Case 1:08-cr-00231-EGS Document 305 Filed 02/17/2009 Page ... · TRANSCRIPT OF HEARING BEFORE THE HONORABLE EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE APPEARANCES: For the Government:

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff,

V.

THEODORE F. STEVENS,

Defendant.

CR No. 08-231

Washington, D.C.Friday, December 19, 20089:33 a.m.

**SEALED***

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TRANSCRIPT OF HEARINGBEFORE THE HONORABLE EMMET G. SULLIVAN

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Government: BRENDA K. MORRIS, ESQ.WILLIAM WELCH, ESQ.MARK LEVIN, ESQ,PATTY STEMLER, ESQ.United States Department of Justice1400 New York Avenue, N.W.12th FloorWashington, D.C. 20005202-514-1412

For the Defendant: BRENDAN V. SULLIVAN, ESQ.ROBERT M. CARY, ESQ.JOSEPH TERRY, ESQ.CRAIG SINGER, ESQ.SIMON LAKOVICH, ESQ.williams & Connolly, LLP725 Twelfth Street, N.W.Washington, D.C. 20005202-434-5000

APPEARANCES con't. on next page.

Jacqueline Sullivan, RPROfficial Court Reporter

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Case 1:08-cr-00231-EGS Document 305 Filed 02/17/2009 Page 1 of 54

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12-19-08-SEALED

APPEARANCES, Con 't.

For Agent Joy: J,D. SIMPSON, ESQ,

Court Reporter: JACQUELINE M. SULLIVAN, RPRofficial Court ReporterUS. Courthouse, Room 6720333 Constitution Avenue, NWWashington, D.C. 20001202-354-3187

Proceedings reported by machine shorthand, transcript producedby computer-aided transcription.


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12-19-08-SEALEDPROCEEDINGS

COURTROOM DEPUTY: Criminal case 08-231, United States

of America vs. Theodore Stevens.

I'm going to ask counsel to please identify themselves

for the record.

MS. MORRIS: Good morning, Judge. For the government,

Brenda Morris, as well as Mark Levin with the Public Integrity

Section, william Welch, Chief of Public Integrity Section, as

well as Patty Stemler, chief of the appellate criminal section.

MR. CARY: Robert Cary, Brendan Sullivan, Joseph

Terry, Craig Singer, and Simon Lakovich.

THE COURT: Good morning, counsel.

MR. SIMPSON: J.D, Simpson on behalf of Special Agent

Chad Joy.

THE COURT: For the record, you didn't file anything

in this case, did you?

MR. SIMPSON: No, your Honor, I did not.

THE COURT: we extended an invitation.

MR. SIMPSON: Thank you. I did not.

THE COURT: Let me share a few thoughts with counsel

first and then I'll get you to respond to what I'm about to say.

The Court had operated under the very significant time

constraints that have been imposed, the Court has had an

opportunity to consider your respective arguments. For the

record, this proceeding is sealed as well. This is what, the


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1 third or fourth sealed conference we've had? The first one2 we've had in person. we've had two sealed telephone conferences

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at least. And I've considered your competing arguments. I've

considered the relevant case authority, especially our Circuit's

decision in the Washington Post V. Robinson case. The Supreme

Court's decision, Walter vs. Georgia, and the Hubbard decision.

Barring all of the policy considerations, the competing personal

and personnel inters and attempting to balance the appropriate

competing constitutional guarantees and considerations, leads me

to the following proposed resolution. And then I want you to

respond to what I'm about to say. In the Court's opinion, it

seems clear to the Court it was defense counsel subject to an

appropriate tailored protective order that does not allow

dissemination of unredacted information outside of the law firm

Williams & Connolly. It seems to me that defense counsel is

entitled to the unredacted version of the complaint subject and

I emphasized subject to an appropriate protective order and the

reason why I'm emphasizing that is because the Court has a

distinct recollection that during the course of the trial there

was a revelation by someone that grand jury transcripts received

by defense counsel had been disseminated to counsel for

individuals who had testified before a grand jury and that's

something that this Court's not going to tolerate, a violation

of any protective order that's put in place that allows defense

counsel for defense counsel's use only the unredacted

Jacqueline Sullivan, RPRofficial Court Reporter

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1 information. We can talk about the protective order later. It

2 seems to me also that subject to appropriate redactions, and I

3 emphasize the word "appropriate," appropriate redactions for

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12-19-08-SEALEDinstance redacting names of people mentioned on the complaint,

the gender of individuals, information that may lead to an

easily -- an easy identification of someone, for reference, I

mean, for instance, a reference to an article of clothing might

be an appropriate subject of redaction. It seems to me that the

unredacted complaint that defense counsel is provided with

should be further redacted to address the personnel issues that

the government has referenced, but that unredacted -- that

unredacted -- strike that. That version filed on the public

docket, that version should be filed on the public docket, so to

recap, an unredacted version subject to an appropriate

protective order to be provided to defense counsel. That

unredacted version, redacted is appropriate, to address

personnel issues and arguably any irrelevant and arguably to

redact any irrelevant information filed on the public docket.

want your reaction to that.

MS. MORRIS: well, Judge, I'm sure Mr. Simpson would

like to speak on this as well.

THE COURT: I understand.

MS. MORRIS: But we did speak last night and earlier

in the week as well. I still think that it would be in

appropriate, I believe it would be inappropriate to disseminate


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1 this to the public in any form subject to more redactions or

2 not. I know based on my conversations with Mr. Simpson that

3 Agent joy specifically did not want any of these allegations

4 made public in any way. There are a number of individuals that

5 are mentioned within the complaint.Page 5


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6 THE COURT: Well, it's telling that in his e-mail to,

7 i believe, I think you were copied on it, he says it was not my

8 intent or belief that my complaint would be made public, and

9 then he says words to this effect: Under no circumstances I

10 don't want my letters released or something. I don't know what

11 he's referring to. we 'll get into that, his letters, I don't

12 know what the letters say. I don' t know. Do you have copies of

13 these letters?

14 MS. MORRIS: No, but I believe the letters were sent

15 to OPR or Internal --

16 THE COURT: That was my guess as well.

17 MS. MORRIS: That's what I was informed, well, that

18 there were some letters that were sent, so I don't have any

19 access to it, nor have we read them.

20 THE COURT: There's not a script for what we're doing.

21 All the cases hit all around these issues, but this is somewhat

22 of an atypical script, but actually the interests that we're

23 talking about don't rise to the level of other interests that

24 Courts, various courts, have considered; you know, trade secret,

25 national security, and other arguably more serious interests


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1 than what we're focusing on now. I'm sensitive to the fact he's

2 filed this complaint. I'm sensitive to that, and I'm sensitive

3 to, I believe in his words he used th e phraseology

4 "whistleblower protection." I'm very sensitive to that. That's

5 why we proceeded along the path that we proceeded. Does he have

6 a right to have an attorney present? I don't know, but it

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12-19-08-SEALEDcertainly seemed to me to be an appropriate question to ask, do

you want someone to talk to, and indeed he has an attorney. It

was clear the attorney didn't draft the complaint, but that

often times happens, you know, people draft them at the advice

of an the assistance of counsel, and for lots of reasons counsel

is sometimes in the background of these proceedings. We know

that. And I'm sensitive to it. I just don't think that his

personnel interest, his personal interest, trumps the public's

interest to know what's going on in this case. And also the

defendant's very significant interest and this Court's interest

in ensuring the integrity of this proceedings and the fairness

of this proceedings, and I think that with appropriate

redactions it's appropriate for the Court to address all of

these various competing polices: personal, personnel,

constitutional, considerations. But to keep it secret, I don't

think so.

MS. MORRIS: well, Judge, I would mention, too, which

we have during our phone conferences, too, that Agent Kepner, I

don't believe she knows or has seen these allegations yet.


