IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JUL 21 2000 [date stamped]


UNITED STATES OF AMERICA,
Plaintiff,

v.                                             		Criminal No. 99-1417 JP

WEN HO LEE,
Defendant.
RENEWED MOTION OF DR. WEN HO LEE
FOR PRETRIAL RELEASE

Dr. Wen Ho Lee, through undersigned counsel, renews his motion for pretrial release under 18 U.S.C. § 3142 and the Due Process Clause of the Fifth Amendment. The grounds for this motion are set forth in the accompanying memorandum. Dr. Lee requests an evidentiary hearing on this motion.

CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of July, 2000, a copy of the foregoing was sent by hand delivery to:

[signed]
John D. Cline

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JUL 21 2000 [date stamped]


UNITED STATES OF AMERICA,
Plaintiff,

v.                                             		Criminal No. 99-1417 JP

WEN HO LEE,
Defendant.
MEMORANDUM IN SUPPORT OF RENEWED MOTION
OF DR. WEN HO LEE FOR PRETRIAL RELEASE

Dr. Wen Ho Lee has been imprisoned since December 10, 1999. This court jailed Dr. Lee on three principal grounds: (1) the asserted sensitivity of the information at issue-- particularly the information on the allegedly "missing" (and in fact destroyed) tapes; (2) the prosecution's claim that, if released, Dr. Lee would attempt to communicate the information at issue to the People's Republic of China ("PRC") or another hostile foreign power; and (3) Dr. Lee's alleged "secretive and deceptive" conduct--in particular, an alleged representation to a T Division colleague that Dr. Lee wanted to use his computer to download "a resume" onto tape.

In this memorandum, we present compelling new information that addresses each of these key points. First, we submit declarations from Dr. Harold Agnew (former Director of LANL) and Dr. Walter Goad (a Fellow Emeritus at LANL), both of whom debunk the prosecution's claim that the computer files at issue represent this country's nuclear "crown jewels" that would change the "global strategic balance" if they fell into the wrong hands. Dr. Agnew concludes that "[i]f the People's Republic of China had already obtained these codes, or were to obtain these codes, it would have little or no effect whatsoever on today's nuclear balance." Dr. Goad declares that the prosecution's "crown jewels" and "you bet your country" testimony "represent[s] unbridled exaggeration" and an "incitement of apprehension, even paranoia, that can override fairness and justice." Both Dr. Agnew and Dr. Goad note that the wide publication of the scientific knowledge and computational expertise required for nuclear weapon design reduces the significance of the files. The post-hearing revelation that the files had not even been formally classified at the time of the alleged events--but instead were protected at the PARD level--further undermines the "crown jewels" claim.

Second, the prosecution's recent Bill of Particulars marks the collapse of its theory that Dr. Lee served or intends to serve as a spy for the PRC or some other foreign nation.1 The prosecution argued at the December hearing that, if released (even on stringent conditions amounting to house arrest), Dr. Lee would convey the contents of the files to another country, perhaps through a pre-arranged signal such as "Uncle Wen says hello." The Bill of Particulars substitutes an entirely new theory for the "Chinese spy" theory; the prosecution now claims that Dr. Lee sought to use the files to enhance his employment prospects in countries such as Singapore, Australia, Switzerland, France, Germany, and Hong Kong, as well as to somehow benefit historical antagonists PRC and Taiwan. Dr. Lee the alleged job-seeker cuts a far less threatening figure than Dr. Lee the alleged spy. The prosecution's shift in theory highlights the utter implausibility of most serious claim at the December detention hearing that, if released, Dr. Lee might be kidnapped from White Rock by armed foreign intelligence officers, who would land a plane or helicopter near his home.

Third, documents produced to the defense months after the December detention hearing demonstrate that the prosecution either presented false testimony concerning what Dr. Lee told the T Division employee about the use of his computer or, at a minimum, failed to disclose to the Court that in sworn grand jury testimony and in repeated interviews with the FBI the employee provided a strikingly different description of events. At both detention hearings, FBI Agent Robert Messemer testified that Dr. Lee obtained use of the T Division employee's computer by telling the employee that he wanted to download a "resume." The Court specifically cited this testimony in its decision to detain Dr. Lee. But before the grand jury and in FBI interviews--including interviews with Agent Messemer himself--the employee repeatedly stated that Dr. Lee asked to use his computer to download "some files"; as far as the discovery reveals, the employee never stated that Dr. Lee told him he wanted to download "a resume."

