Legal Doc: Reply Brief for Jonathan J.Pollard - 1991 Appeal

NO. 90-3276




On Appeal from the United States District Court
for the District of Columbia


*Theodore B. Olson
John H. Sturc
Theodore J. Boutrous, Jr.
1050 Connecticut Avenue,
N.W. Washington, D.C.
20036 (202) 955-8500

Attorneys for Appellant
Jonathan J. Pollard

*Counsel for Oral Argument
July 31, 1991



: page numbers refer to the


document only.

INTRODUCTION .................... p.1

SUMMARY OF ARGUMENT ................p.1
CONCLUSION ..................... p. 20


Blackledqe v. Allison, 431 U.S. 71 (1977) 18,19
Bontkowski v. United States, 850 F.2d 306 (7th Cir. 1988) .................. page 5
Bordenkircher v. Haves, 434 U.S. 357 (1978) ...... page 4
Diggs v. United States, 740 F.2d 239 (3d Cir. 1984) . . page 20
Fontaine v. United States, 411 U.S. 213 (1973) ..... page 18,19
Harman v. Mohn, 683 F.2d 834 (4th Cir. 1982) ...... page 5
Mack v. United States, 635 F.2d 20 (1st Cir. 1980) ... page 5
McCarthy v. United States, 394 U.S. 459 (1969) ..... page 6
Mosier v. Murohv, 790 F.2d 62 (10th Cir.), cert. denied. 479 U.S. 988 (1986) ......... page 5
Paradiso v. United States, 689 F.2d 28 (2d Cir. 1982), cert. denied. 459 U.S. 1116 (1983) ......... page 19
*Santobello v. New York, 404 U.S. 257 (1971) ...... page 13
Strang v. United States, 920 F.2d 30 (D.C. Cir. 1990). . page 17
Turner v. Barry, 856 F.2d 1539 (D.C. Cir. 1988) .... page 17
*United States v. Baylin, 696 F,2d 1030 (3d Cir. 1982) . page 18/19
United States v. Bucklev, 847 F.2d 991 (1st Cir. 1988), cert. denied. 488 U.S. 1015 (1989) ......... page 5
United States v. Calabrese, 645 F.2d 1379 (10th Cir. 1981), cert. denied. 451 U.S. 1018 (1982) ............... page 16
*United States v. Cammisano, 599 F.2d 851 (8th Cir. 1979). .................. page 6
*United States v. Corsentino, 685 F.2d 48 (2d Cir. 1982) page 18/19
*United States v. Crusco, 536 F.2d 21 (3d Cir. 1976) . . page 6,8
United States v. Diaz, 733 F.2d 371 (5th Cir. 1984). . . page 5
*United States v. Fisch, 863 F.2d G90 (9th Cir. 1988). . page 11-12
United States v. Frady 456 U.S. 152 (1982) ...... page 19,20
"United States v. Hall, 843 F.2d 408 (10th Cir. 1988). . .. page 18
United States v. Harvey, 791 F.2d 294 (4th Cir. 1986). ... page 8
United States v. Jefferies, 908 F.2d 1520 (llth Cir. 1990) .................. page 8
*United States v. Moscahlaidis, 868 F.2d 1357 (3d Cir. 1989). .................. page 8,9
United States v. Nuckols, 606 F.2d 566 (5th Cir. 1979) . 4
United States v. Reese, 775 F.2d 1066 (9th Cir. 1985). . .. page 17
United States v. Rogers, 899 F.2d 917 (10th Cir.), cert. denied. Ill S. Ct. 113 (1990) ........ page 17
United States v. Shorteeth, 887 F.2d 253 (10th Cir. 1989) ....................... page 19
United States v. Simmons, 537 F.2d 1260 (4th Cir. 1976) ....................... page 16
United States v. Tursi, 576 F.2d 396 (1st Cir. 1978)). . page 4

18 U.S.C. § 2381 .................... page 3
28 U.S.C. § 2255 .................... page 16,18, 19

Fed. R. Crim. P. 11 ................. page. 5
Fed. R. Crim. P. 35 .................. page 7

Constitutional Provisions: *Fifth Amendment (Due Process Clause) ......... passim
Sixth Amendment .................... page 17

N.B. * Authorities chiefly relied upon are marked with an asterisk.