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THE COURT: And I'm sensitive to that too. we'd

certainly make every effort to not reveal her gender. We can do

that.MS. MORRIS: Well, the only problem, Judge --

THE COURT: Or the articles of clothing that are

referenced. There are ways to deal with this.

MS. MORRIS: Judge, though there are a pool, it's notthat many agents actually that were involved in this matter, so

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it wouldn't take much for people to be identified as to who made

what allegation or who the allegations were being made against.

THE COURT: whose interest trumps here? whose

interests are paramount here, you know? Are the interests of

FBI agents, indeed one complaining about others, superior to the

interest of the defendant and having a fair trial and having a

public trial?

MS. MORRIS: Again, as we did in our briefings, I

don't think there have been any rights to defendants that have

impeded or impaired in any way. There is no First Amendment

right, nor is there a Sixth Amendment right that we believe that

is attached to the defendant in this case. The allegations that

were made are serious They're serious personnel issues with

regard to the individuals who were mentioned in it. However, it

doesn't change the evidence in the case against Senator Stevens

during the course of this trial.

THE COURT: So you don't think that the allegations


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made by the complaint are relevant at all to the integrity of

this trial?MS. MORRIS: We thought they were relevant to a

degree. That's why we turned it over. we just wanted to make

sure out of an abundance of caution.

THE COURT: So they're relevant enough to let the

judge know and then the judge can close the book?

MS. MORRIS: Not necessarily, Judge. what we'd like

to do is have the investigation go on as it would under any

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12-19-08-SEALED10 other circumstances. None of us --

11 THE COURT: what investigation?

12 MS. MORRIS: The investigation being handled by the

13 office of Professional Responsibility, OPR.

14 THE COURT: That's so far as the plaintiff's

15 concerned. what about the defendant in this case, though? He

16 has to wait until that's over?

17 MS. MORRIS: Wait until it's over.

18 THE COURT: As far as anything?

19 MS. MORRIS: I don't think it triggers anything for

20 him. I don't think it triggers any --

21 THE COURT: I'm not trying to do anything to impeded

22 any investigation by anyone. Far be it for me. First of all, I

23 don't have jurisdiction or any interest in getting involved in

24 that matter. It should go forward to the extent it can. But

25 that's between OPR on the complaint and the witnesses and the


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1 Department of Justice, The matter's beyond my concern and

2 authority, but I have concern about this case because we've

3 invested months in trying this case and, you know, months in a

4 pretrial proceedings and the trial and probably months in the

5 post trial proceedings and thereafter, and I have a vested

6 interest in ensuring that the integrity of the trial process,

7 which has not been compromised in the Court's view, is

8 maintained, and that's difficult, you know, but then that's what

9 we get paid to do. we have to balance all these competing

10 considerations. what's a fair approach that a trial judge

11 should have in dealing with this person who sometimes himself asPage 9


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12 a whistleblower claims about policies not being followed and

13 potentially obstruction of justice and people doctoring

14 documents? what am I supposed to do, just close the book on15 that and just let that administrative proceeding just unwind and16 let the chips fall where they may? we probably wouldn't find17 out what happened anyway. And what do I tell the defendant?

18 MS. MORRIS: Judge, again, I would disagree with any

19 type of obstruction of justice.

20 THE COURT: That's what he said. I don't know, that's

21 the problem. He's made that complaint potentially. That's his

22 words. That's what he said, potential obstruction of justice.

23 MS. MORRIS: I don't believe that is what he said.

24 THE COURT: I think he is. I don't think I coined

25 that one. I think he did. I may stand corrected. Maybe he


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1 didn't use --

2 MS. MORRIS: No, I don't believe so, Judge.

3 THE COURT: He did say the language, I'm pretty sure.

4 Anyway, we can come back to that, but I'm pretty sure that he

5 did.

6 MS. MORRIS: The fact of the matter, though, Judge,

7 all that he was referencing with regard to the 302 or anything

8 related to the 302.

9 THE COURT: Doctoring statements to - -

10 MS. MORRIS: It was turned over. It was turned over.

11 I mean, it was turned over during the course - -

12 THE COURT: What about the circumstances leading up,

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12-19-08-SEALEDthough, to them being turned over? There wasn't a lot ofinvestigation about what went on and what was the motivationbehind certain relations. I raised a lot of questions. Infact, I raised a lot of questions. I said, you know, I may haveevent said if the government intentionally did that. I knowthat they do because i know the government at one point knewcertain grand jury testimony was false and neverthelessproceeded down a certain avenue. what about those others, thestatements he attributes the statements being conformed withprior declarations being made? That's not worthy of some sortof investigation in a criminal proceeding?

MS. MORRIS: Judge I think again --

THE COURT: I've already imposed a remedy. The


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government's simple answer is I've already imposed a remedy tono harm, no foul.

MS. MORRIS: It's no harm, no foul to the course ofthis proceeding, the trial, and I believe, yes, Judge, I didtake action, swift action, in remedying the situation.

THE COURT: Maybe if I had known his complaint I wouldhave taken more action.

MS. MORRIS: Judge, I don't know what else.

THE COURT: I don't know either, and that's the

problem. We don't know. I don't know either. I have a guess I

probably would have done something else.

MS. MORRIS: Judge, what he alludes to, though, is

some type of intent or malintent in whether or not documents

should have been turned over. I was present for thosePage 11


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proceedings and i was certainly present here when ou were asking

those questions about the documents, and I let you know in court

in public that the 302 was discovered in its redacted form.

THE COURT: There still being discovered, aren't they?

MS. MORRIS: No, sir.

THE COURT: Wasn't some grand jury testimony just

recently turned over? It was the grand jury testimony, one of

the transcripts, and it was a summary fashion provided to the

Court. Whose testimony was it?

MS. MORRIS: It was Ms. Kepner's. The thing is that

the court reporter service sent it to the US. Attorney's


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office. we never received it, and they couldn't find it, so

when we were made aware that there was one missing that we went

out past Annapolis to get it from the court reporter's home, but

the bottom line is we never received it, we never knew one was

missing at the time.

But to get back to the point of the 302, with regard

to that, we were quite candid with you, Judge. The reason why

the Court was put on notice late that night, and defense, the

night before we came in, is because we were debating it. I was

there, William Welch, our chief, was there. We were debating

what is this, how is this, what do we do with it, and I made

that all clear and open to you during the course of that

proceeding in that it was preparing Agent Pluta for her

testimony that it was discovered, that this document had been

redacted. As a matter of fact, Judge, for the record, it was

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12-19-08-SEALEDMr. Marsh who came to us and said we gave this 302 over in

redacted form and I think it should have been unredacted, so it

was all of us in a group effort. It was at least ten of us in

the room going back and forth as to what is it and how we best

deal with it, so, I mean, Judge, just like that maybe his, Agent

Joy's, recollection or his belief of what may have happened -- I

was present. I'm going to be a witness too. Bill welch, he'll

be a witness.

THE COURT: There are different versions of what

happened and who did what, right?


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MS. MORRIS: But it still doesn't affect --

THE COURT: Should Senator Stevens have any interest

in what the various versions were and what was discussed and

what wasn't discussed?

MS. MORRIS: As long as he received it, Judge, I think

not, because the thing is, people can differ. That's the beauty

of the law. People are going back and forth. It wasn't about

let's hide this. It wasn't about let's hide this. It was like

what is it and what do we do. And I was very up front with you

that day, Judge, that I did not believe, and I believe it was

your finding that it was a Brady violation. I thought it was in

violation of your order in that you asked for certain redacted

302s to be provided, certain information, and that information

was redacted, so I maintain I believe that it was a violation of

your order. And because it was a violation of your order, you

took action and had us provide all the 302, all the 302s, Judge,

that had to deal with this investigation of Senator Stevens andPage 13


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all of the grand jury transcripts unredacted of all the

witnesses whether we called them in this case or not during the

course of trial.

