Title: Ruling: Def Motion for Judicial Notice - Finkel Book and Public Statements, 18 Oct 12

Release Date: 2014-03-20

Text: UNITED STATESOF AMERICARULING: Defense Motion:Motion for Judicial Notice ofAdjudicative Facts - Finkel BookAnd Public StatementsManning, Bradley E.PFC, U.S. Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFort Myer, Virginia 2221118 October 2012Finkel Book:1. On 3 August 2012, the Defense moved the Court to take judicial notice of David Finkel'sbook The Good Soldiers, that it was published before publication of the video at issue inspecification 2 of Charge II, and the book contains audio from the video. The Government didnot oppose the Court taking judicial notice that the book was published before publication of thevideo but did object to the Court taking judicial notice that the book contains a verbatimtranscript of the video. The Defense provided the Court with a Washington Post article dated 6April 2010 by David Finkel describing an excerpt from his book but did not provide the excerptfrom Mr. Finkel's book.2. On 30 August 2012, the Court ruled in AE 288 that the Court would take judicial notice ofMr. Finkel's book and relevant excerpts from pages of the book if the Defense provided theCourt with the necessary information. The Court denied the Defense motion to take judicialnofice that Mr. Finkel's book contains a verbatim description of the audio from the videocharged in Specification 2 of Charge II as linkages, argument, and legal conclusions regardingthe contents of Mr. Finkel's book and the audio in the video are properly presented to the factfinder by the parties not by the Court.3. The Defense has provided the Court with the video and relevant excerpts from Mr. Finkel'sbook. The Court compared the excerpts with the video. Defense now moves the Court to takejudicial notice of Mr. Finkel's book, the date of publication, the provided excerpts, and that thebook quotes the video verbatim at several key points.4. The Court adheres to its 30 August 2012 ruling. The Court will take judicial notice of Mr.Finkel's book, the date of publication, and the provided excerpts. Comparisons between Mr.Finkel's book and conclusions to be drawn from the comparisons are properly presented to thefact finder by the parties not by the Court. The request to take judicial notice that the bookquotes the video verbatim at several key points is denied.Statements by Public Officials1. On 3 August 2012, Defense moved the Court to take judicial notice of statements made bypublic officials and proffered the adjudicative facts judicially noticed would be relevant forsentencing. The Government opposed.1&5(^APPELLATE EXHIBITPAGE REFERENCED:PAGEOFPAGES2. In their original motion, Defense proflered tbat the statement ofpublic officials tbat Defenseseeks to have judicially noticed as adjudicative facts are admissible as admissions byapartyopponent under MRE 801(d)(2)(B)and(D). The Government opposed admission andjudicialnotice.3. On 30 August 2012, the Defense supplied the Court with additional case-law in support oftheir argument and additional bases for admission ofthe evidence to be judicially noticed. TheCourt ordered supplemental briefs to be filed by the parties regarding the following issues:a. Admissibility under MRE 801(d)(2)(B)and(D)addressing the new case-lawprovided by the defense- Wbetherastatementb^aCongressman is admissible.b. The applicability ofMRE 805 (Hearsay Within Hearsay)c. Whether the requested evidence is admissible as residual hearsay under MRE 807^d. Whether each proposed statement offered for admission is offered for the truth ofthematter assertede. Admissibility ofnewspaper articles as business recordsf Whether there is an^ case law regarding takingjudicial notice of newspaper articlesg. The parties position regarding admissibility ofthe proposed public statements forsentencing when the rules have not been relaxed and when the rules have beenrela^edIAWRCM1001(c)(3)Also on 30 August 2012,the De^nse presented the Court witha28Jul^20101etterfi-omSenator Carl Levin to Secretary ofDe^nse Robert Gates,al^August2010responseb^Secretary Gates,and the portion ofthe Congressional Record oftbel^December2010hearingbefore the Committee on the Judiciar^,HouseofRepresentatives on Espionage Act and theLegal and Constitutional Issues Raised b^ Wikileaks tbat contained the opening statement b^congressman John Confers, Jr..4. On 13September 2012,the Delensefiledasupplementalbrief In it, the Delense provideda24 April 2011statementb^ Pentagon Press Secretary GeoffMorrell and Special Envo^ forClosureoftheGuantanamoDetentionFaeilit^,Ambassador Daniel Fried, issued asanewsrelease on the web b^ the Department ofDefense (DoD). The Defense requested the Court takejudicial notice ofthis statement in lieu of the24 April 2011NewYork Times Article. Similarly,the De^nse presented the Court witha27Jul^2010statementofPresident