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Supreme Court of the United States OCTOBER TERM, 2013 No. ________ IN THE Supreme Court of the United States OCTOBER TERM, 2013 dJAMES RISEN, Petitioner, —v.— UNITED STATES OF AMERICA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT JOEL KURTZBERG Counsel of Record DAVID N. KELLEY CAHILL GORDON & REINDEL LLP 80 Pine Street New York, New York 10005 (212) 701-3000 [email protected] Attorneys for James Risen January 13, 2014 TABLE OF CONTENTS APPENDIX Page July 19, 2013 Opinion of the United States Court of Appeals for the Fourth Circuit in U.S. v. Sterling (Case No. 11-5028) .............. 1a July 29, 2011 Order of the United States Dis- trict Court for the Eastern District of Vir- ginia in U.S. v. Sterling (Case No. 1:10-cr- 00485)............................................................. 110a July 29, 2011 Opinion of the United States Dis- trict Court for the Eastern District of Vir- ginia in U.S. v. Sterling (Case No. 1:10-cr- 00485)............................................................. 112a October 12, 2011 Order of the United States District Court for the Eastern District of Virginia in U.S. v. Sterling (Case No. 1:10-cr-00485) ................................................ 144a October 12, 2011 Transcript of Motions Hearing Before the United States District Court for the Eastern District of Virginia in U.S. v. Sterling (Case No. 1:10-cr-00485) ..... 145a October 15, 2013 Opinion of the United States Court of Appeals for the Fourth Circuit in U.S. v. Sterling (Case No. 11-5028) .............. 183a U.S. Constitution, Amendment I ............................. 192a Federal Rules of Evidence, Rule 501 ....................... 193a Federal Rules of Criminal Procedure, Rule 17 ....... 194a November 30, 2010 Opinion of the United States District Court for the Eastern Dis- trict of Virginia in In re: Grand Jury Subpoena, James Risen (Case No. 1:08dm61) (Redacted) .................................... 195a Affidavit of Joel Kurtzberg of June 20, 2011 in U.S. v. Sterling (Case No. 1:10-cr-00485) (Redacted with portions Under Seal)............ 226a Ex. 14 Declaration of Scott Armstrong of February 16, 2008 in In re: Grand Jury Subpoena, James Risen (Case No. 1:08dm61) ........... 232a Ex. 15 Declaration of Carl Bernstein of February 16, 2008 in In re: Grand Jury Subpoena, James Risen (Case No. 1:08dm61) ........... 252a Ex. 16 Affidavit of Anna Kasten Nel- son of February 13, 2008 in In re: Grand Jury Subpoena, James Risen (Case No. 1:08dm61) ...................................... 258a Ex. 17 Affidavit of Jack Nelson of Feb- ruary 15, 2008 in In re: Grand Jury Subpoena, James Risen (Case No. 1:08dm61)...................... 264a Ex. 18 Declaration of Dana Priest in In re: Grand Jury Subpoena, James Risen (Case No. 1:08dm61) ...................................... 271a Affidavit of James Risen of June 21, 2011 in U.S. v. Sterling (Case No. 1:10-cr-00485) (Re- dacted with portions Under Seal) ................ 280a Ex. 1 May 17, 2011 Trial Subpoena to James Risen in U.S. v. Sterling (Case No. 1:10-cr-00485) ............... 312a Chapter 9 of State of War: The Secret History of the CIA and the Bush Administration (2006), by James Risen ................................ 314a 1a UNITED STATES COURT OF APPEALS FOURTH CIRCUIT No. 11–5028 Argued: May 18, 2012 Decided: July 19, 2013 UNITED STATES OF AMERICA, Plaintiff-Appellant, —v.