In a very real sense, Jonathan J. Pollard is the test by which this Government's adherence to principle will be measured. He may have committed a serious crime, but that does not excuse the excesses that have pervaded his prosecution. Whatever his culpability, he was constitutionally entitled to the presumption of innocence and a public trial. It was beyond the Government's power to take these rights from him through duress or empty promises. Yet the Government conditioned its conduct toward his seriously ill wife on Mr. Pollard's agreement to plead guilty, reneged on each important promise it exchanged for his guilty plea, and denied his lawyers access to important evidence. This case is exceedingly important because requiring fair play by the Government even in the case of the most unsympathetic defendant is the assurance that all citizens will receive the same protection.


This case calls into question the conduct of the Government, not the defendant. It requires the Court to consider the limits on Government when its competitive zeal and retributive anger have been aroused by an unpopular defendant.

The Government decided to avoid what would surely have been an awkward, potentially embarrassing and inconvenient trial and to secure Mr. Pollard's cooperation in the investigation and evaluation of his activities. These were undoubtedly important objectives. To achieve them, the Government purchased Mr. Pollard's plea of guilty in exchange for the prospect of more lenient treatment of Mrs. Pollard together with three explicit promises calculated to maximize his chances for a sentence less than life in prison. But the Government did not keep its part of the bargain because it could not restrain its desire to ensure that Mr. Pollard would never again "see the light of day." J.A. 411.

Even if, standing alone, the Government may induce the relinquishment of constitutional rights by threats and promises involving a desperate and dependent loved one, that kind of distasteful tactic certainly requires an exacting review of the prosecutor's overall conduct toward the accused. Here, that conduct cannot withstand close scrutiny.

In blatant disregard of its agreement to limit its allocution to the "facts and circumstances of the offenses committed," the Government threw everything in its arsenal at Mr. Pollard during the sentencing process, including the prosecutor's opinions of Mr. Pollard's character, motivations and personality. If agreeing to restrict its allocution meant anything to the Government when it put that promise in writing, it meant nothing when it came time to perform.

The prosecution also agreed to represent that Mr. Pollard's cooperation had been of "considerable value" to its investigation and to the enforcement of the espionage laws. Instead, it ridiculed the value of his cooperation and heaped abuse on his motives for offering it.

Finally, the Government agreed not to seek a life sentence for Jonathan Pollard. But its vituperative allocution and its disparagement of the value of Mr. Pollard's cooperation were intended to have precisely the opposite effect. The coup de grace was delivered by two stinging denunciations of Jonathan Pollard by the nation's highest-ranking national security official, who demanded a sentence commensurate with the "magnitude of the treason committed." Treason, of course, is punishable by death, 18 U.S.C. § 2381, and is not an offense that Mr. Pollard committed. But the District Court got the message and imposed the most stringent sentence that Mr. Pollard's plea allowed.

The Government has impaired this challenge to its conduct with yet another assault on Mr. Pollard's rights. It denied his new lawyers access to the Government's classified sentencing submissions for the plainly unsustainable reason that the prosecutor did not think that new counsel had a "need" to see that vital evidence. See J.A. 505.

There is no doubt that the Government decided that Mr. Pollard was an offensive and thoroughly unpleasant individual, who deserved the nastiest kind of punishment. In fact it had every right to seek such punishment - up to the point when it bargained away that right for something that it needed from Mr. Pollard. But the Government cannot have it both ways.

In the end, this is a simple case because no crime is serious enough to countenance Governmental overreaching. The Government must never be allowed to induce the surrender of constitutional rights with promises that it cannot or does not intend to keep.



