"The greatest security concern facing the nation today comes from within our most trusted circles." – An Instrument of The United States Government

See below for the details:

1
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND
UNITED STATES OF AMERICA
v.
HAROLD T. MARTIN, III,
Defendant
*
*
*
*
*
*
*
*
*******
MAGISTRATE NO. BPG-16-2254
GOVERNMENT’S RESPONSE TO DEFENDANT’S
MOTION FOR A DETENTION HEARING
For over two decades, the Defendant, Harold T. Martin, III, was entrusted to work at
multiple government agencies dealing with highly classified information, including the National
Security Agency (“NSA”). Throughout his government assignments, the Defendant violated that
trust by engaging in wholesale theft of classified government documents and property—a course
of felonious conduct that is breathtaking in its longevity and scale. The Defendant’s decades of
criminal behavior were in flagrant violation of his many promises and oaths, as well as the law.
The case against the Defendant thus far is overwhelming, and the investigation is ongoing. The
Defendant knows, and, if no longer detained may have access to, a substantial amount of highly
classified information, which he has flagrantly mishandled and could easily disseminate to others.
The government intends to file additional serious felony charges as described herein. After
betraying the most important trust the United States can grant, the Defendant presents a high risk
of flight, a risk to the nation, and to the physical safety of others. After twenty years of violating
the nation’s trust and its laws, the Defendant now asks the Court to place similar trust in him to
remain in the United States and abide by any conditions of release set by the Court. The Court
should deny that request.
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 1 of 12
2
I. PROCEDURAL POSTURE
On August 27, 2016, the Defendant was arrested during the execution of several search
warrants, one of which was for his residence. On August 29, 2016, the Defendant was charged by
criminal complaint with Theft of Government Property, in violation of Title 18, United States
Code, Section 641, and Unauthorized Removal or Retention of Classified Documents or Materials
by Government Employee or Contractor, in violation of Title 18, United States Code, Section
1924. The complaint and supporting affidavit were filed under seal, pursuant to Court order.
On August 29, 2016, the Court held an initial appearance on the complaint. The courtroom
was closed at the time of the hearing, on motion of the government and with the consent of the
Defendant. At the initial appearance, the Court appointed the office of the Federal Public Defender
to represent the defendant. The government moved for detention, and the Defendant consented to
detention without prejudice to seeking a detention hearing at a later date.
On September 8, 2016, the Defendant submitted a written waiver of preliminary hearing.
On September 13, 2016, the government filed a consent motion to extend the period within which
an indictment or information must be filed. The same day, the Court entered an order extending
the period within which an indictment or information must be filed to March 1, 2017.
On October 5, 2016, the government moved to unseal the case, and the Court granted the
government’s motion. On October 17, 2016, the Defendant filed a motion seeking a detention
hearing. A detention hearing is currently scheduled for 2:15 p.m. on Friday, October 21, 2016,
before United States Magistrate Judge A. David Copperthite.
As set forth below, the government seeks the Defendant’s continued pretrial detention
based upon the grave danger his release would pose to the community and the serious risk that he
may fail to appear as required.
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 2 of 12
3
II. RELEASE OF THE DEFENDANT WOULD POSE A DANGER TO THE
NATION’S SECURITY
At the hearing, the government will proffer evidence demonstrating that each of the factors
to be considered under the Bail Reform Act supports detention of the Defendant pending trial in
this case. The evidence will make clear that the nature and circumstances of the offenses, the
history and characteristics of the Defendant, and the overwhelming weight of the evidence all
support detention of the Defendant pending trial. Most important, however, is the grave and severe
danger that pretrial release of the Defendant would pose to the national security of the United
States.
A. The Offenses are Extremely Serious and Merit Pretrial Detention
The evidence provides ample probable cause to believe that the Defendant has committed
extremely serious offenses against the United States and should be detained. See
18 U.S.C. § 3142(g)(1). The pending charges are very serious. During execution of the search
warrants, investigators seized thousands of pages of documents and dozens of computers and other
digital storage devices and media containing, conservatively, fifty terabytes of information. The
seized hard copy documents that were seized from various locations during the search comprise
six full bankers’ boxes worth of documents. Some of the documents are marked “Unclassified/For
Official Use Only,” and many are marked “Secret” and “Top Secret.” Many of the documents
marked “Secret” and “Top Secret,” also bear special handling caveats. The information stolen by
the Defendant also appears to include the personal information of government employees. The
seized digital media included computers, external hard drives, optical discs and a number of USB
thumb drives.
The Defendant stole from the government and hid at his residence and in his vehicle a vast
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 3 of 12
4
amount of irreplaceable classified information. His theftsinvolved classified government materials
that were dated from 1996 through 2016, spanning two decades’ worth of extremely sensitive
information. For example, the search of the Defendant’s car revealed a printed email chain marked
as “Top Secret” and containing highly sensitive information. The document appears to have been
printed by the Defendant from an official government account. On the back of the document are
handwritten notes describing the NSA’s classified computer infrastructure and detailed
descriptions of classified technical operations. The handwritten notes also include descriptions of
the most basic concepts associated with classified operations, as if the notes were intended for an
audience outside of the Intelligence Community unfamiliar with the details of its operations.