— JEFFREY ALEXANDER STERLING, Defendant-Appellee, JAMES RISEN, Intervenor-Appellee, THE THOMAS JEFFERSON CENTER FOR THE PRO- TECTION OF FREE EXPRESSION; ABC, INCORPO- RATED; ADVANCE PUBLICATIONS, INCORPORATED; ALM MEDIA, INCORPORATED; THE ASSOCIATED PRESS; BLOOMBERG, L.P.; CABLE NEWS NET- WORK, INCORPORATED; CBS CORPORATION; COX MEDIA GROUP, INC.; DAILY NEWS, L.P.; DOW JONES AND COMPANY, INCORPORATED; THE E.W. SCRIPPS COMPANY; FIRST AMENDMENT COALITION; FOX NEWS NETWORK, L.L.C.; GAN- NETT COMPANY, INCORPORATED; THE HEARST CORPORATION; THE MCCLATCHY COMPANY; NATIONAL ASSOCIATION OF BROADCASTERS; NATIONAL PUBLIC RADIO, INCORPORATED; NBCU 2a NIVERSAL MEDIA, LLC; THE NEW YORK TIMES COMPANY; NEWSPAPER ASSOCIATION OF AMER- ICA; THE NEWSWEEK DAILY BEAST COMPANY LLC; RADIO TELEVISION DIGITAL NEWS ASSOCI- ATION; REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; REUTERS AMERICA LLC; TIME INC.; TRIBUNE COMPANY; THE WASHINGTON POST; WNET, Amici Supporting Intervenor. ARGUED: Robert A. Parker, United States Department of Justice, Washington, D.C., for Appellant. Joel Kurtzberg, Cahill, Gordon & Reindel, New York, New York; Edward Brian MacMahon, Jr., Middleburg, Virginia; Barry Joel Pollack, Miller & Chevalier, Chartered, Washington, D.C., for Appellees. ON BRIEF: Neil H. MacBride, United States Attorney, James L. Trump, Senior Litigation Counsel, Office of the United States Attorney, Alexandria, Virginia; William M. Welch II, Senior Litigation Counsel, Timothy J. Kelly, Trial Attorney, Criminal Division, Lanny A. Breuer, Assistant Attorney General, Mythili Raman, Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C., for Appellant. Mia Haessly, Miller & Chevalier, Chartered, Washington, D.C., for Appellee Jeffrey Alexander Sterling. David N. Kelley, Cahill, Gordon & Reindel, New York, New York, for Appellee James Risen. J. Joshua Wheeler, The Thomas Jefferson Center for the Protection of Free Expression, 3a Charlottesville, Virginia; Bruce D. Brown, Laurie A. Babinski, Baker & Hostetler LLP, Washington, D.C., for The Thomas Jefferson Center for the Protection of Free Expression, Amicus Supporting James Risen. Lee Levine, Jeanette Melendez Bead, Levine Sullivan Koch & Schulz, LLP, Washington, D.C., for Amici Curiae; John W. Zucker, Indira Satyendra, ABC, INC., New York, New York, for Amicus ABC, Inc.; Richard A. Bernstein, Sabin, Bermant & Gould LLP, New York, New York, for Amicus Advance Publications, Inc.; Allison C. Hoffman, Fabio B. Bertoni, ALM Media, LLC, New York, New York, for Amicus ALM Media, LLC; Karen Kaiser, The Associated Press, New York, New York, for Amicus The Associated Press; Charles J. Glasser, Jr., Bloomberg L.P., New York, New York, for Amicus Bloomberg L.P.; David C. Vigilante, Johnita P. Due, Cable News Network, Inc., Atlanta, Georgia, for Amicus Cable News Network, Inc.; Anthony M. Bongiorno, CBS Corporation, New York, New York, for Amicus CBS Corporation; Lance Lovell, Cox Media Group, INC., Atlanta, Georgia, for Amicus Cox Media Group, Inc.; Anne B. Carroll, Daily News, L.P., New York, New York, for Amicus Daily News, L.P.; Mark H. Jackson, Jason P. Conti, Gail C. Gove, Dow Jones & Company, Inc., New York, New York, for Amicus Dow Jones & Company, Inc.; David M. Giles, The E.W. Scripps Company, Cincinnati, Ohio, for Amicus The E.W. Scripps Company; Peter Scheer, First Amendment Coalition, San Rafael, California, for Amicus First Amendment Coalition; Dianne Brandi, Christopher Silvestri, Fox