UNITED STATES v. MALLORY (2020)

ORDER

At issue in this Espionage Act ¹ case, are defendant's notice pursuant to § 5(a) of the Classified Information Procedures Act ² (“CIPA”), and the government's motions pursuant to CIPA §§ 6(a) and 6(c).

I.

On July 27, 2017, defendant Kevin Patrick Mallory was indicted by a federal grand jury on four counts: (i) conspiring to deliver national defense information (“NDI”) to aid a foreign government in violation of 18 U.S.C, § 794(c); (ii) delivering of NDI to aid a foreign government in violation of 18 U.S.C. § 794(a); (iii) attempting to deliver NDI to aid a foreign government in violation of 18 U.S.C. § 794(a); and (iv) making materially false statements to the FBI in violation of 18 U.S.C. § 1001(a)(2). Specifically, the Indictment alleges that defendant, who had worked for several years for both the Central Intelligence Agency (“CIA”) and the Defense Intelligence Agency (“DIA”), passed certain classified NDI belonging to the DIA to a Chinese Intelligence Officer (“IO”). On July 28, 2017, defendant entered a plea of not guilty and the case was set for trial.

On December 15, 2017, February 15, 2018, and February 23, 2018 defendant filed notices, pursuant to CIPA § 5(a), of his intent to use certain classified information to make his defense at trial. Defendant indicated in his § 5(a) notices that he plans to focus his defense primarily on the intent element of 18 U.S.C. § 794, which requires the government to prove beyond a reasonable doubt that defendant acted “with intent or reason to believe that [the information disclosed or that he intended to disclose] is to be used to the injury of the United States or to the advantage of a foreign nation. Defendant plans to use classified information to show that he did not intend to harm the United States in two ways. First, defendant plans to show that he believed the information he provided, or intended to provide, to China was worthless and that if he were truly financially motivated, as the government contends, he would have provided the much more valuable and highly sensitive information to which he had access. In other words, defendant argues that if defendant had been acting with the requisite intent, i.e. with the intent to harm the United States or to aid China, then defendant would have passed along the more important and sensitive information to Chinese nationals, instead of the relatively valueless information that he actually transmitted.

Defendant also plans to show that he did not intend to harm the United States by arguing that his communications were an effort to identify, and potentially to gather information from, suspected Chinese Intelligence Officers and that his tactics in providing them with worthless information were consistent with his previous training and experience in counterintelligence and human asset identification and recruitment. In this regard, defendant would like to show that the provision of certain actual or purportedly classified information to foreign agents is part of counterintelligence operations and that defendant acted in accordance with his training and experience when he transmitted what he believed to be essentially useless information to suspected Chinese intelligence operatives.

Given this defense, defendant noticed his intent to use the following sources of classified information at trial:

• The transcript of defendant's May 12, 2017 interview with the CIA (“May 12, 2017 Transcript”)

• Defendant's CIA biographic profile (“CIA Biographic Profile”)

• The last cable sent from the Tehran Embassy (“Tehran Cable”)

• The transcript of defendant's May 24, 2017 interview with the FBI (“May 24, 2017 Transcript”)

• The DIA Office of Inspector General (“OIG”) Report regarding defendant's mishandling of information in 2010 (“DIA OIG Report”)

• An email from Ralph Stephenson (“Stephenson”), a CIA employee (“Stephenson Email”)

• An email from Michael Dorsey (“Dorsey”), another CIA operative (“Dorsey Email”)

• Testimony of current and former CIA employees. including defendant. Stephenson, and [Redacted]

The government subsequently filed a notice of objection to defendant's proposed disclosures and a request for a hearing pursuant to CIPA § 6(a). The parties also filed briefs proposing substitutions for certain classified information pursuant to CIPA § 6(c). Hearings were held on March 9, 2018, March 30, 2018, and April 13, 2018 during which the Court made determination as to the admissibility of the classified information that defendant noticed and the adequacy of the proposed substitutions. This Order records those rulings and the reasons in support thereof.

