1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF NEW MEXICO 3 4 UNITED STATES OF AMERICA, 5 Plaintiff, 6 vs. NO. 99-1417-JC 7 WEN HO LEE, 8 Defendant. 9 10 11 12 TRANSCRIPT OF PROCEEDINGS September 13, 2000 13 14 15 BEFORE: THE HONORABLE JAMES A. PARKER United States Chief District Judge 16 17 18 A P P E A R A N C E S 19 FOR THE PLAINTIFF: Norman C. Bay U. S. Attorney 20 George Stamboulidis Michael Liebman 21 Paula Burnett Laura Fashing 22 Asst. U. S. Attorneys P. O. Box 607 23 Albuquerque, NM 87103 24 25
2 1 FOR THE DEFENDANT: Mark Holscher Richard Myers 2 O'Melveny & Myers LLP 400 South Hope Street 3 Los Angeles, CA 90071-2899 4 John Cline Nancy Hollander 5 K. C. Maxwell Attorneys at Law 6 FREEDMAN BOYD DANIELS HOLLANDER GOLDBERG & CLINE PA 7 20 First Plaza Albuquerque, NM 87102 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
3 1 THE COURT: Court is now in session. Please have a 2 seat. Let me ask counsel again to state their appearances in 3 Number 99-1417, United States of America versus Wen Ho Lee. 4 MR. STAMBOULIDIS: Yes, Your Honor. George 5 Stamboulidis; Norman Bay, United States Attorney; Michael 6 Liebman, Trial Attorney from the Internal Security Section of 7 the Department of Justice; Thomas Cooker, Special Agent in 8 Charge of the FBI in New Mexico; First Assistant United States 9 Attorney, Paula Burnett; Assistant United States Attorney, 10 Laura Fashing; and Supervisory Special Agent, Robert Messemer 11 with the FBI. Good morning. 12 MR. CLINE: Good morning. John Cline, Mark Holscher, 13 Nancy Hollander, Richard Myers, K.C. Maxwell, and Dr. Lee is 14 here as well. 15 THE COURT: Okay. I understand the parties have 16 finally reached a plea agreement satisfactory to everyone. I 17 have reviewed the most recent signed version, and I gather you 18 are now ready to proceed with a plea hearing and disposition. 19 Is that correct? 20 MR. STAMBOULIDIS: That is correct. 21 MR. CLINE: Yes, Your Honor. 22 THE COURT: All right. What I will do is ask that 23 Dr. Lee and his counsel come up to the microphone at this 24 time. 25 At this time I will ask Mr. Jonathan Westen to
4 1 administer the oath to Dr. Lee. 2 (Whereupon, an oath to tell the truth was 3 administered to the defendant to tell the truth.) 4 THE COURT: Dr. Lee, you are now under oath. If you 5 give any false answers to questions that I ask you, your false 6 answers could be used against you in a prosecution for perjury 7 or false statements or obstruction of justice, all of which 8 are separate crimes. Do you understand that, sir? 9 THE DEFENDANT: I understand. 10 THE COURT: Would you please state your full name? 11 THE DEFENDANT: Wen Ho Lee. 12 THE COURT: And how old are you, Dr. Lee? 13 THE DEFENDANT: I am 60. 14 THE COURT: I am aware of your education from having 15 read a number of documents in the file, but again I will ask 16 you to state on the record your education, please, sir. 17 THE DEFENDANT: I have a Ph.D. in Mechanical 18 Engineering. 19 THE COURT: And that was from Texas A&M University? 20 THE DEFENDANT: Yes, from Texas A&M. 21 THE COURT: In the last 24 hours, have you used any 22 alcohol or other drugs? 23 THE DEFENDANT: No. 24 THE COURT: Are you under a doctor's care? 25 THE DEFENDANT: No.
5 1 THE COURT: And are you taking any prescription 2 medications? 3 THE DEFENDANT: No. 4 THE COURT: At this time, are you fully alert? 5 THE DEFENDANT: Yes. 6 THE COURT: If you do not understand any question I 7 ask you this morning, would you please tell me? 8 THE DEFENDANT: I will. 9 THE COURT: Are you nervous at this time? 10 THE DEFENDANT: No. 11 THE COURT: May I see the original of the plea 12 agreement, please? 13 MR. STAMBOULIDIS: Your Honor, I have just handed up 14 a copy of the original plea agreement. 15 THE COURT: Would you hand this to Mr. Cline, please. 16 Dr. Lee, is that your signature on the original plea 17 agreement? 18 THE DEFENDANT: Yes. 19 THE COURT: Now, I notice that you signed Wen Ho as a 20 single name. Is that correct? 21 THE DEFENDANT: That is correct. That is the way I 22 sign. 23 THE COURT: In all of the pleadings those names are 24 shown separately, but your signature is the way you normally 25 sign?
6 1 THE DEFENDANT: That is correct. 2 THE COURT: Let me ask counsel, is that your 3 signature also on the plea agreement? 4 MR. CLINE: Yes, Your Honor. 5 MR. HOLSCHER: Yes, Your Honor. 6 THE COURT: Dr. Lee, did you read the plea agreement 7 in its entirety before you signed it? 8 THE DEFENDANT: Yes. 9 THE COURT: And did you discuss it with your 10 attorneys before you signed it? 11 THE DEFENDANT: Yes. 12 THE COURT: Did you fully understand all of the 13 provisions of your plea agreement before you signed it? 14 THE DEFENDANT: Yes. 15 THE COURT: You are pleading guilty today to the 16 charge in Count 57 of the indictment. Have you read the 17 indictment? 18 THE DEFENDANT: Yes. 19 THE COURT: Have you discussed it with your 20 attorneys? 21 THE DEFENDANT: Yes. 22 THE COURT: Do you understand all of the charges in 23 the 59 counts of the indictment? 24 THE DEFENDANT: Yes, I understand. 25 THE COURT: Are you fully satisfied with all
7 1 explanations your attorneys have given you about these 2 charges? 3 THE DEFENDANT: Yes. 4 THE COURT: Count 57 charges that on a date in 1994 5 up through the date of the indictment, within the District of 6 New Mexico, you had unauthorized possession of and control 7 over documents and writings relating to the national defense, 8 which was restricted data that had been gathered onto Tape L 9 and that you willfully retained and failed to deliver Tape L 10 to an officer and an employee of the United States who was 11 entitled to receive it. 12 Do you understand specifically this charge that is 13 made against you? 14 THE DEFENDANT: I understand. 15 THE COURT: Do you understand, Dr. Lee, that Count 57 16 charges you with the commission of a felony crime? 17 THE DEFENDANT: I understand. 18 THE COURT: If I accept your plea of guilty to Count 19 57, it will be the same as though you have been convicted of 20 that felony charge. Do you understand that, sir? 21 THE DEFENDANT: Yes. 22 THE COURT: Are you fully satisfied with the way that 23 you have been represented by your attorneys, Mr. Holscher, 24 Mr. Cline and all of the other attorneys who have worked on 25 you're behalf in this case?
8 1 THE DEFENDANT: Yes. 2 THE COURT: At this time, I need to review the plea 3 agreement with you. Bear with me because I have before me 4 three different iterations of the plea agreement, and I want 5 to make sure that I cover everything in the final version. 6 First I am going to advise you of the rights of a 7 defendant. Some of these are set forth in paragraph 2 of your 8 plea agreement. Do you understand, Dr. Lee, that you have the 9 right to plead not guilty to all of these charges and to have 10 a trial before a jury on the charges? 11 THE DEFENDANT: Yes. 12 THE COURT: If you chose to have a trial, your 13 lawyers would represent you in court. And they are excellent 14 lawyers. They would cross-examine the government's witnesses, 15 and you would have the right to face or confront the 16 government's witnesses in court. Do you understand that, 17 sir? 18 THE DEFENDANT: Yes. 19 THE COURT: If you chose to have a trial, it would be 20 a trial before a jury of your peers. Do you understand that, 21 sir? 22 THE DEFENDANT: Yes. 23 THE COURT: If you chose to have a trial, you would 24 have the right to make witnesses come to court under subpoena 25 to testify for you. Do you understand that?