Among the many other classified documents found in the Defendant’s possession was a
document marked as “Top Secret/Sensitive Compartmented Information” (“TS/SCI”) regarding
specific operational plans against a known enemy of the United States and its allies. In addition to
the classification markings, the top of the document reads “THIS CONOP CONTAINS
INFORMATION CONCERNING EXTREMELY SENSITIVE U.S. PLANNING AND
OPERATIONS THAT WILL BE DISCUSSED AND DISSEMINATED ONLY ON AN
ABSOLUTE NEED TO KNOW BASIS. EXTREME OPSEC PRECAUTIONS MUST BE
TAKEN.” The Defendant was not directly involved in this operation and had no need to know
about its specifics or to possess this document.
A conservative estimate of the volume of the digital information seized from the Defendant
is approximately 50,000 gigabytes.
1 This information must be fully reviewed by appropriate
authorities to determine its source and classification level, as well as the extent to which it
1 A gigabyte (GB) is sufficient storage space for approximately 10,000 pages of documents containing images and
text.
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 4 of 12
5
constitutes “national defense information.” The investigation into the Defendant’s unlawful
activities is ongoing, including review of the stolen materials by appropriate authorities. The
government anticipates that much of this material will be determined to be national defense
information that the government goes to great expense to protect.
The improper retention and transmission of national defense information is prohibited
under the Espionage Act. See, e.g., 18 U.S.C. § 793 (Gathering, Transmitting or Losing Defense
Information). Information about sources and methods of the Intelligence Community, such as the
information in the documents described above, and in the criminal complaint, is classic national
defense information. See Gorin v. United States, 312 U.S. 19, 28 (1941) (information relating to
the national defense is “a generic concept of broad connotations, referring to the military and naval
establishments and the related activities of national preparedness.”). In this case, when an
indictment or information is filed, the government anticipates that the charges will include
violations of the Espionage Act, an offense that carries significantly higher statutory penalties and
advisory guideline ranges than the charges listed in the complaint.
Congress has recognized the seriousness of compromising the security of classified
information through substantial criminal penalties. See 18 U.S.C. §§ 641, 793. Moreover, the
Defendant’s alleged crimes, and the anticipated additional charges, are extremely serious within
the meaning of the Bail Reform Act. The Defendant’s crimes reflect a willingness to routinely
betray the trust of the nation, and there is no reason to believe that, if released, the Defendant will
have any greater regard for any trust placed in him by the Court.
B. The Evidence of the Defendant’s Guilt is Overwhelming
The weight of the evidence against the Defendant is overwhelming. See
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 5 of 12
6
18 U.S.C. § 3142(g)(2). The Defendant was in possession of an astonishing quantity of marked
classified documents which he was not entitled to possess, including many marked TS/SCI, that
appear to contain national defense information. Many of the marked documents were lying openly
in his home office or stored in the backseat and trunk of his vehicle.
In his non-custodial interview, the Defendant initially lied to investigators and denied
taking classified information from his work assignments, notwithstanding the documents left lying
about in his vehicle and home. When confronted with specific marked documents he had stolen,
only then did the Defendant begin to admit that: (1) he had taken documents and digital files that
he knew were classified from his work assignment to his residence and vehicle, and (2) he knew
such actions were unauthorized and wrong. He also admitted that he had committed these crimes
regularly over many years. If the Defendant had not been arrested, it is clear that he would have
kept these classified materials to use as he saw fit.
The Defendant had access to classified information, including Top Secret information,
beginning in 1996. His access to classified information began during his service in the U.S. Naval
Reserves, and continued as he worked for seven different private government contracting
companies. Access to classified information was critical to the Defendant’s employment in his
field. He worked on highly classified, specialized projects and was entrusted with access to
government computer systems, programs and information.
Over his many years holding a Top Secret security clearance, the Defendant had been
trained on the proper handling and storage of classified materials. He signed a number of NonDisclosure
Agreements over two decades that reiterated the need to handle classified information
appropriately, including documents that listed the potential criminal penalties for failing to do so.
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 6 of 12
7
One of the many trainings on protection of national security and classification included the
following information:
At any given moment, there are numerous countries spying against
the United States—from our most dangerous enemies to our closest
allies. They want our information. Our technology. Our deepest
secrets. And while many of these threats come from the outside,
perhaps the greatest security concern facing the nation today comes
from within our most trusted circles.
This concern is often, and correctly called . . . The Insider Threat.
Millions of people are trusted with America’s most important
secrets. Vetted personnel who’ve made promises to protect this
information at all costs. Millions of cleared people—but it takes just
one person to undo it all. To waste years of research . . . to squander
millions of dollars in technological innovation . . . to put thousands
of people in harm’s way.
Our information is valuable and the economics of espionage are
simple. Why spend billions developing a military program when you
can spend a fraction of the cost to simply steal it? But beyond
money, imagine how the United States’ critical information could
allow adversaries to exploit our weaknesses—discovering holes in
our defenses . . . and providing those who would do us harm an
increased advantage to steal the liberty and lives of our fellow
citizens and allies.
