United States v. Rosen

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 08-4358
STEVEN J. ROSEN; KEITH WEISSMAN,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, Senior District Judge.
(1:05-cr-00225-TSE-1)

Argued: October 29, 2008

Decided: February 24, 2009

Before KING, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opin-
ion, in which Judge Gregory and Judge Shedd joined.

COUNSEL

ARGUED: Thomas P. Reilly, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Appellant.
Baruch Weiss, ARENT FOX, L.L.P., Washington, D.C.;
Abbe David Lowell, MCDERMOTT, WILL & EMERY,
L.L.P., Washington, D.C., for Appellees. ON BRIEF: Chuck
2 UNITED STATES v. ROSEN
Rosenberg, United States Attorney, James L. Trump, W. Neil
Hammerstrom, Jr., David B. Goodhand, Assistant United
States Attorneys, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia; Michael C. Martin,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellant. Erica E. Paulson, Roy L. Austin, Jr.,
MCDERMOTT, WILL & EMERY, L.L.P., Washington,
D.C.; John N. Nassikas III, Kate B. Briscoe, ARENT FOX,
L.L.P., Washington, D.C., for Appellees.

OPINION

KING, Circuit Judge:

The grand jury in the Eastern District of Virginia charged
the defendants — Steven J. Rosen, the Director of Foreign
Policy Issues at the American Israeli Public Affairs Commit-
tee ("AIPAC"), and Keith Weissman, the Senior Middle East
Analyst in AIPAC’s Foreign Policy Issues Department —
with violations of the Espionage Act, 18 U.S.C. § 793. The
operative indictment, returned as a superseding indictment on
August 4, 2005, asserts that between 1999 and 2004, the
defendants obtained national defense information from vari-
ous sources within the United States government1 and unlaw-
fully passed that information to other AIPAC staffers, foreign
officials, and members of the news media.2 In this interlocu-
1
Lawrence Anthony Franklin, a former Department of Defense
employee, was also indicted as a coconspirator in these proceedings.
Franklin pleaded guilty to two counts of the indictment and, in January
2006, was sentenced to 151 months’ imprisonment.
2
Count One of the indictment charged the defendants with conspiracy
to communicate national defense information, in contravention of 18
U.S.C. § 793(g). Count Three charged Rosen with aiding and abetting
Franklin’s disclosure of national defense information to Rosen, in viola-
tion of 18 U.S.C. §§ 793(d), 2. The remaining counts in the indictment do
not name either Rosen or Weissman.
 UNITED STATES v. ROSEN 3
tory appeal, the government challenges the district court’s
pretrial evidentiary rulings on the handling at trial of classi-
fied information. The defendants have moved to dismiss the
appeal for lack of jurisdiction. As explained below, we deny
the motion to dismiss and affirm the challenged evidentiary
rulings.

I.

The district court’s evidentiary rulings were made pursuant
to the Classified Information Procedures Act, 18 U.S.C. app.
3 §§ 1-16 ("CIPA").3 As we have recognized, CIPA is
"merely a procedural tool requiring a pretrial court ruling on
the admissibility of classified information." United States v.
Smith, 780 F.2d 1102, 1106 (4th Cir. 1985). CIPA § 1(a)
defines "[c]lassified information," in pertinent part, as "any
information or material that has been determined by the
United States Government pursuant to an Executive order,
statute, or regulation, to require protection against unautho-
rized disclosure for reasons of national security."