9 1 THE DEFENDANT: Yes. 2 THE COURT: If you chose to have a trial, the 3 government could not force you to testify at a trial. 4 THE DEFENDANT: Yes. 5 THE COURT: Whether you testify would be entirely 6 your choice. Do you understand that? 7 THE DEFENDANT: Yes. 8 THE COURT: At this time, you are presumed under the 9 law of the United States to be innocent of all the charges in 10 the indictment. You could not be convicted of any of those 11 charges unless the government proves your guilt beyond a 12 reasonable doubt at a trial. Do you understand that, sir? 13 THE DEFENDANT: Yes. 14 THE COURT: Now, by pleading guilty to Count 57, you 15 will be giving up all of your rights of a trial and all of 16 your rights associated with a trial. Do you understand that, 17 sir? 18 THE DEFENDANT: Yes. 19 THE COURT: Next I need to review with you the 20 maximum penalties authorized by law that apply to the offense 21 charged in Count 57. These are set forth in writing in 22 paragraph 4 of the plea agreement. 23 The maximum period of imprisonment authorized by law 24 is 10 years for this offense. Do you understand that, sir? 25 THE DEFENDANT: Yes.
10 1 THE COURT: The maximum fine is $250,000. Do you 2 understand that? 3 THE DEFENDANT: Yes. 4 THE COURT: There is a mandatory term of supervised 5 release of not more than three years that would have to follow 6 any term of imprisonment. Do you understand that? 7 THE DEFENDANT: Yes. 8 THE COURT: There is a mandatory special penalty 9 assessment of $100. Do you understand that? 10 THE DEFENDANT: Yes. 11 THE COURT: Now, let me ask counsel for the 12 government, is there any prospect of restitution in this case; 13 it's mentioned in paragraph 4(e)? 14 MR. STAMBOULIDIS: Not pursuant to the agreement, 15 Your Honor. 16 THE COURT: Paragraph 5 of the plea agreement is the 17 heart of the agreement. It provides that you, Dr. Lee, and 18 the United States of America have made an agreement under Rule 19 11(e)(1)(C) of the Federal Rules of Criminal Procedure. That 20 agreement specifies that the length of your sentence of 21 incarceration should be 278 days. I gather today is the 278th 22 day that he has been held in custody. Is that correct? 23 MR. STAMBOULIDIS: 279. 24 THE COURT: 279. I was reading from an earlier 25 version I guess.
11 1 MR. HOLSCHER: No, Your Honor, you have it correct. 2 We added 278, just to make sure he can leave before the end of 3 the day today. 4 THE COURT: Do you agree with that, 5 Mr. Stamboulidis? 6 MR. STAMBOULIDIS: Yes, I do. 7 THE COURT: Mr. Stamboulidis, this is the agreement 8 of the government; is that correct? 9 MR. STAMBOULIDIS: Yes, it is, and that is my 10 signature on the last page. 11 THE COURT: Dr. Lee, this also is your agreement? 12 THE DEFENDANT: Yes. 13 THE COURT: In addition, paragraph 5 provides that 14 you will be given credit for all the time that you have served 15 in custody since December 10, 1999. It's clear from 16 statements of counsel that that means that today, upon 17 completion of this hearing, you will be released. 18 Next paragraph 5 provides that under the agreement no 19 fine will be accessed against you, and you will not be 20 required to forfeit any of your property or assets nor will 21 you be required to make restitution. 22 Is that the government's agreement, 23 Mr. Stamboulidis? 24 MR. STAMBOULIDIS: Yes, it is, Your Honor. 25 THE COURT: Also the agreement provides that you are
12 1 not to have a period of probation or supervised release. Did 2 the government also agree to that? 3 MR. STAMBOULIDIS: Correct. 4 THE COURT: The remainder of paragraph 5 provides 5 that Dr. Lee must pay the mandatory $100 special penalty 6 assessment required by 18 United States Code Section 7 3013(a)(2). 8 Have you agreed to do that, Dr. Lee? 9 THE DEFENDANT: Yes. 10 THE COURT: I have been provided with a copy of a 11 check that indicates this payment has already been made. Is 12 that correct? 13 MR. CLINE: Yes, Your Honor, it has been. 14 THE COURT: The last part of paragraph 5 states that 15 the parties agree that sentencing may take place today at the 16 conclusion of the plea hearing without a presentence report. 17 There was a skeletal presentence report prepared by the 18 Probation Office. 19 Let me ask Dr. Lee, have you reviewed that? 20 MR. CLINE: Your Honor, I don't know that Dr. Lee 21 has. 22 THE COURT: When we get to that stage of the 23 proceeding, I think we will take a short break and permit that 24 to be done. 25 MR. STAMBOULIDIS: Your Honor, I have also just
13 1 handed up a copy of the written executed waiver of a 2 presentence report that was executed by the parties and would 3 allow the Court to also make findings pursuant to Rule 4 32(b)(1)(A), the finding that is required there, as well as 5 under (b)(1)(B), the explanation. 6 THE COURT: Thank you, Mr. Stamboulidis. 7 MR. STAMBOULIDIS: Certainly. 8 THE COURT: Paragraph 6 of the agreement provides 9 that if I refuse to accept the agreement or if I decline to 10 dismiss any of the other 58 counts of the indictment with 11 prejudice, then you, Dr. Lee, will be afforded an opportunity 12 to withdraw your guilty plea. Do you understand that, sir? 13 THE DEFENDANT: Yes. 14 THE COURT: Let me make certain I have the last 15 version of the language of paragraph 7. Paragraph 7 relates 16 to Dr. Lee's additional obligations. Seven (a) is a 17 definitional section that states the following: 18 "'Tapes' is defined as the tapes at issue in the 19 indictment, including any information on the tapes, as well as 20 any copies, printouts, versions, variants or variations in any 21 medium whatsoever." 22 Do you understand that definition of tapes? 23 THE DEFENDANT: Yes. 24 THE COURT: The second definition is of files. It's 25 defined, "...as the files at issue in the indictment,
14 1 including any information in the files, as well as any copies, 2 printouts, versions, variants or variations in any medium 3 whatsoever." 4 Do you understand, sir, the definition of "files" as 5 used in this agreement? 6 THE DEFENDANT: Yes. 7 THE COURT: Paragraph 7(b) states that you, Dr. Lee, 8 before the entry of your plea, will make a truthful written 9 declaration under penalty of perjury that, one, you never 10 intended to pass, disclose or cause or allow to be disclosed 11 to any unauthorized person or third person the tapes and never 12 allowed any unauthorized person or third party access to those 13 tapes. 14 Second, that you did not in the past and cannot in 15 the future pass, disclose or cause or allow to be disclosed 16 the tapes to any unauthorized person or third party. 17 Third, that you never intended to pass, disclose or 18 cause or allow to be disclosed to any unauthorized person or 19 party -- should that say "third party"? 20 MR. CLINE: Your Honor, I think we all understand 21 that it must mean third party. 22 THE COURT: -- the files and you never allowed any 23 unauthorized person or third party access to those files. 24 And fourth, that you do not and did not in the past 25 and cannot in the future disclose or cause or allow to be
15 1 disclosed the files to any unauthorized person or party. 2 My understanding is that you have already executed 3 that declaration under oath. Is that correct? 4 THE DEFENDANT: Yes. 5 MR. CLINE: We have provided it to the government. 6 THE COURT: And the government has received it. Is 7 that correct? 8 MR. STAMBOULIDIS: I received it approximately 10:55 9 today. 10 THE COURT: Next under paragraph 7(c), Dr. Lee has 11 made in written form, by his signature on the plea agreement, 12 a factual statement that supports his plea of guilty to Count 13 57. At this time, I will ask Dr. Lee to state that orally 14 here in court. 15 THE DEFENDANT: On a date certain in 1994, I used an 16 unsecure computer in T Division to download a document for 17 writing relating to the national defense, file 14, on to Tape 18 L. 19 I knew at the time that my position of Tape L, 20 outside the X Division perimeter, was unauthorized and that 21 under Los Alamos National Laboratory directives, I was not 22 permitted to have Tape L outside the X Division perimeter. 23 I retained Tape L and did not deliver it to an 24 officer or employee of the United States entitled to receive 25 Tape L.
16 1 THE COURT: Let me ask Dr. Lee, did you do that 2 willfully? 3 THE DEFENDANT: Yes. 4 THE COURT: Mr. Stamboulidis, let me ask you on 5 behalf of the government if the government believes this is a 6 sufficient factual basis for Dr. Lee's plea of guilty to Count 7 57. 8 MR. STAMBOULIDIS: We do. 9 THE COURT: If the matter were to proceed to trial -- 10 MR. STAMBOULIDIS: Your Honor, may I interrupt? With 11 the understanding that, of course, this happened in Los 12 Alamos, in New Mexico. 13 THE COURT: If the matter were to proceed to trial, 14 would the government be able to offer evidence to a jury in 15 proof of this factual statement? 16 MR. STAMBOULIDIS: Definitely. 17 THE COURT: Let me ask Dr. Lee and his counsel, do 18 you agree that the government could do that? 19 MR. CLINE: Yes. 20 MR. HOLSCHER: Yes, Your Honor. 21 THE COURT: Paragraph 7(d) provides that Dr. Lee will 22 acknowledge that the United States had and has a legitimate 23 national security interest in determining what occurred with 24 respect to the files and tapes at issue. 25 Do you acknowledge that, Dr. Lee?