The Government has not denied that Anne Pollard had been desperately ill in the District of Columbia jail subsequent to her arrest, experiencing weeks of excruciating pain, debilitating loss of weight and great emotional distress. See J.A. 111-12, 209-14. And it admits that it conditioned its acceptance of a guilty plea from Anne Pollard, including its acquiescence in her release on bond pending sentencing, on Jonathan Pollard's plea of guilty. Br. for Appellee at 3; J.A. 11-25. The prosecutor thus acknowledges that it intentionally "wired" its treatment of Anne Pollard, including the prospect of additional charges against her and the possibility of an immediate return to jail, to Jonathan Pollard's acceptance of the prosecutor's terms.

While the Supreme Court has not yet reached the question whether troublesome tactics such as these comport with due process, Bordenkircher v. Hayes, 434 U.S. 357, 364 n.8 (1978), the courts have uniformly recognized that wired plea agreements "pose a greater danger of coercion than purely bilateral plea bargaining, and that, accordingly, 'special care must be taken to ascertain the voluntariness* of guilty pleas entered in such circumstances." United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979) (quoting United States v. Tursi, 576 F.2d 396, 398 (1st Cir. 1978)). Because such pleas "pose a possible greater danger of coercion," United States v. Diaz, 733 F.2d 371. 375 (5th Cir. 1984), "a special responsibility [is imposed] on the district court to ascertain a plea's voluntariness," United States v. Bucklev, 847 F.2d 991, 1000 & n.6 (1st Cir. 1988), cert. denied, 488 U.S. 1015 (1989). "[Courts must be even more zealous than usual when they assess the voluntariness of plea bargains involving third party beneficiaries." Bontkowski v. United States, 850 F.2d 306, 316 (7th Cir. 1988) (Cudahy, J., concurring and dissenting).

That special responsibility was not discharged here. Although the District Court knew that Mrs. Pollard's arrangements with the prosecutor were conditioned on Mr. Pollard pleading guilty, the District Court failed not only to "be even more zealous" to ensure the voluntariness of his plea, it failed even to ask the defendant whether the plea was voluntary as explicitly required by Rule 11 of the Federal Rules of Criminal Procedure. This was not just a technical failure. Particularly in light of the wired plea, it was "central to the policy considerations underlying Rule 11" and, as in Mack v. United States, 635 F.2d 20, 24 (1st Cir. 1980), prejudice is inherent.

Moreover, the courts have insisted that where pleas are wired, "prosecutors [must] exercise a high standard of good faith in negotiating such pleas." Harman v. Mohn, 683 F.2d 834, 838 (4th Cir. 1982) (emphasis added); see Mosier v. Murphy, 790 F.2d 62, 66 (10th Cir.), cert. denied, 479 U.S. 988 (1986) ("the inclusion of such third persons can increase the leverage possessed by prosecutors and therefore imposes upon them a high standard of good faith"). That high standard is missing from the Government's vengeful treatment of Mr. Pollard.

As in United States v. Cammisano, 599 F.2d 851, 855 (8th Cir. 1979), the familial coercion present here and the failure by the District Court to take special steps to assure the voluntariness of the plea and to rely instead on "defendant's statements expressing confidence in his attorney and adopting his attorney's remarks," mean that the plea violated Jonathan Pollard's due process rights and is void, McCarthy v. United States, 394 U.S. 459 (1969).1

Footnote 1: The Government's contention that Mr. Pollard should have articulated this argument sooner is spurious. The nature of the coercion was concern for the treatment of his wife. He could hardly have been expected to come forward while his wife was still at risk, particularly in view of the hostility that the Government was expressing toward him. But this does not excuse the District Court's failure to "be even more zealous than usual" to ensure that the plea was voluntary.


The Government aggressively and unapologetically breached the three critical commitments it made to Mr. Pollard in exchange for his agreement to waive a trial, plead guilty and cooperate with its investigation. Its only defense of its conduct relies on a "stubbornly literal," "strict and narrow" interpretation of its commitment United States v. Crusco, 536 F.2d 21, 26 (3d Cir. 1976)) that would be rejected out of hand by any of the dozens of federal agencies/ including the Department of Justice, that regularly pass judgment on the integrity and reliability of promises and representations made by private citizens. Any reasonable interpretation of the language of the plea agreement and any rational evaluation of the Government's conduct, taken as a whole, reveals that the two are oceans apart.