In addition to these critical points, the length of Dr. Lee's incarceration to date--more than eight months by the time this motion is heard--and the months of additional imprisonment he faces before this matter is resolved violate his right to Due Process. The violation is particularly clear in light of the extraordinarily harsh conditions of Dr. Lee's confinement, the government's responsibility for a significant portion of the delay in bringing this matter to trial, and the weakness of the evidence of Dr. Lee's alleged dangerousness.

The Court should free Dr. Lee on bail pending trial. Dr. Lee will submit to a third party custodian whom the government agrees is a trustworthy person. He will submit to home detention, with noticed trips to see counsel, doctors, and other trips approved by Dr. Lee's pre-trial services officer in consultation with the Court and the government. Dr. Lee will consent to monitoring of his home telephone by any means the government deems appropriate. He will consent to a search of his home before he returns to it. He will post collateral from friends and family well in excess of the $100,000 proposed in the recommendation for release issued by pre-trial services in this matter. And he remains prepared to sign a waiver of his rights to oppose extradition.2

ARGUMENT

I. THE LEGAL STANDARD

The court may reopen a detention hearing at any time "if the judicial officer finds that information exists that was not known to the movant at the time of the hearing and that has a material bearing an the issue whether there are conditions of release that will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C.§ 3142(f). As summarized above, Dr. Lee has obtained substantial new information, which warrant both reopening the bail hearing and releasing him.

The burden remains on the prosecution to prove by clear and convincing evidence that no condition or combination of conditions of release will reasonably assure the safety of the community, or to prove by a preponderance of the evidence that no condition or combination of conditions of release will reasonably assure Dr. Lee's attendance at trial. 18 U.S.C. § 3142(e), (f); see, e.g., United States v. Xulam, 84 F.3rd 441, 442 (D.C. Cir. 1996) ; United States v. Orta, 760 F.2d 887, 890 (8th Cir. 1985) (en banc). The Court must consider the factors set out in 18 U.S.C. § 3142(g), including the nature and circumstances of the offense charged; the weight of the evidence against the defendant; the history and characteristics of the defendant; and the nature and seriousness of the danger to any person or the community that would be posed by the person's release. See, e.g., Xulam, 84 F.3d at 442. Dr. Lee's new evidence will affect this Court's assessment of three of the § 3142(g) factors: the circumstances of the offense charged, the weight of the evidence, and the lack of any danger to the community that would be posed by Dr. Lee's release.3

II. TWO OF THE NATION'S PREEMINENT NUCLEAR SCIENTISTS AGREE THAT THE FILES AND TAPES AT ISSUE WOULD BE OF LIMITED VALUE TO ANY FOREIGN POWER

At the December detention hearing, the prosecution presented apocalyptic testimony about the significance of the files and tapes and the consequences of any failure to imprison Dr. Lee. Drs. Stephen Younger, Paul Robinson, and Richard Krajcik described the files as the "crown jewels" of this country's nuclear design capability, the loss of which could change "the global strategic balance."4 Dr. Robinson told the court that it faced a "you bet your country" decision in determining whether to jail Dr. Lee. T. 12/28/99 at 371. The prosecution witnesses sought to foster the belief that the files and tapes amount to a turn-key design capability for nuclear weapons that would immediately place millions of lives in the United States at risk should they fall into the wrong hands. See, e.g., T. 12/13/99 at 33 (Younger); T. 12/27/99 at 189-90 (Krajcik); T. 12/28/99 (Robinson). The Court relied heavily an this testimony to imprison Dr. Lee. See, e.g., Memorandum Opinion and Order, Dec. 30, 1999 ["Order"], at 14 ("The Government has presented credible evidence showing that 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 missile nuclear defense system.").

