Ex-CIA officer Jeffrey Sterling is serving a three-and-a-half year prison sentence for disclosing top-secret information to a New York Times reporter. | AP Photo Ex-CIA officer convicted of leaking to Times reporter gains some traction with appeal One of three appeals court judges on the case seemed troubled by the prosecution's trial tactics.

RICHMOND—A former CIA officer's appeal of his convictions for leaking classified information to a New York Times reporter gained some traction here Tuesday, as one federal appeals court judge assigned to the matter sounded deeply skeptical of aspects of the prosecution's case.

Ex-CIA officer Jeffrey Sterling is serving a three-and-a-half year prison sentence after a jury convicted him of disclosing top-secret information to New York Times reporter James Risen.


Sterling's attorney sought to convince a three-judge panel that his client's rights were violated when prosecutors torqued up their circumstantial case after Attorney General Eric Holder denied them permission to try to force Risen to identify his source. Defense attorney William Trunk noted that after a lengthy legal battle the 4th Circuit ruled Risen could be forced to testify, but the Obama administration decided not to put him on the stand.

"The government ultimately made a strategic and policy choice not to pursue Risen's testimony," Trunk said, arguing that Risen's absence led prosecutors to "gaping holes" in proof about where the alleged crimes were committed.

Sterling was charged with giving Risen details of a CIA-run program using a Russian-born nuclear scientist to provide faulty nuclear designs to Iran in an attempt to set back its nuclear program. But at trial, prosecutors showed jurors some evidence that had nothing to do with the alleged crimes: three classified documents on other subjects found by the FBI during a search of Sterling's northern Virginia home.

Trunk said the trial judge erred by admitting the documents, which were shown to jurors through an unusual "silent witness" procedure where the contents of the memos were never discussed aloud in court and were carried in folders with stern classification warnings. Jurors were allowed to see the memos, but warned never to discuss what they saw with anyone once the trial was over.

Trunk called the memos "wildly prejudicial character evidence" and complained of "extreme security measures befitting of the nuclear codes."

"That put a spotlight on these documents. These documents did not have a cameo at trial ... They were a spectacle," Sterling's defense attorney argued.

Trunk noted that in closing arguments prosecutors argued that Sterling was "a man who keeps CIA documents at his home."

"Those remarks drove the dagger home," the defense lawyer added.

The defense arguments appeared to resonate with Chief Judge Roger Gregory, who opined that the range of what is considered classified can run the gamut from nuclear war plans to "Did the general have potato chips for lunch?"

Prosecutor Eric Olshan said the evidence about the classified information found at Sterling's home — something lawyers call proof of uncharged conduct — was legitimate and not significant to the overall case.

"This was a very minor sliver of the government's case," Olshan said.

However, Judge Albert Diaz suggested allowing in the uncharged documents came close to suggesting that Sterling had a "propensity" to commit certain crimes, something prosecutors are not supposed to do.

"These documents were submitted for an appropriate reason. There is a basis for establishing intent ... The evidence was properly admitted," Olshan responded.

"You want to use [the seized records] to show that ten years ago he took documents," Gregory chimed in skeptically, implying that the materials weren't relevant to whether Sterling kept information on the Iran-related caper and leaked it to Risen.

Gregory also sounded highly dubious about other facets of the government's case: such as proof of where Sterling was when he committed the crimes of illegally retaining and transmitting classified information about the Iran-related nuclear operation and the Russian scientist who helped carry it out. By law, prosecutors were obliged to prove that it was more likely than not an essential part of those crimes took place in the Eastern District of Virginia, where the charges were brought.

While prosecutors had evidence of communications between Sterling and Risen, they lacked proof that those calls and emails contained classified information.

However, Olshan said jurors could infer that Sterling used his Virginia home to keep a key document about the Iran-related operation, especially since the New York CIA office where Sterling used to work was destroyed in the September 11, 2001, attacks.

"Is that the only place he could have left it in New York? Because that building is gone, there is no other place he could have left it?" Gregory asked. "That's thin ... These are inferences upon inferences."

Olshan insisted that there was no evidence Sterling had a storage facility or a job that would have given him an opportunity to store the document outside Virginia.

Gregory also seemed troubled that prosecutors said they could charge Sterling with leaking in the Eastern District of Virginia because Risen's book was sold there.

"So, you had venue anywhere in the U.S. where the book was sold?" the judge asked.

"Potentially, that's correct. That is the government's position and these is nothing wrong with that," Olshan replied.

Trunk noted that the government never charged the case as a conspiracy, which might have made it easier for technical legal reasons to prove venue in Virginia. The defense lawyer did not mention why the feds didn't frame the case that way: the only obvious co-conspirator would have been Risen and charging a journalist for receiving a leak would have provoked a firestorm.

When it emerged in 2013 in an unrelated case that Fox reporter James Rosen was described as a co-conspirator in a search warrant, that fact alone triggered a wave of outrage.

Risen was never charged with a crime, but prosecutors first sought Risen's testimony at the tail end of the George W. Bush administration. They continued to press him to testify into the Obama era. Risen fought the demands for his testimony, twice winning protection from U.S. District Court Judge Leonie Brinkema, who oversaw the grand jury proceedings and the trial. However, the government took a pre-trial appeal to the 4th Circuit, which ruled 2-1 against Risen's reporter's privilege claim.

The Supreme Court declined to hear Risen's case, but in the meantime Holder decided to back away from a potential confrontation with the respected Times reporter. Holder sharply limited what Risen could be asked about at trial. Prosecutors decided not to call him at all, although jurors got a stipulation saying in essence that Risen stood behind his reporting but would not identify his sources.

The judges who heard Sterling's appeal Tuesday were the same ones who took up Risen's reporter's privilege claim three years ago: Gregory, Diaz and Judge William Traxler. In that decision, Traxler firmly rejected the arguments for reporter's privilege. Diaz joined that opinion, but Gregory issued an impassioned dissent arguing that his colleagues were cavalierly overlooking the role of the press in American democracy.

Traxler showed no signs Tuesday that he was embracing the defense arguments. At one point, he mulled aloud about a legal standard that would have made venue even easier for prosecutors to prove. Olshan said the prosecution was not taking that position.

Diaz seemed open to some of the defense arguments, but less clearly sympathetic than Gregory.

Despite Gregory's apparent doubts about aspects of the government's case, Sterling's appeal faces an uphill battle. Due to federal sentencing practices, even if several of the nine counts are tossed out, Sterling's sentence might not change much. He's currently set for release in June 2018.

Two of the appeals judges involved have a motley political history. Traxler was appointed to the appeals court by President Bill Clinton, but was earlier named to the district court by President George H.W. Bush. Gregory was named to the 4th Circuit as a recess appointment by Clinton near the end of his term, after the Senate did not act on Gregory's nomination. Gregory was confirmed to the court in 2001 after being re-nominated by President George W. Bush.

Diaz was appointed by President Barack Obama.

Sterling's case—filed in 2010 and finally tried early last year—was one of a wave of leak-related prosecutions brought by the Obama administration, which has drawn criticism from whistleblower advocates for filing more than three times as many such criminal cases as were brought under all previous presidents combined. Obama appointees have said some of those cases, like Sterling's, were essentially inherited from President George W. Bush's Justice Department.

Most leak cases end in plea bargains, so there is no appeal. As a result, arguments like those held Tuesday are a rarity. Indeed, the session appears to be the first time an appeal of criminal convictions in a leak case has been heard by a federal court in nearly three decades.