17 1 THE DEFENDANT: Yes. 2 THE COURT: Paragraph 7(e) provides that after I 3 accept your plea of guilty, if I decide to do so, and before 4 you are sentenced, you will provide to the United States a 5 truthful written declaration under penalty of perjury, stating 6 the manner in which you disposed of the seven tapes, as well 7 as how, when and where copies of the tapes were made and the 8 manner in which they were disposed. 9 Has that already been done? 10 MR. CLINE: Your Honor, it has not been done, but the 11 declaration is prepared. As soon as the Court accepts 12 Dr. Lee's plea, I will immediately provide that to 13 Mr. Stamboulidis. 14 THE COURT: Has the declaration been executed by 15 Dr. Lee? 16 MR. CLINE: Yes, it is. 17 THE COURT: Paragraph 7(f) provides that beginning 18 September 26th, next week, or as soon after that date as the 19 government requests, you, Dr. Lee, will answer under oath 20 questions from representatives of the United States for a 21 period of 10 days within a three-week period for a reasonable 22 number of hours each day, which the parties understand will be 23 six hours of questions and answers per day for each of those 24 10 days. Have you agreed to do that, sir? 25 THE DEFENDANT: Yes.
18 1 THE COURT: 7(f) further provides that to the extent 2 the United States believes that it will need additional time 3 to complete the questioning, it may ask the Court for a 4 reasonable extension of this debriefing period. 5 Let me ask Dr. Lee and his counsel, have you agreed 6 to that? 7 MR. CLINE: Yes. 8 THE COURT: The next sentence provides that to the 9 extent counsel for Dr. Lee conclude at any time during that 10 three-week period the questioning has become unreasonable, 11 they may apply to the Court for appropriate relief. 12 Now, let me ask Mr. Stamboulidis, has the government 13 agreed to that? 14 MR. STAMBOULIDIS: Yes. 15 THE COURT: The next sentence of 7(f) states that 16 during the three-week period, the defendant will identify any 17 storage spaces other than his home, including, but not limited 18 to, safety deposit boxes, computers and computer accounts 19 under his control, and he will agree to allow the United 20 States to search them. 21 Is that your agreement, Dr. Lee? 22 THE DEFENDANT: Yes. 23 THE COURT: Let me ask Dr. Lee's counsel if it 24 requires also the consent of Mrs. Lee, will her consent be 25 given as well?
19 1 MR. CLINE: We are confident that it will be, Your 2 Honor. 3 THE COURT: Thank you, Mr. Cline. 4 Paragraph 7(g) provides that the parties recognize 5 under the particular circumstances of this case that the 6 reliability of any future polygraph examination may be subject 7 to conflicting interpretations. (Based on what has transpired 8 before in this case, I certainly agree with that statement.) 9 However, the United States reserves the right to have 10 Dr. Lee undergo a polygraph examination administered by a 11 mutually agreeable polygrapher, if the United States believes 12 it becomes necessary for national security reasons or to 13 verify Dr. Lee's declaration or sworn debriefing regarding the 14 creation, disposition and whereabouts of the tapes and files. 15 The United States has made that reservation. Let me 16 ask Dr. Lee and his counsel to state if you agreed to abide by 17 that. 18 MR. CLINE: We have. 19 MR. HOLSCHER: We have, Your Honor, subject to the 20 limitations on the use below in the paragraph. 21 THE COURT: The next sentence states that if the 22 parties fail to agree on a polygrapher, then, after hearing 23 from the parties, the Honorable Edward Leavy of the United 24 States Court of Appeals for the Ninth Circuit, who has been 25 the mediator judge, will select the polygrapher. If any such
20 1 polygraph examination occurs, it will be conducted after the 2 Court accepts the defendant's plea and imposes sentence and 3 after the debriefing that will take place under paragraph 4 7(f). 5 Has the defendant agreed to that? 6 MR. CLINE: Yes. 7 THE COURT: Has the government agreed to that? 8 MR. STAMBOULIDIS: Yes, Judge. 9 THE COURT: The last sentence of this paragraph 10 states that the parties agree that the results of any 11 polygraph examination will not be submitted to this or any 12 other court in any manner, including, without limitation, in 13 connection with any proceeding under paragraph 7(h), which we 14 are about to review now. 15 Is that the agreement of both parties? 16 MR. STAMBOULIDIS: Yes. 17 MR. CLINE: Yes, Your Honor. 18 THE COURT: Paragraph 7(h) provides that this 19 agreement, and any plea, sentence, or other action taken in 20 accordance with this agreement, will become null and void if 21 the Court determines, by a preponderance of the evidence 22 admissible under the Federal Rules of Evidence as they would 23 apply at a trial, that Dr. Lee knowingly provided false or 24 misleading testimony concerning the disposition or creation of 25 the files and tapes in the declarations that he is to make
21 1 under this agreement or during his debriefing. 2 Dr. Lee, have you agreed to that, sir? 3 THE DEFENDANT: Yes. 4 THE COURT: Let me ask his counsel to confirm that. 5 MR. CLINE: Yes. 6 THE COURT: Paragraph 7(i) provides that for a period 7 of 12 months following imposition of sentence Dr. Lee must 8 make himself available to respond to reasonable inquiries from 9 the United States. 10 Dr. Lee, have you agreed to do that? 11 THE DEFENDANT: Yes. 12 THE COURT: Paragraph 7(j) provides that 13 notwithstanding the other provisions of paragraph 7, any 14 testimony given by Dr. Lee and his declaration made under this 15 paragraph will be protected under Rule 11(e)(6) of the Federal 16 Rules of Criminal Procedure. 17 Has the government agreed to that? 18 MR. STAMBOULIDIS: Yes, Your Honor. 19 THE COURT: Paragraph 7(k) states that no statements 20 made or other information provided by Dr. Lee in connection 21 with his obligations under paragraph 7 will be used directly 22 against him in any criminal case brought by the United States 23 except in the event of prosecution for false statement, 24 obstruction of justice or perjury arising out of those 25 statements or other information he provides or except for a
22 1 proceeding under paragraph 7(h), as further set forth in 2 paragraph 13. 3 Has the government agreed to that? 4 MR. STAMBOULIDIS: Yes. 7(h) or as set forth in 5 paragraph 13, but yes, we have agreed to that. 6 THE COURT: The next sentence states that the United 7 States may make derivative use of and may pursue any 8 investigative leads suggested by any statements made or other 9 information provided by Dr. Lee. 10 Dr. Lee, have you and your counsel agreed to that? 11 THE DEFENDANT: Yes. 12 MR. CLINE: Yes. 13 THE COURT: The next sentence provides that if 14 Dr. Lee later testifies at any trial or other judicial 15 proceeding and offers testimony different from any statements 16 made or information provided during the debriefing, the United 17 States may cross-examine Dr. Lee about any statements made or 18 other information provided by him during the debriefing. 19 Dr. Lee, have you agreed to that? 20 THE DEFENDANT: Yes. 21 THE COURT: In addition, the next sentence states 22 that evidence about such statements by Dr. Lee may also be 23 produced in the United States' rebuttal case in any such trial 24 or judicial proceeding. 25 Dr. Lee, have you and your counsel agreed to that?
