Opinion
Criminal No. 99-1417 JP
August 21, 2000
OBJECTIONS OF DR. WEN HO LEE TO PROSECUTION'S PROPOSED EVIDENCE UNDER FED. R. EVID. 404(b)
Dr. Wen Ho Lee, through undersigned counsel, submits the following objections to the prosecution's proposed evidence offered under Fed.R.Evid. 404(b). We address the legal requirements for admission of evidence under Rule 404(b); we do not discuss at this point the factual accuracy or inaccuracy of the prosecution's proposed evidence, nor do we offer evidentiary objections other than under Rules 404(b) and 403.
The United States's Notice of Intention to Offer Evidence Pursuant to Rule 404(b) of the Federal Rules of Evidence (filed Aug. 11, 2000) ["Notice"].
I. THE RELEVANT LEGAL PRINCIPLES.
Rule 404(b) prohibits the introduction of evidence of "other crimes, wrongs, or acts" to "prove the character of a person in order to show action in conformity therewith." Fed.R.Evid. 404(b). The rule provides, however, that such evidence "may . . . be admissible for other purposes," including (as pertinent here) "proof of . . . intent . . . or absence of mistake or accident." Id. The Tenth Circuit has established four requirements for the admission of Rule 404(b) evidence:
(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a Rule 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) pursuant to Fed.R.Evid. 105, the trial court shall, upon request, instruct the jury that evidence of similar acts is to be considered only for the proper purpose for which it was admitted.United States v. Roberts, 185 F.3d 1125, 1141 (10th Cir. 1999) (quotation omitted), cert. denied, 120 S.Ct. 1960 (2000). The prosecution has satisfied the first requirement by offering the other acts evidence for permissible purposes — to establish intent and absence of mistake. Notice 2. The fourth requirement — an instruction concerning the permissible use of the evidence — must wait until trial. Thus, the second and third requirements — relevance to intent and absence of mistake, and the Rule 403 balancing — remain to be addressed pretrial.
The prosecution also asserts that the evidence is relevant to show consciousness of illegality and the existence of a "common plan." Notice 2, 4. But consciousness of illegality and the existence of an alleged plan have no independent significance in this context; at most, they bear upon Dr. Lee's intent and the absence of mistake or accident. Accordingly, we restrict our discussion to these two theories of relevance.
In assessing relevance under the second factor and probative value under the third factor, the Court must determine whether the uncharged acts "are similar to the charged crime and sufficiently close in time."United States v. Zamora, 2000 U.s. App. LEXIS 17539, at *9 (10th Cir. July 21, 2000); see United States v. Morales-Ouinones, 812 F.2d 604, 612 (10th Cir. 1987) (uncharged act evidence "must have real probative value, not just possible worth" and "must be close in Lime to the crime charged") Similarity "may be shown through physical similarity of the acts or through the defendant's indulging himself in the same state at mind in the perpetration of both the extrinsic offense and the charged offenses." Zamora, 2000 U.S. App. LEXIS 17539, at *10 (quotations omitted). The "close in time" requirement is not subject to absolute rules, but turns upon the particular circumstances of each case. See United States v. Olivo, 80 F.3d 1466, 1468 (10th Cir. 1996).
If the court finds that the uncharged acts evidence is relevant for a permissible purpose, it must then determine whether the evidence should be excluded under Rule 403. "[B]ecause prior acts evidence carries with it such a high risk of confusion and misuse . . . there is a heightened need for the careful application of the principles set out in Rule 403."United States v. Johnson, 27 F.3d 1186, 1193 (6th Cir. 1994); see United States v. Guardia, 135 F.3d 1326, 1331-32 (10th Cir. 1998) (upholding exclusion under Rule 403 of evidence of prior sexual misconduct).
II. THE PROPOSED EVIDENCE.
The principles set forth above require exclusion of significant portions of the prosecution's Rule 404(b) evidence.
A. Other Films on the Open LANL System.
The prosecution proposes to present evidence that between April 1988 and February 1992, Dr. Lee transferred 26 files containing restricted data from the LANL closed system to the open system and maintained them there until early 1999. Notice 4-5. The Court should exclude this evidence.