Whether intentional or not, when someone fails to safeguard critical
information or protect our computer networks from the ever-present
threat, the impact can be felt for decades. It’s your duty to protect
the information you have access to. And if you believe someone else
is placing that information—or themselves—in danger, it’s your
responsibility to say something. It only takes one person to betray a
nation . . . or to save it.
As a trusted insider, the Defendant was able to defeat myriad, expensive controls placed on
that information. The evidence is overwhelming that the Defendant abused this trust and chose to
repeatedly violate his agreements, his oaths and the law—and to retain extremely sensitive
government information to use however he wished.
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 7 of 12
8
C. The Defendant’s Technical Knowledge and History of Criminal Behavior Warrant
Pretrial Detention
The Defendant’s history and characteristics also demonstrate that he should be detained.
See 18 U.S.C. § 3142(g)(3). The Defendant has obtained advanced educational degrees and has
taken extensive government training courses on computer security, including in the areas of
encryption and secure communications. He has attended a number of prominent computer hacking
conferences. The Defendant was enrolled in a Ph.D. program in information security management
at the time of his arrest, and was engaged in research for his doctoral dissertation. His doctoral
studies were in the same general subject area in which he worked as a private contractor assigned
to the government.
Examination of the digital media seized from the Defendant indicates extensive use of
sophisticated encryption, anonymization, and virtual machine technologies. There is evidence that
he has remote data storage accounts and has engaged in encrypted communications. The Defendant
also had encrypted communication and cloud storage apps installed on his mobile device. The
Defendant has the knowledge and training to house some or all of the stolen digital information in
cyberspace, where he could easily access or transfer it, were he to have access to the internet. The
Defendant was in possession of a sophisticated software tool which runs without being installed
on a computer and provides anonymous internet access, leaving no digital footprint on the
machine. The Defendant’s internet activity also suggests that he was attempting to locate
anonymous internet access and to run operating systems on his machines that would not leave any
forensic evidence of his computer activities. In July 2016 he watched a video about how
individuals who attempt to remain anonymous on the internet are caught by authorities. He has a
demonstrated ability to conceal his online communications and his access to the internet.
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 8 of 12
9
D. Pretrial Release of the Defendant Poses a Grave Danger to the Nation
Most importantly, the nature and severity of the danger that release of the Defendant would
pose to the community can only be mitigated by pretrial detention. See 18 U.S.C. § 3142(e)(1) and
(g)(4). In late July 2016, the Defendant traveled to Connecticut to purchase a “Detective Special”
police-package Chevrolet Caprice. During execution of the search warrants, law enforcement
officers recovered ten firearms, including an AR-style tactical rifle and a pistol-grip shotgun with
a flash suppressor. Only two of his firearms were registered, although three others may have
required registration depending on their date of purchase. The Defendant’s wife was very upset to
learn about the Defendant’s arsenal, as she had only been aware of the Defendant possessing one
or two of the firearms which were found in the home. In addition, a loaded handgun was found in
a case lying on the rear driver’s side floorboard of the Caprice, in apparent violation of Maryland
law. If the Defendant stole this classified material for his own edification, as he has claimed,
there would be no reason to keep some of it in his car, and arm himself as though he were
trafficking in dangerous contraband. Prior to the Defendant’s arrest, his wife asked law
enforcement officers to remove the firearms from the home because she was afraid that he would
use them to kill himself if he “thought it was all over.” With her consent, all of the weapons were
taken into the custody of the FBI.
The fact that digital and hard copy materials containing highly classified information were
found in the Defendant’s vehicle demonstrates that the materials were being transported and were
available to anyone who may have gained access to his vehicle. The Defendant admitted that he
regularly was transporting this material in his vehicle. The Defendant did not have an enclosed
garage, and his vehicle was routinely parked in the driveway of his home, including when the
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 9 of 12
10
search warrants were executed.
As digital technology has proliferated, extremely small devices can be used to store or
access digital information. Currently, the Defendant has no access to digital devices or
unmonitored communications (except for communications with counsel). If he is released, he will
have the ability to access and transmit any stolen classified information he may still have hidden
or stored online. As a practical matter, should he be released, there is no way to prevent him from
obtaining access to an internet-enabled device or from contacting another individual willing to
assist him. Any order from this Court prohibiting this conduct could only be enforced after it is
violated, and our nation’s security has already been irrevocably compromised.
As a result of the extensive publicity this case has received, it is readily apparent to every
foreign counterintelligence professional and nongovernmental actor that the Defendant has access
to highly classified information, whether in his head, in still-hidden physical locations, or stored
in cyberspace—and he has demonstrated absolutely no interest in protecting it. This makes the
Defendant a prime target, and his release would seriously endanger the safety of the country and
potentially even the Defendant himself.
In a review of the digital information seized from the Defendant, the government found a
letter, apparently created in 2007, which was addressed to government employees with whom he
worked, and signed “Hal.” In the letter, the Defendant refers to his co-workers as “clowns” and
criticizes the government’s digital security measures:
Well, for one thing, I’ve seen pretty much all your tech secrets wrt
[sic] regard to compusec [computer security]. Thanks. You made me
a much better infosec [information security] practitioner. In
exchange, well, I gave you my time, and you failed to allow me to
help you . . .