1. The Government now denies that it agreed to limit its allocution. ("It retained full right of allocution, except that it could not recommend a life sentence.") Br. for Appellee at 19, 21. That is plainly incorrect. The inescapable fact is that, the Government retained only the "full right of allocution . . . concerning the facts and circumstances of the offenses committed by Mr. Pollard, and [freedom] to correct any misstatements of fact at the time of sentencing . . . ." J.A. 13 (emphasis added). In contrast, the Government retained an unlimited "full right of allocution" in connection with any Rule 35 motion. J.A. 14. The Government's effort to brush this distinction aside, Br. for Appellee at 21 n.2, is answered by the language the Government used in the Anne Pollard plea agreement. There, the Government used the phrase, "full right of allocution at all times, including the right to detail the facts and circumstances of the offenses committed . . . ." J.A. 21 (emphasis added). This contrast makes it indisputably clear that in Jonathan Pollard's case, the Government retained the right of allocution only "concerning the facts and circumstances of the offenses committed by Mr. Pollard" and the right to correct misstatements "of fact" at the sentencing. This commitment, "formulated" by the Government 2 was repeatedly and massively breached.

Footnote 2: J.A. 161. Because substantial constitutional rights are at stake, any ambiguities in the plea agreement must be construed against the Government, United States v. Jefferies, 908 F.2d 1520, 1523 (llth Cir. 1990), "particularly . . . where the Government has proffered the terms or prepared a written agreement." United States v. Harvey, 791 F.2d 294, 301, 303 (4th Cir. 1986).

The Government argues that factors such as motive and character are "'relevant to the Court's task at sentencing.'" Br. for Appellee at 20. But relevance was not the standard to which the Government agreed. The fact that the defendant's motive and character are typically fair game for the prosecutor at sentencing is precisely why a reasonable person in defendant's position might have wanted to negotiate for a limited right of allocution. The Government has the power to give up the right to make certain otherwise permissible arguments. When it does, it cannot simply ignore its agreement because the material it agreed to eschew is relevant. It must remain silent. See, e.q., Crusco, 536 F.2d at 26.

The Government's attempts to distinguish United States v. Moscahlaidis, 868 F.2d 1357 (3d Cir. 1989), are unavailing. The fact that the Government in that case had promised to "'take no position'" regarding the appropriate sentence (Br. for Appellee at 21) was immaterial to the Third Circuit's construction of the Government's separate promise, like the promise in this case, to limit its allocution to the "full nature and extent of [the defendant's] activities with respect to the case." 868 F.2d at 1362 (emphasis added). The court interpreted this language -- which is even more elastic than the Government's "facts and circumstances" promise at issue here -- to preclude the prosecutor's statements about the defendant's "'greed and moral bankruptcy'" and "'utter contempt'" for society. Id. The court squarely held that such phrases, remarkably similar to those used here, "are the prosecutor's opinion of [the defendant's] character and are not covered under the terms of this clause." Id. (emphasis added).3

Footnote 3: In Moscahlaidis, the Government also explicitly reserved the right to allocute on "[a]11 other information, favorable or otherwise, in its possession relevant to the sentence," i.d. at 1362, something the Government presumably could have done, but clearly did not do, here. It was that clause of the plea agreement that the Third Circuit found to be limited by the "take no position" language of the plea agreement, not the promise to limit allocution to the "full nature and extent" of the defendant's activities in connection with the crime. Id.

The Government argues (Br. for Appellee at 19-20) that Mr. Pollard "opened the door" to its strident attacks upon his motive and character, but the Government, not Mr. Pollard, bargained away its right to make arguments on these subjects during sentencing. And the Government's reservation in the plea agreement of a right to correct "misstatements of fact" did not license the outburst of overdrawn opinions and conclusions that so permeated its allocution.