First, Dr. Lee's alleged transfer of the uncharged files proves nothing about his intent. The indictment alleges that Dr. Lee transferred a number of files in 1993, 1994, and 1997. The fact that he transferred additional files between 1988 and 1992 does not tend to show that he made the later transfers with a malevolent purpose. Intent cannot be inferred from the number of files transferred; one could transfer many files with a benign purpose, just as one could transfer a few tiles with a bad purpose. Because the prosecution cannot present sufficient evidence for a "reasonable jury to conclude by a preponderance of the evidence that [Dr. Lee's] intent in connection with the [26 uncharged files] was criminal," the Court should exclude the prosecution's proposed evidence.United States v. Riddle, 103 F.3d 423, 433 (5th Cir. 1997).
Second, the fact of the prior transfers might tend to show that Dr. Lee did not transfer the charged files as a result of mistake or accident. But Dr. Lee has never claimed (and will not claim at trial) that the transfers occurred accidentally (for example, by hitting the wrong key on the computer). Thus, the potential defense theories of mistake or accident are not "at issue" in this case, any more than, for example, a defense of alibi is at issue. See, e.g., United States v. Merriweather, 78 F.3d 1070, 1077 (6th Cir. 1996) (uncharged act evidence not relevant to establish opportunity, knowledge, or absence of mistake where defendant did not claim that he lacked opportunity or knowledge or that he acted by mistake).
Third, under Rule 403, the dangers of jury confusion and waste of time far outweigh whatever minimal probative value the evidence of previous file transfers might have. The jury faces a formidable task keeping straight the charged files and their contents, remembering which files were transferred to tape, and sorting out complex expert testimony concerning the significance of the contents of the files. Adding 26 additional files to the 19 (plus Tape N) already at issue will guarantee confusion. And evidence concerning the 26 additional files will also waste a significant amount of time; the uncharged files will present the same pretrial CIPA issues as the charged files, and they will require additional expert testimony at trial.
In addition, this and other aspects of the prosecution's Rule 404 (b) notice will require substantial additional discovery. For example, to our knowledge none of the 26 additional computer files have been produced to the defense, either on our standalone computer at LANL or in hard copy. Obtaining the additional discovery that the Rule 404(b) notice entails will complicate and may prolong these proceedings.
The Tenth Circuit's decision in Guardia underscores the reasons to exclude evidence of the 26 files under Rule 403. Guardia, a gynecologist, was charged with sexual misconduct involving two patients. The prosecution sought to introduce evidence of alleged misconduct involving four additional patients. Judge Black excluded the evidence under Rule 403, United States v. Guardia, 955 F. Supp. 115 (D.N.M. 1997), and the Tenth Circuit affirmed. The court declared:
Admission of the testimony would transform the trial of two incidents into the trial of six incidents, each requiring description by lay witnesses and explanation by expert witnesses. The subtle factual distinctions among these incidents would make it difficult for the jury to separate the evidence of the uncharged conduct from the charged conduct . . . . Expert testimony explaining the propriety of Dr. Guardia's conduct as to each witness would exacerbate the risk of confusion by multiplying conflicting and overlapping testimony.135 F.3d at 1332. The same analysis applies here. Admission of the prosecution evidence would transform the trial of 19 files and Tape N into the trial of 45 files and Tape N. The "subtle factual distinctions" among the files "would make it difficult for the jury to separate the evidence of the uncharged conduct from the charged conduct." And — perhaps most significantly — expert testimony concerning the 26 additional files (as well as the 19 charged files and Tape N) "would exacerbate the risk of confusion by multiplying conflicting and overlapping testimony."Id.
B. Allegedly Classified Documents Seized from Dr. Lee's Offices.
The prosecution seeks to present evidence that various allegedly classified documents were seized from Dr. Lee's X and T Division offices on and after March 5, 1999. The prosecution offers this evidence to "negate() any claim of mistake or accident in the defendant's dealings with classified documents." Notice 5-6. As noted above, however, Dr. Lee has made and will make no claim of mistake or accident. Thus, the proposed evidence is not relevant to any matter "at issue" in the case.See Merriweather, 78 F.3d at 1077.
In addition, the unfairly prejudicial nature of the evidence, the confusion that it will cause, and the waste of time that its presentation will entail both pretrial (through CIPA proceedings) and at trial substantially outweigh any minimal probative value the evidence may have. Thus, the Court should exclude the proposed evidence under Rule 403. See, e.g., Riddle, 103 F.3d at 431-34 (evidence of regulatory violations and loans other than those at issue should have been excluded under Rule 403; conviction reversed). To paraphrase Riddle, the prosecution's evidence may "make [Dr. Led out to be an irresponsible [X Division employee] who paid little attention to (security requirements]. But [Dr. Lee is] not on trial for irresponsibility." Id. at 433. He is on trial for engaging in specific file transfers with intent to Injure the United States, with intent to secure advantage to a foreign nation, or with "willful" intent — that is, with a bad purpose to disobey or disregard the law. His alleged inattention to security requirements does not tend to establish such intent.
