Opinion
CRIMINAL NO. 99-1417 JP.
September 12, 2000
GOVERNMENT'S MOTION FOR DECLARATION THAT PLEA AND DISPOSITION AGREEMENT IS NULL AND VOID AND OPPOSITION TO MOTION FOR SPECIFIC PERFORMANCE
The United States of America, by Norman C. Bay, United States Attorney for the District of New Mexico, and George A. Stamboulidis, Assistant United States Attorney, requests this Court to declare the Plea and Disposition Agreement ("Agreement") between the United States and defendant Wen Ho Lee ("Lee") null and void, and to deny Lee's motion for specific performance. As is set forth more fully below, the entry of the United States into the Agreement was premised on a series of representations made by Lee's counsel, including the representations that there were "no bombshells" and that Lee had made no copies of the tapes at issue. Indeed, as its language makes clear, the entire Agreement was premised on the understanding of defense counsel and the government that there were "no bombshells" and only seven missing tapes.
It is now clear that these central representations were both material and false. Contrary to his counsel's pre-plea representation to the government, Lee yesterday apparently informed his counsel that he copied an unspecified number of the tapes at some unspecified time in 1997 or 1998. This was a "bombshell." By his own eleventh-hour admission, there are now anywhere from nine to fourteen missing tapes. Recognizing the importance of this development, and to their credit, counsel for defendant called counsel for the government less than an hour before the plea was to be taken, and informed the government that their original representation to the government that no copies had been made was incorrect. As the Court is aware, the government immediately objected that it had relied on the counsel's original representation in entering into the plea agreement.
The United States now moves to void that Agreement on the grounds that it was induced by fraud or material misrepresentation. For that reason, as well as for additional reasons set forth below, the government also respectfully requests that the Court deny defendant's motion for specific performance.
I. THE BACKGROUND OF THE AGREEMENT
From the beginning of this case, the United States has made clear to defense counsel and the Court that its primary interest in prosecuting this case has been to protect national security by determining what Lee did with the seven missing tapes. ( See, e.g., Letter to Mark Holscher dated 9/3199, attached as Exh. 1; 12/28/99 Tr. at 389; Letter to John Cline and Mark Holscher dated 1/5/00, attached as Exh. 2.) The answer to that question necessarily included learning whether Lee made copies of the tapes, as the government made clear to defense counsel more than a year ago. On September 3, 1999, three months before Lee was indicted, then United States Attorney John Kelly wrote to Mark Holscher, counsel for Lee, telling him exactly what information the government wanted from Lee.
We want to know the complete chain of custody for the tapes from the moment they were created until today. We want to know how and where he created them, where they have been physically located over the last five or six years, who other than Dr. Lee knew of their existence, and why no one in the X Division was told about the tapes. We want to know whether he gave the tapes to a third person. If he did, we want to know to whom, when, where, how, and why. If the tapes were lost or destroyed, we need to know those details as well.
( See Exh. 1 at 1.) A full explanation of the disposition of those seven tapes necessarily would include whether Lee made copies, and, if so, what he did with the copies. Assistant United States Attorney Robert Gorence informed both Mr. Holscher and Mr. Cline by letter in January, 2000, that Lee would have to address both the Court and the government's concerns about the missing tapes to reach an agreement about Lee's release from custody, including whether the tapes had been copied. ( See Exh. 2 at 2.)
In light of their repeated representation that there were "no bombshells," it is difficult to believe that Lee and his counsel never discussed whether the tapes had been copied before September 11, 2000, more than nine months after Lee had been placed in solitary confinement because of concern about his ability to communicate information about the missing tapes. The fact that Lee made a single copy of possibly all of the missing tapes three to four years after he originally created them heightens the government's concern that Lee had a wrongful intent in creating the tapes. Obviously Lee's declaration that he destroyed the original seven missing tapes would be completely misleading and incomplete if he failed to acknowledge that, prior to their destruction, he had made copies of at least some of those tapes. Thus, although the government makes no claim that Lee's attorneys knowingly made a false representation, their assurance to government counsel before signing the plea agreement that Lee never made any copies of the missing tapes was a material misrepresentation.
Indeed, it appears that Lee once again has been less than forthcoming with his own attorneys.
Thus, defense counsel were well aware of the centrality of the question of tapes at the time that they stated, as part of their pre-plea proffer, that Lee had not made copies of the tapes. ( See Affidavits of Norman Bay and George Stamboulidis, attached.) Nor is that representation the only indication of the importance of this issue: the plea agreement was drafted to refer to the tapes referred to in the Indictment precisely because counsel for both parties understood there to be no other tapes. In fact, when the government sought to include references to "information" on the tapes, defense counsel argued that it was unnecessary to do so, and would unnecessarily complicate Lee's proffer. The importance of this issue also is reflected by the fact that defense counsel correctly recognized their obligation to inform the government of this material change in circumstances as soon as they learned of it, shortly before the plea hearing was to take place.