You are missing most of the basics in security practice, while
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 10 of 12
11
thinking you are the best. It’s the bread and butter stuff that will trip
you up. Trust me on this one. Seen it. . . .
Dudes/Dudettes, I can’t make this any plainer . . . Listen up . . .
‘They’ are inside the perimeter. . .
I’ll leave you with this: if you don’t get obnoxious, obvious, and
detrimental to my future, then I will not bring you ‘into the light’, as
it were. If you do, well, remember that you did it to yourselves.
The antipathy demonstrated in this letter raises grave concerns about the Defendant’s
intentions and potential actions should he be released.
III. THE DEFENDANT POSES A SUBSTANTIAL RISK OF FLIGHT
The Defendant’s behavior and characteristics also demonstrate that he is a significant
flight risk. His incentive to escape the jurisdiction of this Court is in no way substantially limited
by his apparent lack of a valid United States passport. Given the nature of his offenses and
knowledge of national secrets, he presents tremendous value to any foreign power that may
wish to shelter him within or outside of the United States. Should the Defendant flee to the
“protection” of a foreign power, there is no guarantee that he would not ultimately come to
harm. The severity of the potential penalties the Defendant faces, and will probably face should
additional charges be filed, provides further incentive to flee the country and never return, or to
seek refuge with a foreign government willing to shield him from facing justice in this Court in
exchange for access to information that he knows or possesses. The Defendant has also
communicated online with others in languages other than English, including in Russian, and in
June 2016 downloaded information regarding the Russian language as well as other foreign
languages.
The Defendant is the subject of an ongoing investigation, and the government intends
to file additional charges against him prior to the expiration of the Speedy Trial Act deadline.
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 11 of 12
12
His wife indicated that he had previously told her that he would take his own life “if he thought
if it was all over.” The Defendant has lost his security clearance and his career, and is facing
the loss of his freedom. He appears to have nothing left to lose, and every reason to attempt to
evade the criminal consequences of his actions.
IV. CONCLUSION
The evidence demonstrates that the Defendant poses a danger to the community and to the
national security of the United States, and is a substantial risk of flight. At this stage in the
proceedings, no condition or combination of conditions will reasonably assure either the
appearance of defendant at trial or the safety of the community and the nation. The Defendant
should be ordered detained pending trial in this case.
Respectfully submitted,
Rod J. Rosenstein
United States Attorney
By: /s/
Zachary A. Myers
Assistant United States Attorney
36 South Charles Street, Fourth Floor
Baltimore, Maryland 21201
(410) 209-4800
By: /s/
David Aaron
Trial Attorney
U.S. Department of Justice, National Security Division
950 Pennsylvania Ave NW
(202) 307-5190
Case 1:16-mj-02254-BPG Document 21 Filed 10/20/16 Page 12 of 12
OFFICE OF THE FEDERAL PUBLIC DEFENDER
DISTRICT OF MARYLAND
NORTHERN DIVISION
TOWER II, 9TH FLOOR
100 SOUTH CHARLES STREET
BALTIMORE, MARYLAND 21201-2705
TEL: (410) 962-3962
FAX: (410) 962-0872
JAMES WYDA DEBORAH L. BOARDMAN
FEDERAL PUBLIC DEFENDER FIRST ASSISTANT FEDERAL PUBLIC DEFENDER
October 20, 2016
The Honorable A. David Copperthite
United States District Court
for the District of Maryland
101 West Lombard Street
Baltimore, Maryland 21201
Re: United States v. Harold T. Martin, BPG-16-2254
Dear Judge Copperthite:
As the Court is aware, a detention hearing will be held in this matter tomorrow at 2:15
p.m. The government has submitted a detailed memorandum identifying grounds for detention.
See ECF 21. The government focuses almost exclusively on the potential danger that might
result if Mr. Martin is released. We disagree with this as a factual matter. More importantly, the
government overlooks a critical and dispositive fact: the Bail Reform Act provides no legal
basis under which the government may seek Mr. Martin’s detention based on danger.
As a secondary ground for detention, the government claims that Mr. Martin is a flight
risk. For reasons that will be discussed in detail at the hearing, Mr. Martin does not pose a
serious risk of flight. To the extent the Court has any concerns about ensuring his future
appearance in Court, conditions of release may be fashioned to allay those concerns.
Courts across the country, including in this District, have released defendants facing
similar charges. Indeed, in every recent case involving allegations of theft of government
property, unauthorized removal or retention of classified materials, and other similar charges, the
defendant has been released pending trial or sentencing. See Ex. A (chart summarizing recent
cases). This Court, too, should release Mr. Martin from custody pending trial.
A. The government has no legal basis under the Bail Reform Act to seek detention
based on danger.
The Bail Reform Act specifically identifies the five types of cases in which the
government may seek to detain a defendant pending trial. See 18 U.S.C. § 3142(f)(1). The
offenses with which Mr. Martin is charged – theft of government property and unauthorized
removal or retention of classified materials – do not fall within any of the enumerated categories.
