JONATHAN J. POLLARD
Criminal No. 86-0207
Rule 35 Motion for Reduction of Sentence
Filed July 1, 1987
What Hibey did file instead, was a Rule 35 motion to reduce sentence, the text of which follows these notes. While the Rule 35 motion was logical, factual and well-presented, it was not relevant. Such a document is generally filed when there is a clear indication from the sentencing judge to the defendant's attorney that a reduction of sentence would be considered. There was no such indication from Judge Robinson in this case.
Again, astonishingly, when the Rule 35 motion was denied by Judge Robinson, Hibey failed to appeal it.
First Hibey's failure to file a motion of intent to file a direct appeal within 10 days of Jonathan Pollard's sentencing, and then his failure to appeal the Rule 35 motion when it was denied, blocked Jonathan Pollard from any further appeals of his sentence.
Also, at no time did Hibey protest the fact that the sentencing judge had never advised Jonathan Pollard of his right to file a direct appeal, something which today is grounds for a "reversible error" (which could cause a sentence to be over-turned.)
While Hibey's fees were covertly paid by the Government of Israel, to this day it is not clear whose orders Hibey was following when he bumbled the case, making mistakes that even a junior law clerk would not make. What is clear is that they were not Jonathan Pollard's orders. Hibey's legal missteps are so blatant and so egregious that it is not reasonable to presume that they were simply accidental. This is especially so, when the combined weight of all of his "errors" forever blocked all of Pollard's chances of mounting a direct appeal of his sentence.
Richard Hibey, the author of this legal document and Jonathan Pollard's first attorney remains the only attorney who has seen the full classified record of the Pollard file. Even though he only saw parts of it for a few moments just before sentencing (i.e. the Caspar Weinberger memorandum to the sentencing judge) Hibey is able to state unequivocally that he has seen the full record and that the government has failed to show even one concrete example of any damage done by Pollard's espionage.
Defendant, Jonathan J. Pollard was sentenced on March 4, 1987 to life imprisonment for violation of the espionage laws. His wife, Ann Henderson-Pollard, was sentenced to concurrent five year sentences which are the subject of a separate motion to reduce.
The reasons for reducing Mr. Pollard's sentence are these:
Mr. Pollard has created a perception of arrogance that one in his predicament can ill afford to convey. What is one man's arrogance may be another's naiveté regarding the realities which confront him. Such is Mr. Pollard's case.
Mr. Pollard's attitude toward his conduct and this case must be appraised in the light of three critical elements of his thinking about which the evidence is indisputable: his passionate Zionism; his unmitigated hatred of terrorism and the communist ideology which supports it; and his genuine and continuing belief in America.
Even to detail these feelings might be looked upon as further evidence of Mr. Pollard's arrogance through political testament and harangue. This view is unjustified because the facts of this case have never suggested that his ideological agenda was anything other than what he has consistently, albeit stridently, represented throughout.
While this adds nothing endearing to the personality of the man, in the context of a sentencing in a case such as this, it should not be counted so heavily against him. In the final analysis, Mr. Pollard's wrong-doing is classically egregious and beyond acceptability, but never, by motive or intent, a heinous espionage born out of an arrogance that demands retribution.
We have stated in one memorandum in aid of sentencing that the damage to the national security resulting from Mr. Pollard's conduct was minimal to the point of being almost non-existent. This contention is extraordinary (although the government has described it otherwise), but true nevertheless. The information here was passed, in violation of the law, to one of our closest allies. There is no evidence of its being or having been further compromised. In Secretary Weinberger's affidavit the damage to our national security was claimed in bureaucratic terms and no evidence was adduced in the record (public or sealed) that persons and/or systems have been compromised by virtue of Mr. Pollard's conduct.
This makes Secretary Weinberger's affidavits particularly shrill and inflammatory. In the first place, his principal affidavit was sealed in its entirety. Yet, Mr. Pollard's response thereto, citing liberally to it, is virtually free of censorship. Secondly, the Secretary's second affidavit, the one that describes Mr. Pollard's conduct as "treasonous" is, in its entirety, unclassified. This latter document adds nothing but rank hyperbole. After the sentencing, taking refuge in his classified affidavit, the Secretary claims that Mr. Pollard's attorneys deliberately misrepresented certain of his statements in this affidavit. See Reuters News Service article, dated March 5, 1987, attached hereto as Exhibit B. These kind of statements are a "forked tongue", representing nothing more than an effort to appeal to one reader or audience to the exclusion of another.