In short, the Government did not retain the "full right of allocution." And it violated the promise it did make by dedicating vast segments of its allocution to subjects it had agreed to avoid. In fact, nearly forty percent of its initial sentencing memorandum went completely beyond the facts and circumstances of the offenses and consisted of argument, opinion and bombast. J.A. 160-80. All its submissions included extended harangues on Mr. Pollard's personality and purported character flaws. See. e.g.. J.A. 313-22 (the phrase "arrogance and deception" was repeated no less than seven times by the prosecutor at the sentencing hearing); J.A. 317 ("vengeful"); J.A. 322 ("complete lack of honor"); J.A. 161 ("venal"); J.A. 167 ("addicted to high lifestyle"); J.A. 317 ("utter contempt for the United States military and intelligence community"); J.A. 322 ("not a man of his word"); J.A. 359 ("unworthy of trust"); J.A. 359 ("contemptuous"); J.A. 164 ("greed"); J.A. 168 ("the lure of money motivated and, eventually, consumed this defendant") (emphasis in original); and J.A. 265 (his "loyalty to Israel transcends his loyalty to the United States").

2. The Government also blatantly reneged on its explicit promise to represent to the sentencing judge that Jonathan Pollard's cooperation had been of "considerable value," not only to damage assessment and the investigation of the case, but also to "the enforcement of the espionage laws." Its response borders on the frivolous. First, the Government has the temerity to say that it "devoted pages 23 to 35" of its sentencing memorandum to a discussion of Mr. Pollard's cooperation and its value to the Government. See Br. for Appellee at 24-25. In fact, that entire section of the Government's sentencing memorandum was a description of Mr. Pollard's crime and apprehension. The complete discussion of the "value" of his cooperation consisted of four sentences, one of which was lifted almost verbatim from the plea agreement in the section of the Government's brief entitled "FACTORS COMPELLING SUBSTANTIAL SENTENCE." J.A. 162.

Second, the Government in fact argued that Mr. Pollard's cooperation was belated and useless, because it had been offered well after his Israeli co-conspirators had fled. This fact, which the Government knew long before it promised to represent that Mr. Pollard's cooperation was "of considerable value to ... the enforcement of the espionage laws," J.A. 13. was advanced to prove precisely the opposite of what the Government had promised -- that Mr. Pollard's conduct had frustrated enforcement of those laws.

Third, having secured Mr. Pollard's cooperation by agreeing to stress its "considerable value" during sentencing, the Government turned around and skewered Mr. Pollard because his cooperation may have been motivated by the desire for "a hedge against imposition of a severe sentence." J.A. 163. The Government thus urged the District Court to discount the "value" of Mr. Pollard's cooperation because it had been given in exchange for the very promise the Government had used to obtain it.

It is not that the Government failed to "wax enthusiastic," see Br. for Appellee at 26. but that it did no more than offer a grudging acknowledgment that it had agreed to mention his cooperation as a prelude to a long and unrelenting exegesis as to why Mr. Pollard's cooperation was tardy. insufficient and offered for the wrong reason. See United States v. Fisch, 863 F.2d 690, 691 (9th Cir. 1988). Even if the Government had been dissatisfied with Mr. Pollard's cooperation, it entered into an agreement to stress its "considerable value" at a time when it knew everything there was to know about its timing and motivation. It had contracted away any right it may have had to argue that Mr. Pollard's cooperation was worthless and untimely and entitled to consideration "only" in the context of "factors which aggravate the severity of the offense." J.A. 179 (emphasis added).

3. The Government's improper "forceful" allocution, Br. for Appellee at 18, and its failure to give the promised weight to his cooperation, provided the momentum and environment for the breach of the third promise, which consisted of doing everything it could to secure a life sentence for Jonathan Pollard short of using the words "life sentence." There could be no doubt that the prosecutor wanted the court to impose the harshest possible sentence on Jonathan Pollard. After constructing an image of a vengeful, contemptuous, arrogant, deceitful, dishonorable, dangerous, greedy and unremorseful traitor, to use just a sample of the Government's hysterical and unlimited vocabulary, it brought in its heaviest artillery, the Secretary of Defense, the fifth highest-ranking official in the Executive Branch, to outline and aggressively advance the following syllogism:

(1) Mr. Pollard did "substantial and irrevocable damage" for which he deserved "severe punishment," J.A. 198; (2) "[p]unishment . . . must be appropriate to the crime," id.; and (3) "no crime is more deserving of severe punishment." id. (emphasis added). The only thing the Government omitted from its syllogism was a conclusion, but the nature of a syllogism is that its conclusion is inescapable: Mr. Pollard's crimes deserved the severest punishment allowed by the law: life in prison. The Government said "two plus two," it did not need to say "four." Its position was unmistakable. 4

Footnote 4: It is not relevant that the District Court knew that the Government had agreed not to recommend a life sentence. The Supreme Court rejected a remarkably similar argument in Santobello v. New York, 404 U.S. 257, 262-64 (1971).

The Government's advocacy reached its climax with an eleventh hour intervention by Secretary Weinberger. Ostensibly submitted to supply "additional facts," the supplemental Declaration contained no new facts, only unrestrained and irresponsible argument. If there had been any remaining doubt that the Government was desperate to achieve a life sentence, it would have been put to rest by the Secretary's final plea. It stated that, in a year that had been distinguished by several discoveries of high-level Soviet spies, the Secretary could not "conceive of greater harm to national security [than that done by Mr. Pollard]," and that his punishment "should reflect the perfidy of [Mr. Pollard's] actions, the magnitude of the treason committed, and the needs of national security." J.A. 264 (emphasis added). It reiterated the claim that Mr. Pollard had "betrayed the public trust and the security of the United States in exchange for money"; it attacked Mr. Pollard for his "loyalty to Israel"; and it insisted that "there can be no doubt that he can, and will, continue to disclose U.S. secrets" "without restraint." J.A. 266; J.A. 264. The Declaration concluded that Mr. Pollard's sentence must be "commensurate with the enduring quality of the national defense information he can yet impart." J.A. 266.

To drive the point home. the prosecutor closed with a calculated reference to Mr. Pollard's "traitorous conduct," J.A. 369, referring along with Secretary Weinberger to a death-penalty crime that is so serious that it is defined in the Constitution, a crime that the Government's lawyers knew that Jonathan Pollard did not commit. 5 There could be no inference other than the one the Government intended the District Court to draw, and the court quite understandably responded to the Government's demands by sentencing Mr. Pollard to life in prison. 6

Footnote 5: The Secretary's use of the word "treason" and the prosecutor's reference to "traitorous conduct" were undoubtedly coordinated and deliberate, designed to convey to the District Court the Government's view that Mr. Pollard had committed a much more serious crime than the guilty plea acknowledged. This tactic was completely without justification and was an outrageous abuse of power.

Footnote 6: The Government's arguments worked so well that Mr. Pollard's life sentence vastly exceeds the sentences imposed upon other individuals convicted of comparable espionage offenses, as well as individuals who, unlike Mr. Pollard, were accused of committing espionage on behalf of hostile nations. See Br. for Appellant at 15-16; Brief for Amici Curiae at 30-33.

4. The Government has defended its unrestrained allocution and its thinly veiled advocacy of a life sentence for Mr. Pollard by claiming that Mr. Pollard breached the plea agreement prior to sentencing by granting two prison interviews with a reporter without the prior blessing of the Director of Naval Intelligence. The Government argued that these interviews violated the plea agreement, see J.A. 176-77, showed Mr. Pollard's "continuing unwillingness or inability to conform his conduct to proscribed rules or laws," J.A. 177, and demonstrated that he "is a recidivist and unworthy of trust." J.A. 359 (emphasis added); J.A. 320-22. There are at least two points to be made with respect to the prosecutor's reaction to these interviews: (1) Mr. Pollard was in the custody of the Government at the time of the interviews. The interviews took place because the Government approved, permitted and facilitated them, perhaps with malice aforethought (Br. for Appellant at 30 n.l7), and had the authority to insist on being present for them. The Government's facile excuse that it has no responsibility for the persons, it put in charge of Mr. Pollard (2) The Government never attempted properly to prove that the interviews actually violated the plea agreement. There is a manifest impropriety in permitting the government, without satisfying a judge that the evidence proves that a defendant broke his promise, to escape from the obligation the government undertook in the plea bargain." United States v. Simmons, 537 F.2d 1260, 1261-62 (4th dr. 1976); United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981) ("The question of a defendant's breach is not an issue to be finally determined unilaterally by the government."), cert. denied, 451 U.S. 1018 (1982).