Barrack Obamaissued b^theWbite House Office ofPress Secretary. Defense moves the Court to take judicialnotice oftbis statement in lieu oftbe 27 Jul^2010BBC News article. The Defense furthermoves the Court take judicial notice ofSenatorLevin's28Jul^20101etter and Mr.Gates'response in lieu oftbel5October2010Associated Press and MSNBC articles and to take noticeof the 30 November 2010Defense.Gov news transcript ofaDoD News Briefing with SecretaryGates in lieu ofthe 30 November 2010NewYorkTimes Article. Finall^,the Defense moves theCourt to take judicial notice ofSecretar^ ofState Hillary Clinton'slDeeember2010"RemarksWith I^a:^akhForeign Minister Saudaba^evAfterTbeir Meeting" released on the DepartmentofState website in addition to Secretary Clinton'scomments reported in thelDecember2010USAToda^ article "Clinton: WikiLeaks won'thurtU.Sdiplomac^",the4Deeember2010CNNarticle "CIinton,WikiLeaks cables show diplomacy at work",4December2010NewYorkTimes article "FromWikiLemons, Clinton Tries to Make Lemonade",and4Deeember 2010UPI article "Clinton on leaked documents: Sowhat7". The Government opposes but stipulatesthat the statements at issue were made and stipulates to the admissibility ofthat portion ofthestatements made b^ Pentagon Press Secretary Morrell and Special Envo^ for Closure oftheGuantanamoDetentionFacilit^Ambassador Daniel Fried, President Obama, and DefenseSecretary Gates in bisl^August20101etter. The Government further concedes tbat ifthe rulessentencing are relaxed under RCM1001(c)(3)that all of the statements except those ofSecretar^ofState Hillary Rodham Clinton would be admissible.AGeoffMorrell,PentagonPressSeeretar^^"ItisunfortunatetbattheNewYorkTimes and other news organi:^ations bave made the decision to publish numerousdocuments obtained illegally b^ Wikileaks concerning the Guantanamo detentionfacility. These documents contain classified inlc^rmation about current and ^rmerGTMO detainees,and we strongly condemn the leaking ofthis sensitive information.The Wikileaks releases include Detainee Assessment Briefs (DABs)writtenb^ theDepartment ofDefense between 2002 and earl^2009. These DABs were written basedonarange ofinformation available then. The Guantanamo ReviewTaskForce,established in Januar^2009,considered tbeDABs during its review of detaineeinformation. In some cases, tbcTask Force came to the same conclusions as the DABs.In other instances, the ReviewTaskForce came to different conclusions,based onupdated or other available information. The assessments ofthe Guantanamo ReviewTaskForce bave not been compromised toWikileaks. Thus, an^givenDAB illegallyobtained and released b^ Wikileaks ma^ or ma^ not represent the current view ofagivendetainee. Both the previous and the current administrations bave made ever^ effort to actwith the utmost care and diligence in translerring detainees from Guantanamo. Theprevious administration transferred 537 detainees-to date, the current administration hastransferred ^7. Both administrations have made the protection ofAmerican citizens thetop priority and we are concerned that the disclosure ofthese documents could bedamaging to these effi^rts. That said,we will continue to work with allies and partnersaround the world to mitigate threats to theU.S.and other countries and to work towardthe ultimate closure ofthe Guantanamo detention facilit^,consistent with good securitypractices and our values asanation."B. President BaraekObama^"WhileI'mconcerned about the disclosure of sensitiveinlormation from the battlefield that could potentiall^jeopardize individuals oroperations, the fact is,these documents don'trevealan^ issues that baven'talread^informed our public debate on Afghanistan. Indeed, tbe^ point to the same challengesthat led me to conduct an extensive review of our police last fall."C. Defense Secretary Robert Gates^l^August2010Ietter-"Thank^ou for ^ourJul^28, 20101etter regarding the unauthorized disclosure and publication of classifiedmilitary documents b^ WikiLeaks organization. Ishare^our concerns about the potentialcompromise ofclassified information and its elfect on the safety ofour troops,allies,andAfghan partners. After consulting with the Director ofthe Federal Bureau ofInvestigation,Ibavedirectedatborough investigation to determine the scope of an^unauthorized release of classified inlormation and identify the person or personsresponsible. Ibave also established an interagency Information ReviewTaskForce, ledb^ the Defense Intelligence Agene^,to assess the content of an^ compromisedinformation and the impacts of such compromise. Our initial review indicates most ofthe information contained in these documents relates to tactical military operations. Theinitial assessment in no wa^ discounts the risk to national security-however, the reviewto date has not revealed an^ sensitive intelligence sources and methods compromised b^this