The declarations of Drs. Harold M. Agnew, former director of LANL, and Walter Goad, Fellow Emeritus at LANL, refute the prosecution's inflated claims concerning the significance of the files and tapes. Dr. Agnew has been an advisor to five Presidents on matters of nuclear security. He is as qualified as anyone in the country to evaluate the prosecution's claims. It is Dr. Agnew's "firm conclusion" that no nation would rely on the information that might be found in the files. As Dr. Agnew states in his declaration, he "disagree[s] with the statement that it the People's Republic of China ('PRC') or some other nuclear power obtained the codes at issue here, it 'would change the global strategic balance, and would jeopardize the security of American citizens." Agnew Dec. ¶ 4 5 To the contrary, Dr. Agnew declares that "[i]f the People's Republic of China had already obtained these codes, or were to obtain these codes, it would have little or no effect whatsoever on today's nuclear balance." Id. ¶ 5. Dr. Agnew also points out that "the present value to a foreign power of any code for U.S. nuclear weapons design was long ago diminished by the wide distribution of the underlying science and engineering of the United States' and other nations' nuclear design codes. This information has been widely available in the open literature." Id. ¶ 9. 6

Dr. Goad also finds that the prosecution grossly distorted the level of risk to the United states, even assuming that the so-called "missing" tapes were given to a foreign nuclear power. He concludes that the value of the tapes would be incremental at most, and then only to an extremely sophisticated organization seeking to better understand this country's designs. "Only a group already deeply engaged in the design of nuclear weapons could profit from the Lee tapes (if they still exist). At most, the U.S. codes and data could augment, not revolutionize, their efforts." Goad Dec. at 4. 7

[three lines deleted] Id. at 10. Dr. Goad, like Dr. Agnew, observes that "the scientific knowledge and computational expertise required for nuclear weapons desiqn is now widely dispersed." Id. As Dr. Goad explains in more detail:

The biggest secret, that it was possible, was broken to the world by the detonation at Hiroshima and Nagasaki. In the years since, the technology of nuclear weapons has been widely publicized in magazine articles and books, and now on the Internet.

Now, 55 years after Hiroshima, the fundamental data and the computational methods needed by nuclear weapons designers have been brought to a high state of development by the worldwide scientific community pursuing not weapons design but fundamental scientific questions. There has been much work on the structure and behavior of stars and astronomical objects of all kinds. Scientists have pursued the behavior of extreme states of matter in these and all kinds of other cosmic and terrestrial contexts, including nuclear and thermonuclear reactors. There has been much work in computational physics of the atmosphere and the coupled ocean dynamics. These represent systems at least as complex, in many ways more complex, than nuclear weapons. The basic problems and techniques of computation and physical analysis extend seamlessly over all these fields.

Id. at 6-7.

Dr. Goad squarely rejects the testimony on which this Court relied to jail Dr. Lee:

Summing up, Drs. Younger and Robinson assert that in foreign hands the Lee tapes could reorder the world strategic balance, that their possible existence poses a danger equivalent to "betting the country" or leaving the "crown jewels" open to theft. From the perspective of my experience and expertise, these assertions represent unbridled exaggeration. The result is not a measured judgment of risk, but incitement of apprehension, even paranoia, that can override fairness and justice.

Id. at 5.

[Ten lines deleted.]

III. THE FACT THAT THE FILES WERE PROTECT AT THE "PARD" LEVEL, RATHER THAN AT THE TSRD LEVEL, UNDERMINES THE PROSECUTION'S "CROWN JEWELS" CLAIM.

Apart from the Agnew and Goad declarations, another point demonstrates that the computer files have far less significance than the prosecution's "crown jewels" rhetoric would suggest. At the time of Dr. Lee's alleged conduct, the files had not even been formally classified. Instead, they were assigned the security level Protect as Restricted Data ("PARD") which ranks between Unclassified and Confidential Restricted Data ("CRD") on the LANL security hierarchy. And even the classification levels that DOE assigned to the files after Dr. Lee's firing belie the prosecution's "crown jewels" claim. DOE did not classify a single one of the files at the Top Secret Restricted Data ("TSRD") level, as one would expect for the "crown jewels." Instead, it classified the information at the lesser Secret Restricted Data ("SRD") and CRD levels. By definition, SRD material does "not reveal[] critical features" of designs for specific weapons components, and CRD material has even less sensitivity.