C. Allegedly Classified Documents Seized from Dr. Lee's Home.
For the reasons set forth in the preceding paragraph, the Court should exclude evidence of purportedly classified documents seized from Dr. Lee's home.
D. Alleged Efforts to Obtain Access to the X Division LEA and to Allegedly Classified Documents.
We intend to examine in some detail at trial the events that occurred between December 23, 1998 and March 8, 1999. Accordingly, while' we expects to dispute on factual grounds many of the prosecution's assertions about Dr. Lee's alleged conduct during this period, Notice 6-9, we do not on legal grounds under Rules 402 and 403 to the proposed evidence concerning Dr. Lee's alleged attempts to gain entry to the X Division LEA and his alleged efforts to obtain materials from his X Division office. We reserve all other evidentiary objections, depending on the form in which the evidence is presented.
E. Deletion of Files in January and February 1999.
For the reasons stated in the preceding paragraph, we do not object to the proposed evidence concerning file deletions (described at Notice 9) under Rules 402 and 403. We reserve all other evidentiary objections1 depending on the form in which the evidence is presented.
F. Alleged Placement of Classified Intonation on a Non-Secure Computer System.
For the reasons stated in paragraph II(D) above, we do not object to the proposed evidence concerning the placement of classified information on a non-secure computer system in February 1999 (described at Notice 9-10) under Rules 402 and 403. We reserve all other evidentiary objections, depending on the form in which the evidence is presented.
G. Alleged raise Statements to LANL and DOE.
The alleged false statements set out at Notice 10-11 are irrelevant to any material issue and should be excluded under Rule 403 because their prejudicial impact, risk of jury confusion, and waste of time substantially outweigh their probative value.
1. The November 1983 Statement. — Dr. Lee's alleged denial in November 1983 that he had contacted the LLNL scientist should be excluded as irrelevant. Most obviously, the statement is far too remote in time — approximately ten years before the events at issue in the indictment — to have any probative value.
Nor can the alleged false statement be considered "similar" to the conduct alleged in the indictment. There obviously is no "physical similarity" between Dr. Lee's alleged false statement in 1983 and his file transfers in the 1990s. And the 1983 incident does not reflect the "same state of mind as alleged in the charged offenses. Zamora, 2000 U.S. App. LEXIS 17539, at *10. The November 1983 interview occurredeleven months after Dr. Lee's brief telephone conversation with the LLNL scientist in December 1982. As recent events in this case demonstrate, it is possible to forget a conversation over such a lengthy period. And even a deliberate falsehood could have many explanations other than an intent to injure the United States, an intent to secure advantage to a foreign nation, or a bad purpose to disobey or disregard the law. For example, Dr. Lee might have feared that disclosure of the contact could cost him his job at LANL — an entirely different matter than the far more serious intent that the Atomic Energy Act and the Espionage Act require. Any inference of criminal intent from the 1983 events is further weakened, by the fact that Dr. Lee offered to (and did) cooperate with the FBI in its investigation of the LLNL scientist. Indeed. LANL and DOE did not view those events as sufficiently suspicious to warrant suspending or revoking Dr. Lee's Q clearance, and (as Attorney General Reno acknowledged in her June 8, 1999 testimony before the Senate Judiciary Committee) the events did not suffice to establish probable cause for the Justice Department to seek a FISA warrant in 1997.
The prosecution also asserts that Dr. Lee's allegedly false statement "enabled [him] to continue to enjoy his security clearance, to continue his employment and thereby to retain access to `Secret' Restricted Data." Notice 10. This is demonstrably untrue. Even after Dr. Lee acknowledged his contact with the LLNL scientist — establishing, according to the FBI, both that the contact had occurred and that Dr. Lee had not been fortheoming about it — LANL and the DOE did not remove his security clearance or terminate his employment in X Division.