disclosure. The documents do not contain the names of cooperative Afghan nationalsand the Department takes ver^ seriously thcTaliban threats recently discussed in thepress. Weassess this risk as likely to cause significant harm or damage to the nationalsecurity interests oftbe United States and are examining mitigation options. Weareworking closely with our allies to determine what risks our mission partners ma^ face asaresult ofthe disclosure. There isapossibilit^ that additional military documents ma^be published b^ Wikileaks and the Department is developing coursesof action to addressthis possibility. The scope ofthe assessment and the nature ofthe investigative processrequireagreat deal oftime and eflort. lam committed to investigating this matter anddetermining appropriate action to reduce the risk ofan^sucb compromises in the future".D. Defense^Seeretar^ Robert Gates-DoDNewsTranscript^30 November 2010^"Let me just offer some perspective as somebody who'sbeen at tbisalong time. Ever^other government in the world knows the United States government leaks likeasieve,anditbasforalongtime. Andldragged this up the other da^whenlwas looking atsome ofthese prospective releases. And this isaquotefi-om John Adams: Howcanagovernment go on, publishing all oftheir negotiations with foreign nations,Iknow not.Tome, it appears as dangerous and pernicious as it is novel. Now,I've heard the impactofthese releases on our foreign police described asameltdown,asagame-changer, andsoon. Ithink those descriptions are lairl^ significantly overwrought. The fact is,governments deal with the United States because the^ believe we can keep secrets. Man^governments, some governments, deal with us because the fear us, some because tbe^respect us, most because tbe^ need us. Weare still essentiall^,as has been said before,the indispensible nation. So other nations will continue to deal with us. Tbe^willcontinue to work with us. Wewill continue to share sensitive information with oneanother. Istbisembarrassing7 Yes. Isitawkward7 Yes. Consequences forU.S.Ibreignpolice areltbink fairly modest."E. Secretary ofStateHillar^ Rodham Clinton, DOS Press Release,lDecember 2010,"Remarks With l^azakhForeign Minister Saudaba^evAfierTheirMeeting"^"I bavecertainly raised the issue ofleaks in order to assure our colleagues tbat it will not in an^wa^ interfere with American diplomacy or our commitment to continuing important workthat is ongoing. Ihave not had an^ concerns expressed about whether an^ nation will notcontinue to work with and discuss matters ofimportanee to both ofus going forward. AsIsaid,Iam proud oftbe work that American diplomats do, and the role tbat Americapla^s in the world. Both President Obama andlare committed toarobust andcomprehensive agenda of engagemenf Andlam confident tbat the work tbat ourdiplomats do ever^ single da^ will go forward. lanticipate tbat there will bealot ofquestions that people have ever^ right and reason to ask, and we stand read^ to discussthem at anytime with our counterparts around the world."FSecretar^ ofState Hillary Rodham Clinton, CNNPolitics,4December 2010,"Clinton: WikiLeaks cables show diplomacy at work",4December2010NewYorkTimes article "FromWikiLemons,ClintonTries to Make Lemonade",and4December2010UPI article "Clinton on leaked documents: Sowbat7"^TheconfidentialU.S.embassy cables posted online b^ the websiteWikiLeaks simple show"diplomats doingthe work of diplomacy. Ever^bod^ is concerned. Ever^bod^hasarigbttobaveustalkto them, and bave anyquestions tbat the^ have answered, but at the end of the da^^asacouple of analysts and v^iters are now writing ^wbat^ou see are diplomats doing theworkofdiplomae^.Butlhaven'tseenever^bod^ in the world, and apparently there's252,000 of these things out there in cyberspace somewhere solthink I'll bave someoutreach to continue doing over the next weeks just to make sure as things becomepublic, ifthey raise concerns,Iwill be prepared to reach out and talk to m^ counterpartsor heads of state government. Inawa^,it should be reassuring, despite the occasionaltidbit tbat is pulled out and unfortunately blown up. Tbeworkofdiplomac^isondispla^,and^ouknow,it was not our intention for it to be released this wa^^usuall^ ittakes ^ears before such matters are. Butltbinkthere'salot to be said about what itshows about the foreign police ofthe United States."G.Vice President Joseph Biden,MSNBC,undated, transcript ofinterview with AndreaMitchell^"I came in, almost all ofit was embraces,Imean it wasn't just shaking bands.Iknow—I know these gu^s,Iknowtbese women. The^ still trust the United States.There'sall kind ofthings and ^In response toaquestion "So there'snodamage7"j " Idon'ttbinktbere'san^ damage. Idon'tthinkthere'san^ substantive damage, no. Look,some ofthe cables that are coming out here and around the world are embarrassing. Imean, ^ou know, to sa^ that, ^ounow,for^ou to doacable as an ambassador and sa^Idon't like Biden'stie, be doesn't look good and be'sahomel^gu^,that'snotsometbing."]