Throughout these negotiations, defense counsel assured government counsel that there would be no "bombshells" in Lee's disclosures required under the Agreement. To assure government counsel further, they agreed to provide the government with a "litany of no's" prior to entering into the plea agreement — attorney proffers as to what Lee did not do. This "litany of no's" took place at approximately 4:00 p.m. on Saturday, September 9, 2000, just after the Agreement was finalized, but before it was executed. During that session, defense counsel represented to the government that Lee never made any copies of the seven missing tapes. Although defense counsel recalls that they qualified their response by a phrase like "as far as we know." Government counsel respectfully disagrees; there was no such qualification. Indeed, government counsel's notes do not reflect any such qualification. Lee, through his counsel, represented to the government that he never made copies of the tapes at issue in the Indictment, and the government relied on that representation in deciding to sign the Agreement.
Even if the Court accepts defense counsel's recollection that they qualified their answer to this question by a phrase like "as far as we know," had defense counsel never raised the issue with Lee, the correct answer would have been "I don't know." The Agreement that Lee and his counsel were about to sign represented on the first page that Lee "has thoroughly reviewed all aspects of this case with his attorneys." Whether qualified or not, defense counsel's response was inaccurate.
The government's concern about the current plea agreement is not based solely on the existence of this material misrepresentation. A necessary premise underlying the government's willingness to enter into negotiations and accept a plea agreement has been its confidence that Lee's attorneys' factual representations would be trustworthy and accurate. This critical element depends, necessarily, on Lee's candor with them. The recent episode has demonstrated that Lee has not been completely forthcoming with his own attorneys. That calls into question the accuracy and trustworthiness of their representations to the government on every issue, not only the issue of whether copies were made. The government would not have agreed to the Plea and Disposition Agreement had it known that Lee has not been candid with his attorneys; consequently, the Agreement should be set aside as null and void.
II. THE PLEA AGREEMENT SHOULD BE DECLARED NULL AND VOID BECAUSE IT WAS INDUCED BY A MATERIAL MISREPRESENTATION
The rules of contract law inform the interpretation and enforcement of plea agreements. United States v. Rockwell International Corp., 124 F.3d 1194, 1199 (10th Cir. 1997). In interpreting a plea agreement, the Court should first look to the nature of the agreement, and then examine the parties' reasonable understanding of the agreement at the time they entered into it. See United States v. Runner, 134 F.3d 1000, 1003 (10th Cir. 1998). Although this Court should "give credence to the plain language of the plea agreement, [it should] not construe the language so literally that the purpose of the plea agreement is frustrated." Id.; see also United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990) (court should not accept a "rigidly literal approach in the construction of language" in plea agreements). Indeed, the Eleventh Circuit has urged that "the written [plea] agreement should be viewed "against the background of the negotiations' and should not be interpreted to "directly contradic[t] [an] oral understanding.'" Jefferies, 908 F.2d at 1523 (quoting In re Arnett, 804 F.2d 1200, 1203 (11th Cir. 1986)). And, as in any contract, the government, as a party to a plea agreement, is relieved of its obligations under the agreement if the agreement was obtained by fraud or misrepresentation. United States v. Ballis, 28 F.3d 1399, 1409 (5th Cir. 1994); see also United States v. Rexach, 896 F.2d 710, 714 (2nd Cir.) (implied duty of good faith and fair dealing exists in all plea agreements), cert. denied, 498 U.S. 969 (1990); United States v. Lewis, 964 F. Supp. 1513, 1516 (D. Kan. 1997) (same).
The case of State v. Nail, 379 So.2d 731 (La. 1980), is similar to the facts of this case. Nail and his co-defendant were charged with murder in connection with a burglary. Nail's attorney met with the district attorney and proffered that his client had not been the one who actually killed the victim, but that the co-defendant had forced Nail to fire a shot into the victim's body after the co-defendant had killed the victim. Id. at 732. Based on this proffer, the state and Nail entered into a plea agreement under which Nall agreed to plead guilty to lesser charges and testify against his co-defendant Id. at 732-33. After the plea hearing and pursuant to the plea agreement, Nail gave a statement to police that was contrary to his attorney's re-plea proffer, that is, that he had hired his co-defendant to assist him in killing the victim. Id. at 733. The Louisiana Supreme Court recognized that the plea agreement had been based on the defense attorney's pre-plea proffer, and that the government should be relieved from its obligations under the agreement. Id. The Agreement in this case similarly was premised on Lee's attorneys' representation that Lee never made copies of the tapes at issue in the indictment. Because that basic premise is not true, the Court should set aside the Agreement.
