Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 1 of 11

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------X
UNITED STATES OF AMERICA
:
-vJOSHUA ADAM SCHULTE,

S2 17 Cr. 548 (PAC)

:
:

:
Defendant.
-----------------------------------------------------X
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT JOSHUA ADAM
SCHULTE’S MOTION IN LIMINE TO PRECLUDE
THE TESTIMONY OF PAUL ROSENZWEIG
Edward S. Zas
Allegra M. Glashausser
Federal Defenders of New York, Inc.
52 Duane Street, 10th Floor
New York, New York 10007
Tel.: (212) 417-8742
Sabrina P. Shroff
233 Broadway
New York, New York 10007
Counsel for Defendant Joshua Adam Schulte

TO:

GEOFFREY S. BERMAN, ESQ.
United States Attorney
Southern District of New York
One St. Andrew’s Plaza
New York, New York 10007
Attn: Matthew Laroche, Sidhardha Kamaraju, and David Denton
Assistant United States Attorneys

 Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 2 of 11

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
PRELIMINARY STATEMENT .................................................................................................... 1
ARGUMENT .................................................................................................................................. 2
1.

The expert notice is insufficient ....................................................................................... 2

2.

Nothing the government has provided indicates that Mr. Rosenzweig is an expert on
WikiLeaks ........................................................................................................................ 3

3.

The proposed testimony will not be helpful to the jury ................................................... 5

4.

The testimony will be irrelevant, prejudicial, and confusing ........................................... 6

5.

Public statements made by unknown people at WikiLeaks must be excluded as
hearsay.. ............................................................................................................................ 7

CONCLUSION ............................................................................................................................... 8

i

 Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 3 of 11

TABLE OF AUTHORITIES
Cases
Daubert v. Merrell Dow Pharm.,
509 U.S. 579 (1993) ................................................................................................................... 5
Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999) ................................................................................................................... 2
United States v. Amador-Huggins,
799 F.3d 124 (1st Cir. 2015) ...................................................................................................... 3
United States v. Duvall,
272 F.3d 825 (7th Cir. 2001) ...................................................................................................... 2
United States v. Ferguson,
2007 WL 4539646 (D. Conn. Dec. 14, 2007) ............................................................................ 2
United States v. Mahaffy,
No. 05–CR–613 (ILG), 2007 WL 1213738 (E.D.N.Y. Apr. 24, 2007) ..................................... 2
United States v. Mejia,
545 F.3d 179 (2d Cir. 2008) ....................................................................................................... 5
United States v. Reddick,
284 F. Supp. 3d 159 (D. Conn. 2018) ........................................................................................ 5
Rules
Fed. R. Evid. 702 ............................................................................................................................ 3
Fed. R. Evid. 803 ............................................................................................................................ 8
Fed. R. Crim. P. 16(a)(1)(E) ........................................................................................................... 2

ii

 Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 4 of 11

PRELIMINARY STATEMENT
Mr. Schulte respectfully submits this memorandum in support of his motion to preclude
the proposed testimony of Paul Rosenzweig, a purported expert on WikiLeaks.1
Mr. Rosenzweig is a lecturer at a law school, an advisor at the Chertoff Group, a riskmanagement and security consulting company, and a fellow at a think tank. The government
has asserted that he will testify about the “history, technical and organizational structure,
goals and objectives” of WikiLeaks. The government also proposes that Mr. Rosenzweig will
“describe in general terms prior leaks” by WikiLeaks to explain its “typical practices with
regard to receiving leaked classified information,” “its practices or lack thereof regarding the
review and redaction of sensitive information” and “certain well-publicized harms to the
United States that have occurred as a result of disclosures by WikiLeaks.” Finally, the
government says that he will “testify as to WikiLeaks’ public statements regarding the leaked
material at issue in this case.” See Gov. Expert Disclosure.
WikiLeaks is a famously secretive organization. See, e.g., Ellen Nakashima, et al., “A
German Hacker Offers a Rare Look inside the Secretive World of Julian Assange and
WikiLeaks,” The Washington Post, available at https://tinyurl.com/yaou22nc. Nothing in the
government’s description of Mr. Rosenzweig’s employment indicates that he has pierced this
veil. Instead, he seems to have no expertise in the “history, technical and organizational
structure, goals and objectives” of WikiLeaks, its practices regarding sensitive information,
or prior disclosures by the organization. There is no indication that Mr. Rosenzweig is an

The government has advised defense counsel that it will be moving in limine to admit
numerous items of evidence. Mr. Schulte expects to oppose the admission of much of that
evidence, but will set forth his arguments opposing admission in response to the
government’s motions in limine.
1