II.

CIPA establishes the pretrial procedure for ruling on the admissibility of classified information at trial. Pursuant to CIPA § 5(a), a criminal defendant must notify the government and the court whether defendant expects to disclose classified information during trial or any pretrial proceedings. Defendant's notice must specifically set out the classified information defendant believes he or she will rely upon in his or her defense.

Once a defendant gives notice of his intention to introduce classified information, the government may request, pursuant to CIPA § 6(a), “a hearing to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding.” 18 U.S.C. App. 3, § 6(a). The Fourth Circuit has made clear that courts, in making rulings pursuant to § 6(a), must first determine whether the classified information is relevant under Rule 401, Fed. R. Evid. If the classified information is relevant, the court must then decide whether the evidence is “admissible in light of the applicable government privilege”—in this case, the classified information privilege. United States v. Smith, 780 F.2d 1102, 1110 (4th Cir. 1985) (en banc). In this regard, Fourth Circuit precedent demands that courts balance the “public interest in nondisclosure against the defendant's right to prepare a defense.” United States v. Fernandez, 913 F.2d 148, 154 (4th Cir. 1990) (quoting Smith, 780 F.2d at 1107). Ultimately, the public interest in nondisclosure is overcome and disclosure of the classified information must be authorized under § 6(a) if the classified information is “helpful to the defense of an accused or is essential to a fair determination of the cause.” Id. (quoting Smith, 780 F.2d at 1107).

But this does not end the inquiry. Once disclosure of classified information is authorized, CIPA § 6(c)(1) allows courts, upon the government's motion, to admit substitutions or summaries of the classified information that accommodate both the legitimate interest of the defendant in presenting his case and the government's interest protecting national security. Specifically, § 6(c)(1) provides that

(1) Upon any determination by the court authorizing the disclosure of specific classified information under the procedures established by this section, the United States may move that, in lieu of the disclosure of such specific classified information, the court order

(A) the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove; or

(B) the substitution for such classified information of a summary of the specific classified information․

The Fourth Circuit has explained that “the court shall grant the government's motion if the substitution will give the defendant substantially the same ability to make his defense as would the disclosure of the classified information.” Smith, 780 F.2d at 1105.

In sum, under CIPA § 6, a court must determine whether classified information noticed for use by the defense is relevant and helpful to the defense, and if so, whether a substitution or summary admitting the relevant fact will give the defendant substantially the same ability to make his defense.

III.

In his three § 5(a) filings, defendant noticed his intent to disclose the following sources of classified information at trial: (i) May 12, 2017 Transcript; (ii) CIA Biographic Profile; (iii) Tehran Cable; (iv) May 24, 2017 Transcript; (v) DIA OIG Report; (vi) Stephenson Email; (vii) Dorsey Email; and (viii) testimony of current and former CIA employees, including defendant, Stephenson, and [Redacted]. Each of these items is evaluated first to determine whether it is relevant and helpful to defendant's defense pursuant to CIPA § 6(a).

A. May 12, 2017 Transcript

The May 12th interview transcript records defendant's interview with the CIA and contains several pieces of classified information identified in exhibit D of the government's March 1, 2018 Brief. See Gov't Mar. 1, 2018 Br. Ex. D, The parties agree that several of the items identified in exhibit D, including items 11, 13, 16, 17, 24, and 25 are neither relevant nor helpful and as such, must be excluded.

The remaining items of classified information involve descriptions of defendant's previous work with the CIA, including [Redacted] as well as descriptions of defendant's attempt to contact the CIA when he first believed he was being recruited by Chinese Intelligence (items 14, 15, 18-23). The information related to defendant's previous work with the CIA is relevant and helpful because it supports defendant's defense that he believed he was being recruited by Chinese intelligence and relied on his training and experience in counterintelligence to react to this recruitment. At least two of the items (1 and 2) are also relevant and helpful because they demonstrate that defendant had access to recent intelligence [Redacted] but that defendant did not share with the Chinese IO. Defendant's attempts to contact the CIA to disclose his possible recruitment are relevant and helpful because they suggest that defendant did not intend to harm the United States, but was instead attempting to determine whether the individual was in fact a Chinese IO.