^Ineversaidthatj "No,Iknow ^oudidn'L But^et,Imean,^ouknow^sothere'salot of things like that would allow another nation to sa^tbe^ lied to me,wedon'ttrust them, tbe^ really are not dealing fairly with us."HTheHonorableJohnCon^ers,Jr.HearingonEspionageactand the Legal andConstitutional Issues Raised b^WikiLeaks,l^December2010^"Weare too quick toaccept government claims ofrisk to national security and far too quick to forget theenormous value ofsome national security leaks and, quoting Secretary Gates, "Ihavebeard the impact of these releases on our foreign police described asameltdown, asagame changer, and so on. Itbink those descriptions are fairly significantly overwrought."3. On 29August 2012,during oral argument, the Defense withdrew its request for judicialnoticeofpublic commentsfi:-omMarine Colonel David Lapan.4. On 30 August 2012,during oral argument, the Defense provided the Court withacopy ofthel^August20101etter from Secretary ofDe(ense Robert M.Gates to Senator Carl Levin,Chairman, Senate Committee on the Armed Services. The letter provided the source for Mr.Gates'statements quoted in thel5October2010Associated Press article. In place oftbatArticle, the Defense requests the Court to take judicial notice ofMr.Gates'I^August 2010letter and the 28 Jul^20101etter from Senator Levin requesting Mr. Gates'response.The La^:Judicial Notice1. Military Rule ofEvidence (MRE)201 govemsjudicial notice of adjudicative facts. Thejudicially noticed fact must be one not subject to reasonable dispute in that it is eitber(l)generally known universall^,locall^,or in the area pertinent to the event or (2) capableofaccurate and read^ determination b^ resort to sources whose accuracy cannot reasonable be1987)-^^i^^/-^i^/^,33MJ 70^questioned ^ ^ i ^ ^ ^ ^ ^ ^ ^ / ^ , 2 3 M J 383 (CMA(ACMR1991)2. MRE 201(c)requires the military judge to take judicial notice of adjudicative facts ifrequested b^apart^ and supplied with the necessary information.3. When the militar^judgetakesjudicial notice ofadjudicative facts, the factfinderis instructedtbat the^ma^,but are not required to, accept as conclusive an^ matter judicially noticed.4. Judicial notice is of adjudicative facts. Judicial notice is not appropriate for inferencesapart^hopes the factfinderwill draw from the fact(s)judiciall^ noticed. Legal arguments andconclusions are not adjudicative facts subject to judicial notice, ^ . ^ . i ^ . ^ / ^ ^ ^ / ^ . ^ ^ / ^ , 22 M.J.885(A.F.C.M.R. 1985)(appropriate to take judicial notice of the existence ofatreatment program ataconfinementtacilit^ but not appropriate to take judicial notice of the quality ofthe program.).TheLa^: Hearsay1. Hearsay isastatement, other than the one made b^ the declarant while testifi^ing at the trial,offered in evidence to prove the truth ofthe matter asserted. MRE 801(c). Hearsay is notadmissible except as provided b^ the Military Rules ofEvidence or b^an^Act of Congressapplicable in trials b^ court-martial. MRE 802.2. Admission b^aPart^ Opponent. MRE 801(d)(2)provides in relevant part tbat admissions b^aPart^ Opponent are not hearsay if the statement isoflcredagainstapart^ and is(A)the parties'own statement in either the part^'sindividual or representative capacity-(B)astatement ofwhich the part^ has manifested the part^'sadoption or beliefin the trutb-(C)astatementb^aperson authorized b^ the part^ to makeastatement concerning the subject-or (D)astatementb^the part^'sagent or servant concerningamatter within the scope oftbe agency or employment ofthe agent or servant made during the existence of the relationship....The contents of thestatement shall be considered but are not alone sufficient to establish the declarant'sautborit^under(C),or the agency or employment relationship and the scope tbereofunder(D).3. Relevant Hearsay Exceptions:A. MRE803(^) Records ofRegularl^ Conducted Activity.B803(8) Public RecordsandReportsMREC MRE 807Residual Hearsay4. MRE 805 provides that hearsay included within hearsay is not excluded under the hearsayrule ifeacb part oftbe combined statement conforms with an exception to the hearsay ruleprovided in these rules.TheLa^: SentencingRelaxed Rules.1. RCM1001(C)(3)authorizes the militar^judge,with respect to matters in extenuation ormitigation or both, to relax the rules of evidence. This ma^ include admitting letters, affidavits,certificates ofmilitar^ and civil officers and other writings ofsimilar authenticity and reliability.2. RCM1001(C)(4) provides that when the rules of evidence have been relaxed for the Defense,the^ma^ be relaxed during rebuttal and surrebuttal to the same degree.Conclusions o f L a ^ : The statements proffered b^ the Delense in enelosuresA-H of thel3September 2012 Delense Supplement are not relevant to the merits portion oftbe triak Theconclusions oflaw below address admissibility during the sentencing portion ofthe triakAdmissibility as Admissions b^aPart^ Opponent Under MRE 8t)l(d)(2)(B) or MRE801(d)(2)(D)1. There is no direct military ease law regarding whether statements b^ government agents canbe admissible againstapart^ opponent inacriminal proceeding. The Federal Circuits havevaried opinions on this issue, .