As relevant here, if a defendant expects to disclose or cause
the disclosure of classified information at trial or in a pretrial
proceeding, he is required, pursuant to CIPA § 5(a), to notify
the district court and the government of the potential disclo-
sure. Under CIPA § 6(a), the government may then "request
the court to conduct a hearing to make all determinations con-
cerning the use, relevance, or admissibility of classified infor-
mation" — a request that the court must fulfill.4 If the court
3
The various subsections of CIPA are referred to herein as "CIPA
§ ___."
4
In assessing admissibility, the court must consider not just the rele-
vance of the evidence, but also the applicability of any government privi-
lege, such as military or state secrets. See Smith, 780 F.2d at 1107, 1110.
Here, the government asserts a classified information privilege; such a
privilege "must . . . give way when the information . . . ‘is relevant and
helpful to the defense of an accused, or is essential to a fair determination
of a cause.’" Id. at 1107 (quoting Roviaro v. United States, 353 U.S. 53,
60-61 (1957)).
4 UNITED STATES v. ROSEN
authorizes disclosure of classified information, the govern-
ment may then move, under CIPA § 6(c)(1), that the court
order, inter alia, "the substitution for such classified informa-
tion of a summary of the specific classified information." The
court must conduct a hearing on any CIPA § 6(c)(1) motion,
and it "shall grant such a motion . . . if it finds that the . . .
summary will provide the defendant with substantially the
same ability to make his defense as would disclosure of the
specific classified information."5 The government is entitled,
pursuant to CIPA § 7, to pursue an interlocutory appeal from
any ruling of the court "authorizing the disclosure of classi-
fied information." See United States v. Fernandez, 887 F.2d
465, 469-70 (4th Cir. 1989) (recognizing that CIPA § 7 allows
appeals from adverse CIPA § 6(a) and (c)(1) rulings). Finally,
CIPA § 5(a) prohibits a defendant from disclosing classified
information until proper notice has been given, the govern-
ment has been afforded "a reasonable opportunity to seek" a
CIPA § 6 determination from the court, and the government’s
time to initiate a CIPA § 7 appeal from any such determina-
tion has expired.

Here, Rosen and Weissman gave notice to the district court
and the government, pursuant to CIPA § 5(a), that they
expected to disclose at trial a large volume of classified infor-
mation. The government promptly moved, pursuant to CIPA
§ 6(a), for a hearing on the use, relevance, and admissibility
of the classified information at trial. The court, after conduct-
ing such a CIPA hearing, determined that a substantial vol-
5
Under CIPA § 6(c)(2), the government may "submit to the court an
affidavit of the Attorney General certifying that disclosure of classified
information would cause identifiable damage to the national security of
the United States and explaining the basis for the classification of such
information." If the court denies the government’s CIPA § 6(c)(1) motion,
and the government submits a CIPA § 6(c)(2) affidavit of the Attorney
General, the court must, under CIPA § 6(e)(1), order that the defendant
not disclose the classified information. In such circumstances, however,
the court must also order, pursuant to CIPA § 6(e)(2), the dismissal of the
indictment or some other appropriate action.
 UNITED STATES v. ROSEN 5
ume of the classified information was indeed relevant and
admissible.

As a result of the district court’s rulings, the government
sought permission, pursuant to a motion filed under CIPA
§ 6(c)(1), to introduce substitutions for many of the classified
documents that had been deemed relevant and admissible.
The government proposed to create the substitutions by
redacting and otherwise summarizing classified information
in the original documents. During a CIPA hearing conducted
over the course of twenty-two days in 2007 to address the
government’s § 6(c)(1) motion, the court ruled that, although
some of the government’s proposed redactions were accept-
able, other such redactions would not afford the defendants
the same opportunity to defend themselves as would the
admission of the unredacted documents containing classified
information. In some instances, the court concluded that less
extensive redactions, or the use of replacements for particular
names, places, or terms, would adequately protect the defen-
dants’ rights while simultaneously offering adequate protec-
tion for classified information. The court thus directed the
parties to fashion substitutions for the classified documents in
accordance with the oral rulings it made during the hearing.
Thereafter, the court entered an order adopting the parties’
agreed-to substitutions, over the government’s objection. See
United States v. Rosen, No. 05-cr-00225 (E.D. Va. Mar. 20,
2007) (under seal) (the "CIPA § 6 Order").

The government has timely noted this interlocutory appeal,
pursuant to CIPA § 7, challenging the district court’s CIPA
§ 6 Order with regard to two specific documents: the "FBI
Report" and the "Israeli Briefing Document."6 The defendants
have moved to dismiss the appeal for lack of jurisdiction.
6
In its reply brief in this appeal, the government also challenges the dis-
trict court’s CIPA § 6 Order with regard to several draft National Security
Presidential Directives ("NSPDs"). The government did not challenge the
court’s NSPD rulings in its opening brief, however, only mentioning the
NSPDs briefly in a footnote. We are unable to consider a claim raised for
the first time by way of a reply brief. See Yousefi v. INS, 260 F.3d 318,
325 (4th Cir. 2001). Thus, the government has forfeited its challenge to
the court’s NSPD rulings.
6 UNITED STATES v. ROSEN
II.