In addition to holding the 1983 incident irrelevant under the "similarity" and "close in time" requirements, the Court should. exclude it under Rule 403. The 1983 incident has significant potential to confuse the jury and to prejudice Dr. Lee unfairly. The FBI intercepted Dr. Lee's telephone call as part of an espionage investigation of the LLNL scientist. There is a substantial risk that the jury will conclude, erroneously, that Dr. Lee was engaged in espionage, or sought to assist the LLNL scientist with espionage, when he made the call. This risk is particularly great because the FBI apparently has destroyed the tape of the telephone call. Not even a verbatim transcript of the conversation (apparently conducted in Chinese) remains. The only evidence of the content of the conversation is an FBI translation. the accuracy of which cannot be tested. In addition, full exploration of the November 1983 incident will require examination of the events that followed, including Dr. Lee's cooperation with the FBI. Such a trial within a trial will result in significant waste of time, an additional reason for exclusion under Rule 403.
2. Alleged Failure to Report Contacts with PRC
Scientists. — The prosecution apparently seeks to offer evidence that, during debrief ings following authorized trips to the PRC in 1986 and 1988, Dr. Lee falsely Ndenied having any unauthorized contact with PRC scientists or passing any classified materials." Notice 10. The Court should exclude any such evidence as irrelevant under Rule 402 and as substantially more prejudicial than probative under Rule 403.
Two of the alleged contacts—one in 1986 and one in 1988 — apparently occurred in connection with Dr. Lee's authorized presentations at conferences in Beijing. Neither conversation involved any classified information; in both instances Dr. Lee responded to routime, unclassified hydrodynamics questions, with many applications beyond the nuclear weapons context, and in each instance Dr. Lee stated on his trip report that he had conversed with the PRC scientist in question. These acts (and the alleged failure to report them in post-trip debriefings) are not in any sense "similar" to the conduct alleged in the indictment; they are not "physically similar" to the file transfers at issue, nor do they reflect the "same state of mind" as alleged in the charged offenses. Zamora, 2000 U.S. App. LEXIS 17539. at 10. As Attorney General Reno explained to the Senate Judiciary Committee in June 1999, LANL scientists
were . . . free to travel to the PRC to seminars. It was understood that they were exchanging information of a non-classified nature. PRO scientists came to Los Alamos, dengaged in seminars, had discussions, and there was an exchange of information that was understood about scientific and mathematical principles that were non-classified, so you had that ongoing. It is also important to understand that when Wen Ho Lee and his wife went to the PRC in 1986, they reported that. It was not a clandestine trip. When they were there in 1988 . . . they still reported that. It wasn't as if they snuck off to the PRC. This was an open exchange that was ongoing between both the Lees and other scientists from the PRC in Los Alamos.
Transcript of 6/8/99 at 12-13 (relevant pages attached as Exhibit A).
Coupled with the lack of similarity, the alleged nondisclosures are not sufficiently "close in time" to be considered relevant under Rule 404(b). One alleged failure to disclose occurred about seven years before the first file transfer charged in the indictment, and the other occurred about five years earlier. In addition, under Rule 403 the risks of jury confusion and waste of time substantially outweigh the non-existent probative value of the evidence.
The prosecution also seeks to introduce evidence that Dr. Lee failed to report his 1988 Beijing hotel room encounter with two PRC scientists. Notice 11. This evidence has little, if any. probative value on the issuG of Dr. Lee's intent. The failure to report is not physically similar" to the file transfers at issue, tnd the prosecution has not established that it reflects the "same state of mind" — intent to injure the United States, intent to secure an advantage for a foreign nation, or a bad purpose to disobey or disregard the law — as alleged in the indictment. Any inference of bad intent is particularly weak in light of the facts, elicited at the recent bail hearing, that Dr. Lee disclosed the name of one of the PRC scientists on his trip report, that he told the DOS about the encounter (albeit belatedly), and that he did not respond to the question that the scientists posed. Nor is the incident "close in time" to the events in the indictment; Dr. Lee received his post-trip debriefing in July 1988. roughly five years before the file transfers alleged in the indictment began.
In addition, we expect to demonstrate at trial that the subject of the question had previously been disclosed in the open literature, further minimizing its significance.
The Court also should exclude evidence that Dr. Lee did not timely report the hotel room encounter under Rule 403. The evidence presents an enormous risk of unfair prejudice; the mere fact that the meeting occurred could cause the jury to conclude. incorrectly, that Dr. Lee had engaged in some impropriety. There is also a significant danger of jury confusion. Although the prosecution does not claim chat Dr. Lee passed any classified information to the PRC scientists — only that he tailed to report the inquiry — the, jury may not grasp the distinction ano may conclude that the prosecution believes that Dr. Lee in fact transferied allegedly sensitive information. And the presentation of evidence concerning the hotel room meeting will undoubtedly waste time, because it will require additional CIPA proceedings and the presentation of additional evidence at trial. These considerations substantially outweigh any minimal probative value the evidence may have.