^^^^^.^.^^^^^/^^,403 Md. 308,322 325 (Ct.App.Md 2008).This Court agrees it is possible for statements b^ executive branch officials to be admitted inacriminal proceeding as admissions ofapart^ opponent. i^^^^/^/^^^i^^^^^.^i^. I^/^^/^/^/^,874F.2d ^34, ^38 (9tbCir.l989) (holding thatamanual on field sobriety testing issued b^ thegovernment should be admissible as an admission ofapart^ opponent inadrunk driving case)^/^/^^^i^^^^^.^i^.^^/-/7^,28^F.3d 749,758 (4^^ Cir. 2002) (holdingthat in prosecution formakingfalse statements to the FDA, the statements ofan employee oftbe FDA could be admittedagainst the government pending proper Ibunding)-^/^/^^^i^^^^^.^i^. ^i^/-/-^/^,42F.3d^47,^55(D.C.Cir.l994) (holding tbat government bad manifested its belief in sworn statements b^apolice officer contained in an affidavit, therefore the statements were admissible under FederalRuleofEvidence(FRE) 801(d)(2)(B)). The Court further agrees with the Government that theeases allowing such admissions are those where the prosecution has manilested its beliefin thetruth ofastatementinacourt proceeding or judicial document tbat should be admissible whenthe Government takesacontrar^ position. ^/^/^^^^^^/^^.^i^.^/^^/^^^/^,97F.3d 835,851 (^tb Cir.1991)-^/^/^^^^^^^^.^i^^^/-^^/^,581F3d 933,937 ( D C C i r l 9 7 8 )2. The Court adopts the three-part test adopted b^ the Second Circuit in ^ / ^ / ^ ^ ^ i ^ ^ ^ ^ ^ . ^ 1^.1^^^^/-/^^,937F.2d 797,811 (2^^ Cir. 1991)to determine if the statements at issue are admissible againstthe Government and worths ofjudieial notice. The three-part test requires the Court,"]^tojbesatisfied tbat the prior ]^statementj involves an assertion offact inconsistent with similarassertions inasubsequent trial. Second, the court must determine tbat the ]^statementsjweresuch as to be the equivalent of testimonial statements.... Last, the district court must determineby a preponderance of the evidence that the inference that the proponent of the statements wishesto draw is a fair one and tbat an irmocent explanation for the inconsistency does not exist."^a/ez-MO, 937 F.2d at 811 (2d Cir. 1991) (quoting C//7fW&are.y v. Mc^eow, 738 F.2d 26, 33 (2dCir. 1984) (quotations omitted); see also United States v. DeLoach, 34 F.3d 1001, 1005 (11thCir. 1994) (adopting the test from Salerno).3. To qualify for admission as a statement against a party opponent, the statement must bearsuch a close resemblance to in-court testimony tbat they may be considered its functionalequivalent. As the Court noted in McKeon while analyzing whether use of prior openingstatements were admissible against the government in subsequent criminal trials, "Speculationsof counsel, advocacy as to the credibility of witnesses, arguments as to weaknesses in theprosecution's case or invitations to a jury to draw certain inferences should not be admitted. Theinconsistency, moreover, should be clear and of a quality which obviates any need for the trier offact to explore other events at the prior trial. The court must further determine that thestatements of counsel were such as to be the equivalent of testimonial statements by thedefendant. . . Some participatory role of the client must be evident, either directly orinferentially as when the argument is a direct asserfion of fact wbicb in all probability had tohave been confirmed by the defendant." McKeon, at 33.4. Casual statements made to private individuals, with no expectation of conveyance beyond thelistener are not testimonial, even if highly incriminating to another. United States v. Scheurer,62 M.J. 100, 105 (CAAF 2005)(quoting Robert P. Mosteller, Crawford v. Washington:Encouraging and Ensuring the Confrontation of Witnesses, 39 U. Rich. L.Rev. 511, 540 (2005).Testimonial statements bear the indicia of reliability often "contained in formalized ... materials,such as affidavits, depositions, prior testimony, or confessions." United States v. Hendricks, 395F.3d 173, 181 (3d Cir. 2005) (quoting Crawford v. Washington, 541 U.S. 36, 52 (2004)).Statements "cannot be deemed testimonial" if the declarant "did not make the statementsthinking that they would be available for use at a later trial." U.S. v. Sheurer, at 105 (quotingCrawford, 541 U.S. at 52).5. To determine whether a statement is testimonial and non-testimonial statements, it is relevantto inquire: Was the statement at issue in response to a law enforcement or prosecutorial or formalinquiry? Is the statement a direct assertion of fact? What was the primary purpose for makingthe