At the same time, although defendant's possession of more sensitive information, his general training and experience in counterintelligence, and his contact with the CIA are relevant and helpful to his defense, specifics regarding program names, locations, and operational details are not relevant or helpful to his defense because that specific information has no relation to defendant's intent. Thus, defendant information in the May 12, 2017 transcript showing that defendant possessed sensitive information and describing defendant's general training and experience with the CIA and the DIA are relevant and helpful, but specifics about the programs in which defendant participated are neither relevant nor helpful and must be excluded. To the extent descriptions of defendant's training and experience are relevant and helpful, appropriate substitutions are discussed infra Section IV.

B. CIA Biographic Profile

Defendant's CIA Biographic Profile includes information about where defendant was employed, defendant's education, and the names of specific CIA sponsored training courses defendant completed throughout his career. See Gov't Mar. 1, 2018 Br. Ex. H. Information in the profile regarding defendant's training and experience, including names of specific courses, is relevant and helpful to the defense because the information would bolster defendant's argument that he was acting in accordance with his counterintelligence training [Redacted] and was therefore not acting with intent to harm the United States. By contrast, specific information in the profile relating to the location and timing of defendant's work and training is not relevant and helpful to his defense because that information has nothing to do with the content of defendant's training and experience in counterintelligence or any intent-related defense to the present charges. Thus, information in the CIA Biographic Profile related to the general scope and content of defendant's training and experience is relevant and helpful to his defense, whereas information related to the timing and location of defendant's work and training is not relevant or helpful and must be excluded. To the extent descriptions of defendant's training and experience are relevant and helpful, appropriate substitutions are discussed infra Section IV.

C. Tehran Cable

The Tehran Cable is the last communication that left the Iranian embassy after the Islamic revolution in 1979. See Gov't Mar. 1, 2018 Br. Ex. I. Most of the content of the Tehran Cable is unclassified; the only classified items of information include [Redacted] This classified information is not relevant or helpful to a defense because specific CIA methods and administrative procedures unrelated to defendant's own training and experience have no bearing on defendant's intent defense. As such, the following information must be redacted from the Cable:

[Redacted]

At the same time, the fact that defendant possessed the cable is relevant and helpful because it shows that IOs can retain classified documents as mementos, without intending to harm the United States. Specifically, defendant plans to argue that his possession of the Tehran Cable shows that defendant retained the other classified information discovered in his home without intending to transmit it to a foreign government.

In sum, the Tehran Cable is relevant and helpful to the defense, but the specific classified Information [Redacted] is neither relevant nor helpful and must be excluded.

D. May 24, 2017 Transcript

The majority of defendant's May 24th interview with the FBI is unclassified; the only classified items of information in the May 24th interview are identified in Exhibit K of the government's March 1, 2018 Brief. See Gov't Mar. 1, 2018 Br. Ex. K. The parties agree that items 5-7 in Exhibit K are neither relevant nor helpful and as such, must be excluded. By contrast, items 1-4 in Exhibit K are relevant and helpful to the defense, Specifically, items 1-4 describe defendant's work [Redacted] on behalf of the U.S. intelligence community and his experience in counterintelligence. As with the May 12th interview, these items are relevant and helpful insofar as they tend to show that defendant's actions in this case were consistent with his training and experience in counterintelligence, and that defendant was not acting with intent to harm the United States, But importantly, as described supra Section III.A, the specific names, locations, and operational details of the programs for which defendant worked are neither relevant nor helpful and must be excluded. To the extent descriptions of defendant's training and experience are relevant and helpful, appropriate substitutions are discussed infra Section IV.