See United States v. Byrd, 969 F.2d 106, 109 (5th Cir. 1992) (“[Section] 3142(f) does not
authorize a detention hearing whenever the government thinks detention would be desirable, but
rather limits such hearings to the [circumstances listed in § 3142(f)].”). The five types of cases
Case 1:16-mj-02254-BPG Document 22 Filed 10/20/16 Page 1 of 3
The Honorable A. David Copperthite
United States v. Harold T. Martin, BPG-16-2254
October 20, 2016
Page 2
where the government may move for detention based on a risk of danger are: (1) cases that
involve a “crime of violence” or an offense listed in section 2332b(g)(5)(B) which carries a
maximum term of imprisonment of ten years or more; (2) cases for which the maximum sentence
is life imprisonment or death; (3) particular types of drug cases for which the maximum sentence
is ten years or more; (4) any felony if the individual has been convicted of two or more offenses
previously described in (1)-(3); and (5) any felony that is not otherwise a crime of violence that
involves a minor victim or possession of certain kinds of weapons. 18 U.S.C. § 3142(f)(1)(A)-
(E). This case obviously does not fit within any of the last four options; the only remaining
question is whether it fits within the first. The answer is no.
1. The offenses with which Mr. Martin is charged do not qualify as “crimes of
violence.”
Mr. Martin’s charges do not qualify as “crimes of violence.” Section 3156 defines a
“crime of violence,” in pertinent part, as: “an offense that has as an element of the offense the
use, attempted use, or threatened use of physical force against the person or property of another;”
or “any other offense that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the course of committing
the offense.” 18 U.S.C. § 3156(a)(4)(A)-(B). The first clause – § 3156(a)(4)(A) – is the “force
clause.” The other – § 3156(a)(4)(B) – is the “residual clause.” Beginning with the “force
clause” definition, the Court must apply the categorical approach to determine whether Mr.
Martin’s charges include an element of physical force – which means “strong physical force,”
“capable of causing physical pain or injury to another person.” See Johnson v. United States,
559 U.S. 133, 140 (2010); see also Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)
(explaining that the categorical approach requires courts to “look only to the statutory definitions
– i.e., the elements – of a defendant’s [offense] and not to the particular facts underlying [the
offense]” in determining whether the offense qualifies as a “crime of violence”). Neither offense
with which Mr. Martin is charged has an element of the “use, attempted use, or threatened use of
physical force against the person or property of another.”
Turning to the “residual clause,” that clause is void for vagueness in light of the Supreme
Court’s recent decision in Johnson v. United States, 135 S. Ct. 2251 (2015). Nevertheless, even
if this Court determines that the residual clause is not void for vagueness, Mr. Martin’s offenses
do not qualify under this clause. Applying the categorical approach, there is no risk, let alone a
substantial risk, that the defendant would use “strong physical force” in committing theft of
government property or unauthorized removal or retention of classified materials. And it makes
no matter that another individual might use force upon obtaining national defense information.
In other words, to qualify under the residual clause, the risk must be that the defendant himself
will be the one to use physical force, not someone else. See Jobson v. Ashcroft, 326 F.3d 367,
373 (2d Cir. 2003) (explaining that 18 U.S.C. § 16(b) – which is materially indistinguishable
from the residual clause at issue here – “refers only to those offenses in which there is a
substantial likelihood that the perpetrator will intentionally employ physical force” (emphasis
added)).
Case 1:16-mj-02254-BPG Document 22 Filed 10/20/16 Page 2 of 3
The Honorable A. David Copperthite
United States v. Harold T. Martin, BPG-16-2254
October 20, 2016
Page 3
2. The offenses with which Mr. Martin is charged are not listed under 18 U.S.C.
§ 2332b(g)(5)(B).
As to whether Mr. Martin has been charged with an offense listed under 18 U.S.C. §
2332b(g)(5)(B), the answer is no. None of the offenses with which Mr. Martin is charged is
listed in § 2332b(g)(5)(B), which targets terrorist attacks, such as destruction of aircraft and
violence at airports. Section 2332b(g)(5)(B) is very specific; it lists more than fifty enumerated
offenses, and none of Mr. Martin’s charges is on the list. This Court cannot insert an absent term
into this unambiguous statute. Cf. United States v. Persico, 376 F. App’x 155, 156 (2d Cir.
2010) (reasoning that the Court may only presume dangerousness under the Bail Reform Act if it
finds probable cause to believe that “the defendant has committed various specific listed
offenses” (emphasis added)); see also United States v. Sabhani, 493 F.3d 63, 68 & n.5 (2d Cir.
2007) (suggesting that no presumption of dangerousness applied where the defendant was not
charged with a crime listed in § 3142(e)). Section 3142(f)(1), in sum, does not encapsulate the
offenses with which Mr. Martin is charged. The government lacks any basis under the Bail
Reform Act to seek to detain him based on a risk of danger.