A. PARD.

Upon close Inspection, a prosecution exhibit establishes that all of the files at issue were PARD at the time of the alleged conduct. See GX 8, Analysis of Actions on Charged Files (Nov. 8, 1999) (listing the "[c]lassification" of Files 1 through 19 as "PARD" before Dr. Lee allegedly down-partitioned them).8 The DOE glossary defines PARD as "[a] handling method for computer-generated numerical data or related information, which is not readily recognized as classified or unclassified because of the high volume of output and low density of potentially classified data." U.S. Department of Energy, Office of Security Affairs, Office of Safeguards and Security, Safeguards and Security--Glossary of Terms at 111 (Dec.18, 1995) (emphasis added) (relevant pages attached as Exhibit E). A note adds that "[t]his information is designated as Protect As Restricted Data because it has not had a classification review and must be protected under a different set of security rules." Id. (emphasis added). A LANL publication declares that "[t]he hierarchical security classification labels on the worker machines at L&NL are: Secret > Confidential > PARD > Unclassified." Computing at LANL at 3 (June 3, 1996) (attached as Exhibit F) . The document notes that on the LANL secure partition, SRD is assigned the numerical value 9; CRD the value 6; PARD the value 5; and unclassified the value 3. See id.

The fact that the information at issue was considered PARD--and thus, by definition, "not readily recognized as classified or unclassified" and containing "a low density of potentially classified data"--at all times during the relevant period casts grave doubt on the prosecution's "crown jewels" claim. One can reasonably assume that the "crown jewels" -- actual weapons blueprints, for example -- would be immediately recognized as classified and would contain a high density of potentially classified data.

B. The After-the-Fact Classification Levels.

Even the government's after-the-fact classification of Files 1 through 19 and Tape N belies its "crown jewels" claim. Under DOE regulations, Restricted Data ("RD") has three possible levels of classification: Top Secret, Secret, and Confidential. RD is "Top Secret" if it is "vital to the national security and it its unauthorized disclosure could reasonably be expected to cause exceptionally grave damage to the national security." 10 C.F.R. Sec. 1045.17(a)(1). Such information "include[s] detailed technical descriptions of critical features of a nuclear explosive design that would enable a proliferant or nuclear power to build or substantially improve a nuclear weapon . . . or information revealing catastrophic failure or operational vulnerability in a U.S. nuclear weapon." Id. RD is "Secret" "its unauthorized disclosure could reasonably be expected to cause serious damage to the national security, but the RD information is not sufficiently comprehensive to warrant designation as Top Secret." Id. § 1045-17 (a) (2) (emphasis added). Such information "include[s] designs for specific weapons components (not revealing critical features) ... or specifications of weapon materials." Id. (emphasis added). RD is "Confidential" if it is "deemed to be of signifIcant use to a potential adversary or nuclear proliferant and its unauthorized disclosure could reasonably be expected to cause undue risk to the common defense and security." Id. § 1045.17(a)(3). Such information includes "the amount of high explosives used in nuclear weapons, gaseous diffusion design information, and design informauion for Naval reactors." Id.

Computer files that contain a "portfolio of information that would allow one to develop a simple, easily manufacturable weapon such as a terrorist weapon all the way up to the very best that the United States is capable of designing," T. 12/28/99 at 370 (Robinson), that "represent the complete nuclear weapons design capability of Los Alamos at that time," T. 12/13/99 at 33 (Younger), and that provide "an immeidiate capability to design a credible nuclear explosjve," id. at 36 (Younger), necessarily would be classified at the TSRD level. Such files plainly would include "detailed technical descriptions of critical features of a nuclear explosive design that would enable a proliferant or nuclear power to build or substantially improve a nuclear weapon,"--the definition of TSRD. Id. § 1045-17(a)(1). The files would be "vital to the national security," and their "unauthorized disclosure could reasonably be expected to cause exceptionally grave damage to the national security." Id.

If the claims of the prosecution witnesses could be taken at face value, therefore, most, if not all, of the computer files at issue would be classified TSRD. But of the nineteen computer files and Tape N, not a single one is classified Top Secret. Tape N and fifteen of the files are classified SRD, and four of the files are classified CRD. Thus, the DOE's own classification decisions--made after Dr. Lee's termination--confirm that the information at issue is not "vital to the national security"; if it were, the information necessarily would have been classified TSRD under 10 C.F.R. § 1045. 17 (a) (1). And those classification decisions also confirm that even the files at the highest classification level DOE chose to assign--SRD--do not "reveal[] critical features" of the "designs for specific weapons components." Id. § 1045.17(a)(2).