statement? See United States v. Rankin, 64 M.J. 348, 352 (C.A.A.F. 2007), McKeon, at 33.6. The fact that a statement is admissible against a party opponent does not bind the party to thatstatement. The party against whom sucb a statement is made can rebut the statement and assert adifferent or contrary position. Bellamy, 403 Md. at 328, fn 19.7. There are eight statements of public officials currently at issue.A. The statement by Geoff Morell, Pentagon Press Secretary, is admissible under MRE801(d)(2)(D). The substance of the statement, specifically that the assessments of theGuantanamo Review Task Force have not been compromised to Wikileaks, is anassertion of fact, and likely one inconsistent with the position taken by the government attrial. This statement delivered byaPentagon Press Secretary and distributed to the mediafor widespread publication was done so under formal circumstances and is bereft ofpersonal opinion. The primary purpose ofthe statement was to convey information to thepublic, unlikeastatement made to family or friends,and this direct assertion of fact in allprobability bad to be confirmed by the government. The statement therefore is imbuedwith the reliability tbat is the hallmark ofa"testimonial statement." Finally,apreponderance oftbe evidence demonstrates the inference to be drawn by the Defense isafairone.B. The statement by President Barack Obama to ABC News on 27 July2010isadmissible under MRE 801(d)(2)(D). The substance ofthe statement, specifically tbatthe ^released informationjdoesn't "reveal any issues that haven'talready informed ourpublic debate on Afghanistan" is an assertion offact, and likely one inconsistent with theposition taken by the Government at triak This statement by the President was deliveredunder formal circumstances, and presented to the media in the Rose Garden to bedistributed to the public. The primary purposeoftbe statement was to conveyinformation to the public,and this direct assertion offact in all probability had to beconfirmed by the government. The statement therefore is imbued with the reliability tbatis the hallmark ofa"testimonial statement." Finally,apreponderance of the evidencedemonstrates the inference to be drawn by the defense isafair one.C. Tbel6August20I0Ietterfi-om Secretary ofDelcnse Robert M.Gates to Senator CarlLevin, Chairman, Senate Committee on Armed Services, is admissible under MRE801(d)(2)(D). The substance oftbe statement, specifically tbat that the releasedinformation does not reveal sources and methods,is an assertion offact, and likely oneinconsistent with the position taken by the government at trial. The statement bySecretary Gates was delivered under formal circumstances, in response toaletter fromSenator Carl Levin, and published on official letterhead. The primary purposeoftbeletter was to convey information to the Chairman oftbe Senate Committee on ArmedServices and the public, and the direct assertions offset contained therein in allprobability had to be confirmed by the government. The statement therefore is imbuedwith the reliability tbat is the hallmark ofa"testimonial statement." Finally,apreponderance oftbe evidence demonstrates the inference to be drawn by the defense isafair one.D. The statement by Secretary ofDefense Robert M.Gates, on 30 November 2010,duringajoint DOD news briefing with the Chairman, Joint Chiefs ofStaff, Admiral MikeMullen, is not admissible under MRE 801(d)(2)(D)and the Court declines to judiciallynotice the statement. The statement is not assertion offact, it is one of personal belief ("Ithink those descriptions are lairly significantly overwrought.") Despite the formalcircumstances under which the statement was made(e.g.aDOD news briefing with theChairman oftbe Joint Chiefs ofStaff) the Courtfindsthe primary purpose oftbestatement was not an assertion of an unambiguous, factual matter, butapolitical one.Secretary Gates was addressing the press corps and explaining the repeal oftbe "don'task, don'ttell" law whenaquestion arose regarding information sharing among theintelligence community. Secretary Gates was attempting to minimize the release oftheinformation on U.S.^reign policy. Persuasive speech of this kind is notadirectassertion oflact tbat in all probability had to be confirmed by the government, or is easilyrebutted by similar assertions.E. The statement by Secretary ofState Hillary Rodham Clinton published on the DOSwebsite onlDecember 2010,is not admissible under MRE 801(d)(2)(D)and the Courtdeclines to judicially notice the statement. Tobegin, the statement is not an assertion offact, it is one ofpersonal belief ("I think there'salot to be said about what it shows aboutthe foreign policy oftbe United States."). Despite the formal circumstances under whichthe statement was made(e.g.declaration byaSecretaryataworld security summit)tbeCourtfindsthe primary purpose oftbe statement