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September 9, 2008, Alert No. 1,823.
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Bush Nominates Judge Preska for 2nd Circuit

9/9. President Bush nominated Judge Loretta Preska to be a Judge of the U.S. Court of Appeals (2ndCir). She has been a Judge of the U.S. District Court (SDNY) since 1992. See, White House press office release and bio.

She presided in American Library Association v. Pataki, a constitutional challenge to a New York internet decency statute.

The statute made it a crime "Knowing the character and content of the communication which, in whole or in part, depicts actual or simulated nudity, sexual conduct or sado-masochistic abuse, and which is harmful to minors, [to] intentionally use[] any computer communication system allowing the input, output, examination or transfer, of computer data or computer programs from one computer to another, to initiate or engage in such communication with a person who is a minor."

In 1997, she held that "The protection of children from pedophilia is an entirely valid and laudable goal of state legislation. The New York Act's attempts to effectuate that goal, however, fall afoul of the Commerce Clause for three reasons. First, the practical impact of the New York Act results in the extraterritorial application of New York law to transactions involving citizens of other states and is therefore per se violative of the Commerce Clause."

Second, she held that "the benefits derived from the Act are inconsequential in relation to the severe burdens it imposes on interstate commerce."

And third, she held that "the unique nature of cyberspace necessitates uniform national treatment and bars the states from enacting inconsistent regulatory schemes." She granted a preliminary injunction, and wrote an opinion that is reported at 969 F. Supp. 160.

Judge Sullivan Denies Several of Sen. Stevens' Pre-Trial Motions

9/10. The U.S. District Court (DC) held a pre-trial hearing on numerous defense and prosecution motions in US v. Stevens. Judge Sullivan ruled against the defense on key motions, and postponed decisions on others. The defense made some minor progress in obtaining commitments from the prosecution on pre-trial discovery issues.

Judge Emmett SullivanThe arguments at this hearing suggest that the defense will shortly bring a motion to suppress wiretap evidence, a motion to exclude a key prosecution witness from testifying, and other evidentiary motions. Judge Emmet Sullivan (at left) made statements suggesting that he will not be not favorably disposed to such motions.

Judge Sullivan previously rejected Sen. Ted Stevens' (R-AK) effort to have the case transferred to Anchorage, Alaska. He also previously granted Sen. Stevens' request for a speedy trial. Jury selection is scheduled to begin in Washington DC on September 22.

Sen. Ted StevensSen. Stevens (at right) is up for re-election in November. He did not attend the hearing.

The case is not going well for Sen. Stevens.

Indictment. On July 29, 2008, a grand jury of the U.S. District Court (DC) returned an indictment [27 pages in PDF] that charges Sen. Stevens with seven counts of violation of 18 U.S.C. 1001 in connection with his alleged failure to disclose receipt of things of value on his annual Senate Financial Disclosure Forms (SFDF) for the years 1999 through 2006.

The indictment alleges that Sen. Stevens failed to disclose "home improvements" to his house in Girdwood, Alaska, performed by others, including a "second-story wraparound deck, new plumbing, new electrical wiring" and other remodeling and additions.

It further alleges that he received these things of value from the Veco Corporation, an oil industry services company based in Alaska. These allegations are relevant to the charges.

1001(a) provides, in part, that "whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully -- (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined" or "imprisoned ...".

The indictment also alleges facts that would be relevant to charges of violation of Chapter 11 of the Criminal Code, which pertains to "Bribery, Graft, and Conflicts of Interest", but which are not necessary to prove violation of 1001.

For example, Paragraph 17 states "It was a part of the scheme that STEVENS, while during that same time period that he was concealing his continuing receipt of things of value from ALLEN and VECO from 1999 to 2006, received and accepted solicitations for multiple official actions from ALLEN and other VECO employees, and knowing that STEVENS could and did use his official position and his office on behalf of VECO during that same time period. These solicitation for official action, some of which were made directly to STEVENS, included ..."

That is, under a 1001/SFDF charge, the alleged illegality is the non-disclosure of receipt of things of value, which receipt may be legal. Under a bribery charge, the illegality lies in the receipt of the thing of value, even if it is disclosed. Moreover, bribery is a substantially more serious offense, and one that carries a greater stigma for voters and jurors.

