Criminal No. 86-0207 (AER)

FACTS

On September 12, 1989 Justice Arthur Goldberg published a letter in the Jerusalem Post expressing his views of the Pollard case. Counsel to Mr. Pollard, Alan m. Dershowitz, a professor of law at Harvard Law School and former law clerk to Justice Goldberg, contacted Justice Goldberg to discuss the sentence imposed upon Mr. Pollard.- Affidavit of Alan M. Dershowitz, "Affidavit" at #2. [Exhibit A] Justice Goldberg promised Mr. Dershowitz that he would make some inquiries regarding the sentence that Pollard received. Id.

Justice Goldberg subsequently contacted Mr. Dershowitz to inform him that he had met personally with Judge Robinson to discuss the Pollard case. During this meeting, Judge Robinson told him that one of the reasons that he sentenced Mr. Pollard to life imprisonment was because the government had provided him with evidence that Mr. Pollard had given Israel American satellite photographs that proved that Israel had tested Jericho missiles in South Africa and had provided South Africa with missile and nuclear technology. Affidavit at #3. Mr. Dershowitz told Justice Goldberg that he did not believe that Mr. Pollard had provided Israel with any such satellite information but that he would check with people to find out. Id.

Mr. Dershowitz immediately contacted Hamilton P. Fox III, also counsel to Mr. Pollard, and in strictest confidence, reported the information to him. Affidavit at #4. At the time of Mr. Dershowitz's conversation with Justice Goldberg, Mr. Fox was preparing to file a motion to withdraw Mr. Pollard's guilty plea, He decided to delay filing that motion until he could investigate the information that Justice Goldberg had provided.

Without revealing the source or details of Mr. Dershowitz's communication, Mr. Fox checked with Pollard's former attorney, Richard Hibey, to determine whether Pollard had given any information to Israel concerning satellite surveillance of South Africa. Mr. Hibey told Mr. Fox that there was no information about South Africa in the classified materials or in any submission that had been made available to him.

Mr. Fox also asked Mr. Pollard whether he had ever disclosed to Israel any information about South Africa, especially whether Mr. Pollard had given Israel satellite photographs of South Africa. Mr. Pollard adamantly denied providing Israel with such information. Mr. Pollard stated that not only was this never mentioned in any of the government documents that he had supplied, but also that it was not contained in any of the damage assessment documents or other filings that he had seen. It therefore appeared likely that the government had not only given Judge Robinson inaccurate information about Mr. Pollard's activities, but that it had done so in an ex parte fashion.

Mr. Dershowitz then wrote to Justice Goldberg on January 10, 1990, informing him that, after checking his sources, it was his belief that Mr. Pollard never had provided Israel with information regarding American satellite (or other) surveillance of South Africa. Affidavit at #5. Mr. Dershowitz further expressed his concern to Justice Goldberg that if the prosecutors had provided Judge Robinson with such information it would have been an effort to prejudice the judge against Pollard.

Mr. Dershowitz spoke with Justice Goldberg on the phone on January 15, 1990 about the Pollard case. Justice Goldberg told Mr. Dershowitz that he would pursue the matter further. Affidavit at #6. Justice Goldberg, however, died on January 18th, 1990.

Counsel for Mr. Pollard have discussed on several occasions what, if anything, they should do in response to the above information. Because of the unavailability of the source of the information, its nature and implications, counsel have been hesitant to bring it to the court's attention without checking every available source of confirmation. Counsel have done their best to check the accuracy of the information. After Justice Goldberg's death they decided that they were obligated, as counsel to Mr. Pollard, to bring this matter to the court's attention. Because of the nature of the information and the effect that its revelation may have on those involved, counsel have been very careful not to reveal it publicly to other persons and have filed this motion both pursuant to the Protective Order issued by this Court and under seal.