was not an assertion of an unambiguous,lactual matter, butapolitical one. Secretary Clinton was attempting to bolster supportamong world leaders and top diplomats, despite the alleged security violations.Persuasive speech ofthis kind is notadirect assertion offact tbat in all probability had tobe confirmed by the government, or is easily rebutted by similar assertions.F. The statements made by Secretary ofState Hillary Rodham Clinton published by USAToday onlDecember 2010andCNN.com, NewYorkTimes.com, and UPI.com on4December 2010,are not admissible under MRE 801(d)(2)(D)and the Court declines tojudicially notice the statements. Tobegin, the statements are not an assertion offact, it isone ofpersonal belief("I think I'll have some outreach to continue doing over the nextweeks...") The Courtfindstbat the statements in this interview are not the functionalequivalent of"testimonial statements." The statements were ostensibly made offcamera,but on the record. Nevertheless, the Courtfindsthe primary purpose was not an assertionofunambiguous, factual matters, butapolitical one. Secretary Clinton was againattempting to re-establish trust with world leaders through diplomacy. Persuasive speechofthis kind is notadirect assertion offact tbat in all probability had to be confirmed bythe government, or is easily rebutted by similar assertions.G. The undated statement made by Vice President Biden,duringaone-onone interviewwith NBC correspondent Andrea Mitchell, is not admissible under MRE 801(d)(2)(D)and the Court declines to judicially notice the statement. Tobegin, the statement is notan assertion oflact, it is one ofpersonal belief ("I don'tthinktbere'sany damage.") TheCourtfindstbat the statements in this interview are not the functional equivalent of"testimonial statements." The statements oftheVice President are not formally preparedremarks, rather tbey are off-the-cuff responses to questions and include such phrases as"Sure,Idid,""Suretbeyare,""Well,look " " I love the Senate Hove tbeCongress Ikeep in touch with them." The nature ofthe statements themselves, including thequalifying language ("I don'ttbinkthere'sany damage") do not support the principle thatthe statements are testimonial in nature. Moreover, the topics discussed during theinterview coverabroad range of subjects from tbeVicePresident'srelationship with thePresident, to the death ofRicbard Holbrooke. In fact, the interview concluded withaholiday message fi-omtheVice President to the service members serving in Iraq.Thesestatements were notadirect assertion offact that in all probability bad to be confirmed bythe government, or are easily rebutted by similar assertions.10H. The statement made by the Honorable John ConyersonI6December 2010,duringaCongressional bearing on the Espionage Act and the Legal and Constitutional Issuesraised by Wikileaks,is not admissible under MRE 801(d)(2)(D)and the Court declines tojudicially notice the statement. The statement is not an assertion offact, it is oneofpersonal belief ("Weare too quick to accept government claims ofrisk to nationalsecurity.") Despite the formal circumstances under which the statements were made(e.g.an on-the-record committee hearing) the Courtfindsthe primary purpose ofthe statementis not an assertion ofunambiguous, factual matters, butapolitical one. CongressmanConyers was attempting to get the public and the press to "slow down and takeacloserlook" at the alleged security violations. These statements were notadirect assertion offact that in all probability bad to be confirmed by the government, or is easily rebutted bysimilar assertions. The statement sought to be introduced by the Defense is primarilyhearsay within hearsay, as Congressman Conyers is quoting Secretary Gates.Congressman Conyers'remarks regarding his perspective on government leaks isirrelevant to any issue of material fact in the case. Finally,tbis Courtfindsan additionalimpediment to admissibility of this statement, as the declarant isamember of thelegislative, not executive, branch of government, and the legislature is notapartyopponent in the proceeding. ^/^/^^^^^^^^.^v^^/-^^,910F.2d 843,906-9Il(D.C.Cir.1990)9 Admissibility ofStatementsaPublic Records Under MRE 803(8).A. As an additional basis for admission, the Courtfindstbel6August20101etterfi-omSecretary Gates admissible under MRE 803(8)(A). It isarecord of activities setting forth theactivities oftbe Department ofDefense.B. The remaining statements are not admissible under MRE 803(8)(A). Newspaperarticles are not public records. Press releases by Government officials under the circumstancesofthis case do not set forth the activitiesofthe agency. If such press releases were admissibleunder MRE 803(8)(A), sucb pronouncements by Government officials offered by theGovernment against the accused would be similarly admissible. Finally,aCongressional recordcould be admissible under