E. DIA OIG Report

The DIA OIG Report documents the investigation of defendant's alleged mishandling of classified information in 2010. See Gov't Mar. 1, 2018 Br. Ex. L. The information in the report is relevant and helpful to defendant because the information shows that defendant did not know the project he disclosed in 2010 was being put into operation, and therefore that defendant did not know that disclosure of the information would be harmful to the United States. For example, paragraph two of the Report states [Redacted] implemented an operation [Redacted] while defendant was on administrative leave, See id. ¶ 2. The fact that [Redacted] implemented the program while defendant was on leave suggests that defendant did not know the operation was active when he disclosed information related to the operation, and as such, did not believe the information disclosed would be harmful. Thus, the information contained in the DIA OIG Report is relevant and helpful to the defense. To the extent the classified information in the DIA OIG Report is relevant and helpful, substitutions are discussed infra Section IV.

F. Stephenson Email

The parties agree that the Ralph Stephenson email is relevant because it documents defendant's early attempts to report his possible recruitment by Chinese intelligence to [Redacted] individuals in the CIA. See Gov't Mar. 1, 2018 Br. Ex. O. References to however, are neither relevant nor helpful to the defense because they have no bearing on, or relation to, defendant's intent: Because neither of those pieces of classified information is relevant or helpful, they must be excluded from any copy of the email introduced at trial.

G. Dorsey Email

The Dorsey email relates to defendant's attempts to contact the CIA about his contact with the Chinese individual defendant believed to be an IO. See Gov't Mar. 1, 2018 Br. Ex. Q, The parties agree that this email is relevant and helpful to the defense because his attempts to disclose his contacts with the Chinese suggest he was not acting with criminal intent. The parties agree, however, that the references in the email to [Redacted] are neither relevant nor helpful to the defense and as such, must be excluded from the email. The parties have agreed to replace [Redacted] with “Kevin Mallory” and the name of the agent with “John Doe.” See Gov't Mar. 19, 2018 Br. Ex. H.

H. Defendant's Testimony

Defendant seeks to testify, as described supra Section III.A, about [Redacted] Because the specific classified information [Redacted] is not relevant or helpful to the defense, defendant may not testify as to the specifics of those programs. But importantly defendant may testify, in general terms, about his training and experience in the intelligence community, and about the fact that he possessed more highly sensitive information which he could have passed to the Chinese as set forth in the substitution in Section IV. That testimony would be relevant and helpful because it would support defendant's proposed intent defense.

I. Stephenson's Testimony

The government and defendant agree that most of Stephenson's testimony regarding his contacts with defendant and defendant's attempts to notify the CIA about his possible recruitment by Chinese intelligence are relevant and helpful to the defense. The government seeks to prevent the defendant from eliciting classified information from Stephenson during cross-examination, but the defendant has represented that he will not seek to do so.

J. [Redacted] Testimony

The government and defendant again agree that [Redacted] testimony is relevant and helpful to the defense. The government will seek admission of much of [Redacted] testimony, and at this time there is no dispute between the parties regarding his testimony.

IV.

Given that some of the classified information noticed by the defendant is both relevant and helpful to the defense, it is necessary to determine whether a substitution or summary of the noticed classified information “will give the defendant substantially the same ability to make his defense as would the disclosure of the classified information,” Smith, 780 F.2d at 1105.

A. May 12, 2017 Transcript

Pursuant to CIPA § 6(c)(1), the government moved to substitute a summary of defendant's training and experience with the CIA as a substitute for disclosure of the relevant and helpful classified information contained in the May 12, 2017 transcript. The parties agreed that the following summary provides defendant with substantially the same ability to make his defense as would disclosure of the classified information:

Kevin Mallory successfully completed the necessary training to become a case officer at the Central Intelligence Agency (CIA). This training included human intelligence collection and counterintelligence techniques, as well as a course on China, During his career with the Central Intelligence Agency, Mr. Mallory worked overseas, including in East Asia. While operational, he was responsible for recruiting and clandestinely handling human assets, collecting human intelligence, and conducting counterintelligence, which includes working against foreign intelligence services like those in East Asian countries. As a contractor, Mr. Mallory's work included handling sensitive human assets. Mr. Mallory received satisfactory performance reviews throughout his time as a CIA employee.