IV. THE PROSECUTION APPARENTLY NO LONGER CLAIMS THAT DR. LEE IS A SPY FOR THE PRC.

The prosecution has radically shifted its theory of the case. Instead of implying that Dr. Lee is an agent of the PRC, as it did at the December bond hearings, see, e.g., T. 12/28/99 at 413, the prosecution now claims that he intended to provide the tapes to aid Australia (a firmly non-nuclear nation), Singapore (which has no known nuclear ambitions or capability), France (an ally) , Germany (another ally) , Hong Kong (then controlled by Great Britain, another ally), or Switzerland (non-nuclear and neutral), in addition to one or the other of two historically antagonistic nations, Taiwan and the PRC. See Bill of Particulars, July 5, 2000, at 2. The prosecution also concedes that Dr. Lee may have had no nation in mind when he allegedly created the tapes, intending instead to wait for some future date to determine if and when he would use them. See id. at 1. And the prosecution reserves the ability to abandon the "foreign nation" prong of the Atomic Energy Act entirely. See id.

The Bill of Particulars represents a clear concession that Dr. Lee poses far less of a danger to the community than the prosecution previously argued to the Court. Even under the prosecution's theory, an employee seeking work presents a much different (and less sinister) picture than a spy looking ro pass nuclear secrets to a potential adversary, as the prosecution insinuated at the December hearing.

The dramatic deflation of the prosecution's theory undermines the bizarre scenario that the prosecution presented at the bond hearing of foreign agents in helicopters snatching their alleged operative (Dr. Lee) and jeopardizing the safety of federal agents assigned to surveil him. The prosecution's new theory also highlights the lack of evidence that Dr. Lee intended to injure the United States or to secure an advantage to a foreign nation. This weakness directly affects this Court's assessment of the weight of the evidence under 18 U.S.C. § 3142(g)(2) and provides an independent basis for reconsidering its earlier decision to imprison Dr. Lee.

V. THE PROSECUTION FALSELY REPRESENTED AT THE DETENTION HEARING THAT DR. LEE TOLD A T DIVISION EMPLOYEE THAT HE INTENDED TO DOWNLOAD HIS RESUME.

At the first detention hearing, the prosecution presented apparently damaging testimony from FBI Agent Robert Messemer that Dr. Lee had told a T Division employee that he wanted to use the employee's computer workstation to download a"resume" onto tape. According to the prosecution, Dr. Lee actually used the workstation to download some of the charged computer files. The prosecution elicited the "resume" testimony again from Agent Messemer at the hearing before this court. The Court relied explicitly on this testimony in its decision to jail Dr. Lee.

Documents provided to the defense months after the detention hearing reveal that the "resume" testimony was false. The T Division employee--Dr. Kuok-Mee Ling--testified under oath before the grand jury that Dr. Lee asked to use his computer to"download some files." Dr. Ling made similar statements in interviews with the FBI. The discovery does not disclose any occasion when he told the prosecution that Dr. Lee asked to download a resume.

At the detention hearing before Magistrate Judge Svet on December 13, 1999, the prosecution elicited the following testimony from Agent Messemer concerning Dr. Lee's use of Dr. Ling's computer:

Q. Now, you said this individual [Dr. Ling) has been interviewed; what were the representations made by Dr. Lee as to use of this T Division employee's work station?

A. Dr. Lee represented to the T-15 employee that he wished to download a resume from the open Rho system from Dr. Lee's directory on that open Rho system onto the hard drive of the T-15 computer, and from there he would download it onto the tape drive and be able to retain it for future use, ostensibly for future use.

T. 12/13/99 at 99 (emphasis added).

The prosecution relied on this testimony in its pre-hearing brief to this court. It declared that "Dr. Lee lied to a T Division colleague by representing to the T Division colleague that Lee wanted to ‘download a resume' from the open computing system to a portable tape." Response to Defendant Wen Ho Lee's Motion to Revoke Judge Svet's Order of Detention 8 (filed Dec.23, 1999). At the hearing, the prosecution again elicited the "resume" testimony from Agent Messemer:

Q. For the record, would you address again what it is that Dr. Lee told to a T Division employee to use the computer in that trailer?