ARGUMENT

I. IF JUDGE ROBINSON WAS PROVIDED WITH FALSE INFORMATION THAT JONATHAN POLLARD PROVIDED ISRAEL WITH INFORMATION ON SATELLITE SURVEILLANCE OF SOUTH AFRICA, THERE WAS A VIOLATION OF DUE PROCESS

A defendant has a constitutional right not to be sentenced on the basis of false information. United States v. Fogel, 829 F. 2d 77 (D.C. Cir. 1987) (citing United States v. Tucker, 404 U.S. 443, 447-48 (1972) ; Townsend v. Burke, 334 U.S. 736, 741(1948). Prior to sentencing, a defendant must be given the opportunity to rebut any challenged information. Id.; United States v. Rone, 743 F.2d 1169, 1171 (7th Cir. 1984). A sentence must be set aside where the defendant can show that false information formed a part of the basis for the sentence. The defendant must show that (1 the information before the sentencing court was false, and (2) that the court relied on the false information in passing sentence. Rone at 1171.

The communications that counsel recently received strongly suggest that Judge Robinson was informed that Jonathan Pollard provided information to Israel regarding satellite surveillance of Israeli supplied missiles or weapons in South Africa. Counsel's inquiries have revealed that Mr. Pollard never provided Israel with this information.*1 If this information was provided to the court either formally or informally, counsel should have been given an opportunity to challenge its accuracy.*2 And if the court, as the communications suggest, relied upon this information, defendant's sentence must be set aside.

II. IF JUDGE ROBINSON WAS PROVIDED WITH FALSE INFORMATION THAT JONATHAN POLLARD PROVIDED ISRAEL WITH INFORMATION ON SATELLITE SURVEILLANCE OF SOUTH AFRICA, THERE WAS A VIOLATION OF THE PLEA AGREEMENT

As more fully detailed in the Memorandum of Points and Authorities in Support of Motion to Withdraw Guilty Plea of Jonathan Jay Pollard, in return for Mr. Pollard's sacrificing his constitutional right to trial, the government agreed not to ask for a life sentence but to limit itself to recommending "that the court impose a sentence of a substantial period of incarceration and a monetary fine. 11 Plea Agreement at #4. The government also agreed to limit its allocution to the facts and circumstances of the offenses committed by Mr. Pollard and to make Pollard's cooperation known to the court.

1. Although counsel, Hamilton P. Fox III., has received a security clearance, he has been denied access to materials presented at sentencing. Mr. Fox also has not had the opportunity to review personally the information that Pollard gave to Israel. However, as stated above, Mr. Fox asked Richard Hibey, Mr. Pollard's former counsel who had reviewed the materials that Mr. Pollard had provided to Israel, whether there were any documents concerning South Africa amongst those materials. Mr. Hibey stated that there were not. Similarly, Mr. Pollard adamantly denied providing such information to South Africa and informed Mr. Fox that this information was not in the damage assessment documents or other government filings that he had seen.
   
   
2. Defendant does not know how the information was provided to Judge Robinson. If there was an ex parte conference or communication, it would raise serious due process concerns. In re Paradyne, 803 F.2d 604, 612 11th Cir. 1986).

Moreover, if the South African information was presented to the Court ex parte, petitioner is entitled to know what other information, if any, may have been presented to the court so that he may challenge such information and determine whether it was consistent with the plea agreement.

In conclusion, if the court determines that information that Mr. Pollard provided Israel with satellite photographs of South Africa was provided to Judge Robinson and that it was the government that provided the judge with this information, Pollard respectfully requests this court to permit him to withdraw his guilty plea. Unless the government acknowledges that it provided this information to Judge Robinson, we respectfully request an evidentiary hearing to establish the truth of our allegations. WHEREFORE, defendant Pollard respectfully requests that his motion be granted and that his guilty plea be withdrawn.

Respectfully Submitted,
DEWEY, BALLANTINE, BUSHBY
PALMER & WOOD

signed
Hamilton P. Fox, III - Bar No. 113050

and signed
Marcia Isaacson
Counsel for Defendant

1775 Pennsylvania Avenue,
Washington, D.C. 20006 (202) 429-2370