As a contractor, Mr. Mallory's work for the CIA included having access to and personal knowledge of highly classified information that would be of great value to certain foreign governments, including particularly the Chinese government. This included personally-identifying information of sensitive human assets handled by the CIA, and the cryptonyms for those assets. Cryptonyms are an intelligence method employed by the CIA to conceal the identities of intelligence sources, organizations, locations, projects, and specific intelligence methods.

Apr. 13, 2018 Hearing Modified Ex. RR

The government proposed a separate substitution summarizing defendant's experience at the DIA. At the April 13, 2018 hearing, the parties also agreed to a summary substitution of defendant's DIA experience which reads as follows:

Kevin Mallory worked as a clandestine case officer for the Defense Intelligence Agency (DIA). He was trained to conduct human intelligence collection operations focused on United States Department of Defense requirements related to foreign military capabilities. During his career with DIA, Mr. Mallory worked on a variety of intelligence operations touching upon various regions of the world including East Asia and the People's Republic of China, Mr. Mallory's training included the application of techniques used to collect foreign intelligence from human sources as well as awareness and sensitization to counterintelligence techniques used by foreign intelligence services, such as the People's Republic of China intelligence services.

Apr. 13, 2018 Hearing Modified Ex. B.

Because the parties agreed that these summaries will provide the defense with substantially the same ability to make his defense, the government's motion to substitute the summary of defendant's CIA training and experience in lieu of the classified information in the May 12, 2017 transcript is granted. To be clear, testimony of witnesses related to defendant's training, experience, and possession of high value classified information must also remain within the bounds of this summary or substitution.

B. CIA Biographic Profile

The only relevant classified information contained in the CIA Biographic Profile relates to defendant's training and experience. The parties agree that the summary proposed above provides defendant with substantially the same ability to make his defense as would disclosure of the classified information contained in the Biographic Profile. As such, the government's motion to substitute the summary of defendant's CIA training and experience in lieu of defendant's CIA Biographic Profile is granted.

C. May 24’2017 Transcript

The only relevant and helpful classified information in the May 24 interview transcript relates to defendant's training and experiences, and as discussed supra, the parties have agreed to proposed summaries of defendant's training and experience. Therefore, the government's motion for substitution is granted with respect to the classified portions of the May 24, 2017 interview transcript.

D. DIA OIG Report

The relevant classified information in the DIA OIG Report relates to defendant's lack of knowledge about the operational status of a project defendant allegedly disclosed. The parties presented a summary of the classified information in the DIA OIG Report at the April 13, 2018 hearing, See Apr. 13, 2018 Hearing Ex, SS. The parties agreed that the summary would provide defendant with substantially the same ability to present a defense because the summary includes that relevant and helpful piece of information related to defendant's knowledge. Accordingly, the government's motion for substitution is granted with respect to the classified portions of the DIA OIG Report.

V.

The government also proposed use of the Silent Witness Rule (“SWR”) for certain classified documents to be introduced at trial. The SWR is a judicially created device, used as a supplement to CIPA, that allows the jury, the parties, and the court to consider classified evidence while minimizing the risk of public disclosure of classified information. As the Fourth Circuit explained in United States v. Zettl:

Under [the SWR], the witness would not disclose the information from the classified document in open court. Instead, the witness would have a copy of the classified document before him. The court, counsel, and the jury would also have copies of the classified document. The witness would refer to specific places in the document in response to questioning. The jury would then refer to the particular part of the document as the witness answered. By this method, the classified information would not be made public at trial but the defense would be able to present that classified information to the jury.