And I would like the Court to be made aware, and I

know you are because we explained this earlier too, that that,

to a degree, compromised other investigations that we had going

on because certain people were asked in the grand jury things

not just related to Senator Stevens, but to other investigations


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related to corruption matters in Alaska, but we understood your

ruling. we understood why you did that. And we complied.

There is nothing in that complaint that changes the evidence

again for Senator Stevens. Would it change if that 302 had

never been turned over? Certainly. But the 302 was turned

over. So I --

THE COURT: Boiling the government's argument down to

its essence, though, the government maintains that arguably

there is some information that's relevant, but nevertheless the

Court's already addressed Brady violations, noncompliance with

the Court's order, fully addressed it during the course of the

defendant's trial. Therefore, there's no further need for

revelations of any matters in the complaint to either defense

counsel or to the public and the administrative proceeding

should just wind on to its conclusion, that's your argument?

MS. MORRIS: Well, it's not wind on so much, Judge.

There are --

THE COURT: Should proceed, should proceed?

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12-19-08-SEALEDMS. MORRIS: Yes, sir. I mean, if this were in any

other posture, this case were over, none of us would be made

aware of this until OPR contacted whomever for whatever

interviews that would be conducted, so we're just maintaining at

this point --

THE COURT: That's certainly not consistent wit the

beauty of the law, is it?


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MS. MORRIS: I'm sorry?

THE COURT: That's certainly not consistent with the

beauty of the law if this case were over we'd never find out

about it.

MS. MORRIS: Because we still maintain it still

doesn't trigger any constitutional right of the defendant. The

evidence doesn't change in any way, shape or form that it could

have been affected. You made remedies for it. It has been

addressed. Again, it would be different if information had

never been turned over. Then it would be highly relevant.

However, it was turned over. It was turned over and it was

dealt with. And I still maintain, Judge, as I did before, it

was a mistake and it was a mistake that we all realized you were

going to be upset about, and you were and you took action, but

at this stage now, Judge, we maintain there is no -- it changes

the evidence in no way. what it does, though, Judge, is have an

effect on many individuals professionally, administratively,

privately, publically, potentially-

THE COURT: It may have that domino effect, but look,

I didn't create the problem and you didn't. And U.S. Attorney'sPage 15


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Office just received this information, so no one is accusing you

have hiding the ball here.

MS. MORRIS: I understand.

THE COURT: But we're dealing with something that's

been presented to us. I totally agree there are other people's


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interest, maybe livelihoods, reputations.

MS. MORRIS: That's absolutely right. That's

absolutely right.

THE COURT: Absolutely. And do you know what? I've

got to balance all that, and believe me, you lose some sleep at

night thinking about that because you want to make the right

decision and I don't want to do anything, no judge ever wants to

do anything that's going to adversely impact anyone's rights.

That's not what we're here for. We have to do justice, though,

and trying to do that, it's like balancing all this. Are there

ways in which, you know, people's interests and their rights can

be protected, their identities protected? There probably are

some ways. Is it foolproof and perfect' Probably not. And it

would be easy to say do you know what, no one's getting a chance

to look at this, and that's the easy, simple way to resolve it,

but we don't get the easy cases here. Nothing's easy. And it's

very complicated. It's very complicated. But sill, it's, you

know, it's all about balancing all of these competing interests

and trying to do the right thing consistent with the fair

administration of justice and indeed, as you said, the beauty of

the law.

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12-19-08-S EAL ED22 MS. MORRIS: well, Judge, I will maintain, too, and I

23 don't know if you recall this either, but once we took a break

24 that day --

25 THE COURT: which day?


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1 MS. MORRIS: The day when we disclosed the 302 that is

2 mentioned in the complaint, we took a break, we took a two-hour

3 break and then we came back. I informed the Court that we had

4 self-reported to OPR with regard to these allegations. We take

5 these things very seriously, Judge, and with regard to any type

6 of issue dealing with that 302, that is before OPR, before Agent

7 Joy's complaint dealing with the whole prosecution team.

8 THE COURT: So you're there too?

9 MS. MORRIS: Pardon?

10 THE COURT: The team is there too?

11 MS. MORRIS: Yes, sir, the whole team, that's right.

12 But the thing is, we self-reported not based on the fact that --

13 THE COURT: You self-reported because you felt as

14 though you had a professional obligation to do so?

15 MS. MORRIS: Absolutely.

16 THE COURT: Before someone else did, right?

17 MS. MORRIS: Not before. Judge, I would do it anyway.

18 THE COURT: I'm not being critical. I'm not being

19 critical of you. I'm not doing that.

20 MS. MORRIS: Well, this is serious. This is very

21 serious.

22 THE COURT: Absolutely. Absolutely. But let me ask

23 you something. For instance, if defendants knew that someonePage 17


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24 identified in the complaint, and I want to be careful because I

25 have the clear version.

Jacqueline sullivan, RPRofficial Court Reporter

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1 MS. MORRIS: Right.

2 THE COURT: So I want to be ery careful how I phrase

3 this, but if defense counsel knew that someone intimately

4 involved in this or directly involved in this investigation had

5 an inappropriate relationship with a principal witness of the

6 government contrary to policies, procedures of the Department of

7 Justice, would it be favorable information that the defendant is

8 entitled to?

9 MS. MORRIS: I think if it were true, but it hasn't

10 been --

11 THE COURT: Wait, wait, wait, wait. You hit on an

12 absolutely excellent point. I don't think truthfulness has

13 anything to do with it, because how many times do people present14 alibi evidence and someone later determines that was just bogus15 as the day is long? It's not whether it's ultimately proven to16 be true. The test is whether it's evidence that is favorable,17 can be used by the defendant, the defendant, for reliability,18 credibility. It's later during the day and later during the19 course of the proceedings. The test for relevance, though, of20 that type of information is, is it favorable, will the defendant21 be able to use it? Some juror maybe would laugh at it later on,22 but that's not the test. We don't have to wait until the23 evidence of the day. We look at whether or not it's favorable,24 Whether or not it can be used, whether it's exculpatory, and

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12-19-08-S EAL ED25 that's why I use that example with that argument, putting aside


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1 truthfulness or falsity. Let's assume that later it's proven

2 that that allegation is completely untrue. We don't know it

3 when it's revealed. At the time of revelation is the defendant

4 entitled to it?

5 MS. MORRIS: Judge, but that's different too. I think

6 you're -- it's two different standards almost in two different

7 arenas certainly. When you talk about during the course of a

8 trial, are you talking about someone testifying under oath?

9 THE COURT: I'm talking about right now, though.

10 well, let's break it down.

11 MS. MORRIS: In this present --

12 THE COURT: During the course of the trial, course of

13 the trial if the evidence had been available to you, would they

14 be entitled to it?

15 MS. MORRIS: I'm not quite sure what we're talking

16 about.

17 THE COURT: With the hypothetical we're talking about

18 with the information I just gave.

19 MS. MORRIS: Inappropriate relationship?

20 THE COURT: That's right. FBI, Department of Justice,

21 a person directly involved with the investigation of this action

22 has an inappropriate encounter, comma, relationship with a

23 principal witness, contrary to rules, regulations, policies,

24 procedures, et cetera, of the Department of Justice guidelines,

25 FBI. Would they be entitled? And you learn about it, it comes

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to your attention, do you have an obligation to turn that

information over?

MS. MORRIS: I'm afraid to answer based on this broadscope kind of hypothetical. I think that I would be safe --

THE COURT: Is it broad scope, though, within the

meaning of the complaint?