A. Dr. Lee told a T15 employee that he wanted to use that employee's computer in order to download a resume.

. . .

Q. All right. Do we know that Dr. Lee did more than download a resume within that trailer?

A. Yes, we do.

T. 12/28/99 at 406-07 (emphasis added). 9

The Court gave significant weight to this testimony in its order detaining Dr. Lee. The Court noted that "Government witnesses testified in detail at the hearing about the clandestine circumstances in 1993 and 1994 under which Dr. Lee moved classified files in a very suspicious way from a secure restricted red partition computer system to an unsecure open green partition system and then in a devious manner downloaded that sensitive information to portable tapes." Order at 10. The Court specifically noted that "[a]ccording to the Government witnesses, Dr. Lee told the T division employee he wanted to download his resume onto a tape." Id. at 10-11 (emphasis added). 10 The Court cited Dr. Lee's "secretive and deceptive" conduct as a basis for inferring criminal intent. Id. at 13. And on the issue of Dr. Lee's character, the Court stated in part (apparently referring to the "resume" testimony) that Dr. Lee "has lied to LANL employees . . . and has consciously deceived them about the classified material that he had put on the tapes. . . ." Id. The prosecution referred again to the "resume" testimony in its brief on appeal. Appellee's Answer Brief at 21 (filed Feb. 1, 2000).

Several months after the detention hearing, the prosecution produced to the defense Dr. Ling's grand jury testimony and FBI memoranda of interviews with him. Those materials--unavailable to the defense or the Court at the time of the detention hearing--leave no doubt that Agent Messemer falsely recounted what Dr. Ling had said. In Dr. Ling's grand jury testimony, given under oath, he stated:

Q. Did he tell you--did Mr. Lee tell you what information he wanted to download onto this tape that you're referring to?

A. No. Just that he wanted to download some files.

Grand Jury T. 5/7/99 at 45 (emphasis added). Throughout his grand jury testimony, Dr. Ling referred repeatedly to the "files" or "data" that he understood Dr. Lee to be downloading. E.g., id. at 43 ("download some data"), 45 ("download the file") , 50 (after the downloading, Dr. Lee "deleted the files" from Mr. Ling's machine as a courtesy; "all the files that he downloaded, he deleted") , 50-51 (Dr. Lee "probably would have created a subdirectory to contain all his files"). Never in his grand jury testimony did Dr. Ling state that Dr. Lee had asked to use his computer to download a "resume." 11

Dr. Ling made similar statements in interviews with Agent Messemer. In an interview conducted by Agent Messemer and another FBI agent on May 3, 1999, for example, Dr. Ling

recalled that one day . . . LEE WENHO asked LING to assist him in the transference of some file on the open network onto tape. (IBM 6150). LEE WENHO didn't discuss what was going to be placed on the tape.... According to LING, LEE WENHO didn't discuss what exactly he was transferring from the open LANL system onto the IBM cartridge.

FBI 302 Memorandum at 6, fbi/sub-a/1730 (emphasis added).

On May 4, 1999 (the next day), Dr. Ling telephoned Agent Messemer. According to Messemer's memorandum of the interview, Dr. Ling "reiterated that he had no idea what LEE WENHO downloaded when he was afforded access to LING's SUN SPARC-1 workstation." FBI 302 Memorandam, fbi/sub-a/1746 (emphasis added). In a further interview by Agent Messemer and another agent, on May 5, 1999, Dr. Ling stated that he had shown Dr. Lee "how to download files from the RHO (open system) LANL computer onto his workstation's hard drive and then save this data onto an IBM 6150 cartridge," and that he had observed Dr. Lee with "one or possibly two cartridges," each of which would hold 150 megabytes of data. Dr. Ling added:

Later in the same day, LING received a telphone [sic] call from LEE who expressed his appreciation, indicated he satisfactorily completed the download and noted that he erased the files he downloaded onto LING's hardrive. LING interpreted LEE's statement to mean LEE erased the files out of professional courtesy to LING, to save him the chore. Thus, LING was unable to ascertain what exactly LEE had downloadad.