3. The March 17, 1999 Statement. — The Court should exclude evidence of any alleged falsity in Dr. Lee's March 17, 1999 statement under Rules 402 and 403.
First, the alleged conduct is not "physically similar" to the file transfers charged in the indictment, nor does it reflect the "same state of mind" as the alleged offenses. The documents found in Dr. Lee's home, to which the prosecution refers at Notice 6, apparently were not and had never been marked as Secret Restricted Data; DOE classifiers reviewed, classified, and marked the documents after they had been seized from Dr. Lee's home on April 10, 1999. Nor does it appear to be clear from the contents of the documents that they contain classified information. In light of what has occurred in this case alone, it should be apparent that a failure to recognize classified information in an unmarked document does not suggest an intent to deceive, much less an intent to injure the United States or to secure an advantage to a foreign nation.
Second, the dangers of jury confusion and unfair prejudice substantially outweigh any minimal probative value the proposed evidence might have, and presentation of the evidence will entail a significant waste of time. Dr. Lee will seek to introduce the contents of the documents to demonstrate their innocuous nature, and that will expand the already protracted CIPA proceedings. In addition, Dr. Lee may seek to challenge the after-the-fact classification of the documents through expert testimony or, at a minimum, to present expert testimony concerning the difficulty of recognizing the information at issue as classified in the absence of markings. For these reasons, the Court should exclude the proposed evidence under Rule 403.
EXHIBIT A UNITED STATES SENATE COMMITTEE ON THE JUDICIARY JUNE 8, 1999
MEMBERS PRESENT:
Hatch, Orrin G. — Utah, Chairman Grassley. Charles K. — Iowa Specter. Arlen Pennsylvania Kyl, Jon — Arizona Dewine, Mike — Ohio Abraham, Spencer — Michigan Sessions, Jeff — Alabama Smith, Bob — New Hampshire Leahy, Patrick J — Vermont Feinstein, Dianne (Mrs.) — California Torricelli. Robert G. — New Jersey
The committee met. pursuant to notice, at 10:07 a.m., in Room S-4.07, Capitol Building. Hon. Orrin G. Hatch, chairman of the committee, presiding.
Because it was determined to be the site of the loss of the W-88 information, the LHM focused on Los Alamos but the DOE inquiry focused both on Los Alamos and the Lawrence Livermore Laboratory. of the lab employees who visited the PRC [Sealed by court] had access to the W-88 [Sealed by court] at Los Alamos. the principal OIPR concerns raised at the time.[Sealed by court] was that there was no adequate basis for conducting surveillance of the Lees, as opposed to the other employees who were on the matrix. In other words, there were [Sealed by court] people who had — at Los Alamos — access, had visited the PRC, and had or may have had contact. As stated in the LHM, the other [sealed by court] employees, at least two of whom were ethnic Chinese, also had access to the W-BB technology. They had traveled to the PRC durinq the applicable period of time. Me have only recently learned from the DOE report that 4 of the [sealed by court] remaining subjects of the matrix are ethnic Chinese.
Now, one of the things that's got to be clear in this whole process is that as these scientists considered classified information, they were also free to travel to the PRC to seminars, it was understood that they were exchanging information of a non-classified nature. PRC scientists came to Los Alamos, engaged in seminars, had discussions, and there was an exchange of information that was understood about scientific and mathematical principles that were non-classified, so you had that ongoing. It is also important to understand that when Wen Ho Lee and his wife went to the PRC in 1986. they reported that. It was not a clandestine trip. When they were there in 1988,[sealed by court].
[Sealed by court] they still reported that. It wasn't as if they snuck off to the PRC. This was an open exchange that was ongoing between both the Lees and other scientists from the PRC in Los Alamos.
But they also tried to look, at who might have had contact. They concluded, however, that they did not do any investigation with respect to the other I and they concluded that with respect to the other they could not determine who had contact because the Department of Energy records were inadequate to do so. They focused an Sylvia Lee, simply because a former employee recalled that Sylvia Lee regularly assisted and communicated with visiting PRC delegations. The elimination of other logical suspects. having the same access and opportunity, did not occur. So they took the [sealed by court] that fit the matrix, focused on the two, and did nothing to follow up on the others.
Secondly, the Lees traveled to — the next point after, they apparently took the assumption that the DOE report — which its conclusion is chat it must be the Lees — part of the DOE report referred to what was already known by