B. Mr. Martin is not a risk of flight.
Finally, Mr. Martin is not a risk of flight, and the cases included in the attached chart
confirm that, to the extent that this is a factor of concern, it may be addressed with specific
release conditions. The government concocts fantastical scenarios in which Mr. Martin – who,
by the government’s own admission, does not possess a valid passport – would attempt to flee
the country. Mr. Martin’s wife is here in Maryland. His home is here in Maryland. He has
served this country honorably as a lieutenant in the United States Navy, and he has devoted his
entire career to serving his country. There is no evidence he intended to betray his country. The
government simply does not meet its burden of showing that no conditions of release would
reasonably assure Mr. Martin’s future appearance in court. For these reasons, and additional
reasons to be discussed at the detention hearing, Mr. Martin should be released on conditions
pending trial.
We thank the Court for its attention to this matter.
Respectfully,
/s/
James Wyda
Deborah L. Boardman
cc: Zachary Myers, AUSA
Case 1:16-mj-02254-BPG Document 22 Filed 10/20/16 Page 3 of 3
Defendant Year
Charged
Jurisdiction Charges Subject of Leak Detained
Pending
Trial?
Conditions of
Release
Offenses of
Conviction
Sentence
Kenneth W. Ford, Jr. 2005 MD –Unauthorized
possession of
national defense
information, 18
U.S.C. § 793(e)
–Making a
material false
statement to a
government
agency, 18 U.S.C.
§ 1001
Piles of classified
documents from
NSA, where the
defendant worked,
kept in his home
No –Conditions of release
unknown, unavailable
on Pacer
–Unauthorized
possession of
national defense
information, 18
U.S.C. 793(e)
–Making a
material false
statement to a
government
agency, 18
U.S.C. § 1001
–72 months in
prison as to
violation of 18
U.S.C. §
793(e)
–36 months in
prison as to
violation of 18
U.S.C. § 1001,
concurrent
–3 years
supervised
release
Samuel “Sandy”
Berger
2005 DC -Unauthorized
removal and
retention of
classified material
(Class A
misdemeanor, 18
U.S.C. § 1924)
Removed classified
documents from
National Archives
and stored them at
his office, destroyed
some of the
documents
No –Released on personal
recognizance
–Report to probation
and Pretrial office for
PSI, comply with
booking order
–Any rearrest on
probable cause for any
subsequent offense may
result in revoking
present bond and being
held without bail
–Unauthorized
removal and
retention of
classified
material (Class
A misdemeanor,
18 U.S.C. §
1924)
–2 years
supervised
probation
–Shall pay
$50,000 and
supervision
costs of
$6,905.52 by
COB 09/09/05
–100 hours of
community
service
–Shall have no
access to
classified
material for 3
years
Case 1:16-mj-02254-BPG Document 22-1 Filed 10/20/16 Page 1 of 10
Defendant Year
Charged
Jurisdiction Charges Subject of Leak Detained
Pending
Trial?
Conditions of
Release
Offenses of
Conviction
Sentence
Lawrence A. Franklin 2005 EDVA –Conspiracy to
communicate
national defense
information, 18
U.S.C. § 793(g)
–Communication
of national defense
information, 18
U.S.C. § 793(d) (3
counts)
–Conspiracy to
communicate
classified
information, 18
U.S.C. § 371
–Unlawful
retention of
national defense
information, 18
U.S.C. § 793(e)
Classified military
information
regarding U.S.
policy toward Iran
disclosed to proIsrael
lobbyists and
an Israeli diplomat
No $100,000 unsecured
bond
–Conditions of release
unknown, unavailable
on Pacer
–Conspiracy to
communicate
national defense
information, 18
U.S.C. § 793(g)
–Conspiracy to
communicate
classified
information, 18
U.S.C. § 371
–Unlawful
retention of
national defense
information, 18
U.S.C. § 793(e)
–Total term of
151 months in
prison,
followed by 3
years
supervised
release
–$10,000 fine
–Continued on
current bond
conditions to
self-surrender,
with delayed
reporting date
Steven J. Rosen 2005 EDVA –Conspiracy to
communicate
national defense
information, 18
U.S.C. § 793(g)
–Communication
of national defense
information, 18
U.S.C. § 793(d)
Pro-Israel lobbyist
charged with
conspiring to gather
and disclose
classified national
security information
to journalists and
unnamed foreign
power
No –Released on personal
recognizance, $100,000
unsecured bond
–Conditions of release
unknown, unavailable
on Pacer
–None –Dismissed on
motion of the
USA
-2-
Case 1:16-mj-02254-BPG Document 22-1 Filed 10/20/16 Page 2 of 10
Defendant Year
Charged
Jurisdiction Charges Subject of Leak Detained
Pending
Trial?