23 1 THE DEFENDANT: Yes. 2 MR. CLINE: Yes. 3 THE COURT: The last sentence of 7(k) provides that 4 despite the provisions of Rule 410 of the Federal Rules of 5 Evidence and Rule 11 of the Federal Rules of Criminal 6 Procedure, Dr. Lee waives any objection to cross-examination 7 and rebuttal as set forth above. 8 Have you agreed to that, Dr. Lee? 9 THE DEFENDANT: Yes. 10 THE COURT: Let me ask his counsel to confirm that. 11 MR. CLINE: Yes. 12 THE COURT: Paragraph 7(i) provides that for a period 13 of 12 months following the imposition of sentence, Dr. Lee 14 will give reasonable written advance notice to the United 15 States of any plans to travel outside the United States. 16 Have you agreed to do that, Dr. Lee? 17 THE DEFENDANT: Yes. 18 THE COURT: It continues that if the United States 19 has any objection to Dr. Lee's travel plans, the United States 20 will bring its objection to Judge Leavy, the mediator judge, 21 who will determine whether Dr. Lee should be able to travel 22 outside the United States. 23 Have you agreed to that, Dr. Lee? 24 THE DEFENDANT: Yes. 25 THE COURT: Mr. Stamboulidis, is that also the
24 1 government's agreement? 2 MR. STAMBOULIDIS: Yes, it is, Judge. 3 THE COURT: The last sentence of this subparagraph 4 provides that it is implemented by a letter dated September 5 13th, 2000, signed and agreed to by the United States, the 6 defendant and counsel for the defendant addressed and 7 delivered to the mediator judge, Judge Leavy, which letter 8 will be a part of this agreement. 9 I have read the letter of September 13th, 2000, and I 10 will ask Dr. Lee to confirm that that is his signature that 11 appears on the original of the letter. 12 THE DEFENDANT: Yes. 13 THE COURT: Mr. Stamboulidis, is that also your 14 signature, on behalf of the government? 15 MR. STAMBOULIDIS: Yes, it is, Judge. 16 THE COURT: Mr. Holscher, is that your signature, as 17 counsel for Dr. Lee? 18 MR. HOLSCHER: Yes, Your Honor. 19 MR. STAMBOULIDIS: Your Honor, I personally delivered 20 the letter to Judge Leavy. 21 THE COURT: Paragraph 8 of the agreement relates to 22 waivers of rights by Dr. Lee. Paragraph 8 provides that 23 Dr. Lee is aware that his right to appeal the sentence that 24 will be imposed and that, acknowledging that right, he 25 knowingly waives his right to appeal any sentence that is
25 1 imposed in accordance with the parties' agreement. 2 Have you agreed to that, Dr. Lee? 3 THE DEFENDANT: Can I read it one more time? 4 THE COURT: Yes, sir. This says that you have agreed 5 to waive your right to appeal the sentence that I will impose 6 in accordance with the agreement between you and the 7 government. 8 THE DEFENDANT: Yes. 9 THE COURT: Paragraph 8 also provides that you, 10 Dr. Lee have waived your right to challenge your sentence in 11 any manner by any collateral attack, including, but not 12 limited to, a motion under 28 United States Code Section 2255 13 relating to petition for writ of habeas corpus. 14 Is it also your agreement not to attack your sentence 15 that will be imposed in any collateral manner? 16 THE DEFENDANT: Yes. 17 THE COURT: Paragraph 9 provides that Dr. Lee waives 18 any right to additional disclosure from the government in 19 connection with the plea agreement. 20 Have you agreed to that, Dr. Lee? 21 THE DEFENDANT: Yes. 22 THE COURT: Do you understand that at this time the 23 government is under order of this Court to provide substantial 24 additional information that could eventually result in a 25 dismissal of all the charges in the indictment against you.
26 1 Do you understand that, sir? 2 THE DEFENDANT: Yes. 3 THE COURT: Has that been explained to you by your 4 attorneys? 5 THE DEFENDANT: Yes. 6 THE COURT: Have you agreed to this provision of 7 waiving any right to additional disclosure from the 8 government, knowing that? 9 THE DEFENDANT: Can you repeat? 10 THE COURT: Yes, sir. 11 If this case proceeded and the government provided 12 the information I have already ordered it to provide or 13 additional information that I may require it to provide in the 14 future, it's possible that would lead to a dismissal of all 15 the charges against you. In view of that, do you agree at 16 this time that you will not require the government to produce 17 any additional information? 18 THE DEFENDANT: Let me talk to my lawyer. 19 THE COURT: Yes. 20 THE DEFENDANT: Yes, it's okay. 21 THE COURT: The next sentence in paragraph 9 states 22 that you, Dr. Lee, agree -- 23 MR. STAMBOULIDIS: Your Honor, your last question I 24 think was fine, but I think it just should be made clear that 25 paragraph 9, the first sentence, also includes that not only
27 1 will he not require, as you put it to him and he understood 2 that, but he is waiving any right and cannot complain later 3 about any lack of disclosure. 4 THE COURT: Do you agree with that refinement of my 5 question, Dr. Lee? 6 THE DEFENDANT: Yes. Yes. 7 THE COURT: The last sentence of paragraph 9 states 8 that Dr. Lee agrees, with respect to all charges in the 9 indictment, that he is not a prevailing party within the 10 meaning of the Hyde Amendment, which is Section 617 Public Law 11 105-119, which became effective November 26th, 1997. 12 The Hyde Amendment, Dr. Lee, gives persons charged 13 with crimes by the United States government the opportunity to 14 seek monetary reimbursement if it's determined that the 15 charges were frivolous or not properly brought. 16 By this provision of the agreement, you are agreeing 17 that you would not be considered a prevailing party on any of 18 the counts, including the 58 counts that will be dismissed, in 19 order to afford you rights under the Hyde Amendment. 20 Have you agreed to that, sir? 21 THE DEFENDANT: Excuse me. Can I talk to my lawyer, 22 please? 23 THE COURT: Yes, you may. 24 THE DEFENDANT: Yes. 25 THE COURT: You have knowingly given up those rights
28 1 under the Hyde Amendment; is that correct, sir? 2 THE DEFENDANT: Yes, that is correct. 3 THE COURT: The next part of the plea agreement 4 relates to the government's additional agreements. 5 Paragraph 10 provides that if Dr. Lee fulfills his 6 obligations as set forth in this plea agreement, the United 7 States at the time of sentencing will move to dismiss with 8 prejudice all remaining counts of the indictment as to 9 Dr. Lee. 10 Is that the government's agreement? 11 MR. STAMBOULIDIS: Yes, Your Honor. 12 THE COURT: Paragraph 11 provides that this agreement 13 is limited to the United States Attorney's Office for the 14 District of New Mexico and the United States Department of 15 Justice and does not bind any other federal, state or local 16 agencies or prosecuting authorities. 17 Do you understand that, Dr. Lee? 18 THE DEFENDANT: Yes. 19 THE COURT: And let me ask Dr. Lee's counsel, is it 20 possible that any other authority would be in a position to 21 prosecute Dr. Lee, as far as you're aware? 22 MR. CLINE: Not in our view. 23 THE COURT: Let me ask Mr. Stamboulidis, are you 24 aware of any other governmental entity that would be able to 25 prosecuted Dr. Lee?
29 1 MR. STAMBOULIDIS: Anything is possible, Judge, but 2 the agreement is the agreement. 3 THE COURT: Are you satisfied with this? Let me ask 4 counsel for Dr. Lee. 5 MR. CLINE: Yes, sir. 6 THE COURT: Mr. Holscher? 7 MR. HOLSCHER: Yes, Your Honor. We're satisfied, and 8 we have absolute confidence that if something were to arise we 9 would take care of it. 10 THE COURT: The last sentence of paragraph 11 states 11 that this agreement may in no way be relied upon or cited as 12 precedent by anyone not a party to this agreement. 13 Has the government agreed to that, Mr. Stamboulidis? 14 MR. STAMBOULIDIS: Yes, Judge. 15 THE COURT: As I understand this, it's not a matter 16 of concern to Dr. Lee. Is that correct? 17 MR. CLINE: We don't care. 18 THE COURT: Paragraph 12 is entitled Voluntary Plea. 19 It states that Dr. Lee agrees and represents that this plea of 20 guilty is freely and voluntarily made and not the result of 21 force or threats or promises apart from those set forth in 22 this plea agreement. 23 Is that the correct, Dr. Lee? 24 THE DEFENDANT: Yes. 25 THE COURT: I want to make certain that your plea is
30 1 truly voluntary and that you're not intending to plead guilty 2 solely in an effort to get out of jail. I want to make 3 certain that you're pleading guilty because you truly are 4 representing that you are guilty of the offense charged in 5 Count 57. 6 Do you understand that, sir? 7 THE DEFENDANT: Yes. 8 THE COURT: Has anyone threatened you or tried to 9 force you to plead guilty? 10 THE DEFENDANT: No. 11 THE COURT: Has anyone made any promises to you that 12 are different from the promises set forth in writing in your 13 plea agreement? 14 THE DEFENDANT: The answer is no, nobody did. 15 THE COURT: Are you pleading guilty in any way 16 because you feel that you are under duress? 17 THE DEFENDANT: No. 18 THE COURT: I need to explain further to you, because 19 I don't think I did this fully, that I have reviewed a great 20 deal of information that I required the government to provide 21 to me in this case that has not been seen by you or by your 22 lawyers. 23 Under the terms of this agreement, that information 24 probably will never be made known to you or your lawyers. I 25 want to make certain that you are agreeing to go forward with
31 1 this plea agreement, knowing that. 2 THE DEFENDANT: Yes. 3 THE COURT: I need to advise you, Dr. Lee, that 4 citizens who are convicted of felony crimes lose rights of 5 citizenship. Those include the right to hold public office, 6 the right to serve on a jury, the right to possess a weapon 7 and the right to vote. You will be giving up your right to 8 cast a ballot that would express your opinion of what was done 9 to you. 10 Do you understand that fully? 11 THE DEFENDANT: Yes. 12 THE COURT: Do you have any questions you want to ask 13 me about your loss of citizenship rights? 14 THE DEFENDANT: No. 15 THE COURT: I will be required to sentence you under 16 the United States Sentencing Guidelines, even though this is a 17 sentence that will be imposed in accordance with your 18 agreement under Rule 11(e)(1)(C). 19 I will be required under this agreement to impose a 20 sentence of 278 days. Is that correct? 21 MR. CLINE: Yes. 22 MR. HOLSCHER: Yes, sir. 23 THE COURT: I must also make a finding of guilt as to 24 the felony crime charged in Count 57. 25 Do you understand that, sir?