The Government had only one recourse and one remedy for an alleged breach of the plea agreement: a hearing followed by a judicial declaration that the plea agreement was no longer binding. 7

Footnote 7: Mr. Pollard's motion to withdraw his guilty plea raised a number of other material factual issues that could not possibly have been resolved conclusively on the basis of the "motion and the files and the records," 28 U.S.C. § 2255, of this case. At the very least, the District Court should have conducted a hearing to address Mr. Pollard's allegations regarding (a) the coercive effect of the "wired" plea agreement and the facts surrounding the agreement's negotiation; (b) the Government's knowledge, motivation and conduct with respect to Mr. Pollard's interviews with the press; and (c) the allegations regarding whether the Government had submitted erroneous and highly prejudicial ex parte information during the sentencing process. See Br. for Appellant at 43-47



The Government unilaterally determined that the lawyers selected by Mr. Pollard to seek relief from his sentence of life in prison had no need and therefore no right to know the contents of the most important evidence it submitted to secure that sentence. Its defense for this posture is contrived and transparent. First, it contends that Mr. Pollard cannot succeed on the merits of his claims. But that manifest tautology cannot justify precluding Mr, Pollard's counsel from access to the evidence that is central to his defense. See Strang v. United States Arms Control and Disarmament Agency. 920 F.2d 30, 31 (D.C. Cir. 1990).

Second, the Government cites national security concerns, but Mr. Pollard's lawyer was cleared by the Government to see the evidence. Its logic is circular and self-defeating when it asserts in one breath that it must withhold the evidence because it is too sensitive and, in the next, contends that the new lawyers may obtain the evidence by plumbing the faded memory of the former lawyer.

The District Court's rationale that the Weinberger Declaration is like a presentence report (see: Br. for Appellee at 45-46 & n.8) could not be more wrong, A presentence report "provides a neutral, third-party analysis," United States v. Reese, 775 F.2d 1066, 1077 (9th Cir. 1985), that is neither prosecutorial nor punitive." United States v. Rogers, 899 F.2d 917, 921 (10th Cir.), cert. denied, 111 S. Ct. 113 (1990); see also Turner v. Barry, 856 F.2d 1593, 1540 (D.C. Cir. 1988). The Declaration of Secretary Weinberger was a hard-hitting adversarial document submitted as part of the prosecutor's sentencing memorandum, designed expressly to secure a severe sentence and certainly was not "neutral and detached." Denial of access to these materials has unduly fettered Mr, Pollard's counsel, violating due process and denying Mr. Pollard effective assistance of counsel. U.S. Const. amends. V & VI.


The Government's procedural argument, couched as its "legal framework," and sprinkled generously throughout nearly every paragraph of its brief, is that this Court should not consider the merits of Jonathan Pollard's appeal. But the waiver argument is without merit, particularly since the court below reached and decided the merits of his claims. See. United States v. Baylin, 696 F.2d 1030, 1035 (3d Cir. 1982) (rejecting the government's waiver argument where "the district court considered [the defendant's] claim on the merits"). Furthermore, the Government's failure to assert its timeliness defense below to Mr. Pollard's claims regarding the length of the sentence demanded and the breadth of the Government's allocution bars it from asserting a waiver argument as to those claims in this Court. United States v. Hall, 843 F.2d 408, 410 (10th Cir. 1988),

It is also well settled that "a prisoner in custody after pleading guilty, no less than one tried and convicted by a jury, is entitled to avail himself of the writ [of habeas corpus] in challenging the constitutionality of his custody." Blackledge v. Allison, 431 U.S. 63, 72 (1977) (emphasis added). It is "elementary that a coerced plea is open to collateral attack," Fontaine v. United States, 411 U.S. 213, 215 (1973), and that § 2255 also can be invoked to enforce the terms of the plea agreement where the Government has breached it. See. e.g.. United States v. Corsentino, 685 F.2d 48 (2d Cir. 1982).