MS. MORRIS: I would be better safe than sorry like we

did in this to turn it over as we did now because we don't want

it to appear as if we were hiding anything from the Court.

THE COURT: If you were a defense attorney you'd want

that information, wouldn't you?

MS. MORRIS: Judge, you know, this is very difficult

for me to say because I am a witness in this matter and I'm very

sensitive --

THE COURT: You're bringing up other issues now that

we haven't even gotten to and I really don't want to go down

that road, you know, about who represents the government. I

just want to deal with the hypothetical. If you were a defense

attorney you'd be raising a storm about that information and you

know it, don't you? You can look me in my eye and tell me.

MS. MORRIS: It's not about looking in your eye and

telling you or not, Judge.

THE COURT: But, you know, it doesn't --

MS. MORRIS: I'm biased in the situation, Judge.

THE COURT: The answer to that question is not

Jacqueline Sullivan, RPRofficial Court ReporterPage 20


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determine based upon whether that information ultimately proves

to be untrue. That's not the test. The test is whether or not

it's favorable information to the defendant. of course you'd

want it. And you'd be entitled to it.

Now, during the course of the trial, and this is after

trial and this is something ou didn't know arguably. You didn't

know, and I accept that. You told me you didn't know that. But

within the four corners of that complaint there's some

references to that, right?

MS. MORRIS: Judge, again, I was there to witness a

lot of this and I'm telling you I saw nothing like that close,

so --

THE COURT: In the complaint?

MS. MORRIS: Yes, in the complaint. And I know Agent

Joy well and this took us all by complete surprise. He never

expressed anything like this.

THE COURT: You know it. Sure, it's a bombshell

potentially, yes, absolutely.

was he the gentleman sitting in the front row all the

time, kind of short in stature?

MS. MORRIS: Yes, sir, yes, sir. And there are a lot

of issues that aren't in that complaint and may be factors. And

again, I'm not trying to put any cart before the horse, but I

just think this is --

THE COURT: Issues that deal with motivation maybe?


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MS. MORRIS: Yes, sir.

THE COURT: Absolutely. Do you know what? I've been

around long enough to suspect that gentleman's statement, but I

have to look at what's before me, though, and try to figure it

out, you know. what's the fair way consistent with justice to

deal with this? How do I balance all this? It doesn't strike

me as appropriate to just shut the books and say, you know,

well, the bottom line is you said the right answer and I

probably dealt with a, lot of this. He got some justice but, you

know, I'm just going to close the books on it. That doesn't

suggest to me, that doesn't seem to me to be an appropriate way

to resolve this.

MS. MORRIS: I would maintain, Judge, that the test

has received justice. This does not affect, I don't see how

this affects anything that happened with the trial. The only

thing that this does --

THE COURT: So I can't get an answer from you as to

whether you'd want that information if you were a defense

attorney?

MS. MORRIS: Again, Judge, it's very difficult for me

to say because I was there. I saw what happened, and is there a

greater truth in some things? Yes, there is a greater truth,

but it's not telling you the whole thing of what was happening

and I don't want to put the cart before the horse.

THE COURT: They don't know where the grains of truth


U24

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12-19-08-SEALED1 are. You may have the whole picture.


3 THE COURT: You may have it.


5 THE COURT: But they don't and that's what I'm dealing

6 with now.

7 MS. MORRIS: If I thought that it was --

8 THE COURT: How many granules are they entitled to,

9 you know, in an effort to proceed with this search for the

10 truth? I mean, that's what I get paid to do, search for it, try

11 to anyway

12 MS. MORRIS: It would have been different, Judge, too,

13 if Agent Kepner were a witness in this case, and she was not.

14 Mr. Allen was and Mr. Allen was --

15 THE COURT: Consistent with the fair administration of

16 justice, for the government to say, well, you know, in these

17 cases if you find out there's a lot of problems with people and

18 people don't comply with procedures and policies and rules and

19 regulations, indeed sometimes violate the law, we simply not

20 call them and say no harm here, no foul, you're not going to

21 call them.

22 MS. MORRIS: That's not true, Judge.

23 THE COURT: That's what you just told me basically.

24 You said she didn't testify so there's no problem here. That's

25 what you just told me, she didn't testify, she didn't testify,


U25

1 he didn't testify, what's the harm here? well, maybe there were

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entitled to know. Do you know what? Maybe they would have

called,

MS. MORRIS: Called who?

THE COURT: I don't know. I don't know what they

would have done. I don't know. One of the defense attorneys

one day during the course of the trial said that's exactly what

we want to do, is call them. of course they don't want to, but

maybe they would have called someone. I don't know. I don't

know

Now, look, I have a great deal of respect for you.

don't know you personally. professionally, you know, you

handled yourself well. I think you gave a powerful closing

argument. You brought the house down, right?

MS. MORRIS: Thank you, Judge.

THE COURT: You're the chief deputy of that office,

and you know that's favorable information. You know it. You

know, you don't want to give me an answer, that's fine. But,

you know, if you were a defense attorney and you learned about

that, you would be making your case: Judge, I'm entitled to

that because that's favorable to the accused. And if the

government argued that it's not true, let some fact-finder

determine it, Judge, we're entitled to use it. If you didn't

want to give me an answer, that's fine.


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1 MS. MORRIS: You know, I'm trying my best to be

2 unbiased, but I am. I know what the situation was, so it's very

3 difficult and I don't want to say too much because I want the

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system to work.12-19-08-SEALED

THE COURT: Because of your superior knowledge,

though, about what you perceive to be the facts, the strengths

and the shortcomings, you know, there's nothing here, Judge. It

may look like a can of worms, but there's nothing here, there's

another side to that story, right?


THE COURT: And there may well be another side to that

story and the story will undoubtedly go on for a long time. The

question becomes, you know, how many chapters are these people

entitled to.

MS. MORRIS: well, I also think, though, Judge, that

what should be considered here is if, if, if, Agent Joy may have

consulted with an attorney, and I don't know whether he did or

not, before making that complaint, if Agent Joy had a attorney.

THE COURT: I don't know if he had an attorney. I

mean, that's attorney-client. That's something that we'll

probably --

MS. MORRIS: Again, I'm not trying to get into that,

Judge. I would have never have known whether he had an attorney

or not, but for a strange set of circumstances that it is, but

had Agent Joy known that this would be even discussed in this


U27

1 forum, let alone pubically, I don't know wheti

2 made the allegations, so I don't know.

3 THE COURT: I don't know either. I

4 and do you know what? That's a question that

5 You know, he's an agent of the Federal BureauPage 25

ier he would have

don't know either,

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I don't know.

MS. MORRIS: I can let you know, Judge, that I again

did not see anything like that. I did not --

THE COURT: It may well be that he knew and said do

you know what? If it comes out it comes out. This is the

truth. I don't know. who knows? There's another chapter that

you probably have more pieces to than I do or anyone else does.


THE COURT: All right.

MR. CARY: Your Honor, we applaud a full

investigation, but if they can't do it and serve the interest of

justice to the 85-year-old gentleman, citizen, that we

represent, they ought to dismiss the case.

THE COURT: Okay. Let's get back to the issue before

me then,

MR. CARY: This is not about hide the ball. Special

Agent Joy tells it completely different. we agree that we don't

know the full extent of it. What I do know is that we have lost

lots of sleep as well working and working and working to try to

find out the full answer. worrying and worrying and worrying


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about what we don't know and we've complained about it again andagain and again and there's always more that comes out in dripsand drabs and now it comes out after there in fact has been averdict entered in this case.

THE COURT: what about government counsel's response,

that I've already remedied, I've already addressed the majority

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12-19-08-s EAL EDof what he complains of?