Conditions of
Release
Offenses of
Conviction
Sentence
Keith Weissman 2005 EDVA –Conspiracy to
communicate
national defense
information, 18
U.S.C. § 793(g)
Pro–Israel lobbyist
charged with
conspiring to gather
and disclose
classified national
security information
to journalists and an
unnamed foreign
power
No –Released on personal
recognizance, $100,000
unsecured bond
–Conditions of release
unknown, unavailable
on Pacer
–None –Dismissed on
motion of the
USA
Shamai K. Leibowitz 2009 MD –Disclosure of
classified
information, 18
U.S.C. § 798(a)(3)
Leaked classified
FBI documents to a
blogger
No –Report on a regular
basis to Pretrial Services
Supervision
–Surrender any
passports and obtain no
new passports
–Travel restricted to
Washington, DC
metropolitan area and
get prior approval for
further travel from
Pretrial
–Do not move without
Pretrial permission
–Disclosure of
classified
information, 18
U.S.C. § 798(a)
–20 months in
prison,
followed by 3
years
supervised
release
-3-
Case 1:16-mj-02254-BPG Document 22-1 Filed 10/20/16 Page 3 of 10
Defendant Year
Charged
Jurisdiction Charges Subject of Leak Detained
Pending
Trial?
Conditions of
Release
Offenses of
Conviction
Sentence
Thomas Drake 2010 MD –Willful retention
of national defense
information, 18
U.S.C. § 793(e) (5
counts)
–Obstruction of
justice, 18 U.S.C.
§ 1519
–Making a false
statement, 18
U.S.C. § 1001(a)
(4 counts)
Information
regarding NSA
waste and
mismanagement
No –Surrender any passport
to Clerk’s Office
–Obtain no passport
–Travel restricted to
MD, DC, and VA
without Pretrial approval
–All other travel may be
approved in advance by
Pretrial
–Exceeding
authorized use
of a computer
(Class A
misdemeanor,
18 U.S.C. §
1030(a)(2)(B))
–One year
probation
–240 hours of
community
service at Fort
Detrick, MD
Jeffrey Sterling 2010 EDVA –Unauthorized
disclosure of
national defense
information, 18
U.S.C. § 793(d) (3
counts)
–Unauthorized
disclosure of
national defense
information, 18
U.S.C. § 793(e) (3
counts)
–Unlawful
retention of
national defense
information, 18
U.S.C. § 793(e)
–Mail fraud, 18
U.S.C. § 1341
Classified
information
regarding efforts to
sabotage Iranian
nuclear research
divulged to NYT
reporter James
Risen
No –Released on personal
recognizance, unsecured
bond of $10,000
consigned by third party
custodian
–Placed in custody of
third party custodian
–Actively seek
employment
–Do not depart
Washington, DC
metropolitan area
without preapproval by
Pretrial or Court
All counts
except one
–42 months in
prison as to
each count, all
to run
concurrent
–2 years
supervised
release
-4-
Case 1:16-mj-02254-BPG Document 22-1 Filed 10/20/16 Page 4 of 10
Defendant Year
Charged
Jurisdiction Charges Subject of Leak Detained
Pending
Trial?
Conditions of
Release
Offenses of
Conviction
Sentence
–Unauthorized
conveyance of
government
property, 18
U.S.C. § 641
–Obstruction of
justice, 18 U.S.C.
§ 1512(c)(1)
–Avoid all contact and
communication with
alleged victims or
potential witnesses
unless in presence of
defense counsel
–Report to Pretrial
–Refrain from
possessing a firearm
–Refrain from excessive
use of alcohol
–Undergo psychiatric
treatment and take all
prescribed medications
and waive privacy rights
to mental health records
–Surrender passport and
obtain no new passport
–Notify any employer of
being under indictment
and the charges involved
-5-
Case 1:16-mj-02254-BPG Document 22-1 Filed 10/20/16 Page 5 of 10
Defendant Year
Charged
Jurisdiction Charges Subject of Leak Detained
Pending
Trial?
Conditions of
Release
Offenses of
Conviction
Sentence
Stephen J. Kim 2010 DC –Unauthorized
disclosure of
national defense
information, 18
U.S.C. § 793(d)
–False statements,
18 U.S.C. §
1001(a)(2)
Shared classified
information from an
intelligence report
on North Korea
with Fox News
reporter
No –Bond in the amount of
$100,000 secured by
real property
–Report weekly by
phone to Pretrial
–Shall not travel more
than 25 miles outside the
Washington, DC
metropolitan area
without pre-approval of
Pretrial, except can
travel to California for
work or to visit his son
with advance written
notice to pretrial and
government
–Any rearrest on
probable cause for any
subsequent offense may
result in revoking
present bond and being
held without bail
–Unauthorized
disclosure of
national defense
information, 18
U.S.C. § 793(d)
–13 months in
prison,
followed by
12 months of
supervised
release
-6-
Case 1:16-mj-02254-BPG Document 22-1 Filed 10/20/16 Page 6 of 10
Defendant Year
Charged
Jurisdiction Charges Subject of Leak Detained
Pending
Trial?
