No Easy Answers

Monday, June 02, 2008

Bill Gertz Subpoena in Mak Case [Docs 406 and 700]

 Case 8:05-cr-00293-CJC     Document 406      Filed 03/07/2007       Page 1 of 2

                                           UNITED STATES DISTRICT COURT
                                          CENTRAL DISTRICT OF CALIFORNIA
                                             CRIMINAL MINUTES - GENERAL

 Case No.          SA CR 05-293(A)-CJC                                     Date      March 7, 2007

[attendee list snipped]

 Proceedings:        POSSIBLE RULE 6(E) VIOLATION

       On November 22, 2006, the Court entered an Order that required the government to submit in
camera and under seal a status report detailing its investigation into any communications between
government officials and Washington Times reporter William Gertz, or any other member of the public,
that potentially disclosed grand jury information in violation of Rule 6(e). The Court also requested
information regarding the steps taken by the government to ensure that no further communications
would take place. Finally, the Court directed the government to submit any evidence it deemed
necessary and appropriate to rebut Defendant Rebecca Chiu's prima facie case of a Rule 6(e) violation.
This minute order will provide Ms. Chiu and the other defendants with a summary of the government's
response as well as a report on the government's investigation into this matter.

        First, as a result of the Court's November 22, 2006 Order, the Department of Justice determined
that the United States Attorney's Office for the Central District of California should be recused from
handling the investigation into the leak of grand jury information and from any litigation arising from
the investigation that the Court has ordered. The Department of Justice assigned the matter to the
United States Attorney's Office for the District of Columbia. Jay I. Bratt, an Assistant United States
Attorney in that office, has been appointed a Special Attorney to the Attorney General to conduct the

CR-11 (09/98)                      CRIMINAL MINUTES - GENERAL                          Page 1 of 2

 Case 8:05-cr-00293-CJC     Document 406      Filed 03/07/2007       Page 2 of 2

investigation in this District and to handle all related court matters. The agents conducting the
investigation are from the Washington Field Office of the Federal Bureau of Investigation. The
government has informed the Court that the scope of its investigation is broader than determining
whether a violation of Rule 6(e) occurred. The government is also investigating possible violations of
18 U.S.C. � 793 (unlawful communication of classified information) arising from various publications
in the media about this prosecution.

       The government also provided the Court with information concerning the steps it has taken to
ensure that there are no improper leaks of information in the future. First, the Assistant United States
Attorneys handling the underlying case have provided the agents with whom they are working the
Court's November 22, 2006 Order and have directed them in writing to disseminate the Order to
everyone within their respective offices who has access to information about the Chi Mak case and to
make sure that all such persons understand the Order. Second, the investigative offices are to take all
necessary steps to ensure that there are no improper communications with Mr. Gertz or any other
members of the public concerning not only grand jury materials relating to the prosecution, but also any
other materials that the Court has previously identified. The prosecutors have broadly defined "grand
jury materials" to include government documents or discussions that refer to or relate to when and if an
indictment is going to be returned, the nature of contemplated charges, the evidence presented or to be
presented to a grand jury, and the nature or direction of any ongoing investigation.

        Last, the government informed the Court that it had not reached a point in its investigation
where it was able to advise the Court as to whether it had information rebutting the prima facie case
that a violation of Rule 6(e) occurred.

        Upon conclusion of the trial of Defendant Chi Mak, the Court will provide an updated status
report to Ms. Chiu and the other defendants.

CR-11 (09/98)                      CRIMINAL MINUTES - GENERAL                          Page 2 of 2

This document is an OCR job, barely cleaned up. The jist is fairly clear, since these meeting minutes follow on the meeting minutes of March 2007.

 Case 8:05-cr-00293-CJC     Document 700      Filed 05/01/2008       Page 1 of 5



Case No. SACR 05-00293-c7c Date: May l, 2008




Michelle Urie N/A
Deputy Clerk Court Reporter


None Present None Present


During Ule cowse ofproceedings in Ws case, Washington Times reporter Bill
Gertz authored a May 16, 2006 article (Ule "May 16 article") Ulat revealed secret
information before a federal &andjwy. 1 M. Gertz reported Ulat impendlng grandjury
charges "will include a new indictment against Chi Mak, Tai Mak, Rebecca Chiu and a
fouM Mak relative. All fow will be charged with conspiracy to export defense articles
! and attempted mawhl export ofdefense articles." Bill Gertz, New Charges Enpected in
DefenseDatQ meftRing, THEWASHMGTON Tws, May 16, 2006. The ahcle Wer
disclosed that "Tai Mak also will be charged wiUl aiding and abetting and possession of
property to aid a foreign government." Id. Mr. Gertz atbibuted _he sowce ofWs
information to "Senior Justice Department officials [who] have approved Ule new
charges." Id. Based on Ule content ofWs _rticle, Defendant Rebecca Chiu brought a
motion asserting that Ule Government _iolated Federal Rule ofCrirrlinal Procedwe 6(e). 2

In an order dated November 20, 2006, be Court found _hat Ms. Chiu had
established aprimQfacie violatioo ofRule 6(e). Courts engage in a _wo-step analysis to
deterrnine whe_her media reports establish apriMQfacie case ofa Rule 6(e) violation.