MR. CARY: There were many things that we know now

that we did not know then. we agree that it's a bombshell. The

allegation of an improper relationship between an agent and the

government's star witness is -- I can answer that question:

Absolutely we wanted to know that. We want to understand that

we want to explore it, and, you know, I know your Honor is

struggling to balance interests here and he made reference to an

article of clothing perhaps should be redacted from what is

filed publically. We will take what is allowed to be stated

publically. We're going to file a motion, just the sort of

motion that ought to be filed on the public record. All the

cases say this is the sort of things, these need to be looked at

in the sunlight in an open court, and we do have concerns about

whether we could effectively do it, at least on that particular

issue and perhaps others, and whether it's too confusing. We

submit that the entire thing ought to be litigated in the

sunshine in the open air in open court. The failure to follow

procedure is alleged. You know, I note that we relied, we


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received nine 302s.

THE COURT: Nine 302s?

MR. CARY: By our count, that were authored by the

lead special agent that we relied on those 302s, and I submit

that the allegations in this complaint call in question those

302s.

i believe government counsel said this is not about

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the word -- I'm not sure I remember the word "obstruction" in

there, but he used the word scheme, scheme to send a witness

back to Alaska after a failed cross-examination.

THE COURT: If I misspoke, that shouldn't be in the

record then. I thought he said obstruction of justice. If he

didn't, I certainly misspoke.

MR. CARY: That's what I inferred that he was saying.

It was hard for the defense counsel to imagine more highly

relevant information in the integrity of the investigation of

the trial, and we will cite the Quinn case and Mannie case in

support of that motion. The Omni case that Mr. Sullivan was

involved in thirty years ago where, after discovery was allowed,

it was determined that the IBI had falsified 302s, and we

believe we need discovery and a trial if the Court is not

inclined to dismiss immediately because we agree we didn't know,

I can assure you that we're very troubled by what we hear, what

we learn. We came to court time and time again. We're accused


U30

1 of unfairly impugning the good faith of the government. Lo and

2 behold we were proven right again and now we're finding more and

3 more, that we have nothing to do with it. We didn't have

4 anything to do with Dave Anderson coming forward. We had

5 nothing to do with Special Agent Joy, the number two agent in

6 this case, coming forward with allegations of misconduct, and

7 it's our position that it ought to be litigated in the open.

8 The cases are many. Press Enterprise, two cases on standard of

9 fairness being served, assurance that standard deviation will

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12-19-08-SEALED10 become known. The Supreme Court case in Lauer, the public in

11 general has a strong interest in the salutary effect of public

12 scrutiny. The Robinson case from the D.C. Circuit states that

13 openness serves an important function of monitoring

14 prosecutorial misconduct. This is just the sort of thing that

15 ought to be litigated in the daylight. That's our position.

16 THE COURT: What about redactions? Let's assume that

17 you get the complete version subject to a protective order.

18 what about redactions to address the interest, the personal

19 interest and the whistleblower interest of the complainant?

20 Appropriate or not?

21 MR. CARY: Not appropriate; a step in the right

22 direction. I would certainly say that that's better than

23 nothing being on the public record. We're concerned. Your

24 Honor specifically mentioned gender, and we're concerned that is

25 an issue actually that needs to be litigated, and it ought to be


031

1 done in the open, your Honor. That's our position.

2 THE COURT: It's your position that if you get an

3 unredacted version, the unredacted version should be filed on4 the public docket period with no redactions?5 MR. CARY: Just to be clear --

6 THE COURT: No redactions?7 MR. CARY: There's the unredacted version, nothing's8 been redacted. So far we obviously don't need to file on the9 public record unless we look at it, defense counsel, with our

10 themes in mind, and then we could come to court and say actually11 this is relevant and we think it should be published. That's

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issue number one.

In terms of what we have, the redacted version now,

further redactions, we certainly think it's a step in the right

direction to --

THE COURT: I mean, he has some interest in this case.

He's got his livelihood, his job, his integrity. He's pursuing

some sort of personnel matter against others for cogent reasons

or not -- I don't know -- with some other fact-finder to

determine. Isn't he entitled to some -- you don't have to make

his case, though.MR. CARY: We haven't seen any citation or authority

for that and I think it is a step in the right direction to

allow it to be filed publically for further redactions. I guess

I would suggest even in this case we started off with some


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pleadings that made reference to Witness A, Witness B, WitnessC, and in my experience, and I suspect, I don't know, perhaps inthe Court's experience as well, that over time it becomes moreand more difficult to work with those distinctions and just to

let it be known.THE COURT: It becomes easier because they're

important that we keep those distinctions, A, B and C, and who

they are and it becomes easy.

MR. CARY: We're going to ask for hearings in this

case and it's going to be hard to do that.

THE COURT: That's down the road.

MR. CARY: I understand that and that's not why we're

Page 30


12-19-08-SEALED13 here today, your Honor,

14 THE COURT: So let me -- do you know what? I want to

15 hear from Mr. Joy's counsel briefly, but what I should do is

16 this: I've already indicated how I'm inclined to rule on this,

17 and I'm mindful that people have, you know, battle lines have

18 been drawn like every other issue in this case, and what I

19 should do is, you've given some thought to appropriate

20 redactions. It's the government's position that they should not

21 be entitled -- defense counsel should not be entitled to the

22 unredacted version period subject to protective order.

23 MS. MORRIS: Thank you, Judge.

24 THE COURT: So there are a couple things at issue here

25 I was going to share with you and I still plan to do that. We


033

1 have some time available. I don't have a great deal of time.

2 had to add this onto a calendar that was already clouded with

3 other matters because other matters were taken off the calender

4 to accommodate you for three months, so we're still dealing with

5 that backlog, so I have other matters that I have to focus on

6 today, but we've given some thought to a redacted version that

7 could possibly appear without anyone waiving any rights at all,

8 but I wanted to share that with you. Actually, I need to

9 rethink this though because I'm operating on an assumption --

10 actually, I can give you the unredacted version subject to

11 further redaction. I can do that. You still don't have what

12 you want, which is the totally unredacted --

13 MR. CARY: Yes, your Honor.

14 THE COURT: I can give you the redacted version withPage 31


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further redactions that we've made, but I'm mindful also that if

I ordered the production of a redacted version be placed on the

public docket I wouldn't do it before Monday anyway because

someone may want to exercise some appellate rights. That's

fine. That's consistent with how our systems works as well.

But I think I'd like to at least give both sides an opportunity

to just respond to your approach to redactions along the lines I

suggested if indeed something is filed on the public docket.

Having said that, we've got a couple of jury rooms in

the back that you can use, but I just want your reactions. I

don't want to give this to you and then come back later. I


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don't have the time. And look, there are holidays coming up.

This court's in recess. I'm going to be here dealing with other

matters, but that doesn't necessarily mean, you know, everyone

else is going to be here, and I know some of your attorneys have

plans to be out of the city, so it seems to me that the better

part of wisdom is to get your responses to the appropriate

redactions today before you leave without anyone waiving any

rights, and if I order something placed on the public docket,

indeed if I order it given to defense counsel in unredacted

form, maybe that. I hadn't thought about that. Maybe that's

something the government wants to challenge also. That's

certainly your right to do, so maybe that should be -- maybe i

should direct that filing to take place at noon also so in case

you want to appeal you can appeal. Any response?

MR. CARY: well, your Honor, I'm not sure I entirely

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12-19-08-SEALEDunderstand. I do know that a number of defense attorneys do --

THE COURT: what i thought about was that you'd walk

out of here today with the unredacted version, but I probably

should be sensitive to the government's right to challenge that

decision -if the government wants to, so you probably won't walk

out of here today with that unless the government consents to

it. what i was going to do was to provide you with a document

today subject to a protective order and then request that

counsel for both sides look at the unredacted version with the

view in mind toward redacting to address the other interests,


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the interest of the complainant and the other gender interests

and the other interests that I've identified in an effort to

protect the identities of other people. That's what I'm

focusing on.