News Network, L.L.C., New York, New York, for Amicus Fox News Network, L.L.C.; Barbara W. Wall, Gannett Co., 4a INC., McLean, Virginia, for Amicus Gannett Co., Inc.; Eve Burton, Jonathan Donnellan, The Hearst Corporation, New York, New York, for Amicus The Hearst Corporation; Karole Morgan–Prager, Stephen J. Burns, The McClatchy Company, Sacramento, California, for Amicus The McClatchy Company; Jane E. Mago, Jerianne Timmerman, National Association of Broadcasters, Washington, D.C., for Amicus National Association of Broadcasters; Denise Leary, Ashley Messenger, National Public Radio, Inc., Washington, D.C., for Amicus National Public Radio, Inc.; Susan E. Weiner, NBCUniversal Media, LLC, New York, New York, for Amicus NBCUniversal Media, LLC; George Freeman, The New York Times Company, New York, New York, for Amicus The New York Times Company; Kurt Wimmer, Covington & Burling, LP, Washington, D.C., for Amicus Newspaper Association of America; Randy L. Shapiro, The Newsweek/Daily Beast Company LLC, New York, New York, for Amicus The Newsweek/Daily Beast Company LLC; Kathleen A. Kirby, Wiley Rein & Fielding LLP, Washington, D.C., for Amicus Radio Television Digital News Association; Lucy A. Dalglish, Gregg P. Leslie, Reporters Committee for Freedom of the Press, Arlington, Virginia, for Amicus Reporters Committee for Freedom of the Press; Shmuel R. Bulka, Reuters America LLC, New York, New York, for Amicus Reuters America LLC; Andrew B. Lachow, Time Inc., New York, New York, for Amicus Time Inc.; David S. Bralow, Karen H. Flax, Karlene W. Goller, Tribune Company, Chicago, Illinois, for Amicus Tribune Company; Eric N. Lieberman, James A. McLaughlin, The Washington Post, Washington, D.C., for Amicus 5a The Washington Post; Robert A. Feinberg, WNET, New York, New York, for Amicus WNET. Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit Judges. Opinion Affirmed in part, reversed in part, and remanded by published opinion. Chief Judge TRAXLER wrote the opinion for the court in Part I, in which Judge GREGORY and Judge DIAZ joined. Chief Judge TRAXLER wrote the opinion for the court in Parts II–V, in which Judge DIAZ joined. Judge GREGORY wrote the opinion for the court in Part VI, in which Chief Judge TRAXLER and Judge DIAZ joined. Judge GREGORY wrote the opinion for the court in Part VII, in which Judge DIAZ joined. Chief Judge TRAXLER wrote an opinion concurring in part and dissenting in part as to Part VII. Judge GREGORY wrote an opinion dissenting as to Parts II–V. TRAXLER, Chief Judge: Jeffrey Sterling is a former CIA agent who has been indicted for, inter alia, the unauthorized retention and disclosure of national defense information, in violation of the Espionage Act, 18 U.S.C. § 793(d) & (e). The indictment followed the grand jury’s probable cause determination that Sterling illegally disclosed classified information about a covert CIA operation pertaining to the Iranian nuclear weapons operation to James Risen, 6a for publication in a book written by Risen, and that he may have done so in retaliation for the CIA’s decision to terminate his employment and to interfere with his efforts to publish such classified information in his personal memoirs. Prior to trial, the district court made three evidentiary rulings that are the subject of this appeal. We affirm in part, reverse in part, and remand for further proceedings. I. Background A.
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