1

 Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 5 of 11

expert on any of the general topics proposed by the government. His proposed testimony will
also not be helpful to the jury, but instead will be irrelevant, prejudicial, and confusing.
The trial judge has a “general ‘gatekeeping’ obligation” to determine if expert testimony
is reliable and relevant—an obligation that “applies not only to testimony based on
“scientific” knowledge, but also to testimony based on “technical” and “other specialized”
knowledge. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141 (1999). Here, Mr.
Rosenzweig’s proposed testimony does not meet any criteria for reliability or relevance. The
Court should exclude it.
ARGUMENT
1. The expert notice is insufficient.
As a preliminary matter, the government’s expert notice does not provide sufficient
information about Mr. Rosenzweig’s testimony. Federal Rule of Criminal Procedure
16(a)(1)(E) requires that the government provide a written summary of any expert testimony
that it intends to use during its case-in-chief. That summary must “describe the witnesses’
opinions, the bases and the reasons for those opinions, and the witnesses’ qualifications.”
Fed. R. Crim. P. 16(a)(1)(E).
The Rule “requires a summary of the expected testimony, not a list of topics.” United
States v. Duvall, 272 F.3d 825, 828 (7th Cir. 2001). “Merely identifying the general topics
about which the expert will testify is insufficient; rather, the summary must reveal the
expert’s actual opinions.” United States v. Ferguson, 2007 WL 4539646, at *1 (D. Conn.
Dec. 14, 2007) (finding expert notice insufficient). See also United States v. Mahaffy,
No. 05–CR–613 (ILG), 2007 WL 1213738, at *3 (E.D.N.Y. Apr. 24, 2007) (excluding

2

 Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 6 of 11

testimony “because the disclosure statement only proffered general topics and did not
describe any opinions that would be offered by the witness on these topics”).
Here, the government’s notice merely lists general topics—it reveals nothing about the
opinions the expert will offer. About which prior leaks does he plan to testify? What damage
to the United States will he assert occurred as a result of those leaks? Has he done any
analysis to determine that the “well-publicized harms” of prior leaks were in fact accurate?
Does he have any personal experience with the WikiLeaks organization? Has he done any
specialized research about the organization? What public statements does he plan to rely on?
The government’s notice here is exactly the type of insufficient notice courts have
condemned. This Court should exclude the expert on this ground alone, or, in the alternative,
require the government to provide a much fuller expert notice.
2. Nothing the government has provided indicates that Mr. Rosenzweig
is an expert on WikiLeaks.
A witness may be qualified as an expert by “knowledge, skill, experience, training, or
education” and “may testify in the form of an opinion or otherwise if:”
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702.
As the rule explains, expert testimony must be based on “scientific, technical, or other
specialized knowledge.” See, e.g., United States v. Amador-Huggins, 799 F.3d 124 (1st Cir.
3

 Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 7 of 11

2015) (testimony by FBI agent regarding bumper damage to defendant’s vehicle was lay
testimony based on his on-the-job experience investigating bumpers, rather than expert
testimony).
The expert here is not so qualified. Mr. Rosenzweig does not appear to have any special
knowledge, skill, experience, training, or education about WikiLeaks. Indeed, the only
information the government has provided about Mr. Rosenzweig’s alleged expertise is his
resume, which spans 72 pages, but mentions WikiLeaks just five times. Those five mentions
indicate that he wrote op-eds, articles, or provided presentations related to WikiLeaks in
2010 and 2011. These included two brief articles on msnbc.com and the Heritage Foundation
and two presentations. The lengthiest publication appears to be a seven-page article in a
Heritage Foundation publication, published eight years ago. Nothing about this resume
indicates that he has “specialized knowledge” of WikiLeaks as required under Rule 702(a).
Additionally, these five mentions of WikiLeaks nearly a decade ago do not suggest that
Mr. Rosenzweig has any specialized expertise in any of the more specific subjects that the
government has listed: not the “history, technical and organizational structure, goals and
objectives” of WikiLeaks, not their typical practices in receiving classified information, nor
prior leaks. He has not tested or examined any evidence. There is also no indication that he
has some relevant personal experience in how WikiLeaks typically practices.
Indeed, there is nothing in the expert notice suggesting his testimony will be based on
any specific facts or data, or any particular principles and methods, as required under Rule
702(b) & (c). On the contrary, based on the government’s expert notice, the government
proposes testimony about “publicly-available” information and his review of unnamed