In disposing of this appeal, we must first assess the defen-
dants’ motion to dismiss the appeal for lack of jurisdiction. In
this regard, Rosen and Weissman contend that the govern-
ment lacks authorization under CIPA § 7 to pursue such an
interlocutory appeal for two reasons. First, the defendants
assert that the government has failed to establish, as an essen-
tial predicate for this appeal, that the court-approved substitu-
tions for the FBI Report and the Israeli Briefing Document
contain classified information. Second, the defendants main-
tain that the government was required — but failed — to
obtain the imprimatur of the heads of the agencies charged
with responsibility for the classified information before notic-
ing the appeal. We address these aspects of the defendants’
CIPA § 7 jurisdictional contention in turn.

A.

The first aspect of the defendants’ jurisdictional contention
is premised on their assertion that the government has failed
to establish that the court-approved substitutions for the FBI
Report and the Israeli Briefing Document contain classified
information. As background, both the FBI Report and the
Israeli Briefing Document were produced by the government
during discovery. With respect to the FBI Report, the govern-
ment contended that Weissman disclosed the Report’s exis-
tence and disclosed that the report is [REDACTED], and that
the information disclosed by Weissman was classified. The
government provided notice to the defendants that it intended
to use the Report at trial to establish these contentions, even
though there is no allegation that Weissman actually received
the Report, or that he ever disclosed the Report itself. In
response, the defendants provided notice that they, too,
intended to use the Report at trial, seeking to show that the
Report was not classified on the basis of the information
Weissman disclosed; rather, the Report was classified to pro-
 UNITED STATES v. ROSEN 7
tect sensitive details regarding sources and methods, details
that were neither known to nor disclosed by Weissman.

After the district court deemed the FBI Report to be rele-
vant and admissible, the government sought to redact the
information in the Report relating to sources and methods. In
response, the defendants contended that such redactions
would deprive them of their ability to put on their defense.
Now that the district court, by its CIPA § 6 Order, has
adopted the parties’ agreed-to substitutions for the Report, the
defendants argue that the substitutions may not contain classi-
fied information. As such, according to the defendants, the
government should be required to go back through the appro-
priate classification procedures before pursuing this interlocu-
tory appeal.

With respect to the Israeli Briefing Document, although the
government produced the Document in discovery, it does not
plan to introduce it at trial. The defendants, however, intend
to use the Document to support their assertion that
[REDACTED], and that their disclosure of that information
was accordingly not a violation of 18 U.S.C. § 793. The dis-
trict court initially concluded that the Document was not rele-
vant and, thus, was not admissible. On reconsideration,
however, the court ruled that the Document was both relevant
and admissible. The court then permitted the government to
offer a redacted Document for use in evidence, but rejected
the substantial redactions to the Document that the govern-
ment proposed. Instead, the court adopted in its CIPA § 6
Order the parties’ agreed-to substitution, which reveals the
general nature of the information contained in the Document,
while seeking to protect the sensitive information about
sources and methods contained therein. As with the substitu-
tion for the FBI Report, the defendants now contend that the
substitution for the Israeli Briefing Document may not contain
classified information and, thus, cannot be the subject of a
CIPA § 7 appeal.
8 UNITED STATES v. ROSEN
Contrary to the defendants’ assertion, the record establishes
that both the FBI Report and the Israeli Briefing Document
remain classified. Moreover, although the court-approved
substitutions for the FBI Report and the Israeli Briefing Docu-
ment do not contain some of the classified information the
government sought to protect, CIPA does not mandate that
court-approved substitutions go back through the statutory
classification procedures to determine whether they would be
classified in their new form. We are simply unwilling to read
into CIPA a requirement that is not present under its plain
terms, and thus undermine the government’s right to pursue
this interlocutory appeal. Because the court’s evidentiary rul-
ings with regard to the FBI Report and the Israeli Briefing
Document fall within the ambit of CIPA, we possess CIPA
§ 7 jurisdiction to review those rulings on appeal.7

B.

