Judge OKs secret evidence for CIA leak trial

October 4, 2011

Politico on October 3, 2011 released the following:

By Josh Gerstein

“A federal judge has ruled that prosecutors pursuing a leak case against a former Central Intelligence Agency officer may present evidence to the jury that will not be seen by the public.

U.S. District Court Judge Leonie Brinkema ruled in an order made public Friday that prosecutors may use a controversial procedure known as the “silent witness rule” to present three classified exhibits during the upcoming trial of former CIA officer Jeffrey Sterling. Sterling is set to go on trial later this month in Alexandria, Va. on a ten-count indictment charging him with leaking information about a highly-classified CIA program to New York Times reporter James Risen.

In response to pleas from the White House, Risen’s editors at the Times never published details of the program, which was aimed at undermining Iran’s nuclear efforts by giving that country flawed nuclear designs. However, Risen revealed the program in his 2006 book, “State of War.”

Under the “silent witness rule,” a document is shown to jurors, the defendant, the judge and the jury, but not to the public. Witnesses may refer to the documents in general terms, but do not read from them. The procedure has been used in several trials, but its constitutionality is not firmly established.

Brinkema’s order (posted here) does not provide any rationale for her decision, but tersely indicates that the prosecution will be allowed to use the “silent witness” procedure to present what a prosecution filing describes as “three CIA operational documents, all marked ‘secret,’ relating to the use of telephones.” The judge deferred ruling on a fourth document prosecutors wanted to present through the procedure, a CIA personnel evaluation report for Sterling for 1993.

All four documents were recovered in an FBI raid of Sterling’s home in Missouri in 2006. CIA rules prohibit employees from taking classified documents home without express permission, prosecutors contend.

Sterling is not charged with leaking information from the four documents to Risen. Prosecutors want to show that it is likely that Sterling had similar documents at home that he leaked to or discussed with Risen.

Prosecutors have argued that denying the public access to the evidence is necessary to safeguard national security secrets and will be of little significance since the prosecution’s questioning about the documents is likely to last only five to ten minutes. (Their motion is posted here.)

Sterling’s defense team has been hostile to the proposal. “Use of the silent witness rule in this case would seriously prejudice Mr. Sterling and totally eviscerate his right to a fair trial,” defense lawyers Ed MacMahon Jr. and Barry Pollack wrote in a recent court filing (posted here).

Press advocates have also expressed concern about the use of the technique. However, none has intervened in Sterling’s case.

The issue was apparently argued in closed-door hearings held by Brinkema in recent weeks.

One twist in the judge’s order could complicate the issue further. She denied a prosecution request to make some deletions in the documents. If the CIA is skittish about showing the entirety of the documents to jurors, prosecutors might have to drop the evidence altogether.

In another ruling in the same order, Brinkema denied the defense’s request to call a Russian nuclear scientist key to the CIA’s attempt to snooker the Iranians. She also offered no explanation for that decision.

Sterling’s trial is set to open October 17. Brinkema ruled in July that Risen would not have to identify his confidential source or sources at the trial. However, prosecutors have asked her to reconsider that ruling.”

To find additional federal criminal news, please read Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write and/or report extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN Sanctions Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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Christian Pereira, Daniel Perez, and Sophie Perlmutter Charged by a Criminal Complaint with Conspiring to Affect Interstate Commerce by Robbery (18 U.S.C. § 1951(a)), Use of Interstate Commerce Facilities in the Commission of Murder-for-hire (18 U.S.C. § 1958), and Possession of a Firearm in Furtherance of Crimes of Violence (18 U.S.C. § 924(c)(1)(A))

July 25, 2011

The U.S. Attorney’s Office Southern District of Florida on July 22, 2011 released the following:

“THREE MIAMI-DADE RESIDENTS CHARGED IN MURDER- FOR-HIRE SCHEME

Wifredo A. Ferrer, United States Attorney for the Southern District of Florida, Hugo J. Barrera, Special Agent in Charge, Bureau of Alcohol, Tobacco, Firearms and Explosives, James K. Loftus, Director, Miami-Dade Police Department, and Addy Villanueva, Special Agent in Charge, Florida Department of Law Enforcement (FDLE), Miami Operations Center, announced the arrest of defendants Christian Pereira, 22, Daniel Perez, 20, and Sophie Perlmutter, 21, all of Miami-Dade. The defendants are charged in a criminal complaint with conspiring to rob and murder a Miami-based drug dealer. Specifically, the defendants are charged with one count of conspiring to affect interstate commerce by robbery (18 U.S.C. § 1951(a)), one count of use of interstate commerce facilities in the commission of murder-for-hire (18 U.S.C. § 1958), and one count of possession of a firearm in furtherance of crimes of violence (18 U.S.C. § 924(c)(1)(A)).