4

 Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 8 of 11

“public documents.” This notice suggests that Mr. Rosenzweig will testify about things he
has read in newspapers or magazines.
Mr. Rosenzweig’s testimony does not meet any of the prongs of Rule 702 and should be
excluded. In the alternative, and to the extent that the government proffers an additional
expert notice suggesting his testimony would be based on some sort of data or principles, this
Court should order a Daubert hearing to determine whether the data and principles were used
reliably. See Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).
3. The proposed testimony will not be helpful to the jury.
Rule 702 also requires that the proposed expert testimony be “help[ful] [to] the trier of
fact to understand the evidence or to determine a fact in issue.” Expert testimony is not
helpful under Rule 702 when the subject of the testimony is not “beyond the ken of the
average juror.” E.g. United States v. Mejia, 545 F.3d 179, 191 (2d Cir. 2008) (“under Fed. R.
Evid. 702, we have carefully circumscribed the use of [narcotics expert] testimony to
occasions where the subject matter of the testimony is beyond the ken of the average juror”).
See also United States v. Reddick, 284 F. Supp. 3d 159, 161 (D. Conn. 2018) (“Testimony is
properly characterized as ‘expert’ only if it concerns matters that the average juror is not
capable of understanding on his or her own”) (citation omitted); United States v. Pitts, No.
16-CR-550 (DLI), 2018 WL 1169139, at *3 (E.D.N.Y. Mar. 2, 2018) (excluding expert
whose “opinion largely appears” to be based on publicly available reports); In re Mirena
IUD Prod. Liab. Litig., 169 F. Supp. 3d 396, 484 (S.D.N.Y. 2016) (jury does not need an
expert opinion “because its common sense will suffice. And if the jury needs expert opinion
because common sense will not suffice, it must come from an expert who is applying her

5

 Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 9 of 11

expertise”). Giving a witness “expert[ ] status” can give “factual testimony an ‘unmerited
credibility’ before the jury.” Mejia, 545 F.3d 179, 192 (2d Cir. 2008).
To the extent any testimony about WikiLeaks generally would be relevant, there is no
reason it would require expert testimony. The jury would be able to understand “wellpublicized” information about WikiLeaks, “public statements” by WikiLeaks, and the
structure of an organization without expert assistance. Indeed, any public statements were
surely, by their very nature, designed so that the public could understand them.
Therefore, the testimony also fails to meet the “help[ful]” requirement.
4. The testimony will be irrelevant, prejudicial, and confusing.
Instead of being helpful, the proposed testimony would be irrelevant and prejudicial
even if presented through a lay witness, and should be excluded under Rule 401 or under
Rule 403. Under Rule 401, evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the
evidence; and
(b) the fact is of consequence in determining the action.
Additionally, under Rule 403, the court may exclude evidence “if its probative value is
substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” The proposed evidence here is irrelevant, prejudicial, and confusing.
At trial, the government will attempt to prove that Mr. Schulte took national defense
information from the CIA and released it publicly. That some information was ultimately
released by WikiLeaks is relevant, but the history of WikiLeaks, how the organization
generally deals with classified information in other cases, and any supposed damage caused

6

 Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 10 of 11

by unrelated disclosures by WikiLeaks are irrelevant. WikiLeaks is not a criminal enterprise,
but a non-profit media organization.
In Mr. Schulte’s case, the government has no reliable evidence of how much information
was taken from the CIA, how it was taken, or when it was provided to WikiLeaks. The
government cannot overcome a lack of relevant evidence by introducing evidence from other
cases about how much information was leaked or how information was leaked in unrelated
contexts. The practices of WikiLeaks in other contexts and any testimony about alleged
damage from other entirely unrelated leaks is completely irrelevant.
Instead, this testimony is purely prejudicial. Although the government has failed to
identify what Mr. Rosenzweig’s opinion about WikiLeaks will be, it is hard to imagine that
this testimony could achieve anything other than to suggest to the jury that WikiLeaks is an
inherently criminal or evil organization that harms the United States. This testimony could
also suggest that the mere fact that information was released by WikiLeaks necessarily
means that it was intended to—and did—cause harm to the United States. These are not valid
evidentiary objectives. Instead, this type of testimony would create confusion and force a
trial within a trial on the morality of WikiLeaks and the extent of damage caused by prior
leaks. If the government is allowed to introduce this evidence, the defense will necessarily
have to respond with testimony about how WikiLeaks is a non-profit news organization, that
it has previously released information from government whistle-blowers that was vital to the
public understanding of government malfeasance, and that any assertion of damages in the
press is not reliable evidence. This would create a sideshow, irrelevant to any of the elements
that the government must prove at trial.
For this reason too, the testimony should be excluded.

7

 Case 1:17-cr-00548-PAC Document 194 Filed 11/25/19 Page 11 of 11

5.

Public statements made by unknown people at WikiLeaks must be excluded as
hearsay.

The government also seems to suggest that this “expert” will relay to the jury pure
hearsay, namely what someone at WikiLeaks supposedly said about the information involved
in this case. The government has identified no hearsay exception that would allow Mr.
Rosenzweig to regurgitate the statements made by someone at WikiLeaks. No hearsay
exception seems to apply: statements by WikiLeaks are not learned treatises, market reports,
or records made in the regular course of business. See Fed. R. Evid. 803. Any testimony that
is merely reporting someone else’s statements should be excluded as hearsay. And, since Mr.
Schulte cannot confront those out-of-court statements, their admission would violate the
Confrontation Clause as well.
CONCLUSION
For these reasons, this Court should exclude Paul Rosenzweig’s testimony and grant
any other relief that may be appropriate.

Respectfully submitted,
/s/
Edward S. Zas
/s/
Sabrina P. Shroff
Counsel for Defendant Joshua Adam Schulte

8