The second aspect of the defendants’ jurisdictional conten-
tion is based on their position that the government failed to
satisfy the requirement that it obtain the imprimatur of the
heads of the agencies charged with responsibility for the clas-
sified information — the Director of the FBI for the FBI
Report and the Secretary of State for the Israeli Briefing Doc-
ument. That is, the defendants maintain that the relevant
agency heads must assert the classification privilege as a pre-
requisite to a CIPA § 7 interlocutory appeal. In support of this
7
For the first time on appeal, the defendants contend that the original
classification authority would now testify that the Israeli Briefing Docu-
ment should not be considered classified in its unredacted form, notwith-
standing the classification marks readily apparent at the top and bottom of
each page thereof. The defendants support this contention with the affida-
vit of their counsel (first filed on appeal) regarding what the classification
authority would say if he were to testify. The defendants failed to provide
to the district court either counsel’s affidavit or any affidavit from the clas-
sification authority himself. Because the defendants could have raised this
claim in the district court and did not, it is not properly before us in this
proceeding.
 UNITED STATES v. ROSEN 9
proposition, the defendants rely on a recent Second Circuit
decision, United States v. Aref, 533 F.3d 72 (2d Cir. 2008). In
Aref, the court held that the government’s privilege against
disclosure of classified information may only be asserted
"through the ‘head of the department which has control over
the matter, after actual personal consideration by that offi-
cer.’" Id. at 80 (quoting United States v. Reynolds, 345 U.S.
1, 8 (1953)). Although the defendants readily concede that
there is no similar requirement in our precedent, they urge us
to adopt and apply such a legal principle in this case. As
explained below, we decline their invitation to adopt such a
rule.

As the defendants recognize, in the criminal context (as in
Aref), a court must weigh the government’s asserted privilege
against a defendant’s right to present evidence that is relevant
to his defense or essential to a fair determination of the cause.
In the civil context (as in Reynolds), where a defendant’s lib-
erty is not at stake, a court is entitled to require the govern-
ment to meet a higher standard for determining whether the
information has properly been deemed to be classified. Thus,
although the Reynolds Court held the government to a high
standard on the stakes at issue in that civil proceeding, it is
not clear to us that the Aref court properly adopted and
applied Reynolds in the criminal context. Our trepidation on
adopting the rule in Aref is further reinforced by the absence
in CIPA of any equivalent agency head requirement. In such
circumstances, we conclude that the absence of a statement
from the relevant agency heads invoking CIPA protection
does not present a barrier to the exercise of our jurisdiction in
this appeal. Thus, we deny the defendants’ motion to dismiss
this appeal for lack of jurisdiction.

III.

A.

Turning to the merits of this appeal, the government first
argues that the district court’s evidentiary rulings on the FBI
10 UNITED STATES v. ROSEN
Report and the Israeli Briefing Document, as embodied in the
CIPA § 6 Order, were predicated on a misunderstanding and
misapplication of 18 U.S.C. § 793. Specifically, the govern-
ment contends that, by a prior order of August 9, 2006, reject-
ing the defendants’ motion to dismiss the § 793 charges
against them on constitutional grounds, see United States v.
Rosen, 445 F. Supp. 2d 602 (the "§ 793 Order"), the court
interposed additional elements on the alleged § 793 offenses,
in an effort to ensure that § 793 passed constitutional muster
as applied to the defendants. According to the government,
these additional elements were the reason the court later ruled,
in the CIPA § 6 Order, that the documents in question were
relevant and, thus, admissible.

Although we possess jurisdiction to review the district
court’s evidentiary rulings under CIPA, as articulated in the
CIPA § 6 Order, the government’s attempt to piggyback a
pretrial review of the court’s interpretation of § 793 is
improper at this juncture. Indeed, by order of June 20, 2008,
we dismissed as interlocutory the government’s appeal of the
court’s § 793 Order, in which the court’s interpretation of
§ 793 was articulated. Our dismissal of that appeal constitutes
the law of the case, and we will not revisit it. See United
States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (recog-
nizing general rule that legal ruling is binding through all sub-
sequent stages of proceeding) (citing Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800 (1988)). Even if appel-
late review of the § 793 Order was not barred by the law of
the case doctrine, moreover, the reasoning for our dismissal
of the appeal of the § 793 Order continues to be persuasive:
specifically, such an appeal is interlocutory, and must be dis-
missed as such, unless authorized by some exception to the
finality rule. The only exception that could arguably apply
and authorize such an interlocutory appeal is CIPA § 7, which
relates only to classified information-related evidentiary rul-
ings, not to interpretations of statutory offenses. Because
CIPA § 7 does not, on its face, authorize a pretrial review of
 UNITED STATES v. ROSEN 11
the § 793 Order, this appeal is limited to the evidentiary rul-
ings made in the district court’s CIPA § 6 Order.8

B.