The defendants made their initial appearance in federal court today. A pretrial detention hearing is scheduled for Wednesday, July 27, 2011 at 10:00 A.M. If convicted, the defendants face a maximum statutory sentence of up to 20 years in prison on the interstate robbery count, up to 10 years in prison on the murder for hire count, and up to life in prison for the firearm count, which carries a five year mandatory minimum.

Today’s charges are the result of the ATF’s Street Terror Offender Program (STOP). STOP is a multi-agency task force specializing in the investigation of violent crime associated with the narcotics trade in South Florida. Using federal narcotics, robbery and firearms laws, STOP members target violent career offenders, with the goal of reducing violent crime in Miami-Dade.

According to the affidavit filed in support of the criminal complaint, a confidential source (CS) alerted ATF/MDPD that he had been asked to assist in the robbery and murder of a marijuana dealer to whom defendant Pereira owed money. During a recorded meeting with the CS, Pereira and Perez discussed the robbery and murder plan in detail. The plan called for Pereira and Perez to meet the targeted victim at the victim’s residence under the pretext of paying their debt, confront the victim with a firearm, and then have the CS strangle the victim with a rope. Pereira and Perez promised the CS money in return for his strangling the intended victim.

According to the affidavit, on the morning of July 21, 2011, the day of the planned robbery and murder, police surveillance units watched as Pereira and his girlfriend Perlmutter picked up the CS and traveled to meet Perez, who was waiting at a Publix near the intended victim’s residence. Before Perez and Perlmutter reached their destination, they were pulled over by police. Police officers discovered a semi-automatic firearm, gloves, plastic tarp and cleaning agents inside the car. Agents then found Perez at the Publix where he was waiting, but Perez attempted to flee on foot. During the chase, Perez tried to discard his cellular telephone. Perez was arrested and his phone was recovered. When Perez’s car was searched, investigators discovered a backpack containing a piece of rope in the front passenger seat.

U.S. Attorney Wifredo A. Ferrer noted, “Drug trafficking does not exist in a vacuum. Rather, drug trafficking breeds other crimes, including, as in this case, robbery, illegal gun use, and even conspiracy to murder. These defendants planned to rob and murder a drug dealer for their own profit. Instead, they now face long prison sentences. It is a good day for law enforcement when violent offenders and their guns are removed from our community before they have a chance to do harm.”

“The removal of violent criminals and their guns from the streets of South Florida is a top priority for ATF. Today’s charges are the result of our commitment to work jointly with state and local law enforcement to do everything possible to ensure that our citizens and visitors are kept safe from harm,” said Hugo J. Barrera, Special Agent in Charge of ATF’s Miami Office. “The message is clear: if you seek to do harm through violence in South Florida, you will be found and you will be prosecuted to the fullest extent of the law.”

Director James K. Loftus of the Miami-Dade Police Department added, “The apprehension of these violent offenders is attributed to the strong working relationship amongst law enforcement agencies and their unified commitment to public safety.”

FDLE Special Agent in Charge Addy Villanueva stated, “The STOP Unit seeks out the “worst of the worst” offenders. This multi-agency Task Force saved a life and the perpetrators was brought to justice.”

Mr. Ferrer commended the investigative efforts of ATF, Miami-Dade Police Department and FDLE. This case is being prosecuted by Assistant U.S. Attorney Anthony LaCosta.

An Complaint is only an accusation, and defendant are presumed innocent until and unless proven guilty beyond a reasonable doubt.”

To find additional federal criminal news, please read The Federal Crimes Watch Daily.

Douglas McNabb and other members of the U.S. law firm practice and write extensively on matters involving Federal Criminal Defense, INTERPOL Red Notice Removal, International Extradition and OFAC SDN List Removal.

The author of this blog is Douglas McNabb. Please feel free to contact him directly at mcnabb@mcnabbassociates.com or at one of the offices listed above.

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