Lee's attorneys' statement that Lee did not make any copies of the tapes was a material representation upon which the government detrimentally relied in when it agreed to sign the Agreement. Lee's eleventh-hour contrary revelation to his lawyers on the afternoon of the plea hearing undermines the entire Agreement, and frustrates the government's purpose in entering into that agreement. The fact that Lee is only now making this disclosure to his lawyers indicates that he may be withholding other significant information even from his own lawyers, which undermines the government's ability to rely on his lawyers' proffers. Allowing the Agreement to go forward at this point would directly contradict the understanding of the parties at the time the Agreement was negotiated. The Agreement should be set aside.
III. THE GOVERNMENT IS ENTITLED TO WITHDRAW FROM THE PLEA AGREEMENT UNTIL THE PLEA IS ACCEPTED BY THE COURT
Lee is not entitled to specific performance of the Agreement. A defendant has no constitutional right to enforce the terms of a plea bargain before he pleads guilty pursuant to the plea bargain. Mabry v. Johnson, 467 U.S. 504, 507-08 (1984); United States v. Randel, 8 F.3d 1526, 1527-29 (10th Cir. 1993). As the Supreme Court explained in Mabry,
A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution.467 U.S. at 507-08.
Indeed, either pasty may withdraw from a plea agreement, particularly an agreement pursuant to Rule 11(e)(1)(C), before the district court approves the agreement and accepts the defendant's plea See Randel, 8 F.3d at 1527-28 ("the government was entitled to withdraw the plea bargaining proposal prior to the defendant pleading guilty or taking other significant action in reliance on the offer"); see also United States v. Hyde, 520 U.S. 670, 677, 678 n. 3 (1997) (Rule 11 "explicitly envision[s] a situation in which the defendant performs his side of the bargain (the guilty plea) before the Government is required to perform its side"; Court did not decide whether the defendant is bound by a plea agreement before the government is bound). Because the validity of the agreement is contingent on the district court's approval and acceptance of the plea, neither party should rely on the agreement's terms until the defendant actually pleads guilty. As the Eighth Circuit explained,
Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it. We are therefore reluctant to bind them to the agreement until that time. As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court.United States v. McGovern, 822 F.2d 739, 744 (8th Cir.) (quoting United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980)), cert. denied, 484 U.S. 956 (1987). The Third Circuit is in accord with the Eighth, having held that "[i]t is axiomatic that a plea agreement is neither binding nor enforceable until it is accepted in open court." United States v. Gonzalez, 918 F.2d 1129, 1133 (3rd Cir. 1991).
Here, Lee has not pled guilty, and the government has moved to set aside the Agreement based on his lawyers' misrepresentation that Lee never made copies of the tapes. Because Lee has not pled guilty, he would not be entitled to specific performance even if he had not misrepresented that he never made copies of the tapes. Given his misrepresentation, however, fairness requires that the Agreement be set aside and the government be allowed to move forward with its prosecution.
IV. LEE HAS NOT RELIED TO HIS DETRIMENT ON THE AGREEMENT
Lee asserts that he is entitled to specific enforcement of the Agreement because he detrimentally relied on the Agreement. The only statement Lee provided to the government before government counsel informed defense attorneys that there was a problem was his declaration prepared pursuant to ¶ 7(a) of the Agreement. This declaration exactly tracked the language of ¶ 7(a), which the defense also had helped draft. Lee has not submitted to the extensive debriefing under oath contemplated by the Agreement, he has not submitted to a polygraph examination, nor has he provided the sworn statement required by ¶ 7(d). Most importantly, Lee has not pled guilty, and he has not waived any constitutional rights in connection with such a plea. Although Lee's attorneys provided two unsigned drafts of the declarations under ¶ 7(d), they did so only after government counsel informed them that there could be a problem with the plea, and that the government may not go forward with the Agreement. Lee's voluntary submission of the draft declaration was provided in an effort to encourage the government to go forward despite Lee's earlier misrepresentation that no copies were at issue. He cannot now use his voluntary efforts to keep the plea on track — knowing the government's problems with the Agreement — to require that the Agreement be specifically enforced. See Randel, 8 F.3d at 1528 (defendant was not entitled to specific enforcement of original plea agreement when he pled guilty knowing that the government would appeal the district court's order enforcing the original plea offer).