32 1 THE DEFENDANT: Yes. 2 THE COURT: In making a decision as to whether I 3 should accept your plea of guilty, under the guidelines, I 4 must take into account all relevant information about you. 5 Do you understand that? 6 THE DEFENDANT: Yes. 7 THE COURT: Dr. Lee, do you fully understand all of 8 the consequences to you of pleading guilty to Count 57? 9 THE DEFENDANT: Yes. 10 THE COURT: Let me ask Mr. Holscher and Mr. Cline, do 11 you believe it's in the best interest of your client, Dr. Lee, 12 to plead guilty to the charge in Count 57 under the terms of 13 this plea agreement? 14 MR. CLINE: Yes, Your Honor. 15 MR. HOLSCHER: We do, Your Honor. We believe that, 16 given the opportunity to have a sentence of time served in 17 exchange for an agreement as to what I believe the evidence 18 shows that Dr. Lee did in terms of taking a file outside the X 19 Division, is appropriate. 20 There are 39 counts in the indictment, Your Honor, 21 that have a potential sentence of life in prison. We fully 22 explained to Dr. Lee the jury process and the potential 23 vagaries of such a process. We believe it is in Dr. Lee's 24 best interest to accept this plea and disposition. 25 THE COURT: Both of you and the other attorneys on
33 1 Dr. Lee's team are outstanding trial lawyers. You turned a 2 battleship in this case. I would think that at a trial, you 3 would be extremely effective in his defense. 4 Knowing all that you know, it's still your considered 5 judgment that it is in his best interest to proceed with a 6 plea of guilty to the felony charge in Count 57. Is that 7 correct? 8 MR. HOLSCHER: Yes, Your Honor. Under the 9 guidelines, absent an agreement, the way the indictment is 10 charged, there is a potential of a guideline sentence of eight 11 years if there were additional factors added. So in other 12 words, if we were to go to trial and prevail on 58 of 59 13 counts and lose on the 57th, there is a possibility of a much 14 longer sentence under the guidelines as they would apply to 15 the way that the case was charged. 16 In addition, if we were to go forward, there is a 17 likelihood of either Dr. Lee being in detention or under the 18 17 conditions of house arrest pending the completion of trial 19 rather than the current conditions. 20 So our evaluation, Your Honor, is that there is a 21 factual basis to Count 57 that Dr. Lee is agreeable and, under 22 the proper conditions, has been agreeable to provide the 23 information the government may seek and that this is in his 24 best interest. 25 For us, as trial lawyers, to seek a trial and put at
34 1 risk Dr. Lee to any potential of what we would view as an 2 unfair jury verdict on any of the counts is just not an 3 acceptable risk for Dr. Lee. We don't believe that is in his 4 interest. 5 THE COURT: Let me ask counsel for the government to 6 explain why the government considers this plea agreement to be 7 in the best interest of the people of this nation. 8 MR. STAMBOULIDIS: Yes, Your Honor. There are 9 various critical components of this plea disposition and 10 agreement. I will highlight two of them that bring home the 11 point of why this disposition and agreement is in the best 12 interest of our nation and the United States. 13 The plea and cooperation agreement gives us the best 14 chance to find out with confidence precisely what happened to 15 the classified materials and data that the defendant 16 down-partitioned and downloaded on to unsecured tapes. As it 17 has been clear throughout this prosecution, for national 18 security reasons, the location and fate of the tapes was 19 always our transcending concern. 20 Moreover, this agreement allows us to fully explore 21 with the defendant, through his cooperation as set forth in 22 the agreement that you just reviewed with him, under oath, all 23 national security concerns implicated by his conduct. 24 Had this case proceeded to trial and resulted in a 25 conviction on all counts, the defendant might have faced many
35 1 years in prison, but we might never have learned exactly what 2 happened to those tapes. 3 Whereas, under the terms of his cooperation 4 agreement, at great consequence to the defendant should he be 5 anything less than truthful, the government will have the 6 means to test the veracity of the defendant's sworn assurances 7 that he never in any way intended harm to our nation or in any 8 way passed, disclosed or allowed access to the tapes and in 9 fact destroyed them so that they could never compromise our 10 national security. 11 Conviction after trial would, not alone, protect the 12 nation to the degree that this disposition does here today, by 13 putting us in the best possible position to determine the fate 14 of the nuclear weapons classified restricted data that the 15 defendant had mishandled unlawfully. This guilty plea 16 disposition, under the strict terms of the cooperation 17 agreement, puts us in that optimal position. 18 The second component is that this disposition is a 19 series felony and in itself carries all that that implies, as 20 a deterrent to others who are entrusted to work on our nuclear 21 weapon design codes and to safeguard them in the process. 22 It's a deterrent that they not violate that sacred oath and 23 trust for any reason, as unfortunately happened here. 24 Finally this disposition avoids the public 25 dissemination of certain nuclear secrets which would have
36 1 necessarily occurred on the way towards proceeding towards 2 conviction in this case at trial. So for this and other 3 reasons, this disposition is in our nation's best interest. 4 Thank you. 5 THE COURT: Mr. Stamboulidis, it may be unfair of me 6 to ask you this question. You were not in this case from the 7 beginning, and I acknowledge that. But if you can answer it, 8 I would like to know why the government argued so vehemently 9 that Dr. Lee's release earlier would have been an extreme 10 danger to the government when at this time he, under the 11 agreement, will be released without any restrictions. 12 MR. STAMBOULIDIS: Your Honor, the answer is simple, 13 and I can answer it no matter when I came into the case. 14 The circumstances are dramatically different as we 15 stand here today than they were even as we were filing before 16 the Tenth Circuit just a week or so ago. The circumstances 17 here today we have already, through this cooperation process, 18 received sworn assurances and other assurances from this 19 defendant, as well as his counsel, and will continue to do so 20 over the course of the next year throughout his cooperation. 21 Those assurances come, for the first time, at great 22 risk and consequence to this defendant should they be anything 23 less than truthful. He will be facing a whole world of 24 problems a lot worse than just that indictment that he was 25 facing should he be untruthful.