1  A copy ofthe May l� article _ediately follows Ulis Order_
2  Rule 6(e)(2) sta_es, in relevaot part, that "an attomey for the gover_ment, or any person to whom
discloswe is made under para_aph 3(A)(ii) ofthis subdi�sion shall not disclose mat_ers occ_Emng before
the grandj_, except as oUlerwise provided for in these rmes." FED. R. CRIM. P. 6(e)(2)_

 Case 8:05-cr-00293-CJC     Document 700      Filed 05/01/2008       Page 2 of 5



Case No. sacR 05-00293-c_c Date: May l, 2008
Page 2

Bary v. UNited States, 865 F.2d 131_, 1321 (D.C. C�. 1989). First, courts must evaluate
"wheUler Ule reports actually disclose information about what occwed before the grand
jury," and second, "wheber be sowce ofioformation was likely one ofUlose persons
listed in Ule rule." United States v. Lopez, 854 F. Supp. 4|, 46 (D.P.R. 1994). In Ulis
case, Ule firSt element ofaprimafacie case was satisfied because the article "expressly
identifIied] _he nahre ofUle crimes which would be charged and the nwber ofpersons
who would be charged." See _n re GrandJuy INvestigQtion (Lance), 610 _.2d 202, 218
(5U_ Cir. 1980). M. Gertz directly atbibuted tbe information "to senior Tustice
Department officials [who had] approved U_e new charges," thus establismg _he second
element. See BQry, 865 F.2d at 1325-26. 3

Finding _hat Ms. Chiu had established aprimafacie Rule 6(e) violation, U_e Court
was obligated to uncover Ule sowce ofUle grandjwy leak. See id. at 1321 ("Once a
primafacie case is shown, U_e disb_ct court must conduct" Wer investigation . . . .}
(emphasis added). Accordingly, Vhe Court ordered Ule United States Attomey's Office
for Ule Cenbal DisWict ofCalifo_a ("C.D. Cal. USAO") to undertake a mll
investigation. (See Order Granting io Part and DeDying in Part Defs.' Mot. for Disc. or
OUler ReliefRelating to Gov't Misconduct, November 20, 2006 (Ule "November 20
Order"))- However, Ule Dep_ent of_ustice determined that Ule C.D. Cal. USAO
should be recused hom han_iAg Ule investigation into _he leak ofgrandjwry information
and hom any subsequent litigation. The investigation was U_erefore assigned to _he
United States Attomey's Office for U_e Disbrict ofColumbia (_he "Government"). The
Court's Nove_Dber 20 Order directed U_e Government to determine wheUler any
government official disclosed secret gramdjury information to Mr. Gertz. Altematively,
ifthe Government concluded Ulat government officials were not responsibte for the leak,
it was inshcted to provide evidence to _hat effect. 4 (See id.)

The Gove_oment conducted a c_omprebensive, yearnlong investigation and . '
interviewed over 500 persons ofinterest. In a recent report to Ule Court detailing Ule
results ofits investigation, Ule Govemment conceded _hat a violation ofRule �e) had

3  See also FED. R_ CRIM. P. 6(e)(2)(B)(vi) (prohibiting discloswe by "an atto_ney for the government;"
6(e)(2_(B)(vii) (prohibiting discloswe by "any governmental persoMel" perrnissibly informed of grand
jury lnformation pwsuant to subsection (e)(3)(A)).
4  In other words, the Court instwcted the Govern_nent to subn_t e�dence to rebut Ms. chiu'spnMafacie

 Case 8:05-cr-00293-CJC     Document 700      Filed 05/01/2008       Page 3 of 5



Case No. SACR 05_00293-c_c Date: May l, 2008
Page 3

occurred. The Government, however, was unable to determine Ule identity ofthe person
or persons who leaked the grandj_ ioformation contained in Ule May 16 article to Mr.
Gertz. Based on Ule content ofbe May 16 awicle and Ule Government's coocession of
an imperrnissible le�k, Ule Court f_nds that _he individual who leaked Ule grandjwy
information to Mr. Gertz violated Rule 6(e). Accord_ngly, _le Court finds it necessary to
subpoena Mr. Gertz to testiJ regarding Ule identity of_le sowce Ulat provided him witb
Ule grandjwy information conta_oed io _he May 16 article. Pwsuant to a subpoena
issued on April 30, 2008, M. Gertz shall appearbefore hs Court on Iune 13, 2008 at
9:00 a.m.


MMUTES FORM Il Ioitials ofDeputy Clerk MU

 Case 8:05-cr-00293-CJC     Document 700      Filed 05/01/2008       Page 4 of 5
 Case 8:05-cr-00293-CJC     Document 700      Filed 05/01/2008       Page 5 of 5

[Pages 4 and 5 are the Washington Times article of May 16, 2006]

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