Lee relies on several cases concerning detrimental reliance which are easily distinguishable from this case. In two of the cases, United States v. Carter, 454 F.2d 426 (4th Cir. 1972) and United States v. Paiva, 294 F. Supp. 742 (D.D.C. 1969), the defendants were entitled to enforce the plea agreement because they already had pled guilty pursuant to their agreements, which Lee obviously has not done in this case. In United States v. Papaleo, 853 F.2d 16 (1st Cir. 1988) and United States v. Savage, 978 F.2d 1136 (9th Cir. 1992), although the courts stated that a defendant could enforce a plea agreement once the defendant acts in detrimental reliance on the agreement, neither court found that the defendant acted in detrimental reliance on the agreement before pleading guilty, and the courts refused to enforce the agreements.
In two cases, State v. Kuchenreuther, 218 N.W.2d 621 (Iowa 1974) and State v. Brockman, 357 A.2d 376 (Md. 1976), the defendants substantially performed everything required under the plea agreement, but were not allowed to plead guilty. In Kuchenreuther, the defendant made restitution and cooperated as required under the plea agreement, but was not allowed to plead guilty. 218 N.W.2d at 623. In Brockman, the defendant submitted to a lengthy deposition under oath pursuant to a plea agreement, but before he entered his plea. 357 A.2d at 379-81. In both Kuchenreuther and Brockman, the defendants substantially complied with all the provisions of the plea agreement but then were not allowed to plead guilty. In this case, Lee only has provided the limited declaration required under ¶ 7(a) of the Agreement. Consequently, his purported reliance on the Agreement falls fall short of what is required to enforce it.
To the extent that Lee did provide minimal information to the government in the course of consummating the Agreement, Lee is adequately protected by the Federal Rules of Criminal Procedure and the Federal Rules of Evidence. Rule 11(e)(6) of the Federal Rules of Criminal procedure makes clear that, should Lee not plead guilty, his statements are, with limited exceptions, inadmissible at a subsequent civil or criminal proceeding. This same protection is provided in Rule 410 of the Federal Rules of Evidence. Lee did not rely to his detriment on the Agreement, and the Agreement should be set aside.
V. CONCLUSION
For the foregoing reasons, the United States respectfully requests this Court to declare the Plea and Disposition Agreement signed by Lee and his attorneys on September 9, 2000, and signed by government counsel on September 10, 2000, null and void.
EXHIBIT 1
U.S. Department of Justice
United States Attorney District of New Mexico P.O. Box 607 505/346-7274 Albuquerque, New Mexico 87103 FAX 505/346-7296
September 3, 1999
VIA FACSIMILE AND U.S. MAIL
Mark Holscher O'Melveny Myers, LLP 400 South Nope Street Los Angeles, California 90071-2899
Re: Investigation of Dr. Wen Ho Lee
Dear Mr. Holscher
Thank you for your August 30 supplemental submission in the above referenced matter in which you ask the Department of Justice to terminate its investigation. I had an opportunity to review it carefully yesterday. While I appreciate the new information, the Department has some remaining concerns that you have not yet addressed in any of the five written submittals we have received since early in the summer. We invite you to respond to the following points over the course of the next week:
1. We know that Dr. Lee copied both classified and unclassified information onto 6150 tape cartridges. We know that he didn't have a tape drive on his computer. We found some of the unclassified cartridges in his T Division office when we searched it earlier this year, but we do not know what happened to the tapes containing classified information. We want to know the complete chain of custody for the tapes from the moment they were created until today. We want to know how and where he created them, where they have been physically located over the last five or six years, who other then Dr. Lee knew of Their existence, and why no one in the X Division was told about the tapes. We want to know whether he gave the tapes to a third person. If he did, we want to know to whom, when, where, how, and why. If the tapes were lost or destroyed, we need those details as well.
2. We know that the tapes were of no practical use to Dr. Lee in his day-to-day work, In part because he lacked a tape drive, in part because the tape hardware technology was outmoded by the mid `90s, and in part because accessing information on tape cartridges was far slower than LANL's common file system where the data was already stored. We a!so know that the tapes were compact, portable, and readable on computers other than the export-controlled hardware in use at LANL. This fact pattern is of great concern to the Department of Energy and the Department of Justice. In short, we want you to tell us why he made the tapes!
I would very much appreciate two or three pages of succinct, verifiable, factual information responding to these concerns by Monday September 13, 1999. Please do not send us any information that may be classified over an unsecure wire. Bob Gorence can put you in contact with people in the Department who can help you make appropriate arrangements for transmitting your response.