37 1 With those powerful incentives, he has come forward 2 and, for the first time, given us these assurances that he 3 never intended any harm to our nation by his mishandling these 4 materials in an unlawful way and that he never allowed them to 5 fall into harm's way and compromise national security. 6 We stand by, as we always did and will, to the 7 sensitivity, the great degree of sensitivity, of the materials 8 that he down-partitioned and downloaded. And those materials 9 alone, no matter who was standing in the defendant's position, 10 having compromised them in the way he did, do threaten, as we 11 have said in the past, millions of lives, if they fall into 12 the wrong hands. 13 This defendant has proceeded, under oath, to give us 14 assurances that that is not the case and has put us in the 15 best possible position for the first time, unlike all the 16 other times when we were addressing detention. So 17 circumstances have dramatically changed, and that is a simple 18 answer. 19 THE COURT: Throughout this case, the government has 20 repeatedly questioned the veracity of Dr. Lee. You're saying 21 now, simply because he has given a statement under oath, the 22 government no longer believes he is a threat to national 23 security? 24 MR. STAMBOULIDIS: Your Honor, what I said I can 25 repeat, but what I said is it's not simply that, Judge. It's
38 1 not simply that he has given a statement under oath. It's 2 that he has agreed to cooperate in ways that anyone who is in 3 intent on lying to the government would do so at great 4 personal risk and would be far worse off than he was under the 5 existing indictment. 6 There are powerful incentives built into this 7 cooperation agreement for him to be truthful. And like many 8 cooperation agreements, whenever you have a cooperator, they 9 have committed crimes. They have decided to try and get 10 themselves on the right side of the law. They are 11 remorseful. They accepted the responsibility. You build in 12 powerful incentives to the cooperation agreement such that 13 they wouldn't dare lie to you, or if they did so, it would be 14 with far greater consequences. 15 THE COURT: Thank you, Mr. Stamboulidis. 16 MR. STAMBOULIDIS: Sure, Your Honor. 17 THE COURT: At this time I will ask Dr. Lee, how do 18 you plead, sir, to the charge in Count 57 of the indictment, 19 guilty or not guilty? 20 THE DEFENDANT: Guilty. 21 THE COURT: It's my finding that the defendant, 22 Dr. Wen Ho Lee, knowingly, voluntarily and intelligently 23 entered a plea of guilty to the felony charge in Count 57 of 24 the indictment. 25 At this time I will accept his plea of guilty under
39 1 the terms of his plea agreement. In doing so, I am bound by 2 the agreement made between the United States and Dr. Lee to 3 impose a sentence agreed to under Rule 11(e)(1)(C). 4 My understanding is that you wish to proceed to final 5 disposition at this time. Is that correct? 6 MR. CLINE: Yes, Your Honor. 7 THE COURT: Do we need to take a break for Dr. Lee to 8 provide the declaration to counsel for the government? 9 MR. CLINE: I will provide it right now. 10 MR. STAMBOULIDIS: Your Honor, I am going to read 11 this declaration, but I also need to go across the hall for an 12 unrelated reason. 13 THE COURT: I understand that. We will take a 14 five-minute recess in just a second. 15 Let me ask first, do Dr. Lee and his counsel agree to 16 waive the preparation of a full standard presentence report? 17 MR. CLINE: Yes, Your Honor. We have executed a 18 written waiver. 19 MR. STAMBOULIDIS: We similarly waive, Your Honor, 20 the execution of a full standard presentence report. We would 21 ask again that you make the findings under Rule 32(b)(1)(A) 22 with the explanation under (b)(1)(B). 23 THE COURT: Let me state that our outstanding 24 Probation Department did prepare in this case what is called a 25 Modified Guideline Presentence Report. During this short
40 1 break, I would appreciate counsel for Dr. Lee and Dr. Lee 2 reviewing that. Has the government already reviewed it? 3 MR. STAMBOULIDIS: Yes, we have, Judge. 4 THE COURT: We will be in recess at this time for 5 five minutes. 6 (Recess taken.) 7 THE COURT: Please have a seat. Let me ask first 8 Mr. Stamboulidis, have you had an opportunity to review the 9 declaration provided by Dr. Lee? 10 MR. STAMBOULIDIS: Yes, Your Honor. Thank you for 11 both opportunities that you just gave me. 12 THE COURT: Are there any concerns about the 13 declaration at this time? 14 MR. STAMBOULIDIS: No, Your Honor. 15 THE COURT: Next let me ask Dr. Lee, have you read 16 the Modified Guideline Presentence Report? 17 THE DEFENDANT: Yes, I did. 18 THE COURT: Have you discussed it with your 19 attorneys? 20 THE DEFENDANT: Yes. 21 THE COURT: Are all of the factual statements in the 22 report correct? 23 THE DEFENDANT: Well, except my age. It says I'm 24 58. I am 60. But I like that number. 25 THE COURT: Well, I bet the probation officer, as I
41 1 do, think you look younger than 60. We will correct that on 2 the first page to age 60. 3 Are there any other corrections to be made in the 4 Modified Guideline Presentence Report? 5 THE DEFENDANT: No. Everything is correct. 6 THE COURT: Let me ask counsel for Dr. Lee, is there 7 any need for an evidentiary hearing on any of the factual 8 statements? 9 MR. HOLSCHER: No, Your Honor, We waive any such 10 hearing. 11 THE COURT: At this time, I will adopt as factual 12 findings of the Court all of the factual statements in 13 Dr. Lee's Modified Guideline Presentence Report. 14 I have reviewed a number of written materials in this 15 case, as you know. Are there any specific additional ones 16 that I should review in connection with sentencing? 17 MR. CLINE: No, Your Honor. 18 THE COURT: The presentence report indicates that the 19 total offense level computed under the United States 20 Sentencing Guidelines Manual is 21. The criminal history 21 category is one. The guideline imprisonment range would be 37 22 to 41 months for this offense before application of the Rule 23 11(e)(1)(C) agreement. 24 Are you in agreement with that? 25 MR. CLINE: Yes. Before application of the
42 1 agreement, yes, Your Honor. 2 THE COURT: Mr. Stamboulidis, do you agree with that 3 computation? 4 MR. STAMBOULIDIS: I came in a little lower, but 5 yeah, for our purposes, I think it's fine. 6 THE COURT: The presentence report indicates the 7 subtraction of three offense levels for acceptance of 8 responsibility, resulting in a total offense level of 21. 9 Is that agreeable to you? 10 MR. STAMBOULIDIS: May I have one moment, Judge? 11 THE COURT: Yes. 12 MR. STAMBOULIDIS: Yes, there are 21. 13 THE COURT: Let me ask at this time if counsel for 14 Dr. Lee would like to make a statement on his behalf relating 15 to sentencing? 16 MR. CLINE: Your Honor, I think we are prepared to go 17 forward. 18 THE COURT: Dr. Lee, is there anything you would like 19 to say at this time? 20 THE DEFENDANT: No. 21 THE COURT: Mr. Stamboulidis, is there anything you 22 would like to say on behalf of the government? 23 MR. STAMBOULIDIS: No, Judge. Thank you for the 24 opportunity. 25 THE COURT: I will state a proposed sentence, and you
43 1 may comment on this. 2 Now that Dr. Lee has entered a plea of guilty to 3 Count 57 of the indictment and I have accepted his plea under 4 the terms of his plea agreement, I will proceed to 5 sentencing. 6 As the parties have agreed that I have extensive 7 familiarity with the defendant's personal history and conduct, 8 the preparation of a full presentence report is waived and 9 unnecessary. A modified report was prepared for purposes of 10 establishing a guideline range. The paries have no objection 11 to the report and the proposed guideline range. 12 The total offense level is 21. The criminal history 13 category is one. The guideline imprisonment range under 14 United States Sentencing Guidelines is 37 to 41 months; 15 however, I have accepted the parties' agreement made under 16 Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure 17 which includes a specific sentence of 278 days of 18 incarceration, the time Dr. Lee has already served. I am 19 satisfied that the agreed sentence departs for justifiable 20 reasons. 21 It is the judgment of the Court as to Count 57 of the 22 indictment and Rule 11(e)(1)(C) of the Federal Rules of 23 Criminal Procedure that the defendant, Wen Ho Lee, is 24 committed to the custody of the Bureau of Prisons to be 25 imprisoned for a term of time served, 278 days.
44 1 It is further ordered that the defendant will be 2 given credit for time spent in official detention in 3 connection with this case in accordance with 18 United States 4 Code Section 3585. 5 A term of supervised release will not be imposed. I 6 will not impose a fine. I will not impose restitution. The 7 defendant, however, must pay a special penalty assessment of 8 $100, which he has already done. 9 Under the terms of the plea agreement, the defendant, 10 Dr. Lee, knowingly waived his right to appeal the sentence I 11 have imposed. He has also waived his right to challenge that 12 sentence in a collateral manner. 13 Let me ask Mr. Stamboulidis, do you have any comments 14 on that proposed sentence? 15 MR. STAMBOULIDIS: I am fine with it, Judge. 16 THE COURT: Mr. Cline and Mr. Holscher, do you have 17 any comments on that proposed sentence? 18 MR. CLINE: Your Honor, I believe it confirms with 19 the agreement. 20 THE COURT: Is there any reason why the sentence as I 21 just announced it should not be imposed at this time? 22 MR. CLINE: No, Your Honor. 23 MR. STAMBOULIDIS: No, Judge. 24 THE COURT: It's my order that the sentence as I 25 stated it will be the sentence imposed in this case.