The DOJ decision to bring 1001/SFDF charges, rather than bribery charges, was likely based in part on the DOJ's desire to have the case tried in Washington DC, before a Democratic judge and jury, rather than in Anchorage, Alaska, before a judge and jury who would be more favorably disposed to Sen. Stevens. See, story titled "DOJ Obtains Indictment of Sen. Stevens in DC" in TLJ Daily E-Mail Alert No. 1,802, July 29, 2008.

Judge Sullivan was appointed to the District Court by former President Clinton. However, he previously held District of Columbia judgeships under appointment from former President Reagan, and the first President Bush.

The decision to bring 1001/SFDF charges was likely based also on the prosecution's inability to find any evidence of any quid pro quo agreements between Sen. Stevens and Veco.

Statute of Limitations. Judge Sullivan denied the defense motion to dismiss Count 1 as time barred. This count alleges failure to disclose information on the 1999 and 2000 SFDFs, as well as failure to disclose information on subsequent SFDFs, as part of a scheme to violate 1001.

The 1999 and 2000 filings occurred beyond the five year statutory limitation. However, Judge Sullivan reasoned that the five year limitation does not operate as a bar because there is a "continuing offense". That is, the offense was not completed at the time of the filing of the allegedly false SFDFs. Rather, by continuing over time not to revise his filings, Sen. Stevens continued to violate the statute.

Count 1 thus remains, and the prosecution can introduce evidence from as far back as 1999.

This also leaves Sen. Stevens with a significant appeal point. However, if the jury convicts, and Sen. Stevens loses his election, a successful appeal will be of limited value to him.

Prejudicial Evidence. The defense scored no victories at the hearing on restricting the evidence admitted at trial to matters relevant to the seven counts in the indictment.

The prosecution has charged Sen. Stevens with violation of 1001, but not with receiving bribes. Also, in arguing against moving the case to Alaska, the prosecution argued that the case involves only non-disclosure on financial forms, which were filed in Washington DC.

Now, having obtained an indictment, and successfully kept the case in its home court, the prosecution states that it plans to introduce evidence that would be appropriate were this a bribery case. Under 1001(a)(2) it need only prove that Sen. Stevens knowingly and intentionally made a materially false statement on a SFDF regarding receipt of things of value. It need not prove that there was any impropriety in the receipt of the things of value, and any quid pro quo for the items. Yet, the prosecution now seeks to introduce unnecessary evidence implying, but not proving, such impropriety.

If the prosecution actually possesses, and is able to introduce at trial, the evidence that it claims to possess, it has a strong case that Sen. Stevens did violate 1001. Yet, annual SFDFs are hardly the stuff of major political corruption, and may not impress all members of the jury. The prosecution likely seeks to introduce superfluous evidence to tarnish Sen. Stevens before the jury, and to give the jury further incentive to return a guilty verdict.

So far, Judge Sullivan appears willing to allow the prosecution this tactic. Many judges would not.

The defense wants paragraph 17 excised from the indictment. It does not want the jury to get a copy of the indictment. And, it seeks the exclusion of prejudicial evidence.

The prosecution argued that the language in paragraph 17 is relevant to intent, materiality, and motive.

Judge Sullivan stated that this "is not a quid pro quo case". The prosecution conceded that Sen. Stevens "is not doing one for the other", and "nobody intends to try to prove that at trial".

The defense argued that Paragraph 17 and evidence related to the allegations in Paragraph 17 would be prejudicial. The defense argued that Sen. Stevens "listens to his Alaska constituents, and he tries to help them". It further argued that if the prosecution introduces Paragraph 17 evidence, the defense will have to introduce extensive evidence that helping constituents is what Senators do.

Judge Sullivan asked the defense, "How are you prejudiced?" He offered to give the defense a jury instruction pertaining to Paragraph 17.

Speech or Debate Clause. The defense has filed a motion to dismiss the complaint based upon the speech or debate clause of the Constitution. There are also motions pertaining to the admissibility of evidence under this clause.