Sincerely yours,
JOHN J. KELLY United States Attorney
JJK/ch
cc: James K. Robinson, Chief, Criminal Division, DOJ John Dion, Chief, Internal Security Section, Criminal Division, DOJ Robert J. Gorence, First Assistant United States Attorney
EXHIBIT 2
U.S. Department of Justice
United States Attorney District of New Mexico P.O. Box 607 505/346-7274 Albuquerque. New Mexico 87103 FAX 505/346-7296
January 5, 2000
VIA FACSIMILE
Mark Holscher O'MELVENY MYERS, LLP 400 S. Hope Street Los Angeles, California 90071-2899
John D. Cline FREEDMAN, BOYD, DANIELS, HOLLANDER, GOLDBERG CLINE P.A. 20 First Plaza, N.W., Suite 700 Albuquerque, New Mexico 87102
Dear Messrs. Holscher and Cline:
On the morning of December 10, 1999, just prior to Dr. Lee's indictment, you wrote a letter to this office offering to make Dr. Lee available for a polygraph on the issue of the claimed destruction of the seven tapes that contain classified information.
Prior to commencing the hearing before Judge Parker to revoke the magistrate judge's order of detention, you renewed your offer to submit Dr. Lee to a polygraph examination. It was quickly apparent, however, that we were in disagreement about the appropriate scope of inquiry that would be sufficient to convince the government that all seven missing tapes have been destroyed, as well as any potential copies, and that the tapes were never communicated to any unauthorized person. The issue that Dr. Lee must address is what Judge Parker found after hearing three days of testimony:
The Government has presented credible evidence showing that the possession of information by other nations or by organizations or individuals could result in devastating consequences to the United States' nuclear weapon program and anti-ballistic nuclear defense system. . . . The Government also presented evidence that it remains extremely concerned about the seven missing portable computer tapes containing valuable classified files. The Government offered considerable information that Dr. Lee's release from custody at this time poses a danger to the United States because of the risk that Dr. Lee will find a way to) and will be inclined to, reveal to unauthorized persons the location of the seven missing tapes or to assist an unauthorized possessor in understanding and utilizing the information contained in the tapes . . . .
Moreover, despite repeated requests by the Government investigators for information about the location of the missing tapes or about details regarding their destruction made during a lengthy pre-arrest investigation, Dr. Lee never provided that information. The only representation that the tapes have been destroyed came from Dr. Lee's attorneys. This representation is based on broad, non-specific language about destruction of classified documents and material in a one-page "Security Termination Statement," Ex. F, signed by Dr. Lee at the time LAM. fired him. The Court was not given any sworn testimony that the seven missing tapes were destroyed nor was it provided any information about the time and manner of their destruction or whether they had been copied. It would have been be fairly simple for Dr. Lee to have disclosed at some point during the exhaustive and lengthy investigation, whether he had copied or destroyed the tapes and, if so, where, how, why, and when that occurred. [Memorandum Opinion and Order at pp. 14-16.]
To address the government and Judge Parker's concerns, Dr. Lee would have to answer a number of questions, orally, in person, to special agents of the Federal Bureau of Investigation. We would expect Dr. Lee to answer the following areas of inquiry:
1. Do the tapes presently exist?
2. Where are the tapes today?
3. Do any copies of the tapes exist?
4. From the time of the creation of the tapes, were the tapes or their contents shared or provided to any other person through any means whatever?
5. Were all the tapes destroyed?
6. Where were the tapes located form the date of creation until the date they were destroyed?
7. How were the tapes destroyed?
8. When were the tapes destroyed?
9. By whom were the tapes destroyed?
10. Where were the tapes destroyed?
11. Did anyone assist you in the destruction of the tapes?
12. Was any other person present when the tapes were destroyed?
13. Was the information on the tapes ever transferred to any other medium, such as another electronic medium or paper?
It is the government's view that complete and candid answers to all of the above questions are a prerequisite for the government to even begin to reconsider its position with respect to Dr. Lee's pretrial detention. If and when Dr. Lee answers these questions, the government would undertake to corroborate or refine, through further investigation, the statements made by Dr. Lee. The government may want to ask additional questions based on its investigation, and it may ask Dr. Lee to submit to a polygraph with reference to one or more of the questions set forth above. Only then and only after the government is confident that it has received a truthful statement from Dr. Lee would it be prepared to reevaluate its position concerning pretrial detention.
Because Judge Parker in the Court's Memorandum Opinion and Order suggested that "changed circumstances might justify Dr. Lee renewing his request for release," I am copying the Court on this letter.
Please respond to me at you earliest convenience if this proposal is acceptable to Dr. Lee.
Sincerely,
ROBERT J. GORENCE Acting United States Attorney
RJG/maf
cc: Honorable James A. Parker United States District Judge
John Dion, Chief Internal Security Section, DOJDECLARATION OF NORMAN C. BAY, UNITED STATES ATTORNEY, DISTRICT OF NEW MEXICO IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA,
Plaintiff
vs. CRIMINAL NO. 99-1417 JP.