FBI 302 Memorandum at 2, fbi/sub-a/1749 (emphasis added).12

The significance of Agent Messemer's apparently false testimony can hardly be overstated. By misrepresenting what Dr. Ling had said, Agent Messemer sought (with obvious success) to convince the Court that Dr. Lee's conduct had been "secretive and deceptive" (to use the Court's words) and "nefarious" (to use Agent Messemer's word). In fact, as the discovery confirms, Dr. Lee told Dr. Ling the simple truth: that he wanted to use his computer to "download some files." 13

VI. THE LENGTH AND SEVERITY OF DR. LEE'S PRETRIAL IMPRISONMENT FAVOR RELEASE.

Together with all of the other circumstances set forth above and to be developed at the hearing, the length and severity of Dr. Lee's pretrial imprisonment to date--and the period of detention that he still faces--weigh heavily in favor of release.

By the time the Court hears this motion, Dr. Lee--a presumptively innocent, sixty year-old man with no criminal record and no history of violence--will have served more than eight months in prison. He has served those months under extraordinarily harsh conditions of confinement. Through a government order bearing the Orwellian title "Special Administrative Measures," Dr. Lee has been deprived of the limited freedoms that even most convicted murderers enjoy. He can see his family only once a week, and then only with FBI agents monitoring the conversation. He cannot receive any other visitors. Except when he is meeting with counsel, he must remain in his cell twenty-three hours per day. His "exercise"-- typically one or two hours per week--consists of kicking a soccer ball alone in a fenced area while shackled at the wrists, waist, and ankles. 14 He can make periodic telephone calls to immediate family members--monitored, of course, by the FBI--and to counsel, but he cannot call anyone else. We know of no case not involving terrorism or espionage in which such draconian conditions of detention have been imposed.

In United States v. Salerno, 481 U.S. 739 (1987), the Supreme Court upheld the pretrial detention provisions of the Bail Reform Act on the ground that such detention "is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause." Id. at 748. The Court appeared to rest this determination on two principal considerations: that "the maximum length. of pretrial detention is limited by the stringent time limitations of the Speedy Trial Act," id. at 747, and that, by statute, "detainees [must] be housed in a ‘facility separate, to the extent practicable, from persons awaiting or serving sentences or being held in custody pending appeal,'", id. at 748 (quoting 18 U.S.C. § 3142(i) (2)). The court expressly declined to determine "the point at which detention in a particular case might become excessively prolonged, and therefore punitive, in relation to Congress' regulatory goal." Id. at 747 n.4.

Under the circumstances of this case, Dr. Lee's pretrial imprisonment long ago crossed the line that the Supreme Court drew in Salerno between regulation and punishment. Dr. Lee may be separated from persons who have been convicted, as Salerno contemplated, but in a perverse twist his conditions of confinement are actually more stringent than most such persons must endure. How many convicted criminals, after all, must wear shackles when they exercise? How many convicted criminals cannot meet with their own family members without FBI agents present? To call Dr. Lee's detention "regulatory" rather than "punitive" perverts the English language.

The purportedly "stringent time limitations" of the Speedy Trial Act, on which Salerno relied, have little significance here. The Act requires that the trial of a detained person begin within ninety days of his detention. 18 U.S.C. § 3164(c). When the Senate enacted the pretrial detention provisions of the Bail Reform Act, it was informed that this ninety-day period represented the "upper-bound" or "worst-case limit" of pretrial detention. See, e.g., United States v. Claudio, 806 F.2d 334, 340 (2d Cir. 1986). In a complex case such as this, however, almost all time is excludable from the Speedy Trial Act computation. 18 U.S.C. § 3164(b) (incorporating exclusions set forth in § 3161(h) into computation of ninety-day period under § 3164). As a result, pretrial detention can stretch far beyond the ninety-day period without violating §3164. See, e.g., United States v. Gatto, 750 F. Supp. 664, 673 (D.N.J. 1990).