The "barrier of the plea or sentencing proceeding record" is "not invariably insurmountable." Blackledge, 431 U.S. at 74. Indeed, even "when a defendant expressly represents in open court . . . that his plea is voluntary," Fontaine, 411 U.S. at 215, which Mr. Pollard did not do, his plea may be attacked as coerced under § 2255. Id. Moreover, failure to object "to breach of a plea agreement at a sentencing hearing ordinarily does not waive the objection." United States v. Shorteeth, 887 F.2d 253. 256 (10th Cir. 1989); Paradiso v. United States, 689 F.2d 28/ 30 (2d Cir. 1982), cert. denied, 459 U.S. 1116 (1983).

Nor does the "cause-and-prejudice" standard articulated in United States v. Frady, 456 U.S. 152 (1982). limit review of Mr. Pollard's claims. Frady involved a § 2255 motion to vacate a conviction based upon an erroneous jury instruction. Therefore, that case only "concerned the limited scope of collateral attack to raise errors that were required to have been asserted at or before trial by federal . . . contemporaneous objection rules." Corsentino, 685 F.2d at 50; see Frady. 456 U.S. at 176 (Blackmun, J., concurring in the judgment). "By contrast, no rule of federal procedure obliges a defendant to make a contemporaneous objection when a prosecutor violates the terms of a plea agreement." Corsentino, 685 F.2d at 50. Thus, in Corsentino, the Second Circuit concluded that "nothing in the Frady decision alter[s] the traditional scope of § 2255 relief to challenge a sentence alleged to have been imposed unlawfully after a plea of guilty," and proceeded directly to the merits of the defendant's claims. Id.; see also Baylin, 696 F.2d at 1036 ("Frady rationale is inapplicable" to collateral challenges to guilty pleas and sentencing procedures). The same is true in this case,

Even if the Court were to conclude that Frady does apply the "vagueness" of the rules requiring the raising of objections at the sentencing stage of criminal proceedings, see Diggs v. United States, 740 F.2d 239, 244-45 & n.6 (3d Cir. 1984), and the fact that any effort by Mr. Pollard to set aside his own plea agreement would have unsettled the delicate status of Mrs. Pollard's plea agreement provide ample "cause" for the timing of the challenges presented here.


Whether or not the Government's actions toward Jonathan Pollard would have been tolerable as isolated incidents, the totality of its conduct describes a level of broken commitments and improper actions that is not acceptable. The Government wanted Mr. Pollard's cooperation and to avoid a public trial that may have had uncontrollable repercussions. At the same time, his prosecutors and his former employers wanted desperately to strike out at Mr. Pollard and send a clear message to others. But the Government could not achieve its conflicting objectives without breaking its word to Mr. Pollard. He is therefore entitled to withdraw his plea or receive a new sentencing.


I hereby certify that I caused two copies of the foregoing Reply Brief for Appellant Jonathan J. Pollard to be served this 31st day of July, 1991, by hand delivery upon John R. Fisher, Esq., Assistant United States Attorney for the District of Columbia, 555 4th Street, N.W., 5th Floor, Washington, D.C. 20001, and Hamilton P. Fox, III, Esq., Sutherland, Asbill & Brennan, 1275 Pennsylvania Avenue, N.W., Washington, D.C. 20004; and by United States Mail, first-class, postage pre-paid upon Kenneth Lasson, University of Baltimore, Maryland of Mount Royal, Baltimore, Maryland 21201.

Theodore B. Olson

July 31, 1991

Respectfully submitted,

Theodore B. Olson
John H. Sturc
Theodore J. Boutrous, Jr.
1050 Connecticut Avenue. N.W
Washington, D.C. 20036
(202) 955-8500

Attorneys for Appellant Jonathan J. Pollard

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