WEN HO LEE,
Defendant.
SEALED AFFIDAVIT OF NORMAN C. BAY
1. My name is Norman Bay. I am the United States Attorney for the District of New Mexico. I became an Assistant United States Attorney in September 1989 in the District of Columbia. In April 1995, I became an Assistant United States Attorney in the District of New Mexico. In March 2000, I was appointed Interim United States Attorney in the District of New Mexico. I was subsequently nominated by the President and confirmed by the United States Senate.
2. I have been involved in the mediation and plea negotiations in the case of United States v. Wen Ho Lee, Crim. No. 99-14 17 JP. I personally attended the mediation sessions on September 7, 8, and 9, 2000 in Albuquerque, New Mexico, before the Honorable Edward Leavy of the United States Court of Appeals for the Ninth Circuit.
3. The government's overriding interest in this case has been national security. As a result, the entire context for the negotiations — the heart of the deal for the government — was that the government had to receive adequate assurances that all the classified information was properly accounted for, and the defense clearly understood as much. The parties repeatedly referred to the missing tapes, which we all understood to be seven in number. That became the fundamental assumption of both parties. The defense counsel clearly understood the government's concern over "seven missing tapes." Defense counsel repeatedly reassured the government that the government had no reason to be concerned with the seven missing tapes. They emphasized, in their words, that there were "no bombshells" out there, and we would receive a litany of no's" from the defendant that would satisfy our concerns.
4. On Saturday, September 9, 2000, the parties negotiated all day, from 9:00 a.m. to approximately 4:30 p.m., at the U.S. Attorney's Office in Albuquerque, New Mexico. All three defense lawyers — Mark Holscher, John Clime, and Dan Bookin — were present for this session. Around 4:00 p.m., the parties approved a proposed final draft of the plea agreement. Defense counsel said that they had to go to the Santa Fe Detention Facility to review the proposed agreement with their client.
5. AUSA George Stamboulidis asked for a lawyer proffer from the defense counsel. I was present when this happened, as were FBI Supervisory Special Agent Bob Messemer, AUSA Laura Fashing, and Trial Attorney Michael Liebman. AUSA Stamboulidis explained that the proffer was part of the deal; the defense had agreed to provide a lawyer proffer in which the government sought assurances as to what the defendant had done with the classified information. The puxpose of the proffer was to give the government additional and final reassurances as to the defendant's bona fides. Without objection from defense counsel, they began to answer AUSA Stamboulidis's questions.
6. AUSA Stamboulidis asked a series of questions, including whether or not the defendant had passed the tapes or had any intent to pass the tapes. I cannot recall all the questions that AUSA Stamboulidis asked, and he was talking faster than I could take notes. My notes do not contain a notation as to possible copies of the tapes. I do know, however, that AUSA Stamboulidis asked a series of questions; I would estimate around a dozen. To each question, defense counsel either singly or sometimes in a chorus answered "no." They again reassured us that there were "no bombshells" out there. Based on the many reassurances and representations we had received, we believed we could proceed with the plea agreement. Again, the government had to know what it was getting before entering into the agreement; we had received the appropriate comfort from counsels' representations. Defense counsel then left with an unsigned copy of the proposed agreement.
7. On Monday, September 11, 2000, around 1:30 p.m., I went to AUSA Stamboulidis's office so that we could walk to court together for the 2:00 p.m. change-of-plea hearing. At AUSA Stamboulidis's office, I learned that Mr. Cline had called to say that the defendant, for the first time, had reported that he had made mote than one and as many as seven additional copies of the tapes. In other words, we were faced with the problem of nine to fourteen missing tapes, not seven tapes. This news was a complete and total shock to me. I was dumbfounded, then outraged. The entire premise of the deal had been that we would receive the appropriate assurances on the missing tapes. Throughout the negotiations, the parties continually referred to the "seven missing tapes." At no point had defense counsel revealed that there were nine to fourteen missing tapes. In fact, they had provided us with the "litany of no's" and represented that there were "no bombshells" out there.
8. This news was a bombshell. It was a bombshell because it called into question why, if Lee had no wrongful intent, he had made a second set of tapes. Even if one credits his assertion on "60 Minutes" that he wanted to make a backup set of files, why would anyone make a backup of a backup? The fact that there were between nine to fourteen tapes, as opposed to seven, means that the United States has that much more to worry about.
9. The bottom line is that it was in full and detrimental reliance upon defense counsels' misrepresentations throughout the negotiations — misrepresentations that culminated with the "litany of no's" — that the United States entered into the plea agreement. We relied upon their word as officers of the court, and learned shortly before the change-of-plea hearing that their representations had been incorrect. As the United States Attorney for the District of New Mexico, I would not have consented to the plea agreement, as it was drafted, had I known that there were nine to fourteen missing tapes, as opposed to seven.
