applicable to
someone in Manning's shoes. See Fed. R. Crim. P. 6(e)(3)(E)(i)(allowing disclosure of grand

jury matter "preliminary to or in connection with a judicial proceeding"). A party seeking to lift
the veil of secrecy under that rule must make a "strong showing ofa particularized need for

grand jury materials." United States v. Sells Eng'g, Inc., 463 U.S. 418,443(1983). Specifically,
a party "must show that the material they seek is needed to avoid a possible injustice in another

judicial proceeding, that the need for disclosure is greater than the need for continued secrecy,
and that their request is structured to cover only material so needed." Douglas,441 U.S. at 222.
Manning has not identified any other relevantjudicial proceeding, or otherwise addressed any
element ofthe Douglas test. See also Nguyen, 314 F. Supp. 2d at 616 n.6 ("Invocation of
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general constitutional rights does not qualify as a particularized need justifying disclosure.").
She is therefore not entitled to any records ofthe grand jury in this case.

VI.

Manning Has No Right to Have the Court Instruct the Grand Jury as She Demands

"Traditionally the grand jury has been accorded wide latitude to inquire into violations of

criminal law. No judge presides to monitor its proceedings. It deliberates in secret and may
determine alone the course ofits inquiry." United States v. Calandra,414 U.S. 338, 343(1974).
The Fourth Circuit has thus "repeatedly recognized that district courts should refrain from

intervening in the grand jury process absent compelling evidence ofgrand jury abuse" and in
light ofthe "presumption ofregularity" attached to grand jury proceedings. United States v.

Alvarado,840 F.3d 184, 189(4th Cir. 2016). Motions to instruct the grand jury "have uniformly
met with no success." In re Balistrieri, 503 F. Supp. 1112,1114(E.D. Wis. 1980); see also
United States v. Zangger,848 F.2d 923,935(8th Cir. 1988)("The prosecutor is under no
obligation to give the grand jury legal instructions.").

Despite the presumption ofregularity. Manning proposes(at 27)that the Court provide a
novel set of grand jury instructions related to, among other things,"the power and authority of
the grand jury," Manning's purported Fifth Amendment rights,"and the legal effect of an
immunity grant." Maiming, however, fails to cite a single case in the Fourth Circuit that

supports the Court instructing the grand jury about such matter, because no such case exists. Nor
has Maiming offered a shred ofevidence of grand jury abuse that would rebut the presumption of
regularity. See Alvarado, 840 F.3d at 189. Manning asserts(at 27)that her proposed

instructions are necessary "because the possibility ofcivil contempt looms over Ms. Manning."
But that possibility hangs over every grand jury witness and, therefore, does nothing to rebut the

presumption ofregularity or counsel in favor of Manning's proposed instructions.
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Manning's sole support for her proposed instruction is the Ninth Circuit's opinion in
United States v. Alter^ 482 F.2d 1016(9th Cir. 1973). The court in Alter, however, did not
consider the propriety ofthe grand jury witness's proposed instructions. Indeed, the court stated

that the proposed instructions were not even given by the district court. See id. at 1029("The
record supplies no basis for us to infer that he was prejudiced ... by the refusal to give his
requested instructions to the grand jury.")

VII.

Manning Has No Right to Discovery from the Government Prior to Her Grand Jury
Testimony

There is no rule of criminal procedure that obligates the government to produce discovery
to a grand jury witness prior to her testimony. Manning cites(at 28)out-of-circuit cases

supporting the proposition that, in some circumstances, a grand jury witness may be entitled to
the transcript of her grand jury testimony after she testifies. But as expressly acknowledged in
the cases Manning cites, that is not the law in the Fourth Circuit. See In re Grand Jury,490 F.3d
978,987(D.C. Cir. 2007)(describing circuit split and that the Fourth Circuit "held that grand
jury witnesses are not entitled to obtain copies oftheir transcripts"). In the Fourth Circuit,

witnesses are not entitled to their own grand jury transcripts absent a showing that a

"particularized need" outweighs the policy of grand jury secrecy. Bast v. United States, 542 F.2d
893,896-97(4th Cir. 1976). Other than speculating that she might commit peijury if she
testifies. Manning does not event attempt to make such a showing.

In any event, the out-of-circuit cases Manning cites address disclosure ofa grand jury
transcript after a witness testifies before the grand jury. Contrary to Manning's suggestion, those
cases do not provide a general right to discovery of a witness's prior statements before the

witness appears. See In re Sealed Motion,880 F.2d 1367, 1370-73(D.C. Cir. 1989)(finding

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general right to transcript of a witness's own testimony absent countervailing interests); In re
Grand Jury,490 F.3d at 990(grand jury witness entitled to review transcript of his own
testimony "in private at the U.S. Attorney's Office or a place agreed to by the parties or
designated by the district court");In re Russo,53 F.R.D. 564,569(C.D. Cal. 1971)("The

question...is the extent to which providing a witness with a transcript ofhis own grand jury
testimony would be inconsistent with valid reasons for secrecy."); Gebhard v. United States, 422
F.2d 281,289(9th Cir. 1970)(considering whether it was error for petitjury in peijury case "to
hear the complete transcript ofthe defendant's testimony before the grand jury"); United States

V. Nicoletti, 310 F.2d 359(7th Cir. 1962)(holding that the "two witness" rule was not applicable
in a peijury case).
CONCLUSION

For the foregoing reasons, the Court should deny the motion to quash.

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Respectfully submitted,
G.Zachary Terwilliger
United States Attorney

Tracy Doherty-McCormick

First Assistant United States Attorney
Gordon D. Kromberg
Kellen S. Dwyer
Thomas W.Traxler

Assistant United States Attorneys
United States Attorney's Office
2100 Jamieson Avenue

Alexandria, VA 22314

Telephone(703)299-3700
Facsimile(703)299-3980
Thomas.traxler@usdoj.gov
Matthew R. Walczewski
Nicholas Hunter

Trial Attorneys, National Security Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington,DC 20530
Telephone(202)233-0986
Facsimile(202)532-4251

Matthew.walczewski@usdoj.gov

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CERTIFICATE OF SERVICE

I hereby certify that on the 4th day of March,2019,1 caused the foregoing document to
be sent to the following via electronic mail:
Moira Meltzer-Cohen

Attorney at Law
Mo_at_Law@protonmail.com

Thomas W.Traxler

Assistant United States Attorney

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