The Constitution provides that "The Senators and Representatives ... for any Speech or Debate in either House, they shall not be questioned in any other Place."

The prosecution argued that the motion should be denied. It further stated that it wants to introduce evidence of certain communications between Sen. Stevens and Veco, and certain "non-legislative acts" by Sen. Stevens.

The defense argued that much of the evidence that it seeks to exclude relates to Senate legislation, and/or that Veco did not benefit from the legislation involved. It continued that while the prosecution would not present evidence of the legislation or Sen. Stevens' votes, the defense, to respond to the prosecution, would have to introduce evidence of legislation and votes, and in some situations, that Veco did not benefit from the legislation.

Judge Sullivan took this question under advisement. He said that his ruling will be "prompt".

Grand Jury Testimony. The defense seeks access to grand jury transcripts, which are ordinarily not subject to discovery.

One pertinent question is whether the prosecution presented evidence to the grand jury in violation of the speech or debate clause.

Judge Sullivan stated at the hearing that he will view certain testimony in camera before making his decision.

Separation of Powers. Judge Sullivan denied the defense motion to dismiss the indictment for violation of the separation of powers doctrine. This was weak motion.

In contrast, the DOJ engaged in an unprecedented assault upon the separation of powers in its pending criminal prosecution of Rep. William Jefferson (D-LA) when it raided a House of Representatives office building late in the night of May 20, 2006. (Rep. Jefferson won re-election in 2006 despite pending charges.)

Vagueness. The Court denied the defense motion to dismiss the indictment for vagueness. This too was a weak motion.

Wiretaps. The DOJ conducted extensive Title III wiretapping, including of phone conversations of Sen. Stevens. The government plans to introduce wiretap evidence at trial.

The parties have not yet submitted their witness and exhibit lists.

The hearing addressed the defense request for discovery of certain FBI records related to statutorily required minimization efforts. The prosecution argued that the request for records is too burdensome because of the extent of the wiretapping, and because it would have to manually redact privileged work product information from the records.

The parties agreed to settle for production of records related only to those conversations that the prosecution intends to introduce at trial.

This suggests that the defense will shortly file a motion to suppress certain wiretap evidence, and that one of the bases for the motion will be failure to minimize.

This motion has not been filed, and hence, Judge Sullivan has not ruled on it. However, he may have indicted his disposition on this and other forthcoming motions to suppress evidence. He spoke in detail about his desire not to receive any motions on evidentiary matters that are not made in good faith.

Photographs. The prosecution disclosed also that it has about 2,200 photographs, mostly taken at Sen. Stevens' house in Girdwood, Alaska, and that it intends to introduce some at trial.

These pictures would show the home improvements allegedly not disclosed on SFDFs by Sen. Stevens.

The defense sought production of all photo metadata. The prosecution argued that this would be too burdensome. The parties agreed that the prosecution would produce only metadata for pictures that it intends to introduce at trial.

This suggests that the defense may move to suppress certain prosecution photographs.

Bill Allen. The defense also seeks "information" from the prosecution regarding the medical condition of Bill Allen, a former CEO of Veco. He is likely to be a key prosecution witness.

The prosecution said that it has no "private or personal records" to produce, but did not state whether it possesses other "information".

Allen previously testified regarding injury to his brain suffered in a motorcycle accident. The defense stated that he testified that a quarter of his brain died. The prosecution argued that he suffered loss to his speech capability, and that his testimony was vague. It further argued that he meant to convey that an amount of his brain the size of a quarter had died.

This suggests that there may be a forthcoming defense motion to disqualify Allen from testifying, based upon mental incompetence.

Prior Convictions. Judge Sullivan also deferred his ruling on the prosecution's motion to exclude evidence of prior convictions of government witnesses.

Veco. Veco was acquired by CH2M Hill in September of 2007. CH2M Hill has long done business in Alaska, as well as elsewhere in the U.S., in Canada, and in the Middle East.