If defense counsel learned of the copies on the day of the change-of-plea hearing, then of course their misrepresentations would have been unintentional. Moreover, if counsel learned of the copies on the day of the hearing, then in prior negotiations with the government they could only have meant seven missing tapes when they discussed the tapes.
NORMAN C. BAY Norman C. Bay
Albuquerque, New Mexico September 12, 2000
DECLARATION OF GEORGE A. STAMBOULIDIS, ASSISTANT UNITED STATES ATTORNEY IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,Plaintiff
vs. No. CR-99-1417
WEN HO LEE,
Defendant.
SEALED AFFIDAVIT OF GEORGE A. STAMBOULIDIS
1. I am an Assistant United States Attorney, assigned to the case ofUnited States of America v. Wen Ho Lee, Criminal No. 99-1417 JP (D.N.M.).
2. On Saturday, September 9, 2000, I met with Mark Holscher, Daniel Bookin, and John D. Cline, all counsel for the defendant Wen Ho Lee, in the offices of the United States Attorney for the District of New Mexico, in Albuquerque. for the purpose of finalizing the language of a plea agreement. During that session, which spanned several hours, various changes were made to the proposed Plea and Disposition Agreement (hereinafter the "agreement" or "plea agreement").
3. At approximately 4:30 P.M. (MT). after language of the plea agreement was settled by the attorneys for both sides, but before any party had signed or accepted the agreement, I advised the above counsel for the defendant that it was now time for the attorney proffer that had been agreed upon. The contemplated attorney proffer, which was part of the pre-plea agreement that was achieved via mediation, involved defense counsel providing assurances to the prosecution that the tapes and files at issue in the indictment in this matter had been destroyed and had not been previously compromised, or handled in a manner that allowed access in any way by unauthorized persons. This pre-plea agreement attorney proffer, referred by counsel as the "litany of no's," was understood by all counsel to give the government assurances that the defendant had not done certain things after he improperly downpartitioned and downloaded classified files. A satisfactory attorney proffer was a precondition to the government's acceptance of the plea agreement. Counsel for Lee agreed to proceed with the proffer.
4. I then proceeded to ask counsel for the defendant a series of questions concerning the disposition of the tapes and the files, and they answered those questions. In addition, I asked them to expedite the process by making statements that would similarly provide us with assurances, even without specific questions from me. Counsel both answered my questions, as well as questions from Supervisory Special Agent Robert Messemer, and also, pursuant to my suggestion gave assurances that were not in response to questions. Among the questions I asked was whether the defendant ever made copies of the tapes after he created them. Mr. Cline responded, without qualification, that Lee had not. Specifically, Mr. Cline did not qualify his answer with any language to the effect of"as far as I or we know." Indeed, on that specific assurance, my notes of that attorney proffer read, "Never made any copies of the tapes after he created them." Moreover, in addition to various other specific assurances, as they had done throughout the mediation sessions, defense counsel repeated numerous times that there were no surprises or "bombshells," and that there would be none when the defendant provided his sworn debriefing responses during the debriefings contemplated by paragraph 7(e) of the plea agreement. Indeed, throughout the mediation negotiations, defense counsel repeatedly made representations that there would be no "bombshells." During the above referenced attorney proffer, I took notes, which consisted of two pages, one regarding the tapes and the second regarding the downpartitioned files. While the defendant's motion and affidavits seem to suggest that they had to race through the attorney proffer, they had enough time to jokingly add on responses to their answers to my Yes-No questions. For example, as indicated in my notes, two questions after Mr. Cline assured me that the defendant "Never made any copies of the tapes after he created them," I had asked a series of questions regarding whether the defendant had ever had any intent to, or did, or any had conversation with anyone, or any requests from anyone, to pass the tapes to any foreign nation or territory. More than one defense attorney responded that the defendant had no such intent and had never done so and had never had and such conversations or requests to do so. In responding to that series of questions, Mr. Bookin, in a joking manner said, you can also put down or write down "any city, state or" some other governmental subdivision, which I believe was "province" but I can not so state with absolute certainty. Attached are my one-page of notes from this attorney proffer regarding the tapes. (The circle in red ink around the statement "Never made any copies of the tapes after he created them" was added by me on the afternoon of September 11, after Mr. Cline told me that the defendant told him that he made copies of some or all of the seven tapes. Also, the purple ink in the lower right hand of the page, which reads, "they added (DB)" was added by me on September 11, 2000).