835 F.2d 1059, 1063 (4th Cir. 1987).

Although the SWR allows the government to avoid disclosure of classified information, courts have recognized that the SWR imposes a number of burdens on a defendant. First, the SWR results in a partial closure of the trial, and thus “must survive scrutiny under Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).” United States v. Rosen, 520 F.Supp.2d 786, 797 (E.D. Va. 2007). Second, the SWR may result in jury confusion as a result of “the awkwardness of presentation” of the evidence. Id. at 798, Third, the SWR may prejudice defendant because use of the SWR “suggests to the jury that the information being discussed is a closely-held government secret when the jury itself must decide that very issue.” Id. Finally, the SWR may infringe on “a defendant's Sixth Amendment right to a public trial,” Id. at 799. Because of the burdens the SWR places on defendants, use of the SWR is appropriate only:

when the government establishes (i) an overriding reason for closing the trial, (ii) that the closure is no broader than necessary to protect that interest, (iii) that no reasonable alternatives exist to closure, and (iv) that the use of the SWR provides defendants with substantially the same ability to make their defense as full public disclosure of the evidence.

Rosen, 520 F. Supp.2d at 799 (citing Press-Enterprise Co., 464 U.S. 501, 104 S.Ct. 819 and Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)).

In this case, the government bears the burden of proving at trial that the documents defendant passed and attempted to pass to the Chinese constituted NDI. All of the documents defendant is alleged to have passed or attempted to pass to the Chinese are classified at the SECRET or TOP SECRET levels, such that disclosure to the public could reasonably be expected to cause serious harm to U.S. national security. Accordingly, the government proposes using the SWR for the following classified documents:

(i) The eight NDI documents with accompanying handwritten cover sheets found on the Samsung cellphone defendant received from an alleged Chinese intelligence officer or discovered on SD cards in defendant's home (Gov't Mar. 19, 2018 Br. Exs. I-L, O-T);

(ii) The handwritten table of contents listing titles of all eight documents found in defendant's home (Gov't Mar. 19, 2018 Br. Ex. U).

(iii) The unredacted version of defendant's secure chats with the Chinese IO that were found on the covcom device. (Gov't Mar. 19, 2018 Br. Ex. V).

Defendant argues that use of the SWR would prejudice his ability to contest the NDI status of the items found in his home.

The information the government seeks to protect using the SWR is all classified at the SECRET or TOP SECRET level and disclosure of that information would risk substantial harm to U.S. national security interests. Thus, there is an overriding and indeed compelling reason for closing portions of the trial related to the classified information defendant allegedly passed or attempted to pass to the Chinese, The government's use of the SWR is also narrowly tailored to meet this interest. The government recommends use of the SWR only with respect to a limited number of classified documents, the public will be allowed to see redacted copies of the documents being discussed, and the government has taken steps to minimize possible awkwardness of the procedure by assigning paragraph and line numbers to the documents to assist in questioning of witnesses. There is no reasonable alternative to use of the SWR with respect to the classified information defendant allegedly passed or attempted to pass to the Chinese because the sensitive nature of the information bars declassification, and redactions of the classified or sensitive portions of the documents would inhibit the ability of the jury to reach a decision about whether the information on the documents was NDI or closely held.

Finally, the government's proposed use of the SWR will give defendant substantially the same ability to present his defense. The trial will remain mostly open to the public, thus avoiding violation of defendant's public trial right. Defendant, defendant's counsel, and the jury will all have access to the unredacted copies of the classified information, allowing defense counsel to cross-examine government witnesses about the contents of the documents and leaving the jury free to determine whether the information is NDI. Of course, as defendant argues, there will be some suggestion to the jury that the information is closely-held NDI based on the use of the SWR, but defendant will be given latitude to cross-examine witnesses using items in the public record to show that the information contained in the documents is widely known and not a closely-held government secret.

In sum, use of the SWR in this context will allow the government to safeguard its compelling interest in avoiding disclosure of national security secrets while preserving defendant's public trial rights and allowing defendant to present substantially the same defense.

VI.