45 1 Mr. Stamboulidis, at this time do you want to make a 2 motion? 3 MR. STAMBOULIDIS: I want to make a couple, Judge. 4 First I would like to -- as we discussed earlier, in one of 5 the earlier sessions here in open court, I, at this time, 6 would move to withdraw all pending motions that we have, on 7 behalf of the government. 8 THE COURT: That motion by the government will be 9 granted. The order will be that all of the pending motions 10 will be denied as moot. 11 Let me ask counsel for Dr. Lee, do you want to make a 12 similar motion at this time? 13 MR. CLINE: Yes, Your Honor. We will move to 14 withdraw all pending motions. 15 THE COURT: That motion will also be granted. 16 MR. STAMBOULIDIS: I have a second motion, Judge. 17 THE COURT: Go ahead. 18 MR. STAMBOULIDIS: Thank you. At this time we move 19 to dismiss -- pursuant to the terms and conditions of the plea 20 and disposition agreement between the United States and the 21 defendant, Dr. Wen Ho Lee, to dismiss with prejudice Counts 1 22 through 56, 58 and 59 in the above-captioned indictment. 23 I have signed it. I have only one copy of it. I am 24 serving it on counsel. I am going to hand it to you with an 25 order of dismissal, a proposed order.
46 1 THE COURT: Let me ask counsel for Dr. Lee, is the 2 form of the order of dismissal acceptable to you? 3 MR. CLINE: Your Honor, to tell you the truth, I 4 didn't see the order itself. But if it dismisses with 5 prejudice the counts, I think that's fine. Yes, Your Honor. 6 THE COURT: I have signed the order of dismissal of 7 Counts 1 through 56, 58 and 59. At this time I will also sign 8 the judgment which sets forth the sentence that was imposed. 9 In addition, I will sign a minute order that orders that the 10 defendant, Wen Ho Lee, be released from the custody of the 11 United States Marshal Service forthwith. 12 MR. STAMBOULIDIS: Your Honor, to facilitate that as 13 well, the United States has filed -- I have just signed and we 14 will file a motion to dismiss our pending appeal and withdraw 15 our notice of appeal. I have given a copy to Miss Hollander, 16 who is going to fax it immediately to where it has got to be 17 in the Tenth Circuit. 18 THE COURT: Thank for you clearing up that detail, 19 Mr. Stamboulidis. 20 MR. STAMBOULIDIS: Certainly. 21 THE COURT: At this time I want to compliment Judge 22 Edward Leavy, who was the mediator judge in this case and who 23 has continuing potential obligations under the terms of the 24 plea agreement. I have never personally met Judge Leavy. I 25 recognize him in the audience, simply by having looked at a
47 1 photograph of his in the Almanac of Federal Judges. 2 Judge Leavy, would you mind standing so all will know 3 who you are. 4 THE HONORABLE EDWARD LEAVY: Thank you very much. 5 THE COURT: Judge Leavy has worked extremely hard in 6 this case. He has been very diligent in assisting the 7 mediation efforts. I was informed that he flew back to 8 Albuquerque from his home in Portland, Oregon yesterday, late 9 yesterday, and then met late into the night with the lawyers 10 and Dr. Lee in an effort to revive the plea agreement. We all 11 owe him our gratitude. I want to say personally that I am 12 both proud and honored to be his colleague in the Federal 13 Judiciary. 14 I need to ask counsel if there are any other matters 15 that they want to bring up before I make a statement? 16 MR. CLINE: No, Your Honor. 17 MR. STAMBOULIDIS: No, Judge. Thank you. We share 18 your comments about Judge Leavy, as I am sure my colleagues 19 do. 20 MR. HOLSCHER: We would like to, again, thank Judge 21 Leavy, Your Honor. He was of tremendous help and had 22 tremendous patience.
23 THE COURT: Dr. Lee, you have pled guilty to a 24 serious crime. It's a felony offense. For that, you deserved 25 to be punished. In my opinion, you have been punished
48 1 harshly, both by the severe conditions of pretrial confinement 2 and by the fact that you have lost valuable rights as a 3 citizen. 4 Under the laws of our country, a person charged in 5 Federal Court with commission of a crime normally is entitled 6 to be released from jail until that person is tried and 7 convicted. Congress expressed in the Bail Reform Act its 8 distinct preference for pretrial release from jail and 9 prescribed that release on conditions be denied to a person 10 charged with a crime only in exceptional circumstances. 11 The Executive Branch of the United States Government 12 has until today actually, or just recently, vigorously opposed 13 your release from jail, even under what I had previously 14 described as Draconian conditions of release. 15 During December 1999, the then United States 16 Attorney, who has since resigned, and his Assistants presented 17 me, during the three-day hearing between Christmas and New 18 Year's Day, with information that was so extreme it convinced 19 me that releasing you, even under the most stringent of 20 conditions, would be a danger to the safety of this nation. 21 The then United States Attorney personally argued vehemently 22 against your release and ultimately persuaded me not to 23 release you. 24 In my opinion and order that was entered December 30, 25 1999, I stated the following: "With a great deal of concern
49 1 about the conditions under which Dr. Lee is presently being 2 held in custody, which is in solitary confinement all but one 3 hour of the week, when he is permitted to visited his family, 4 the Court finds, based on the record before it, that the 5 government has shown by clear and convincing evidence that 6 there is no combination of conditions of release that would 7 reasonably assure the safety of any other person and the 8 community or the nation." 9 After stating that in the opinion, I made this 10 request in the opinion right at the end: "Although the Court 11 concludes that Dr. Lee must remain in custody, the Court urges 12 the government attorneys to explore ways to lessen the severe 13 restrictions currently imposed upon Dr. Lee while preserving 14 the security of sensitive information." 15 I was very disappointed that my request was not 16 promptly heeded by the government attorneys. 17 After December, your lawyers developed information 18 that was not available to you or them during December. And I 19 ordered the Executive Branch of the government to provide 20 additional information that I reviewed, a lot of which you and 21 your attorneys have not seen. 22 With more complete, balanced information before me, I 23 felt the picture had changed significantly from that painted 24 by the government during the December hearing. Hence, after 25 the August hearing, I ordered your release despite the
50 1 continued argument by the Executive Branch, through its 2 government attorneys, that your release still presented an 3 unacceptable extreme danger. 4 I find it most perplexing, although appropriate, that 5 the Executive Branch today has suddenly agreed to your release 6 without any significant conditions or restrictions whatsoever 7 on your activities. I note that this has occurred shortly 8 before the Executive Branch was to have produced, for my 9 review in camera, a large volume of information that I 10 previously ordered it to produce. 11 From the beginning, the focus of this case was on 12 your motive or intent in taking the information from the 13 secure computers and eventually downloading it on to tapes. 14 There was never really any dispute about your having done 15 that, only about why you did it. 16 What I believe remains unanswered is the question: 17 What was the government's motive in insisting on your being 18 jailed pretrial under extraordinarily onerous conditions of 19 confinement until today, when the Executive Branch agrees that 20 you may be set free essentially unrestricted? This makes no 21 sense to me. 22 A corollary question I guess is: Why were you 23 charged with the many Atomic Energy Act counts for which the 24 penalty is life imprisonment, all of which the Executive 25 Branch has now moved to dismiss and which I just dismissed?