Alaska is the site of major oil fields. Large oil companies do business in Alaska. Veco was not an oil company. Rather, it contracted to perform services for oil companies. For decades, Veco not only performed oil field services, construction, and post Exxon Valdez spill operations. It also undertook on its own less savory tasks, such as dealings with the state legislature and the Teamsters and other unions -- entities with histories of corruption.

It may have engaged in a wide range of activities, including most recently pursuing legislation via bribery of state legislators, in an effort to enhance its standing with oil companies, to win contracts from them.

The hearing, with breaks and delays, consumed much of Wednesday, September 10. There was one moment of levity. At the end of the hearing Judge Sullivan reviewed the likely schedule for the first days of the trial. He asked the defense if it would make its opening after the prosecution made its opening statement, or at the beginning of the defense's case.

Brendan Sullivan, Sen. Stevens' lead counsel, stood up and said that he would like to make his opening statement before the prosecution.

Disclosure. David Carney, author of this story, is an ex-Alaskan who voted for Sen. Stevens in the 1984 Senate election.

Washington Tech Calendar
New items are highlighted in red.
Thursday, September 11

The House will meet at 11:00 AM for legislative business. See, Rep. Hoyer's schedule for week of September 8 and schedule for September 11.

The Senate will meet at 10:30 AM. It resume consideration of S 3001 [LOC | WW], the Department of Defense authorization bill.

8:00 AM - 5:00 PM. The Department of Commerce's (DOC) National Institute of Standards and Technology's (NIST) Judges Panel of the Malcolm Baldrige National Quality Award will hold a closed meeting. See, notice in the Federal Register, August 8, 2008, Vol. 73, No. 154, at Pages 46247. Location: NIST, Administration Building, Lecture Room A, Gaithersburg, MD.

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The agenda includes consideration of S 3325 [LOC | WW], the "Enforcement of Intellectual Property Rights Act", S 2746 [LOC | WW], the "OPEN FOIA Act of 2008", and the nomination of Patrick Rowan to be Assistant Attorney General in charge of the Department of Justice's (DOJ) National Security Division (NSD). See, notice. The SJC rarely follows the agendas for its executive business meetings. Location: Room 226, Dirksen Building.

10:00 - 11:00 PM. The House Intelligence Committee's (HIC) Subcommittee on Oversight and Investigations will hold a closed hearing related to the Department of Justice's (DOJ) Office of the Inspector General (OIG). See, notice. Location: Room H-405, Capitol Building.

TIME CHANGE. 11:00 AM. The House Commerce Committee's (HCC) Subcommittee on Energy and Air Quality will hold a hearing titled "Protecting the Electric Grid from Cyber-Security Threats". The hearing will be webcast by the HCC. Location: Room 2322, Rayburn Building.

1:00 PM. The House Judiciary Committee's (HJC) Subcommittee on Courts, the Internet and Intellectual Property (SCIIP) will hold a hearing on a yet to be introduced bill titled the "Fair Copyright in Research Works Act". This hearing will be webcast by the HJC. Location: Room 2141, Rayburn Building.

1:00 PM. The Department of Health and Human Services' (DHHS) American Health Information Community's (AHIC) Confidentiality, Privacy, & Security Workgroup may meet. AHIC meetings are often noticed, but cancelled. Location: Switzer Building, 330 C St., SW.

3:00 - 4:00 PM. The Homeland Security Advisory Council (HSAC) will meet by teleconference. The dial in number is 1-800-860-2442. The PIN code is 82242. See, notice in the Federal Register, August 22, 2008, Vol. 73, No. 164, at Pages 49693-49694.

Friday, September 12

The House may meet at 9:00 AM for legislative business. See, Rep. Hoyer's schedule for week of September 8.

12:00 NOON. The U.S. District Court (DC) will hold a status conference in Cisco Systems v. Teles AG Informationstechnologien, D.C. No. 05-cv-2048. Location: Courtroom 16, 333 Constitution Ave., NW.

