Legal Doc: Defendant's Motion for Status Conference

Defendant Jonathan J. Pollard, by his undersigned attorneys, respectfully submits this motion for a status conference in the above-captioned case, to be scheduled in February 2003, or sooner if the Court prefers.

Reasons for This Motion

Currently before the Court are two motions, both of which were filed in 2001, prior to the reassignment of the case to this Court in March 2002. Both motions have been fully briefed:

(1) Defendant's Motion for Modification of the Court's January 12, 2001 Memorandum Order Based upon the Government's August 3, 2001 Letter, filed August 16, 2001 (the "Motion for Modification"), and

(2) Defendant's Motion for Reconsideration of the Court's August 7, 2001 Memorandum Opinion and Judgment, or in the Alternative, for Issuance of a Certificate of Appealability Pursuant to 28 U.S.C. § 2253(c), filed October 5, 2001 (the "Motion for Reconsideration of the § 2255 Dismissal").

Given the lengthy procedural history attending the motions and the period of time that has elapsed, counsel for defendant respectfully request a status conference. Counsel request this status conference in order to meet with the Court, address any concerns or questions that the Court may have, and reaffirm directly to the Court counsels' willingness to abide by any and all requirements in connection with the Court's Protective Order in this case.

For the Court's convenience, brief procedural histories of the two motions are provided below.

Procedural History of The Motion for Modification

On November 29, 2000, counsel for Pollard filed an Emergency Motion to Add to List of Defense Counsel Authorized to Access Sealed Docket Materials Pursuant to Protective Order (the "Motion for Access").

By their Motion for Access, counsel, who have Top Secret security clearance from the Department of Justice ("DOJ"), sought access to five specified sentencing documents under seal in the Court's docket, only redacted versions of which are available to counsel.

The government responded on December 8, 2000, opposing the motion on two distinct grounds: (1) that counsel lacked the necessary level of clearance, and (2) that counsel had no "need to know" what was in their client's court file.

On January 11, 2001, then-Chief Judge Johnson heard oral argument on the Motion for Access. On January 12, 2001, the Court issued a Memorandum Order (the "January 12, 2001 Order"), denying the motion. The Court accepted the government's arguments and denied access.

On January 19, 2001, counsel filed a Motion for Reconsideration and Modification of the Court's January 12, 2001 Order. Counsel requested that the Court at least allow access to those portions of the five documents that have security classification at or below the level of defense counsels' clearance.

On August 7, 2001, Judge Johnson denied the motion. That same day, counsel received a letter dated August 3, 2001 from the DOJ, signed by Michael P. Macisso, Court Security Officer (the "Macisso Letter") (Motion for Modification, Ex. A)

The Macisso Letter acknowledges that defense counsel in fact have the appropriate level of security clearance, in flat refutation of the government's argument before Judge Johnson in January 2001. (Motion for Modification at 1-8) Based upon the Macisso Letter, counsel filed the pending Motion for Modification. Because the Massico Letter acknowledged, in effect, that there would be no risk to national security if defense counsel were afforded access to the documents, contrary to what the government had represented to Judge Johnson, counsel asked the Court to modify the January 12, 2001 Order to reflect the government's admission and to correct its finding regarding risk to national security.

On February 8, 2002, this Court ordered the government to respond to the Motion for Modification. The government responded on April 9, 2002.

On May 9, 2002, counsel filed a reply, as well as a motion to enlarge the scope of the Motion for Modification, based upon evidence uncovered after August 16, 2001, the date of the Motion's original filing. This new evidence consisted of a letter from the DOJ, written by Assistant Attorney General Daniel J. Bryant to Congressman Anthony Weiner (the "Bryant Letter") (Ex. A, Def.'s Mot. to Enlarge Scope of His Pending Mot. for Modification Filed August 16, 2001 Based Upon Evidence Uncovered After That Date).

On December 6, 2002, counsel filed a Supplemental Reply Memorandum based upon a D.C. district court case, decided after the filing of defendant's May 9, 2002 reply.

The Motion for Modification remains pending.

On December 10, 2002, counsel received a copy of another letter from the DOJ, dated November 20, 2002, signed by Assistant Attorney General Bryant and addressed to Congressman Weiner (the "Second Bryant Letter") (Ex. A). In the Second Bryant Letter, the government "clarifies" its earlier admission (in the first Bryant Letter) that there had been twenty-five instances of access to the sealed docket materials recorded between November 19, 1993 and January 12, 2001. (Ex. A) The government now states that the twenty-five instances of access refer only to access to one of the five documents at issue-the Weinberger Declaration. The government further admits that it maintains no log with respect to the four other documents to which counsel seek access.

We submit that defendant has already established, on the strength of his papers presently before the Court, that the government's denial of access to counsel based on the purported concern for risk to national security is baseless, and that, at an absolute minimum, defendant is entitled to an evidentiary hearing on the issue. That the government now admits that it does not maintain even the most basic standard of control to monitor who is afforded access to four of the five classified documents further demonstrates that the government has no genuine concern for risk to national security insofar as access to those four documents is concerned.

Procedural History of The Motion for Reconsideration of the § 2255 Dismissal

On September 9, 2000, counsel filed a Motion for Resentencing pursuant to 28 U.S.C. § 2255 on behalf of Pollard, based on ineffective assistance of counsel.

On August 7, 2001, then-Chief Judge Johnson issued a Judgment and Memorandum Opinion, dismissing Pollard's Motion for Resentencing.

On October 5, 2001, counsel for Pollard filed the pending Motion for Reconsideration of the § 2255 Dismissal.

By February of 2002, the government still had not filed any response to the Motion for Reconsideration of the § 2255 Dismissal. This Court ordered the government to respond, and the government did so on April 9, 2002. Pollard filed a reply on May 9, 2002.

On June 5, 2002, counsel for Pollard filed a Supplemental Reply Memorandum, based upon a recent Eleventh Circuit case.

The Motion for Reconsideration of the § 2255 Dismissal remains pending.

Conclusion

Counsel respectfully requests the opportunity to appear before the Court to address any questions or concerns the Court may have with respect to the pending motions, as well as to represent to the Court directly counsels' willingness to comply with any and all requirements in connection with the Protective Order.

Defendant respectfully requests that a status conference be scheduled in this case.

Dated: January 15, 2003

Respectfully submitted,

CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP

_______________________________________
Eliot Lauer (D.C. Bar No. 203786)

________________________________________

Jacques Semmelman
(Admitted pro hac vice)

101 Park Avenue
New York, New York 10178-0061
(212) 696-6000
fax (212) 697-1559
-and-
1200 New Hampshire Avenue, N.W.
Suite 430
Washington, D.C. 20036
(202) 452-7373
fax (202) 452-7333

Attorneys for Jonathan Jay Pollard

Upon consideration of Defendant's Motion for Status Conference, it is by the Court this ___ day of ______________, 2003,

ORDERED, that the Motion is granted; and it is further

ORDERED, that a status conference will be held on _________________, 2003 at ____ o'clock in the _______________.

Dated: __________________, 2003

________________________________________
CHIEF UNITED STATES DISTRICT JUDGE
DISTRICT OF COLUMBIA
CERTIFICATE OF SERVICE

On January __, 2003, I caused to be served by hand delivery a true copy of the foregoing Defendant's Motion for Status Conference, on

Steven Pelak, Esq.
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001

Robert Okun, Esq.
Office of the United States Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001

_____________________________________
Dorothi McCoy

• The Current Court Case Page
• Exhibit A - The Second Bryant Letter
• Legal Doc: Court Orders Govt. to Respond to Motion for Status Conference
• Legal Doc: Court Denies Motion for Status Conference