MR. CARY: Your Honor, I may be confused about whether

it's the already redacted version that needs to be further

redacted, Is that what you're talking about, your Honor?

THE COURT: well, no. Because I had one thought in

mind that ou would get the version that I have, the version

that's clear, all right, that has no redactions whatsoever,

subject to a protective order.

MR. CARY: Frankly, I didn't know. I thought they

just asked for permission to submit it. That may be that that's

the confusion.

THE COURT: They filed it with the court. I have that

version. You have a redacted version of that, I assume. You

have them. You have a redacted version. I have the complaintPage 33


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in its entirety.

MR. CARY: I did not understand that, your Honor.

THE COURT: I was going to issue an order directing

the government to provide you with the version that I have

subject to a protective order, subject to further redactions as

appropriate to address the gender issues, the other issues that

go to the identity of people named in the totally unredacted

version. Are you following me?


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MR. CARY: Yes, your Honor.

THE COURT: All right. What I hadn't factored in wasthat I somehow or another in my mind had already figured outyou'd walk out of here today subject to a protective order withan unredacted version, but I want to be sensitive to thegovernment's right to challenge that decision, so it may well bethat I should say by no later than noon on Monday you'll getthat version and an appropriately redacted version either

consistent with the redacted version you have or consistent withwhat I think is fairly placed on the public docket.

MR. CARY: That's fine, your Honor.

THE COURT: All right. So I have to rethink this.

I'll take a short recess and rethink this. It may not serve any

purpose, though, to you unless the government consents to them

having that subject to a protective order.

MS. MORRIS: No, sir. And again, I think Mr. Simpson

may have some objections as well.

THE COURT: Yes. Let me hear from him.

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12-19-08-SEALED19 MR. SIMPSON: Thank you, your Honor.

20 As an initial matter, Special Agent Joy asked that I

21 express to you his sincere appreciation for the court's concern

22 and his willingness to allow him to appear through counsel to

23 address this issue. And the issue concerning Special Agent JO

24 based on he may review as part of the filing was what was his

25 intent in making this complaint in the form that he did.


U37

1 Clearly special Agent Joy intended to invoke whistleblower

2 protections by satisfying the most important prong of receiving

3 whistleblower protection, and that is, address his concerns to

4 the agency for the agency to handle appropriately. He has to

S voice those concerns to the agency, to the appropriate agency

6 authority in writing as designated, and he did that. He

7 provided that information to the Department of Justice's Office

8 of professional Responsibility.

9 THE COURT: You probably do know I didn't issue the

10 court order to get this information.

11 MR. SIMPSON: I understand, I understand.

12 The issue, one of the issues that I thought I needed

13 to address was his intent, and his intent was that this would be

14 processed within the strictures of the whistleblowers Act and

15 the subsequent regulatory cottified federal regulations that

16 implemented that act as it pertains to the Department of

17 Justice. Special Agent JO expected that his concerns as

18 expressed in that letter would be investigated as appropriate

19 within the established procedures of the process of the

20 Department of Justice.Page 35


12-19-08-SEALED

21 Now, as has come out during this discussion, the

22 complaint, as we've called the Joy complaint, contains many,

23 many, many issues, a number of which have no impact at all on

24 the matter that's before your Honor in the trial, and clearly

25 any statement, any comment, co ncern, matter that does not touch


U38

1 at all upon this particular action with Senator Stevens we

2 believe that defense is not entitled to and clearly that should

3 be taken into account by the Court. In fact, had Special Agent

4 Joy known or had any kind of reasonable belief that his letter

5 would be publically disseminated, he would not have submitted

6 his complaint in that particular form. He would have sought

7 some other method to have satisfied the reporting requirement

8 under the whistleblowers' protection and it would not have been

9 in the form of that letter sent to the Department of Justice.

10 The fact that special Agent Joy would not have chosen that

11 particular form certainly speaks of the possibility of a

12 chilling effect on federal employees engaging in what they

13 believe their duty is to report some kind of conduct that is

14 questionable, that satisfies the requirements that are

15 identified in the whistleblower process. In fact, Special Agent

16 Joy, which is not necessarily an issue in this proceedings, has

17 expressed a concern that if his letter -- if the complaint is

18 made public, that he may possibly be subject to retaliation in

19 some form from his employer, be it the FBI or the Department of

20 Justice. I'm not saying that is going to happen, but the

21 possibility would be enhanced we do believe with a publication

Page 36


12-19-08-SEALED22 of that document and of course that's an issue that has not

23 really been brought up today, but from his perspective that is a

24 significant issue for the Court to consider.

25 THE COURT: How could this Court address that concern?


U39

1 MR. SIMPSON: well, I can address that in one word,

2 and that is to seal the document, not make it public. That at

3 least would assuage Special Agent JOY'S concern that a

4 publication, a public dissemination of that, might enhance or

5 increase the possibility of potentially retaliatory actions by

6 his employer. In essence, Judge, Special Agent Joy --

7 THE COURT: Are you aware of any authority that's

8 directly on point that addresses this?

9 MR. SIMPSON: I have researched and certainly within

10 the parameters of what we're dealing with today that I can11 issue, I'm not aware that there is any precedent at all that has

12 even tangentially been addressed.13 THE COURT: There's a ton of case law that addresses14 issues that arguably are more compelling indeed involving trade

15 secrets and issues of national security and I'm not trying to16 minimize your complaints at all. In fact, from day one I've17 been very sensitive to the fact that it appears as though he was

18 seeking whistleblower protection, to use his own words, so I'm

19 very sensitive to that. I don't believe there's any authority

20 directly on point.

21 MR. SIMPSON: NO. I was not able to find any. And

22 that's one reason why this court did not receive a submission

23 yesterday, because there wasn't anything substantive in the formPage 37


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24 of case law to support, buttress, or otherwise any position that

25 special Agent Joy would have presented to you today through


40

1 counsel.

2 Now, of course Special Agent Joy will urge you, Judge,

3 to seal the document and not make it public. Certainly if the

4 Court decides that some form of the document should be made

5 public, any reference to a matter of his concern expressed in

6 that letter that does not touch on this particular case ought to7 be redacted, fully and completely, and only those matters that8 may come before this Court relative to this particular case9 should be candidates not to be redacted. If there is going to

10 be a redacted copy, it should be filed either under seal or

11 subject to a very strict protective order.

12 And that other than any questions you may have, that's13 all we have.14 THE COURT: Thank you.

15 MR. SIMPSON: Thank you.

16 THE COURT: Anything further, Ms. Morris or defense

17 counsel?

18 MR. CARY: Yes. Just very quickly, your Honor.

19 Just to respond quickly to Mr. Simpson, the

20 whistleblower protection protects against retaliation. That's21 what they're for. That's what they do, and publication should22 not have any effect on that. In fact, many would argue that it23 gives somebody more protection.24 THE COURT: I was thinking that. I necessarily didn't

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U41

1 as well, but he didn't file this action seeking to have the

2 spotlight shine on him, that's for sure.

3 MR. CARY: Then to summarize, when I responded to your

4 questions which I understood to be about the schedule, I was

5 agreeing with the schedule. obviously it comes as no surprise

6 to the Court we waive nothing. We believe we're entitled to

7 full access. we think it should all be published, and we're

8 operating in the dark and we, defense counsel, needs to know

9 what's going on and we believe it should be litigated in the

10 sunlight, your Honor.