Conditions of
Release
Offenses of
Conviction
Sentence
James Hitselberger 2012 DC –Unlawful
retention of
national defense
information, 18
U.S.C. § 793(e)
–Unauthorized
removal of a
public record, 18
U.S.C. § 2071(a)
Classified materials
concerning Bahrain
to the Hoover
Institution
No
(released
after four
and a half
months in
custody)
–Release to high
intensity supervision
program with GPS
location monitoring
–To reside with aunt,
may leave only for
appointments with
doctors, lawyers, or
Pretrial Services, or to
attend religious services
–Prohibited from
entering or being in
immediate vicinity of
Union Station, any other
bus or train station that
provides service outside
of the Washington
metropolitan area, or
any airport
–May not travel further
than 25 miles from
Washington, DC for any
reason
–Meet with Pretrial once
a week and call officer
at designated time every
day
–Surrender passport and
obtain no new passport
–Unauthorized
removal and
retention of
classified
documents, 18
U.S.C. § 1924
–Time served
–No additional
supervision or
supervised
release shall
be imposed
–$250 fine
-7-
Case 1:16-mj-02254-BPG Document 22-1 Filed 10/20/16 Page 7 of 10
Defendant Year
Charged
Jurisdiction Charges Subject of Leak Detained
Pending
Trial?
Conditions of
Release
Offenses of
Conviction
Sentence
John Kiriakou 2012 EDVA –Disclosure of
classified
information
identifying a
covert agent, 50
U.S.C. § 421(a)
–Transmission of
national defense
information, 18
U.S.C. § 793(d) (3
counts)
–False statements,
18 U.S.C. §
1001(a)(1)
Disclosing identity
of CIA officials
involved in
interrogation abuse
to journalists
No –Released on personal
recognizance, $250,000
unsecured bond
–Bond to be signed by
wife and brother within
5 days
–Do not depart
Washington, DC
metropolitan area
without prior approval
of Pretrial or the Court
–Prior approval needed
from Pretrial to travel
outside Metro area
–Do not move from
residence without prior
approval of Pretrial or
the court
–Avoid all contact with
any witnesses
–Report on a regular
basis to Pretrial
–Surrender any passport
and obtain no new
passport
–Disclosure of
classified
information
identifying a
covert agent, 50
U.S.C. § 421(a)
–30 months in
prison,
followed by 3
years
supervised
release
-8-
Case 1:16-mj-02254-BPG Document 22-1 Filed 10/20/16 Page 8 of 10
Defendant Year
Charged
Jurisdiction Charges Subject of Leak Detained
Pending
Trial?
Conditions of
Release
Offenses of
Conviction
Sentence
Donald Sachtleben 2012 SDIN –Unauthorized
disclosure of
national defense
information, 18
U.S.C. § 793(d)
–Unauthorized
possession and
retention of
national defense
information, 18
U.S.C. § 793(e)
–Distributing child
pornography, 18
U.S.C. §
2256(2)(A)
–Possession of
child pornography,
18 U.S.C. §
2252(a)(4)(B)
Classified
information
regarding foiled
bomb plot in
Yemen to the AP
No –Supervision by Pretrial
–Continue or actively
seek employment
–Surrender any passport
and obtain no new
passport
–Travel restricted to
SDIN unless preapproved
by Pretrial
–Avoid all contact with
any co-defendants or
potential co-defendants
–Do not possess a
firearm
–Do not use alcohol and
submit to testing
–Home detention with
location
monitoring–may leave
only for employment,
education, religious
services, medical,
substance abuse, or
mental health treatment,
attorney visits, court
appearances, or other
pre-approved by Pretrial
–Unauthorized
disclosure of
national defense
information, 18
U.S.C. § 793(d)
–Unauthorized
possession and
retention of
national defense
information, 18
U.S.C. § 793(e)
–Distributing
child
pornography, 18
U.S.C. §
2256(2)(A)
–Possession of
child
pornography, 18
U.S.C. §
2252(a)(4)(B)
–43 months in
prison as to
Counts One
and Two, to
run
consecutive
with 97-month
sentence
imposed in
child
pornography
case
–Total of 7
years
supervised
release
-9-
Case 1:16-mj-02254-BPG Document 22-1 Filed 10/20/16 Page 9 of 10
Defendant Year
Charged
Jurisdiction Charges Subject of Leak Detained
Pending
Trial?
Conditions of
Release
Offenses of
Conviction
Sentence
–Random searches of
person, residence, and
property by Pretrial
and/or any law
enforcement officers
accompanying them
–Special conditions
related to child
pornography
charges–including not
possessing any computer
Bryan Nishimura 2015 EDCA –Unauthorized
removal and
retention of
classified
documents and
materials, 18
U.S.C. § 1924
Downloaded and
stored classified
military records on
personal electronic
devices, carried
classified materials
when traveled off
base in Afghanistan
and brought them
back to US at the
end of his
deployment
No –Conditions of release
unknown, unavailable
on Pacer
–Unauthorized
removal and
retention of
classified
documents and
materials, 18
U.S.C. § 1924
–2 years
probation
–$7,500 fine
–Shall not
obtain any
new security
clearance and
shall surrender
any security
clearances
currently held
Gen. David Petraeus 2015 WDNC –Unauthorized
removal and
retention of
classified material,
18 U.S.C. § 1924
Classified
information
regarding war
strategy,
intelligence
capabilities, and
identities of covert
officers to
biographer/mistress
No –Unauthorized
removal and
retention of
classified
material, 18
U.S.C. § 1924
–2 years
probation
$100,000 fine
-10-
Case 1:16-mj-02254-BPG Document 22-1 Filed 10/20/16 Page 10 of 10