12:30 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Engineering and Technical Practice Committee will host a brown bag lunch for organizational purposes. For more information, contact Laura Stefani at lstefani at g2w2 dot com. Location: Goldberg Godles, 1229 19th St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding telecommunications relay services and speech to speech services for individuals with hearing and speech disabilities, and speech to speech services and internet protocol speech to speech telecommunications relay service. The FCC adopted this NPRM on June 11, 2008, and released the text [19 pages in PDF] on June 24, 2008. It is FCC 08-149 in CG Docket Nos. 03-123 and 08-15. See, notice in the Federal Register, August 13, 2008, Vol. 73, No. 157, at Pages 47120-47122.

Monday, September 15

9:00 AM - 12:00 NOON. The Information Technology Association of America (ITAA) will host an event titled "A Forum on our National Cyber Security Posture". Michael Chertoff (Secretary of Homeland Security) will speak at 9:00 AM. The price to attend ranges from $50-$125. See, notice. Location: Ronald Reagan Building and International Trade Center, 1300 Pennsylvania Ave., NW.

12:00 NOON - 1:30 PM. The Federal Communications Bar Association (FCBA) will host a brown bag lunch titled "Successfully Solving the Press/Policy Equation". The speakers will be Janice Obuchowski (Freedom Technologies), Blair Levin (Stifel Nicolaus), Michael Balmoris (AT&T), Mary Greczyn (Freedom Technologies), Lynn Stanton (TR Daily), John Dunbar (Associated Press), Jonathan Blake (Covington & Burling), Howard Buskirk (Comm Daily), and William Phillips (Ryan Phillips Utrecht & MacKinnon). Location: Bingham McCutchen, 2020 K St., NW.

2:00 PM. The U.S. Court of Appeals (DCCir) will hear oral argument in C-SPAN v. FCC, App. Ct. No. 08-1045. See, FCC's brief [87 pages in PDF]. Judges Rogers, Tatel and Williams will preside. Location: 333 Constitution Ave., NW.

5:00 PM. Extended deadline to submit reply comments to the Copyright Office in response to its notice of proposed rulemaking regarding the scope and application of the Section 115 compulsory license to make and distribute phonorecords of a musical work by means of digital phonorecord deliveries. See, original notice in the Federal Register, July 16, 2008, Vol. 73, No. 137, at Page 40802-40813. See also, extension notice in the Federal Register, August 13, 2008, Vol. 73, No. 157, at Pages 47113-47114.

Deadline to submit comments to the National Institute of Standards and Technology's (NIST) Computer Security Division (CSD) regarding its draft NIST Interagency Report 7511 [47 pages in PDF] titled "Security Content Automation Protocol (SCAP) Validation Program Test Requirements".

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to the CTIA's Petition for Declaratory Ruling [44 pages in PDF] regarding 47 U.S.C. 332(c)(7)(B), ensuring timely siting review, and preemption under 47 U.S.C. 253 of state and local ordinances that classify all wireless siting proposals as requiring a variance. This is WT Docket No. 08-165. See, August 14, 2008, Public Notice (DA 08-1913) and notice in the Federal Register, August 29, 2008, Vol. 73, No. 169, at Pages 50972-50973.

Tuesday, September 16

9:00 AM. The President's Council of Advisors on Science and Technology (PCAST) will meet. The agenda includes (1) university private sector research partnerships, (2) science and engineering education, and (3) impact of science policy on innovation. See, notice in the Federal Register, August 29, 2008, Vol. 73, No. 169, Page 50967. Location; Room 100, Keck Center of the National Academies, 500 5th St., NW.

RESCHEDULED FOR SEPTEMBER 18. 9:00 AM - 1:15 PM. The Federal Communications Commission (FCC) Public Safety and Homeland Security Bureau will host an event titled "Pandemic Preparedness: Enhancing Communications Response for Health Care and First Responders". See, notice [PDF]. Location: FCC, Commission Meeting Room.

12:00 PM. The Cato Institute will host a panel discussion on the book [Amazon] titled "New Frontiers in Free Trade: Globalization's Future and Asia's Rising Role". The speakers will be Razeen Sally (author), Carlos Primo Braga (World Bank), and Dan Griswold. See, notice and registration page. The event will be webcast by the Cato Institute. Lunch will be served after the event. Location: Cato, 1000 Massachusetts Ave., NW.