Moreover others have begun to voice a perception that Secretary Weinberger has a penchant to exaggerate the damage resulting from acts of espionage. Most recently, Secretary Weinberger's claims of severe repercussions to the national security resulting from clandestine activities of the marines stationed at the U.S. Embassy in Moscow have been questioned. See Washington Post article, dated June 6, 1987, attached hereto as Exhibit G. As in Mr. Pollard's case, Mr. Weinberger speaks of damage before the full facts are known.
It is, therefore, Mr. Pollard's contention that the nature and extent of any injury to the United States from his conduct has yet to be assessed accurately. The inquiry is a valid one: positing the most sensitive item of information that court can recall was given to the Israeli Government, how did it harm the national security? True, the Israelis were not supposed to have the information; but that can be said of the least sensitive of the information passed. Accordingly, the question must be pressed further in order to ascertain the severity of the offense. Nothing in Secretary Weinberger's affidavits even remotely suggests that with the passage of this most sensitive information, there was a loss of systems or personnel or setback of ongoing operations as a result of Mr. Pollard's conduct. Indeed this recognition is inherent in the decision of the government not to seek a life sentence.
The way in which the government chose to advocate its position on damage to the national security presaged its barely perceptible statements regarding Mr. Pollard's cooperation in the government's investigation.
The government agreed to set forth in detail the nature, extent and value of Mr. Pollard's cooperation. On many times we received assurances that although a substantial (but not life) sentence would be sought, there would be a full statement regarding Mr. Pollard's cooperation. None was forthcoming. The government's pleadings contained fully two lines of reference to his cooperation and, at allocution, the government belittled the defendant's own efforts, made in good faith, to identify the areas in which he was helpful to the investigation, and contradicted his rendition of the value of his cooperation.
The irony of the government indicting Mr. Pollard's first Israeli contact on the basis of evidence he alone provided is all too bitter: the day before Mr. Pollard is sentenced, his testimony before the grand jury, prepared and elicited by the prosecutor, and the sole basis for a criminal charge, is credited as truthful as to each element of the crime of espionage and an Israeli officer is indicted. The next day, Pollard has no credibility at all; he is no longer of value to the government.
It may be said that this court would have sentenced Mr. Pollard to life even if the government had been more candid in its appraisal of his cooperation; but, certainly, the government's failure to honor its word to him on the critical question of his cooperation, certainly sealed his fate. There was no counterpoint to the perception of Mr. Pollard's arrogance. There was no verification of his good faith in this case. There was no context which the government alone could have supplied that would have allowed for a perspective that an initially-perceived arrogance was in truth an inaccurate picture of the man.
As a remedy for its failure to recognize the value of Mr. Pollard's cooperation, and consistent with its pledge under the plea agreement not to seek a life sentence for Mr. Pollard, the government should not oppose this motion for reduction. Nevertheless, and perhaps not surprisingly, counsel has been informed that an opposition will be forthcoming.
The government undoubtedly will assert that Mr. Pollard's post-plea conduct, specifically his conversations with a reporter and his letter to the Jewish Advocate (albeit published without his approval), justifies its filing of an opposition. While Mr. Pollard's conversations with the press were ill-advised, it is interesting that the government took no action to stop them until after sentencing. Even though Mr. Pollard spoke to the press in November, 1986, resulting in disclosures which the government claimed came perilously close to revealing classified information, the government still permitted Mr. Pollard full access to reporters. Only after the court imposed a life sentence did the government exercise its powers to cut off all access by the press to Mr. Pollard and to begin monitoring and censoring his mail. Under the circumstances, these communications have been stopped and are no longer a factor militating in favor of a maximum sentence.
There should be concern about the fact that a cooperating defendant, for whom it agreed to request a substantial, but not life sentence, receives nevertheless, a life sentence. In the context of an opposition to the reduction of a sentence, it is a virtual certainty that the government will not own up to this concern. Under such circumstances, it is appropriate for this court to understand that the ramification of its sentence in this case is to chill the prospect of a suspect in another espionage case being willing to cooperate when he knows it will not affect his sentence at all.
This could have serious repercussions in cases far more serious than this one. For example, a delay in cooperation because the suspect has trouble crediting the government's representations could result in a loss of intelligence systems as well as the lives of intelligence agents. Of course, the government could say that it will simply rely on the ability of its prosecutors to persuade the next spy it uncovers that their word is good; but that is too facile. When any espionage is uncovered, time is of the essence and event the ablest prosecutor will not know how exquisite the time factor is.
Therefore, even if the government will want the maximum sentence to be upheld, this court may, nevertheless, see wisdom in a reduction in a case such as this where the defendant's cooperation has been complete and valuable to the United States.