Finally, we review the district court’s evidentiary rulings
with regard to the FBI Report and the Israeli Briefing Docu-
ment for abuse of discretion. See United States v. Fernandez,
913 F.2d 148, 154-55 (4th Cir. 1990). The court’s determina-
tions regarding relevance and admissibility of evidence are
accorded great deference, even in the context of CIPA § 6(a),
and such decisions may only be overturned "under the most
extraordinary circumstances." Id. at 155 (internal quotation
marks omitted). "The abuse of discretion standard also applies
to the trial court’s decision to reject a proposed substitution
under [CIPA] § 6(c)." Id.

The defendants contend that the Israeli Briefing Document
is relevant because [REDACTED], and the Document is the
best evidence of [REDACTED] about the events described in
the Document. The district court initially concluded that the
Document was not relevant, but later reconsidered and revised
that ruling. It is far from certain that the Document is relevant
to show that the defendants [REDACTED]. The Document is
a [REDACTED], a matter that could be proven by other
means, including the [REDACTED]. See United States v.
Smith, 780 F.2d 1102, 1108, 1110 (4th Cir. 1985). Neverthe-
less, we may not substitute our judgment for that of the trial
court, which has been immersed in these proceedings for
8
Although we do not possess jurisdiction to review the § 793 Order at
this juncture, it is apparent that the district court worked tirelessly to bal-
ance the competing forces inherent in a prosecution involving classified
information, and that its efforts to protect the fair trial rights of the defen-
dants were not inappropriate. We are nevertheless concerned by the poten-
tial that the § 793 Order imposes an additional burden on the prosecution
not mandated by the governing statute. Section 793 must be applied
according to its provisions, as any other course could result in erroneous
evidentiary rulings or jury instructions.
12 UNITED STATES v. ROSEN
many months and has far more familiarity with the matter
than we do. See United States v. Mason, 52 F.3d 1286, 1289-
90 (4th Cir. 1995); Fernandez, 913 F.2d at 154-55; United
States v. Tindle, 808 F.2d 319, 327 n.6 (4th Cir. 1986). More-
over, at this stage of these proceedings, we are unable to
definitively say that the Document will not prove to be rele-
vant to the defense, although its relevance is not entirely clear
at this point. Thus, we are constrained to conclude that the
court did not abuse its discretion in deeming the Israeli Brief-
ing Document — in the form of the court-approved substitu-
tion — to be relevant and admissible.

Furthermore, the district court did not err in concluding that
the FBI Report is relevant to the defense, as the 18 U.S.C.
§ 793 offenses in the indictment are predicated in part on the
disclosure of the Report’s existence, and on Weissman’s dis-
closure that the Report is [REDACTED]. The defendants
sought to use in their defense the entire unredacted Report, in
an effort to show that the information they disclosed was not
the basis for the Report’s classification. The government, on
the other hand, sought to redact large portions of the Report,
asserting that those portions were not relevant to the defense.
In the face of these competing contentions, the court exam-
ined the Report and the proposed redactions in painstaking
detail, and then determined that certain of the redactions were
necessary while others would impair the defendants’ ability to
mount a proper defense. In making this assessment, the court
enlisted the participation of the government and the defen-
dants, and sought to fashion a substitution that would protect
the defendants’ rights, while simultaneously preventing the
unnecessary disclosure of classified information. Although
there may be other procedures by which this conflict could
have been resolved, there was no abuse of discretion in the
court’s rulings on the FBI Report. See Fernandez, 913 F.2d
at 154-55.
 UNITED STATES v. ROSEN 13
IV.

Pursuant to the foregoing, we deny the defendants’ motion
to dismiss the appeal. However, we affirm the evidentiary rul-
ings of the district court that are challenged by the government.9

AFFIRMED

9
Finally, we also deny two remaining motions in this appeal, the defen-
dants’ request to file a surreply brief, and the motion of several non-parties
to file an amicus brief.