11 THE COURT: Ms. Morris?

12 MS. MORRIS: No, Judge.

13 THE COURT: All right. Let me take a short recess.

14 want -to ask counsel to stay in the courtroom. This matter is

15 sealed, but people walk around trying to figure out what's going16 on behind these sealed doors. I'm not going to keep you all17 day, but I'm going to take about a ten-minute recess. Thank

18 you. No need to stand.19 COURTROOM DEPUTY: Please remain seated. This

20 Honorable Court stands in a ten-minute recess.21 (Recess taken at about 10:31 a.m.22 COURTROOM DEPUTY: Please remain seated. This

23 Honorable Court is again in session.24 THE COURT: Let me just say this: Consistent with

25 what I said when I took the bench this morning, an

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hour-and-a-half ago, I'm going to order the government to turn

over the unredacted version. Strike that. The redacted

version. The copy of the complaint that has no redactions on

it, to defense counsel. I'd indicated that I invite counsel to

take a look at proposed further redactions to that unredacted

copy that defense counsel will get, but I'm not so sure that we

can do that. what's the government's position with respect to

that portion of the Court's order that will direct the

government to turn over the unredacted version to defense

counsel subject to an appropriate protective order?

MS. MORRIS: Subject to the protective order is fine,

Judge.

THE COURT: All right.

MS. MORRIS: To the defense? I mean, we understand,

but --

THE COURT: All right. Then maybe we can move to

phase two then.

MS. MORRIS: well --

THE COURT: And maybe we can move to phase two. I

needed an answer to that last question.

All right. There are some things, there are lots of

things, a lot of issues in this case, and I want to be sensitive

to everyone's rights and not run roughshod over anyone. That's

why I needed an answer to that last question. So the protective

order that was used earlier in this case early on, is that

Jacqueline Sullivan, RPRofficial Court ReporterPage 40


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43

1 appropriate?

2 MS. MORRIS: we'd have to go back and actually check.

3 I believe so, Judge.

4 THE COURT: In terms of today, in terms of getting5 something productive out of the remaining morning hours and6 early afternoon hours, would you have objections to7 independently looking at our proposed redactions of that8 unredacted document along with defense counsel or separate and9 apart from defense counsel? I know they haven't signed anything

10 yet, but I take them at their word that they're not going to11 disseminate that, to see -- and I want Mr. Joy's input as well,

12 to see whether or not you can agree on redactions for the public

13 docket.

14 MS. MORRIS: Just so that I'm clear, Judge, we still

15 would maintain that the portions that are redacted --

16 THE COURT: why don't you come up to the mike?

17 MS. MORRIS: I'm sorry.

18 The portions that are redacted with regard to now that

19 have been provided to defense they have nothing to do with Mr.

20 Stevens or Senator Stevens at all. During the break we did get

21 a chance to speak with Mr. Simpson, Agent Joy'5 attorney, just

22 briefly, and I think we still are having difficulty as to how

23 this gets further redacted without the Court's concern as you

24 expressed prior to leaving the bench trying to keep sealed some

25 identities of the individuals. It's a small office. It's a


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1 small pooi of individuals and it's Agent Joy's belief as

2 expressed through Mr. Simpson that there's no way that he is not

3 going to be recognized or that Agent Kepner is going to be

4 recognized --

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THE COURT: So then how would we proceed with this

case then? If you turn over the unredacted version, they get

it, they know everything you know, they know everything the

Court knows, how do we proceed and litigate these issues in a

public trial?

MS. MORRIS: Just that it -- I believe that it would

still all remain unsealed if they want to file. I understand

that they would want to file if they did. It should just remain

under seal, the litigated portions.

THE COURT: So in other words, an incremental approach

you have no problems with turning over to them, but you object

to publication with any redactions on the public docket?

MS. MORRIS: Yes, sir, and we still --

THE COURT: You're not going to file a motion for --

MS. MORRIS: And we still maintain, Judge, that again

the portions that are redacted, the reason that it was redacted

was because it doesn't pertain to the defendant. The reason why

we provided you with both is so that you would see that the

portions that are redacted are allegations, yes, against Agent

Kepner, but related to other sources, other cases, that are

totally unaffiliated with this particular proceeding, so in an


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12-19-08-s EAL EDabundance of caution in turning it over to the defense, the

redacted portion, the unredacted portions that related to

Senator Stevens, if they were to make the defense to make any

additional arguments or any additional motions, we --

THE COURT: Subject to further briefing then?

MS. MORRIS: Yes, sir. We still maintain that it

should be done under seal. We maintain that it is still

something that should not be aired in the public period.

THE COURT: Do you want an opportunity to attempt to

redact, reserving your rights, all of your rights?

MS. MORRIS: Yes, of course, Judge.

THE COURT: All right. Because I think I should do

that. I mean, I've dealt with this issue. It's been briefed.

I think the public has a right to know subject to appropriate

redactions.

MS. MORRIS: I think --

THE COURT: we've made an effort of making redactions.

I invite comment without anyone waiving anything, and I'd be the

first one to say no one's waiving any rights whatsoever from day

one.

MS. MORRIS: I think, though, that there is someone

who has the most interest here who is not present or has a

representative, and that would be Agent Kepner.

THE COURT: Well, --

MS. MORRIS: And again, Judge, I don't know if she


U46

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2 THE COURT: we can take measures to protect herPage 43


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3 interest.

4 MS. MORRIS: One of the things I wanted to propose to

S the Court prior to you --

6 THE COURT: You know, would it be perfect? Probably

7 not. Will it be perfect? But will it be consistent with the

8 Court's efforts in good faith to balance everyone's competing

9 interest? Absolutely it will.

10 MS. MORRIS: Judge, with regard to letting Mr. Simpson

11 look at this and review it --

12 THE COURT: Sure.13 MS. MORRIS: with regards to any redactions --

14 THE COURT: He has the unredacted version. That's his

15 client. He's got the unredacted version and the redacted16 version. what I'm talking about the unredacted version turned

17 over to defense counsel, I'm talking about appropriate

18 redactions to that to address his client's interest, Special19 Agent Kepner's interest, deleting the identity of a host of20 people. They want to file more motions to have additional21 information put on the public docket. They're welcome to it,

22 But at least this is the Court's best effort and if someone

23 doesn't like it they can seek relief in the Circuit. what about

24 Agent Kepner having any kind of say with what and how it is

25 redacted or going to be redacted? where does it stop? There

jacqueline Sullivan, RPRofficial Court Reporter

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1 are other names also, right?

2 MS. MORRIS: But the complaint actually is against

3 her.Page 44


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U48

4 THE COURT: what about her? what about Kepner?

5 MR. CARY: we're here for the defendant and I don't

6 know how we litigate this without it being about the primary

7 lead FBI agent. The complaint made by the co-lead FBI agent --

8 THE COURT: I think it can be redacted to somewhat

9 disguise that. Would you be interested in making an effort to

10 try and suggest appropriate redactions to the unredacted

11 document without waiving any rights? I would want your

12 thoughts, in other words.

13 MR. CARY: we haven't seen -- having not seen the

14 unredacted version, I don't know.

15 THE COURT: You're going to get it. You're going to

16 get it in about two minutes.

17 MR. CARY: Our position is it ought to be litigated in

18 open court and we'll look at it of course, but --

19 THE COURT: I want you to look at it and if you tell

20 me that there's -- well, I want you to look at it. At least I

21 want the record to reflect what our reaction to it is and

22 whether or not you have any redactions or not.

23 MR. CARY: We have to see it, your Honor.

24 THE COURT: Do you have a copy? Do you have a copy?

25 We have copies. We'll get it right now. Take a look at it.

1 (There was a

2 MR. SIMPSON:

3 like to provide him an

4 Court's intent is to n

5 those items that would

pause in the proceedings.)

Judge, on behalf of Mr. Joy, I would

opportunity to directly input if the

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6 THE COURT: Narrow the unredacted document, in other

7 words, they have now the complaint in its entirety.