Extended deadline to submit reply comments to the Copyright Office (CO) in response to its proposed rule changes regarding retransmission of digital television broadcast signals by cable operators pursuant to 17 U.S.C. 111. See, notice of extension in the Federal Register, July 14, 2008, Vol. 73, No. 135, at Page 40203, and original notice in the Federal Register, June 2, 2008, Vol. 73, No. 106, at Pages 31399-31415.

Wednesday, September 17

9:30 AM. The Senate Judiciary Committee (SJC) will hold a hearing titled "Oversight of the Federal Bureau of Investigation". The witness will be Robert Mueller, Director of the Federal Bureau of Investigation (FBI). See, notice. Location: Room 216, Hart Building.

Deadline to submit reply comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) in its proceeding titled "In the Matter of Implementation of the NET 911 Improvement Act of 2008". It adopted this item on August 22, and announced it and released the text [34 pages in PDF] on August 25, 2008. This NPRM is FCC 08-195 in WC Docket No. 08-171. See, notice in the Federal Register, August 28, 2008, Vol. 73, No. 168, at Pages 50741-50751.

Thursday, September 18

RESCHEDULED FROM SEPTEMBER 16. 9:00 AM - 1:15 PM. The Federal Communications Commission (FCC) Public Safety and Homeland Security Bureau will host an event titled "Pandemic Preparedness: Enhancing Communications Response for Health Care and First Responders". Location: FCC, Commission Meeting Room.

9:00 - 11:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Cyber Security". See, notice. Location: Room H-405, Capitol Building.

9:00 AM. The U.S. District Court (DC) will hold a status conference in Broadcast Music, Inc. v. Hunam Inn, et al., D.C. No. 08-cv-0040. Location: Courtroom 8, 333 Constitution Ave., NW.

12:00 NOON. Deadline to submit to the Office of the U.S. Trade Representative's (OUSTR) Trade Policy Staff Committee (TPSC) requests to testify at is October 2, 2008, hearing. The TPSC will hold this hearing to receive testimony to assist it in preparing its annual report to the Congress on the People's Republic of China's compliance with the commitments made in connection with its accession to the World Trade Organization (WTO). See, notice in the Federal Register, July 31, 2008, Vol. 73, No. 148, at Pages 44783-44785.

12:15 - 2:00 PM. The Federal Communications Bar Association's (FCBA) Wireless and Wireline Practice Committee will host a lunch titled "Universal Service and Intercarrier Compensation: Is Reform on the Way?" The price to attend is $15.00. See, registration page. Location: Sidley Austin, 1501 K St., NW.

Deadline to submit initial comments to the Federal Communications Commission (FCC) in response to its Notice of Proposed Rulemaking (NPRM) regarding expanding the scope of services and products covered by the FCC's schools and libraries tax and subsidy program. The FCC adopted this item on July 25, 2008, and released the text [26 pages in PDF] on July 31, 2008. It is FCC 08-173 in CC Docket No. 02-6. See, notice in the Federal Register, August 19, 2008, Vol. 73, No. 161, at Pages 48352-48359.

People and Appointments

9/10. Roger Mackin was named Principal Deputy Under Secretary for the Office of Intelligence and Analysis at the Department of Homeland Security (DHS). See, DHS release.

9/9. President Bush nominated Mac Davis to be a Judge of the U.S. District Court (WDWisc). See, White House press office release.

9/9. President Bush withdrew his nomination of Joaquin Blaya to be a Member of the Broadcasting Board of Governors for a term expiring August 13, 2008. He made this re-appointment nomination on October 18, 2007. See, White House press office release.

9/9. President Bush withdrew his nomination of Dennis Mulhaupt to be a Member of the Broadcasting Board of Governors for a term expiring August 13, 2008. He made this nomination on October 18, 2007.

9/8. President Bush formally nominated James Dempsey to be a Member of the Privacy and Civil Liberties Oversight Board for a term of five years expiring on January 29, 2013. See, White House press office release. See also, story titled "Bush to Nominate Dempsey for Privacy and Civil Liberties Oversight Board" in TLJ Daily E-Mail Alert No. 1,815, August 19, 2009.

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