For the reasons stated above,

It is hereby ORDERED that the following classified information noticed for use by the defendant is neither relevant nor helpful to the defense, and therefore shall be excluded from public disclosure, at trial or otherwise, in this matter:

(i) items 11, 13, 16, 17, 24, 25 of the classified portions of the May 12, 2017 Transcript and specifics regarding program names, locations, and operational details related to defendant's prior experienced with the CIA and the DIA;

(ii) specific information in defendant's CIA Biographic Profile relating to locations and timing of defendant's work and training;

(iii) classified information in the Tehran Cable relating to [Redacted]

(iv) items 5-7 in the May 24, 2017 Transcript, and other classified information relating specific names, locations, or operational details of programs for which defendant worked;

(v) the classified portions of the Stephenson Email related to references to [Redacted]

(vi) the classified portions of the Dorsey Email which include [Redacted]

(vii) any testimonial or documentary evidence regarding [Redacted]

(viii) Any testimonial or documentary evidence regarding [Redacted]

(ix) any testimonial or documentary evidence regarding defendant's work for the CIA [Redacted]

It is further ORDERED that the government's motion for substitutions for classified information pursuant to CIPA § 6(c) is GRANTED in the following respects:

(i) The parties agreed substitutions related to defendant's training and experience with the CIA and DIA shall be used in lieu of classified information contained in the May 12, 2017 Transcript.

(ii) The parties agreed substitution related to defendant's training and experience with the CIA shall be used in lieu of the CIA Biographic Profile.

(iii) The parties agreed substitutions related to defendant's training and experience with the CIA and DIA shall be used in lieu of classified information contained in the May 24, 2017 Transcript.

(iv) The parties agreed summary of the DIA OIG report shall be used in lieu of the DIA OIG report.

(v) The government may use the Silent Witness Rule in relation to the eight documents the government noticed as the NDI information it rely upon at trial.

It is further ORDERED that witnesses testifying about this classified information must remain within the bounds of the aforementioned substitutions.

It is further ORDERED that as to the witnesses John Doe and [Redacted] the following protections will be instituted during their testimony in this matter, to protect the serious national and personal security concerns associated with public disclosure of their affiliation with the USIC:

(i) Use of the pseudonyms (“John Doe” for Mr. Doe and “Robert Johnson” for [Redacted]) and preclusion of any questioning as to identifying biographical information, such as address and date of birth;

(ii) Use of a screen such that the Court, jurors, government, cleared defense counsel, and defendant would be able to view Mr. Doe and Mr. Johnson during their testimony, but the public seated in the Court's gallery, including the courtroom artist, would not;

(iii) Use of a courtroom door positioned behind the screen, through which Mr. Doe and Mr. Johnson could enter and exit the courtroom;

(iv) Use of a non-public entrance and exit to access the courthouse to testify; and

(v) Use of a light disguise to further protect the disclosure of Mr. Doe and Mr. Johnson's identity as they enter and exit the courtroom and courthouse that day.

It is further ORDERED that the government's request for witness protections related to Ralph Stephenson is DENIED because Stephenson's affiliation with the CIA is not covert.

It is further ORDERED that the government's in camera under seal notice of objections concerning use, relevance, and admissibility of classified information identified in defendant's CIPA Section 5(a) notice and identification of National Defense Information pursuant to CIPA Section 10 and accompanying Declarations and exhibits, the defendant's response thereto, and this Order shall be sealed and maintained in a facility appropriate for the storage of such classified information by the Classified Information Security Officer as the designee of the Clerk of Court, in accordance with established security procedures, for any future review, until further order of this Court.

It is further ORDERED that the government's combined motion pursuant to CIPA Section 6(c) for substitutions in lieu of disclosure of classified information, motion for protective order pursuant to Fed. R. Crim. P. 16(b)(1), and motion for hearing on same, and accompanying declarations and exhibits, defendant's response thereto, shall also be sealed and maintained in a facility appropriate for the storage of such classified information by the Classified Information Security Officer as the designee of the Clerk of Court, in accordance with established security procedures, for any future review, until further order of this Court.

FOOTNOTES

1.   18 U.S.C. 792 et seq.

2.   18 U.S.C. App. III, § 4.

T. S. Ellis, III, United States District Judge