51 1 During the proceedings in this case, I was told two 2 things: first, the decision to prosecute you was made at the 3 highest levels of the Executive Branch of the United States 4 Government in Washington, D.C. 5 With respect to that, I quote from a transcript of 6 the August 15, 2000 hearing, where I asked this question. 7 This was asked of Dr. Lee's lawyers. 8 "Who do you contend made the decision to 9 prosecute?" 10 Mr. Holscher responded, "We know that the decision 11 was made at the highest levels in Washington. We know that 12 there was a meeting at the White House the Saturday before the 13 indictment, which was attended by the heads of a number of 14 agencies. I believe the number two and number three persons 15 in the Department of Justice were present. I don't know if 16 the Attorney General herself was present. It was actually 17 held at the White House rather than the Department of Justice, 18 which is, in our view, unusual circumstances for a meeting." 19 That statement by Mr. Holscher was not challenged. 20 The second thing that I was told was that the 21 decision to prosecute you on the 39 Atomic Energy Act, each of 22 which had life imprisonment as a penalty, was made personally 23 by the President's Attorney General. In that respect, I will 24 quote one of the Assistant U.S. Attorney's, a very fine 25 attorney in this case -- this was also at the August 15th
52 1 hearing. 2 This is talking about materials that I ordered to be 3 produced in connection with Dr. Lee's motion relating to 4 selective prosecution. The first category of materials 5 involved the January 2000 report by the Department of Energy 6 Task Force on racial profiling. 7 "How would that in any way disclose prosecutorial 8 strategy?" 9 Miss Fashing responded, "That I think falls more into 10 the category of being burdensome on the government. I mean if 11 the government -- if we step back for just a second -- I mean 12 the prosecution decision and the investigation in this case, 13 the investigation was conducted by the FBI, referred to the 14 United States Attorney's Office, and then the United States 15 Attorney's Office, in conjunction with -- well, actually the 16 Attorney General, Janet Reno, made the ultimate decision on 17 the Atomic Energy Act counts." 18 Dr. Lee, you're a citizen of the United States and so 19 am I, but there is a difference between us. You had to study 20 the Constitution of the United States to become a citizen. 21 Most of us are citizens by reason of the simple serendipitous 22 fact of our birth here. So what I am now about to explain to 23 you, you probably already know from having studied it, but I 24 will explain it anyway. 25 Under the Constitution of the United States, there
53 1 are three branches of government. There is the Executive 2 Branch, of which the President of the United States is the 3 head. Next to him is the Vice-president of the United 4 States. The President operates the Executive Branch with his 5 cabinet, which is composed of secretaries or heads of the 6 different departments of the Executive Branch. The 7 Vice-president participates in cabinet meetings. 8 In this prosecution, the more important members of 9 the President's cabinet were the Attorney General and the 10 Secretary of the Department of Energy, both of whom were 11 appointed to their positions by the President. 12 The Attorney General is the head of the United States 13 Department of Justice, which despite its title, is a part of 14 the Executive Branch, not a part of the Judicial Branch of our 15 government. 16 The United States Marshal Service, which was charged 17 with overseeing your pretrial detention, also is a part of the 18 Executive Branch, not the Judicial Branch. 19 The Executive Branch has enormous power, the abuse of 20 which can be devastating to our citizens. 21 The second branch of our national government is the 22 Legislative Branch, our Congress. Congress promulgated the 23 laws under which you were prosecuted, the criminal statutes. 24 And it also promulgated the Bail Reform Act, under which in 25 hindsight you should not have been held in custody.
54 1 The Judicial Branch of government, of which I am a 2 member, is called the Third Branch of government because it's 3 described in Article III of our Constitution. 4 Judges must interpret the laws and must preside over 5 criminal prosecutions brought by the Executive Branch. Since 6 I am not a member of the Executive Branch, I cannot speak on 7 behalf of the President of the United States, the 8 Vice-president of the United States, their Attorney General, 9 their Secretary of the Department of Energy or their former 10 United States Attorney in this District, who vigorously 11 insisted that you had to be kept in jail under extreme 12 restrictions because your release pretrial would pose a grave 13 threat to our nation's security. 14 I want everyone to know that I agree, based on the 15 information that so far has been made available to me, that 16 you, Dr. Lee, faced some risk of conviction by a jury if you 17 were to have proceeded to trial. Because of that, I decided 18 to accept the agreement you made with the United States 19 Executive Branch under Rule 11(e)(1)(C) of the Federal Rules 20 of Criminal Procedure. 21 Further, I feel that the 278 days of confinement for 22 your offense is not unjust; however, I believe you were 23 terribly wronged by being held in custody pretrial in the 24 Santa Fe County Detention Center under demeaning, 25 unnecessarily punitive conditions. I am truly sorry that I
55 1 was led by our Executive Branch of government to order your 2 detention last December. 3 Dr. Lee, I tell you with great sadness that I feel I 4 was led astray last December by the Executive Branch of our 5 government through its Department of Justice, by its Federal 6 Bureau of Investigation and by its United States Attorney for 7 the District of New Mexico, who held the office at that time. 8 I am sad for you and your family because of the way 9 in which you were kept in custody while you were presumed 10 under the law to be innocent of the charges the Executive 11 Branch brought against you. 12 I am sad that I was induced in December to order your 13 detention, since by the terms of the plea agreement that frees 14 you today without conditions, it becomes clear that the 15 Executive Branch now concedes, or should concede, that it was 16 not necessary to confine you last December or at any time 17 before your trial. 18 I am sad because the resolution of this case drug on 19 unnecessarily long. Before the Executive Branch obtained your 20 indictment on the 59 charges last December, your attorney, 21 Mr. Holscher, made a written offer to the Office of the United 22 States Attorney to have you explain the missing tapes under 23 polygraph examination. 24 I'll read from that letter of December 10, 1999. 25 I quote from that letter: "Dear United States
56 1 Attorney Kelly and First Assistant Gorence, 2 "I write to accept Mr. Kelly's request that we 3 provide them with additional credible and verifiable 4 information which will prove that Dr. Lee is innocent. 5 "On the afternoon of Wednesday, December 8th, 6 Mr. Kelly informed me that it was very likely that Dr. Lee 7 will be indicted within the next three to four business days. 8 In our phone conversation, Mr. Kelly told me that the only way 9 that we could prevent this indictment would be to provide a 10 credible and verifiable explanation of what he described as 11 missing tapes. 12 "We will immediately provide this credible and 13 verifiable explanation. Specifically we are prepared to make 14 Dr. Lee immediately available to a mutually agreeable 15 polygraph examiner to verify our repeated written 16 representations that at no time did he mishandle those tapes 17 in question and to confirm that he did not provide the tapes 18 to any third party. 19 "As a sign of our good faith, we will agree to 20 submit Dr. Lee to the type of polygraph examination procedure 21 that has recently been instituted at the Los Alamos Laboratory 22 to question scientists. It is our understanding that the 23 government has reaffirmed that this new polygraph procedure is 24 the best and most accurate way to verify that scientists are 25 properly handling classified information."
57 1 At the inception of the December hearing, I asked the 2 parties to pursue that offer made by Mr. Holscher on behalf of 3 Dr. Lee, but that was to no avail. 4 MR. STAMBOULIDIS: Your Honor, most respectfully I 5 take issue with that. There has been a full record of letters 6 that were sent back and forth to you, and Mr. Holscher 7 withdrew that offer. 8 THE COURT: Nothing came of it, and I was saddened by 9 the fact that nothing came of it. I did read the letters that 10 were sent and exchanged. I think I commented one time that I 11 think both sides prepared their letters primarily for use by 12 the media and not by me. Notwithstanding that, I thought my 13 request was not taken seriously into consideration. 14 Let me turn for the moment to something else. 15 Although I have indicated that I am sorry that I was led by 16 the Executive Branch to order your detention last December, I 17 want to make a clarification here. In fairness, I must note 18 that virtually all of the lawyers who work for the Department 19 of Justice are honest, honorable, dedicated people, who 20 exemplify the best of those who represent our Federal 21 Government. 22 Your attorney, Mr. Holscher, formerly was an 23 Assistant United States Attorney. The new United States 24 Attorney for the District of New Mexico, Mr. Norman Bay, and 25 the many Assistant United States Attorneys here in New Mexico
58 1 -- and I include in this Mr. Stamboulidis and Mr. Liebman, 2 who are present here today -- have toiled long hours on this 3 case in opposition to you. They are all outstanding members 4 of the Bar, and I have the highest regard for all of them. 5 It is only the top decision makers in the Executive 6 Branch, especially the Department of Justice and the 7 Department of Energy and locally, during December, who have 8 caused embarrassment by the way this case began and was 9 handled. They did not embarrass me alone. They have 10 embarrassed our entire nation and each of us who is a citizen 11 of it. 12 I might say that I am also sad and troubled because I 13 do not know the real reasons why the Executive Branch has done 14 all of this. We will not learn why because the plea agreement 15 shields the Executive Branch from disclosing a lot of 16 information that it was under order to produce that might have 17 supplied the answer. 18 Although, as I indicated, I have no authority to 19 speak on behalf of the Executive Branch, the President, the 20 Vice-president, the Attorney General, or the Secretary of the 21 Department of Energy, as a member of the Third Branch of the 22 United States Government, the Judiciary, the United States 23 Courts, I sincerely apologize to you, Dr. Lee, for the unfair 24 manner you were held in custody by the Executive Branch. 25 Court will be in recess.
59 1 REPORTER'S CERTIFICATE 2 3 I, PAUL BACA, a court reporter for the United 4 States, do hereby certify that I reported the foregoing case 5 in stenographic shorthand and transcribed, or had the same 6 transcribed under my supervision and direction, the foregoing 7 matter and that the same is a true and correct record of the 8 proceedings had at the time and place. 9 I FURTHER CERTIFY that I am neither employed by nor 10 related to any of the parties or attorneys in this case, and 11 that I have no interest whatsoever in the final disposition of 12 this case in any court. 13 WITNESS MY HAND this 13th day of September, 2000. 14 15 16 17 18 19 20 Official Court Reporter 21 22 23 24 25