MRE 803(8)(A) if relevant. The opening statement and the personalopinion ofCongressman Conyers regarding his perspective on government leaks is irrelevant toany issue ofmaterial fact during sentencing proceedings.10 Admissibility of Comments Made by Government Officials foranon-bearsay purpose.The Courtfindsthe statements made by Mr. Morrell, President Obama, and Secretary Gates inenclosuresA-Cofthel3 September 2012Defense Supplement are also admissible as nonhearsay in tbat the fact tbat the public statements ofthese Government officials were made iscircumstantial evidence ofminimized damage caused by the alleged Wikileaks disclosures.Similarly,tbe statements by Secretary Gates and Secretary Clinton made in DoD and DoS pressreleases(enclosuresDandE) are similarly admissible ^ r the non-hearsay purpose. Thestatements by Secretary Clinton and Vice President Biden(enclosuresFandG) are similarlyadmissible for the non-hearsay purpose only ifthe newspaper article within which the statementsappear qualify forahearsay exception. The statement by Congressman Conyers, Jr. in theCongressional record(enclosureH) is not admissible foranon-bearsay purpose because bis11personal opinion on government leaks is irrelevant to any issue ofmaterial fact during sentencingproceedings.11. Admissibility of Comments Made by Government Officials in Newspaper Articlesunder MRE804,803(6),and 807.A. The statements made by government officials in newspaper articles or articlespublished on the internet are hearsay within hearsay. Newspaper articles do not qualify asbusiness records under MRE 803(6) ^ i ^ i^ .^^^///^^/^,43MJ501(A F Ct Crim App l992);^^v^/^^^^i^/,155FedAppx 433 (ll^^Cir 2005);^^^/^^/-v^^/^/-/^^^2010). Thus, statements made in newspaper articles where the reporter is not produced asawitness are hearsay within hearsay even if there isabearsay exception or the statement isadmitted foranon-bearsay purpose.B. The newspaper articles at issue are also not admissible as residual hearsay under MRE807. Residual hearsay should be used sparingly and requires that the statement be moreprobative on the point for which it is oflered than other evidence wbicb the proponent canprocure through reasonable eflbrts. i^^^^.i^.v.^//^^^^,45MJ284(CAAF 1996) citing .^^/-^^^.C//^^.^^.^B^/^^^^^.^^946F.2d 630,644 (9^^ Cir.I991)(testimonyofnewspaper reporters moreprobative than copies ofnewspaper articles) Additionally,there is no way to know whether thegovernment officials quoted were quoted in part or in toto. Finally,the online interview ofVicePresident Biden at encIosurcGis undated. None oftbe newspaper articles at issue bears thecircumstantial guarantees oftrustwortbiness required for admissibility under MRE 807.Conclusions of Law: SentencingShould the Defense move the Court to relax the rules ofbearsay and authentication pursuant toRCM1001(C)(3), the Court will permit the De^nse to admit the statements in enclosures D-Gin extenuation or mitigation or both at sentencing. The Court will takejudicial notice oftheexistenceoftbe statements i n D F . The Court will not takejudicial notice ofthe existence oftheinterview at enclosureGunless the Defense provides evidence oftbe date oftbe interview wasmade to the Court. Relaxation ofthe rules under RCM1001(c)(3)does not relax the rules ofrelevance. The statement by Congressman Conyers, Jr. in enclosureHis not relevant forsentencing and is not admissible under relaxed rules.Ruling: The Defense motion for Judicial Notice ofPublic Statements is Granted in Part.1. The statements by Mr. Morrell,President Obama, and Secretary Gates in enclosuresACareadmissible as substantive evidence and the Court will take Judicial Notice oftbe press releases inenclosuresAandBand ofthe letters in enclosure C.2. The statements in enclosuresA^Cand the statements by Secretary Gates and SecretaryClinton at enclosuresDandEare admissible foranonhearsay purpose as public statementsmade by government officials that provide circumstantial evidence ofminimized damage causedby the alleged Wikileaks disclosures. The Court will takejudicial notice ofthe existence oftbepress releases including the statements.123. The statements made by Secretary Clinton and Vice President Biden in enclosuresFandGare hearsay within hearsay and are not admissible (or the non-hearsay purpose in paragraph2unless the Defense requests the rules be relaxed for these statements under RCM1001(c)(3). Ifthe rules are relaxed the Court will take judicial notice of the newspaper articles in enclosureF.Ifthe De^nse provides evidence oftbe date oftbe interview ofVice President Biden atenclosure G, the Court will takejudicial notice oftbe interview.4. The statement by Congressman Conyers, Jr. is not relevant and is not admissible.So Ordered thisl8^^ day ofOctober 2012DENISERLINDCOL,JAChief Judge,!^^ Judicial Circuit13


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