8 MR. SIMPSON: Under a protective order clearly?

9 THE COURT: Absolutely, absolutely. And for use of

10 these attorneys, williams & Connolly attorneys only, not to be

11 given to anyone else.

12 MR. SIMPSON: I understand, and further redactions to

13 result.

14 THE COURT: To address the interest, to address the

15 arguments that you've made.

16 MR. SIMPSON: And further redaction to result in a

17 document to be publically filed?

18 THE COURT: Absolutely.

19 MR. SIMPSON: I definitely would like Mr. Joy's direct

20 input on ultimately ending up with a document that in his21 estimation only addresses the Stevens matters.22 THE COURT: well, I don't know if it just addresses

23 the Stevens matters. It's relevant. It's arguably relevant to

24 these attorneys, what the actions of FBI officials were in other

25 cases as well.


49

1 MR. SIMPSON: Thank you.

2 THE COURT: Nothing easy here. It's difficult. I'm

3 just trying to strike a fair balance.

4 (There was a pause in the proceedings.)

5 THE COURT: you'll see some yellow highlights here.

6 We've taken a stab at this and that's the Court's efforts to

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12-19-08-SEALED7 redact as appropriate. That's why you see the yellow

8 highlighted. I wanted to give you an opportunity just to look

9 at it and see whether you wanted to take a stab in proposing

10 further redactions. Are you interested or not? Do you need

11 some more time to look at it?

12 MR. CARY: I can't say that we're not interested in

13 proposing further redactions. There are some things that we

14 think we might be able to live with, but we cannot imagine

15 litigating this case without the identities at least of16 principal players that relate to this case. That's our

17 position.18 THE COURT: Maybe that should be subject to a further

19 round, I don't know, I don't know, but if ou want to take a few

20 more minutes, I have an eleven o'clock no longer on my matters.

21 If you want to take a few minutes, we're still in a sealed

22 courtroom, so go ahead. No need to stand.

23 (Recess taken at about 11:10 a.m.)

24 COURTROOM DEPUTY: Please remain seated. This

25 Honorable Court is again in session.


050

1 THE COURT: I'll hear from defense counsel.

2 MR. CARY: Thank you for giving us the time to read

3 this, your Honor. There are many redactions. without waiving4 any objections, we believe we can live with that for now. we5 have concerns that as we go further down the road that that is6 not going to be practical, even those redactions, but for now we7 can live with many of them. what we cannot live with is8 redactions of principal players, the members of the prosecution

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9 team, and with respect to the actual factual redactions, we do

10 have grave concerns about paragraph 1H in reference to the

11 article of clothing. Because in our view that references a --

12 suggests an inappropriate sexual relationship, and we believe we

13 need to brief that. We need to brief it publically, and all the

14 cases that we've cited all talk about the salutary effects of

15 public scrutiny to just these sorts of matters, and for that

16 reason we don't believe that we can live with redacted names of

17 members of this prosecution team, nor those redactions in

18 paragraph 1H that references the article of clothing or the

19 other gender-related references in that paragraph, your Honor.

20 THE COURT: All right. Do you have any other

21 redactions you want to suggest?

22 MR. CARY: No additional redactions, your Honor, no.

23 THE COURT: All right.

24 MR. CARY: I think Mr. simpson wants to say something.

25 All right.


51

1 MR. SIMPSON: Again, your Honor, I would just renew

2 that the Court allow time for me to coordinate, make contact

3 with my client, Agent Joy, to get his input on the possibility

4 of additional. I haven't done that because you didn't authorize

5 that.

6 THE COURT: well, you knew what the scope of this

7 hearing was going to be, thought. You knew what the scope of

8 this hearing was going to be.

9 MR. SIMPSON: Yes.

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10 THE COURT: You understood the scope of this hearing.

11 MR. SIMPSON: Yes, Judge. But I would still request

12 that I be provided an opportunity to allow his specific and

13 direct input on additional redactions beyond what the Court has

14 proposed here, which he had not had privy to and has not so far.

15 THE COURT: He wasn't available by phone?

16 MR. SIMPSON: Well, he is, Judge, but in terms of

17 putting in front of him something that would indicate what the

18 Court's proposed redactions are, it doesn't have that forum at

19 this point.

20 THE COURT: Ms. Morris, or anyone else?

2]. MR. SIMPSON: But if I may, Judge, on behalf of Agent

22 Joy, we would say that there are additional redactions that I'm

23 confident he would say and that I would agree --

24 THE COURT: Do you want an opportunity to go ahead and

25 propose them now?


52

1 MR. SIMPSON: Again, I don't know all of what he will

2 have, Judge. That's what I'm trying to get to, but I'm quite

3 sure that he would have some proposed for DOJ to consider

4 certainly. And that's how I would prefer to do them, would be

5 if that's acceptable, propose them through Ms. Morris and the

6 government.

7 THE COURT: Counsel?

8 MR. CARY: Your Honor, I hate to belabor this, our

9 client's 85 years old. Every day and every minute that goes by

10 that this isn't out in the public record is contrary to the

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12 public file. We waited, it's been I believe ten days or so,

13 maybe a couple of weeks, since the prosecution team learned

14 about this. We waited long enough. we think it is time to

15 proceed.

16 THE COURT: Ms. Morris, anything?

17 MS. MORRIS: Well, we would have additional

18 redactions, We would prefer to do them jointly to Mr. Joy. To

19 the extent that we have additional ones, we don't want to be

20 duplicative, but we do have additional ones that we would

21 propose. We would certainly welcome all the Court's, and we

22 have a few more we'd like to add.

23 THE COURT: How much time would you need for that?

24 MS. MORRIS: Well, I don't know the extent to which

25 Mr. Simpson needs to talk to his client. I think that at least


El53

1 your proposal we could turn around in two hours and we could PDF

2 them back to the Court.3 THE COURT: I need some input today. I don't mind

4 giving you this afternoon to do them. That's fine. I don't5 have any problem with that. By two o'clock further redactions.6 All right. That's fine. I'm going to issue an opinion today.7 i haven't finalized it. I don't have any problems with it. I8 cannot say that's unreasonable at all. All right. But I feel9 strongly about that protective order. I don't think I need to

10 say anything more about it. This is for the use of the11 attorneys only. Williams & Connolly attorneys only. Don't give12 it to anyone else. So you will jointly fax to me something at

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12-19-08-SEALED13 two o'clock, counsel, any additional redactions.

14 MR. SIMPSON: Yes, Judge. I'll work through Ms.

15 Morris and you can expect them from her.

16 THE COURT: That's fine. I don't have any problems

17 with that. Thank you so much. Anything else? I'm not going to

18 schedule anything else at this time.

19 MR. CARY: No, your Honor.

20 THE COURT: All right.

21 MR. CARY: I assume we'll get a copy of what the Court

22 gets.

23 THE COURT: Yes. Please fax to defense counsel your

24 additional proposed redactions. Thank you. Thank you. Thank

25 you.


U54

1 You have the Court's - - are you going to e-mail them

2 to me or fax them to me? what's better?

3 MS. MORRIS: We'll PDF them and send them by e-mail.

4 MS. SCHMITT: As long as we can see the highlight.

5 That would probably be better,

6 THE COURT: Thank you.

7 (Proceedings concluded at about 11:55 a.m.)

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1 INDEX

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CERTI FICATE

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2 I, JACQUELINE M. SULLIVAN, Official Court Reporter,

3 certify that the foregoing pages are a correct transcript from

4 the record of proceedings in the above-entitled matter.

5JACQUELINE M. SULLIVAN

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Documents

Case 1:08-cr-00231-EGS Document 305 Filed 02/17/2009 Page ... · TRANSCRIPT OF HEARING BEFORE THE HONORABLE EMMET G. SULLIVAN UNITED STATES DISTRICT JUDGE APPEARANCES: For the Government: