16-2918
IN THE
United States Court of Appeals
FOR THE SECOND CIRCUIT

JONATHAN J. POLLARD, Petitioner-Appellant,
—against—

UNITED STATES PAROLE COMMISSION, J. PATRICIA WILSON SMOOT, solely in
her capacity as Chair of the United States Parole Commission, UNITED STATES
PROBATION OFFICE FOR THE SOUTHERN DISTRICT OF NEW YORK, MICHAEL J.
FITZPATRICK, solely in his capacity as Chief United States Probation
Officer,

Respondents-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK

REPLY BRIEF FOR PETITIONER-APPELLANT

ELIOT LAUER
JACQUES SEMMELMAN GABRIEL HERTZBERG SYLVI SAREVA CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP
101 Park Avenue, 35th Floor
New York, New York 10178 (212) 696-6000
Attorneys for Petitioner-Appellant

TABLE OF CONTENTS
TABLE OF AUTHORITIES
....................................................................................
ii
PRELIMINARY REPLY
STATEMENT..................................................................1
REPLY ARGUMENT
...............................................................................................4
THE SPECIAL CONDITIONS SHOULD BE VACATED BECAUSE THEIR ESSENTIAL FACTUAL
PREDICATE IS NON-EXISTENT .............................4
CONCLUSION
........................................................................................................13

Cases

TABLE OF AUTHORITIES
Feist v. Shartle, No. 12-3572 (NLH),
2013 U.S. Dist. LEXIS 84391 (D.N.J. June 17, 2013)
..........................................6

Roberts v. Carrothers, 812 F.2d 1173 (9th Cir. 1987)
.............................................11

Zannino v. Arnold, 531 F.2d 687 (3d Cir. 1976)
.......................................................6

Regulations

28 C.F.R. § 2.40(b)
....................................................................................................5
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PRELIMINARY REPLY STATEMENT

In its opposition brief, the U.S. Parole Commission (the “Commission”)
constructs a superficial veneer designed to generate the impression that
there is a rational basis for the Special Conditions1 imposed on Appellant
Jonathan J. Pollard. The Commission points to evidence that some of the
information accessed by Pollard during 1984-1985 remains classified, and to
allegations that, the Commission says, justifies its conclusion that Pollard
cannot be trusted to maintain such information in confidence. The Commission
reasserts its conclusion that without the Special Conditions in place, there
is risk that Pollard will disclose still-classified information to a foreign
government.

The Commission’s Notice of Action dated March 2, 2016 repeatedly emphasizes
that the rationale for the Special Conditions – most particularly, the
Computer Monitoring Condition – is to deter and prevent further disclosure
of classified information:

- “Your plea agreement requires you to refrain from unauthorized
disclosure of any type of classified information … The
Commission is responsible for your parole supervision to deter you
from further crimes and to protect the public and the Commission finds that
monitoring of your computers (both home and work, to include any smart
phones) will assist in carrying out this obligation and assist in the
continued enforcement of the terms of the plea agreement.”

1 All capitalized terms used herein have the meaning ascribed to them in the
Brief and Special
Appendix for Petitioner-Appellant, dated November 14, 2016 [ECF No. 21].
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- “[I]t is necessary to monitor your home and business computers while
you are in the community … to ensure that information is not delivered to
unauthorized sources.”

- “[T]he Commission finds that monitoring of your computer and other
electronic means of communication are needed to deter further unauthorized
disclosure of Top Secret and Secret information.”
(A. 216-217) (emphasis added).

There is no claim that after 30 years in prison Pollard has any classified
documents. The only conceivable way, therefore, that Pollard could be in a
position to disclose still-classified information to anyone would be if he
still remembers it.
Certain types of information, such as lines of computer code, signals
intelligence manuals, and aerial photographs, are intrinsically not of the
type that can be remembered by a human being, much less retained mentally
for 31 years. Only if Pollard accessed still-classified information of a
type that can be remembered after 31 years could there even be a theoretical
possibility that Pollard would be in a position to disclose such information
to anyone. If no information of such type exists, the risk of disclosure of
still-classified information is literally zero.

As an initial matter, the Commission’s claimed concern about disclosure is
shown to be disingenuous by the fact that the Commission has not even
attempted to prevent Pollard from communicating with anyone via non-
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internet means such as telephone, hard mail, or face-to-face. The Special
Conditions leave these obvious scenarios unaddressed. And while it may be
that not every gap in parole conditions necessarily renders them void, a
deficiency of this magnitude raises serious doubts as to the genuineness and
rational basis for the Special Conditions.

More importantly, the Commission, which has the formidable resources of the
U.S. intelligence agencies behind it, has mustered no evidence that Pollard
accessed any still-classified information of a type that can be remembered
after 31 years.

If the Commission had a genuine concern that Pollard currently retains such
information in his head, it would have proceeded with its initial proposal,
accepted by the district court, to submit its classified evidence in support
of the Special Conditions on an in camera, ex parte basis, in order to
demonstrate that Pollard accessed information of this type, and therefore
poses a risk of disclosure. After litigating vigorously and successfully
for the right to make such a showing on an ex parte basis, the Commission
made no such submission.

At the very least, the Commission’s declarant Jennifer L. Hudson, director
of the Information Management Division within the Office of the Director of
National Intelligence, should have represented to the district court that a
review
was conducted of the still-classified information accessed by Pollard during
1984-

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1985, and that the review revealed that some of that information is of a
type Pollard could still retain in his head. There was no such
representation, presumably because it could not be made. The Commission
therefore failed to prove up the essential factual predicate upon which the
Special Conditions rest.

In the absence of any evidence that Pollard accessed still-classified
information of this type, there is no factual basis to conclude (i) that
Pollard has any such information in his head, or (ii) that he is in a
position to remit such information to anyone.

In sum, the Commission’s conclusion that there is a risk of disclosure of
still-classified information, and the resulting imposition of the Special
Conditions, are not rationally-based, and cannot be allowed to stand. The
district court erred in deferring to the Commission’s conclusions.

This Court should reverse the district court’s Order and direct the
Commission to vacate the Special Conditions.

REPLY ARGUMENT

THE SPECIAL CONDITIONS SHOULD BE VACATED BECAUSE THEIR ESSENTIAL FACTUAL
PREDICATE IS NON-EXISTENT

Strikingly absent from the record below and from the Commission’s opposition
brief is any attempt to demonstrate the existence of even a scintilla of
still-classified information that Pollard – or any human being – could
conceivably
retain in his head after 31 years. Not only does the Commission fail to
identify any

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such information, the Commission has bent over backwards to sidestep its
responsibility to identify such information.

As a threshold matter, the Commission asserts, in effect, that it has no
obligation to have factual support for its imposition of the Special
Conditions, and is entitled to declare in ipse dixit fashion that Pollard
poses a risk of disclosing
still-classified information, regardless of the lack of any evidence of such
risk. (Opp. Br. pp. 44-49). That is not correct.

Under the controlling regulations, the Commission must determine, first,
that the parole conditions are “reasonably related to the nature and
circumstances of [the] offense or [the parolee’s] history and
characteristics,” and second, that they are reasonably related to “at least
one of the following purposes of criminal sentencing: The need to deter [the
parolee] from criminal conduct; protection of the public from further
crimes; or the need to provide [the parolee] with training or correctional
treatment or medical care.” 28 C.F.R. § 2.40(b).

Here, aside from whether the Special Conditions satisfy the first
requirement (which Pollard does not concede), they cannot satisfy the second
requirement unless Pollard is actually in a position to engage in further
criminal conduct, i.e., if he has still-classified information in his head
that he could potentially disclose. While it may not be possible to
determine what information remains in Pollard’s head after 31 years, it is
possible to determine whether any of

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the still-classified information accessed by Pollard 31 years ago is of a
type that can still be remembered. Unless there is such information, the
second regulatory requirement is lacking, as there is no possibility of
further criminal conduct. The Commission has not shown that there is such
information. There is therefore no basis on which to satisfy the second
regulatory requirement.

In addition to the regulatory deficiency, the Commission’s position would
enable any government agency to make entirely conclusory determinations that
have no factual basis, and to have those determinations insulated from
judicial review merely because the Commission accepted them as true.

That is not the law, and should not become the law. To the contrary, “the
Commission may not base its judgment as to parole on an inaccurate factual
predicate.” Feist v. Shartle, No. 12-3572 (NLH), 2013 U.S. Dist. LEXIS
84391, at
*6 (D.N.J. June 17, 2013). Moreover, the Court’s obligation to review the
Commission’s ruling “cannot be fulfilled without making some inquiry into
the evidence relied on” by the Commission. Zannino v. Arnold, 531 F.2d 687,
691 (3d Cir. 1976). Tellingly, the Commission’s opposition brief fails to
cite, much less address, either of these cases, even though both cases were
cited in Appellant’s opening brief.
It is undisputed that after serving 30 years in prison, Pollard has no
classified documents that he might transmit to a foreign government. Thus,

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whatever putative risk the Commission invokes is based entirely on what
Pollard still retains in his head from 1984-1985. While the Commission
argues that it cannot possibly determine what Pollard still retains in his
head (Opp. Br. p. 46), the Commission need not read minds in order to meet
its burden. Neither the Commission, nor its backers in the intelligence
agencies, have pointed to an iota of still-classified information accessed
by Pollard during 1984-1985 that is of a type that he, or any human being,
could possibly retain in his head after 31 years.

For a time, the district court required the Commission to show “what
information [Pollard] was able to access and therefore may carry in his
head.” (A. 252). The phrase “may carry in his head” is pivotal, as it
necessarily requires a showing that Pollard accessed information of a type
that may be carried in someone’s head. The Commission never came forward
with such a showing. Nevertheless, the district court erroneously upheld the
Special Conditions.

No one would seriously claim that after more than 31 years, any person could
mentally retain lines of computer code, a signals intelligence manual, or
aerial photographs. Absent proof that any of the still-classified documents
accessed by Pollard 31 years ago contain the type of information a person
can retain mentally – and there is no such proof – the predicate for the
Commission’s purported concern about disclosure falls away.

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Whatever the Commission alleges about Pollard’s past behavior and attitude
(much of which remains strongly disputed) that alleged behavior and attitude
are irrelevant unless the Commission can show that Pollard had access to
classified information of a type that could still be remembered after 31
years.

Pollard, of course, does not concede that he would divulge still- classified
information even if he still retained any in his head. But the critical
issue on this appeal – which the Commission has studiously avoided facing at
every
stage of this case – is not whether Pollard is likely to engage in such
conduct but rather whether he could do so if he wanted to. There is no proof
that he could.

The Commission originally acknowledged its obligation to provide the
district court with evidence justifying the Special Conditions. (A. 229).
The Commission proposed doing so on an ex parte basis. (Id.). In response,
Pollard’s security-cleared counsel insisted on being permitted to view the
Commission’s promised classified submission under seal, so that they could
directly address the issue of whether the materials presented by the
Commission were of the type a person could remember after 31 years, and so
that they could determine whether the information (even if still classified)
has been publicly disseminated by others. (A. 233-236, A. 245-246). The
Commission insisted, however, that its submission be ex parte, and in a
Memorandum Opinion, the district court agreed. (A. 265).

The district court merely required the Commission to disclose the “general

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substance” of its submission to Pollard’s counsel, and to provide an
explanation of the reason Pollard’s counsel did not need to see the
materials. (A. 266).

After specifically litigating for and being granted the opportunity to
submit its classified evidentiary materials to the district court on an ex
parte basis, the Commission retreated, and never submitted any such
evidence. Instead of allowing the district court to evaluate whether any of
the still-classified information was of a type that could be remembered
after 31 years, the Commission shifted gears and submitted the unclassified
Hudson Declaration. (A. 371-80). The Hudson Declaration states generally
that “some” of the information believed to have been compromised by Pollard
remains classified. (A. 376-379). The Hudson Declaration says nothing at all
about whether any of that information was of a type that could still be
remembered. The Hudson Declaration does not even represent that the
declarant reviewed the still-classified materials accessed by Pollard in
1984-1985 and determined that some of those materials are of a type that
could still be remembered.

Nor does the letter from James R. Clapper, then-Director of National
Intelligence, fill the Commission’s factual void. The Clapper Letter states
that information compromised by Pollard during 1984-1985 “remains classified
at the Top Secret and Secret levels, and future unauthorized disclosure of
the information could risk harm to the national security of the United
States.” (A. 203). Again,

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that says nothing about whether any of that information is of a type that
Pollard could remember after 31 years.

The Commission argues that it cannot be expected to disclose to Pollard the
very information it claims to be shielding from foreign governments, and
suggests there is no other way to determine what is in Pollard’s head. (Opp.
Br. p. 46). That make-weight argument is presented by the Commission as a
smokescreen for its failure to address the central issue. No one has
suggested that the Commission or the intelligence agencies should disclose
any classified information to Pollard, and the district court ruled that
even Pollard’s security- cleared counsel would not be given access to the
Commission’s in camera submission. Nevertheless, the Commission made no ex
parte submission of classified information for the district court’s review.
The Commission did not even describe in general terms the type of
information at issue.

In its opposition brief, the Commission argues that “[t]he district court
rightly rejected Pollard’s argument that the Commission had to prove that
Pollard actually remembered classified information of value, as the law
imposes no such burden.” (Opp. Br. pp. 26, 44). But the Commission itself
repeatedly invoked the risk of disclosure as its rationale for the Special
Conditions (A. 216-217), and therefore cannot say it need not have any
factual basis for doing so.

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Moreover, in support of its argument, the Commission points to only one
case, Roberts v. Carrothers, 812 F.2d 1173, 1179 (9th Cir. 1987), which it
cites for the proposition that the Commission must consider “evidence taken
as a
whole.” (Opp. Br. p. 45). Even if that is true as a general principle, it
does not excuse a glaring deficiency in the evidentiary predicate on which
the Special Conditions rest. It is one thing to allow a holistic approach to
evidence in support of parole conditions; it is quite another thing to say
the Commission may proceed with no evidence that supports its critical
factual predicate. Indeed, the Roberts case expressly says, “[w]here the
Commission properly has evidence before it, . . . the evaluation of that
evidence is almost entirely at its discretion.” Roberts, 812 F.2d at
1179-80 (emphasis added). Here, the Commission had no evidence before it on
the critical factual issue of whether Pollard accessed still-classified
information of a type that could be remembered after 31 years. Holistic
analysis cannot compensate for a complete lack of evidence in support of the
most salient factual allegation.
* * *

Instead of enabling Pollard to work at a job consistent with his education
and intelligence, the crippling Special Conditions are designed to have
precisely the opposite effect, and to keep Pollard from reintegrating into
society

- 11 -

and becoming a productive citizen.2 In light of the absence of evidence
that Pollard accessed information of a type that can be remembered after 31
years, the Special Conditions are not rationally-based, and cannot possibly
be motivated by a sincere concern about preventing disclosure. Rather, the
Special Conditions serve solely as vindictive punitive measures, cruelly
imposed against a man who has served his time as a model prisoner for 30
years, based on the pretext that Pollard

is in a position to disclose still-classified information and that the
Commission is genuinely concerned that might happen.3

2 The Commission’s feigned expression of disbelief that an employer would
actually care whether the government monitors its computer system (Opp. Br.
pp. 11, 42) was aptly brushed aside by the district court. (A. 217).

3 Although this reply brief focuses primarily on the most critical issue on
appeal, Appellant is not waiving any argument raised in his opening brief.
Moreover, contrary to Appellees’ assertion (Opp. Br. n. 11), Appellant has
not abandoned his claims against the Probation Office or Chief Probation
Officer Michael J. Fitzpatrick, who remain principally responsible for the
implementation of the unfair Special Conditions imposed by the Commission.

- 12 -

CONCLUSION

The Court should reverse the district court Order and direct the Commission
to vacate the Special Conditions. Dated: February 27, 2017
New York, NY

CURTIS, MALLET-PREVOST, COLT & MOSLE LLP
By: Eliot Lauer
Eliot Lauer
Jacques Semmelman
Gabriel Hertzberg
Sylvi Sareva
101 Park Avenue
New York, NY 10178
Tel.: (212) 696-6000
Fax: (212) 697-1559

Attorneys for Jonathan J. Pollard

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Rule
32(a)(7)(B) of the Federal Rules of Appellate Procedure because it contains
2,740 words, excluding the parts of the brief exempted by Rule
32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Rule 32(a)(5)
and the type style requirements of Rule 32(a)(6) because it has been
prepared in a proportionally spaced typeface using Microsoft Word in Times
Roman 14-point font.
Dated: February 27, 2017
New York, NY
Respectfully submitted, CURTIS, MALLET-PREVOST,
COLT & MOSLE LLP
By: Eliot Lauer
Eliot Lauer
Jacques Semmelman Gabriel Hertzberg Sylvi Sareva
101 Park Avenue
New York, NY 10178
Tel.: (212) 696-6000
Fax: (212) 697-1559

Attorneys for Jonathan J. Pollard