United States v. Pollard

Facts

D, an Intelligence Research Specialist with the United States Navy, removed large amounts of highly classified U.S. intelligence information from his office, copied it, and delivered it to agents of the Israeli government. During the last twelve months of this period, he received between $1,500 and $2,500 per month for his efforts. When D was initially approached by authorities, he received permission to call home to his wife, Anne Henderson Pollard. In those conversations, he used the prearranged code word 'cactus,' whereupon Mrs. Pollard removed a suitcase full of classified U.S. intelligence information from the D's apartment and contacted D's Israeli handlers to tell them that D was in trouble. This was her only active involvement in D's espionage. D lied to his interrogators as his Israeli handlers had instructed him, and one of his handlers during this period managed to leave the country. D was finally arrested on November 21, 1985, and charged with violations of 18 U.S.C. §§ 794(a) and 793(e). Mrs. Pollard was arrested a day later as an accessory. Prior to their arrests, they had sought asylum at the Israeli embassy, actually gaining entrance to the embassy compound at one point, but the Israelis turned them away. Even so, D continued to protect his Israeli handlers. Although he admitted that he had lied in his earlier interviews and had in fact been delivering classified information to a foreign government, he refused to identify the government or the names of the foreign intelligence agents controlling him. D's other Israeli handler departed the United States during this time. During her stay in the D.C. jail, Mrs. Pollard was seriously ill, losing forty pounds over a period of three months. In February of 1986, Mrs. Pollard was released on bail. Plea agreements were hotly being negotiated. D cooperated with the government investigation, and in late May of 1986, the government offered him a plea agreement, which he accepted. D was bound to plead guilty to one count of conspiracy to deliver national defense information to a foreign government (18 U.S.C. § 794(c)), which carried a maximum prison term of life, and to cooperate fully with the government's ongoing investigation. He promised not to disseminate any information concerning his crimes without submitting to pre-clearance by the Director of Naval Intelligence. His agreement further provided that failure by Anne Pollard to adhere to the terms of her agreement entitled the government to void his agreement and her agreement contained a mirror-image provision. The government promised not to charge D with additional crimes, entered into a plea agreement with Anne Pollard and made several specific representations that are very much at issue in this case. The critical provisions are paragraphs 4(a) and 4(b) of the agreement, in which the government 'agreed as follows': 

(a) When [Pollard] appears before the Court for sentencing for the offense to which he has agreed to plead guilty, the Government will bring to the Court's attention the nature, extent, and value of his cooperation and testimony. Because of the classified nature of the information, Mr. Pollard has provided to the Government, it is understood that particular representations concerning his cooperation may have to be made to the Court in camera. In general, however, the Government has agreed to represent that the information Mr. Pollard has provided is of considerable value to the Government's damage assessment analysis, its investigation of this criminal case, and the enforcement of the espionage laws. 

(b) Notwithstanding Mr. Pollard's cooperation, at the time of sentencing, the Government will recommend that the Court impose a sentence of a substantial period of incarceration and a monetary fine. The Government retains full right of allocution at all times concerning the facts and circumstances of the offenses committed by Mr. Pollard and will be free to correct any misstatements of fact at the time of sentencing, including representations of the defendant and his counsel in regard to the nature and extent of Mr. Pollard's cooperation. Moreover, Mr. Pollard understands that, while the Court may take his cooperation into account in determining whether or not to impose a sentence of life imprisonment, this agreement cannot and does not limit the court's discretion to impose the maximum sentence. 

The district court accepted D's plea at a hearing held on June 4, 1986. Chief Judge Robinson addressed D in open court and questioned him about his understanding of the rights he was surrendering, including the potential sentences he faced and the terms of the plea agreement. After being assured by both D and his attorney that there was no reason to be chary of the plea, the district court accepted it. Prior to sentencing, the government mentioned that D had violated his plea agreement while in prison awaiting sentencing by giving several interviews to a journalist for the Jerusalem Post, Wolf Blitzer, without first submitting his comments to the Director of Naval Intelligence. The government also submitted a highly classified declaration by Secretary of Defense Caspar Weinberger cataloging the damage D had done and opining that the damage had been 'substantial and irrevocable.' The district judge sentenced D to life in prison and Mrs. Pollard to five years. D did not appeal but made a timely Rule 35 motion seeking to have his sentence reduced on the ground that it was disproportionate to the sentences received by other spies whose espionage was arguably more damaging to United States' interests. He repeated the arguments he had made at sentencing and maintained in particular that the district court had failed to take proper account of his cooperation. The district court denied the motion, and D did not appeal. Anne Pollard was released on parole after serving three years in prison; she subsequently moved to Israel in August 1990. Some months earlier, a professor at Harvard Law School, Alan Dershowitz, whose role as D's representative, in this case, is not entirely clear, had asked retired Supreme Court Justice Arthur Goldberg to investigate the reasons for D's life sentence. Mr. Goldberg, according to Professor Dershowitz's affidavit, discussed the matter with Chief Judge Robinson. The Chief Judge purportedly told Mr. Goldberg that D had provided Israel with information demonstrating American knowledge of certain details of Israeli-South African defense cooperation and that this had 'weighed heavily' in the sentence. Dershowitz claims that D never provided the Israelis that sort of information, so he asserts in his affidavit that Mr. Goldberg inferred that the government may have made improper ex parte submissions to Chief Judge Robinson. D filed the motion under 28 U.S.C. §2255 to withdraw his guilty plea. D sought a hearing on the allegations contained in the Dershowitz affidavit, as well as on D's claims that the government coerced his plea and breached the subsequent plea agreement. All of these motions were denied. This appeal ensued.

Issues

Rule of Law

Holding and Decision

Legal Analysis

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