One trait that the judicial system has striven to exhibit is consistency in sentences for similar crimes. Indeed, the court is required to take into account, when imposing sentence on a defendant, sentences dispensed in similar cases. 18 U.S.C. # 3553a states that a court "shall consider ...(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." In keeping faith with the principle of uniformity, the court should consider whether the sentence given Mr. Pollard far exceeds the terms set by other judges in other cases.
If Mr. Pollard had engaged in espionage for the Soviet the Union or an East Bloc country, a life sentence possibly would have comported with other decisions. In recent cases, John Walker, Thomas Cavanaugh and Ronald Pelton all received life sentences for passing, or attempting to pass sensitive material to the Soviets. See NY Times articles dated November 8, 1986, May 25, 1985, and December 17, 1986, attached hereto as Exhibits J, K, and L. Richard Miller* received two concurrent life terms for conspiring to pass information to the Soviets while an employee of the FBI. See NY Times times article, dated July 20, 1986, attached hereto as Exhibit M, and a judge sentenced Jerry Whitworth to 365 years for his infamous role in the Walker spy ring. See NY Times article dated August 29, 1986, attached hereto as Exhibit N.
*[Justice4JP Note: With the passage of time, it is a fact that in many other espionage cases the original sentence often has little to do with the actual time served before release. For example in the case of Richard Miller who was sentenced to 2 concurrent life terms, Miller did 6 years in prison and was released in 1994. While Justice4JP does not have up to date information on all cases, other examples follow where relevant.]
Yet, not even those acting to benefit the Soviets necessarily receive lengthy sentences. Two years ago, Samuel Loring Morison, one of Mr. Pollard's co-workers, was convicted of passing a highly classified satellite photo to Jane's Defense Weekly, a British publication. In spite of the testimony that the publication of the photo gave the Soviet Union a far greater knowledge of U.S. satellite capabilities, the judge sentenced, Mr. Morison to only two* years in prison. See NY Times article dated December 8, 1985, attached hereto as Exhibit O *[Justice4JP Note: In point of fact Morison, served only 3 months in prison and was then released.] In 1981 David Barnett [who is a free man today- Justice4JP] was sentenced to 18 years for passing information to the Soviets on U.S. intelligence operations, including the names of dozens of U.S. operatives. See NY Times article dated June 29, 1981, attached hereto as Exhibit P. William Holden Bell received a sentence of 8 years for his role in providing information on antitank missile and radar technology to a Polish agent. Id.; See NY Times article dated December 17, 1981, attached hereto as Exhibit Q. In 1984, a judge in Florida sentenced Ernst Forbrich to 15 years for purchasing U.S. military secrets with the intent of passing them to East Germany. See NY Times article dated August 4, 1984, attached hereto as Exhibit R. Svetlana Ogorodnikova, a Soviet émigré received 18 years in 1985 for conspiring with Richard Miller to deliver classified documents to the Soviet Union. See NY Times article dated July 16, 1985, attached hereto as Exhibit S.
In vivid contrast, persons acting on behalf of non-Soviet countries have received far lesser sentences. For example, Enseign Steven Baba was court-martialed for having sent documents relating to electronic warfare secrets and indices of code words to the South African Embassy. The court imposed a sentence of 8 years at hard labor, yet under a plea bargain the sentence was reduced to 2 years. . *[Justice4JP Note: Baba served only 5 months of his sentence and was then released.] See NY Times articles dated December 4, 1981 and December 18,1981 and January 12, 1982, attached hereto as Exhibits T, U, and V. Similarly Sharon Scranage gave her boyfriend, a Ghana national, information gained as a CIA employee relating to the names of CIA operatives in Ghana. Although this information could have resulted in the loss of lives, the court sentenced Ms.Scranage to 5 years. Shortly thereafter, the court reduced the sentence to 2 years. *[Justice4JP Note: Scranage served only 8 months of her 2 year sentence and was then released.] See NY Times article dated April 11, 1986, attached hereto as Exhibit X. In both cases, the nation receiving the information was not considered an ally of the United States. Indeed neither country even had particularly friendly relations with the United States. Nevertheless, the judges presumably viewed the fact that the information was not passed to the Soviet Union as a relevant factor in sentencing.
Viewed in the context of other cases, Mr. Pollard's sentence is excessive. Espionage on behalf of one of the United States' closest allies does not merit the maximum sentence, especially in light of Mr. Pollard's guilty plea and his cooperation and the implicit recognition by the government, in the form of its agreement not to seek a life term, that the damage to the national security was not as great as Secretary Weinberger would have the court believe.
For the foregoing reasons, defendant Jonathan J. Pollard respectfully requests that his sentence be reduced.
Richard A. Hibey
Attorney for the Defendant Jonathan J. Pollard
Dated: June 25, 1987