5. Prior to the negotiation session on Saturday, September 9, 2000, the government had proposed that paragraph 7(a) of the agreement, which required the defendant a sworn pre-pica declaration, include "the tapes, files, and information" at issue in the indictment, which would have addressed the issue of copies of the tapes. At the urging of defense counsel, for reasons having nothing to do with the issue of tape copies, the reference to "information" was removed.
6. On the afternoon of Sunday, September 10, 2000. I executed the plea agreement on behalf of the United States, in the chambers of Chief United States District Judge James A. Parker.
7. On Monday, September 11, 2000, at approximately 12:59 P.M. (MT), Mr. Cline telephoned me at my office in Albuquerque and stated, in sum and substance, that he was over in his office space in the courthouse with the defendant and was in the process of drafting the defendant's sworn written declaration that was contemplated by paragraph 7(d) of the plea agreement. Mr. Cline indicated that as a result of speaking with the defendant in that process, he realized that he had misrepresented certain information provided to me during the attorney proffer on Saturday, September 9. Specifically, Mr. Cline advised that the defendant had indeed made copies of the tapes at issue in the indictment after he created them. Mr. Cline advised me that, "it turns out that in late "97 or early "98, he [the defendant] made one single copy of some of the seven tapes." Mr. Cline further advised that after questioning by defense counsel, the defendant thinks that it was "three to five" copies but he could not be sure, and it may have been as many as seven copies. Mr. Cline also said that the defendant is certain that he destroyed the copies at the same time as the original tapes. I immediately advised Mr. Cline that this was a serious matter, and that the government required additional information about the details of the creation, purpose and disposition of these copies that the defendant created and for the first time today admitted to his counsel. Mr. Cline responded by saying that I should not worry because the defendant claimed that he had destroyed the copies as well, and that there were no bombshells, I told him that the fact that the defendant created copies and had never admitted that to his counsel until approximately one-hour before his guilty plea was a big bombshell. I told Mr. Cline that he needed to learn more information about this from his client, and that I needed to learn the details of the circumstances surrounding the creation, purpose, and disposition of these copies before we could go forward with any plea.
8. At approximately 1:05 P.M. (MT) that same afternoon, I phoned Mr. Cline back at his courthouse office and asked when the defendant destroyed the tape copies. Mr. Cline responded by telling me that it was in January 1999 during "approximately three sessions." I asked what the defendant's purpose was for creating copies. Mr. Cline said he would speak to the defendant and call me back.
9. Some minutes later, Mr. Cline called me back in my office and told me, "He [the defendant] said, sometimes when he made backups they were corrupted so he would make backups of the tapes." I told Mr. Cline him that this was most troubling in light of the attorney proffer of September 9th to the contrary, and the fact that the defendant never before revealed to his attorney his creation of copies of any of the tapes.
10. During either the conversation referred to in paragraph 8 above or the preceding conversation referred to in paragraph 7 above, I told Mr. Cline that, as the 2:00 P.M. plea hearing time was fast approaching, we needed to make a joint application to advise Judge Parker, who had scheduled a hearing in this matter for 2:00 P.M. that same day, that the parties wished to adjourn the hearing for an hour. Subsequently, the defense agreed to do this, and we called over together to the chambers of Chief Judge Parker to alert the Court to this request for an adjournment. The Court directed the parties to appear in Court at 2:00 P.M. to place the parties' joint request for a one-hour adjournment on the record. The parties did just that and the Court granted the adjourmnent on the representation from both parties that there was a good reason for the adjournment that they did not wish to elaborate. Following that brief court session, Mr. Cline handed me a manila envelope which contained a draft unsigned version of the defendant's declaration contemplated by paragraph 7(d).
11. Before defense counsel had provided the government with any unsigned draft version of the defendant's sworn statement contemplated by paragraph 7(d) of the plea agreement, I had notified Mr. Cline that we could not go forward with the plea. At approximately 4:05 P.M. (MT) or some minutes thereafter, defense counsel provided the government with a second unsigned draft version of the defendant's paragraph 7(d) declaration. The government has never been provided with a signed version of the defendant's paragraph 7(d) declaration.
I declare under penalty of perjury that the foregoing is true and correct.
George A. Stamboulidis
Albuquerque, New Mexico September 12, 2000
I hereby certify that a true copy of the foregoing document was delivered to defense counsel of record as set forth below this 12th day of September, 2000.
GEORGE A. STAMBOULIDIS Assistant U.S. Attorney
John D. Cline Nancy Hollander Freedman, Boyd, Daniels, Hollander, Goldberg Cline, P.A. 20 First Plaza NW, Suite 700 Albuquerque, NM 87102 fax: (505)842-0761
Mark Holacher O'Melveny Myers LLP 400 South Hope Street Los Angeles, CA 90071-2899 fax: (213)430-6407