Although the ninety-day period in § 3164 provides illusory protection in a case such as this, that period "represent[s] the considered view of the Congress as to the normal limit on pretrial detention" and "provides at least a point of reference in [a court's] consideration of the constitutional limit on such detention." Claudio, 806 F.24 at 341. The Tenth circuit also attaches significance to § 3164(c), although the court has recognized that Congress "contemplated some extension of the ninety-day limit on incarceration before trial when it incorporated the § 3161(h) exclusions into § 3164." United States v. Theron, 782 F.2d 1510, 1516 (10th cir. 1986).

Theron has obvious significance here. In that case, the defendant had been incarcerated "more than four months" when his motion for release was heard. Id., at 1516. The Tenth Circuit concluded that he would be incarcerated eight months before trial began, and that the trial would last from two to six months. See id. . Although the court declined to "establish a bright line," it declared that

Theron has been incarcerated without bail for more than four months. He took no steps to delay the trial; he sought immediate trial and announced ready to defend. The government asserted it was ready to prosecute. We have no hesitancy in saying that in such circumstances four months additional incarceration before trial is too long. Theron must be released on bond with other appropriate restrictions or tried within the next thirty days.

Id. at 1516-17. Theron cited with apparent approval two cases that had ordered defendants released based an six months' pretrial detention. See id. at 1516 (citing United States v. Hall, 651 F. Supp. 13 (W.D.N.Y. 1985), and United States v. Lo Franco, 620 F. Supp. 1324 (N.D.N.Y. 1985)); see also United States v. Khashoggi, 717 F. Supp. 1048, 1051 (S.D.N.Y. 1989) (release granted in part because case would not come to trial for at least six months); United States v. Vastola, 652 F. Supp. 1446, 1447-48 (D.N.J. 1907) (defendants detained for three months released in part because continued detention would require defendants "to remain in jail for 1-1/2 years without determination of their innocence or guilt"); cf. United States v.Jackson, 823 F.2d 4, 7 (2d Cir. 1987) (noting that "a potentially long trial commencing over seven months after detention has already begun raises grave due process concerns for the government to allay").

By the time of the hearing on this motion, Dr. Lee will have been detained more than the eight months found excessive in Theron. By the time trial begins--assuming it begins as scheduled--Dr. Lee will have been imprisoned almost eleven months. Trial will require a minimum of two months and probably more, particularly with recesses occasioned by the year-end holidays. Even under the most conservative estimate, therefore, Dr. Lee will have spent thirteen months or more in prison before his innocence or guilt has been determined.

Like the defendant in Theron, Dr. Lee has not sought to delay the trial. The principal delay to date results from the more than four-month period between the indictment and the government's completion of the secure room in which the defense works at the courthouse. During this time, the prosecution could provide only limited discovery, and defense counsel could not discuss the case in detail with Dr. Lee. Although we do not suggest that the government deliberately engineered this lengthy delay, it failed to address or resolve before indictment the obvious logistical problems that the case would present. Cf. Claudio, 806 F.2d at 342-43 ("It suffices for present purposes to conclude that the government, even if not deserving of blame, bears a responsibility for a portion of the delay significant enough to add considerable weight to the defendants' claim that the duration of detention has exceeded constitutional limits.").

In addition to the length of the delay and the government's partial responsibility for that delay--discussed above--some courts also have considered the strength of the evidence on which detention is based in determining whether due process requires release. See, e.g. , United States v. Gonzales, 995 F. Supp. 1299, 1303 (D.N.H.), aff'd, 1998 U.S. App. LEXIS 11796 (10th Cir. June 5, 1998) (unpublished). In our view, the evidence at the first detention hearing did not justify detaining Dr. Lee either for dangerousness or risk of flight. In light of the new information set forth above (and to be elicited at the upcoming hearing), the evidence supporting detention is even more patently inadequate. The core of that evidence consists of gross hyperbole (the testimony of Drs. Younger, Krajcik, and Robinson) and what appears to be outright misrepresentation (Agent Messemer's "resume" testimony and other aspects of his testimony that we will develop at the hearing). To prolong Dr. Lee's already excessive imprisonment under these circumstances would violate his basic right to Due Process.

CONCLUSION

For the foregoing reasons, and for the additional reasons that will be offered at the hearing on this motion, the court should release Dr. Lee from detention pending trial.