Reality Winner Bail Appeal in 11th Circuit Court

Case: 17-15458 Date Filed: 12/18/2017 Page: 1 of 3 Date No. 17-15458 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT UNITED STATES, PlaintiffAppellee, V. REALITY LEIGH WINNER, Defendant-Appellant. On Appeal from the United States District Court for the Southe1n District of Georgia No . 12-cv-03032 (Hon. Randall Hall) NOTICE OF FILING Respectfully submitted, Isl Joe D. Whitley Joe D. Whitley (Bar No. 756150) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ 3414 Peachtree Rd., NE, Suite 1600 Atlanta, GA 30326 (404) 5 77-6000 JWh itley@bakerdonelson.com Counsel for Defendant-Appellant

Case: 17-15458 Date Filed: 12/18/2017 Page: 2 of 3 NOTICE OF FILING Defendant-Appellant REALITY LEIGH WINNER, through Counsel, hereby provides notice to the Court and Counsel of Record , of the filing of the following document with the Classified Information Security Officer (CISO), on December 18,2017: MOTION FOR RELEASE BEFORE JUDGMENT OF CONVICTION Respectfully Submitted, Isl Jo e D. Whitley Joe D. Whitley (Bar No. 756150) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ 3414 Peachtree Rd. , NE, Suite 1600 Atlanta, Georgia 30326 Tel: (404) 577 -6000 JWhitley @ba kerdonelson.com Counsel for Defen dant -Appe llant

Case: 17-15458 Date Filed: 12/18/2017 Page: 3 of 3 CERTIFICATE OF SERVICE I hereby certify that on December 18, 2017, I electronically filed the foregoing with the Clerk of the Court using the ECF system, which sent notification of such filing to counsel of record for all parties. /s/Joe D. Whitley Joe D. Whitley, Esq. Joe D. Whitley (Bar No. 756150) BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 3414 Peachtree Rd., NE Suite 1600 Atlanta, GA 30326 (404) 577-6000 JWhitley@bakerdonelson.com Counsel for Defendant-Appellant

Case: 17-15458 Date Filed: 12/18/2017 Page: 1 of 45 No. 17-15458 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT UNITED STATES, Plaintiff-App ellee, V. REALITY LEIGH WINNER, Def endant-App ellant. On Appeal from the United States District Court for the Southern District of Georgia No. 12-cv-03032 (Hon. Randall Hall) MOTION FOR RELEASE BEFORE JUDGMENT OF CONVICTION Isl Joe D. Whitley Joe D. Whitley Georgia State Bar No. 756150 BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, P.C. 3414 Peachtree Rd. NE , Suite 1600 Atlanta, Georgia 30326 Tel: (404) 577-6000 JWhitley @bakerdonelson.com

Case: 17-15458 Date Filed: 12/18/2017 Page: 2 of 45 United States v. Winner, No. 17-15458 CERTIFICATE OF INTERESTED PERSONS Pursuant to Eleventh Circuit Rule 26.1-1, the undersigned counsel for Defendant-Appellant Reality Leigh Winner hereby certifies that the following persons and entities have an interest in the outcome of this case: Epps, Brian K., U.S. Magistrate Judge First Look Media Hall, Randall, U.S. District Judge United States Department of Justice Winner, Reality Leigh Respectfully submitted, Isl Joe D. Whitley Joe D. Whitley Georgia State Bar No. 756150 Counsel for Defendan t-Appella nt C- 1 of 1

Case: 17-15458 Date Filed: 12/18/2017 Page: 3 of 45 Pursuant to 18 U.S.C. § 3145(c), Federal Rules of Appellate Procedure 9(a) and 27, and Eleventh Circuit Rule 9-1, Defendant-Appellant Reality Leigh Winner appeals the pretrial order of the district court (attached) detaining her without bail. INTRODUCTION This case cries out for correction. Since June, Reality Winner has been detained on a one-count indictment under 18 U.S.C. § 793(e) for allegedly disclosing one classified document to a news outlet. At the time of her arrest, she was 25 years old and had no criminal history . She had moved to Augusta, Georgia after being honorably discharged from the Air Force, where she used her linguistic skills in the fight against terrorism . While working as an NSA contractor, she taught yoga and spin classes and volunteered at an animal shelter . . Like many other Americans , Ms. Winner may have been swept up in political fervor surrounding the 2016 presidential election. In May, after hearing ,Ms. persistent public denials by the President Winner's frustrations purportedly boiled over. In what appears to be an ill- advised, amateurish stunt, she allegedly disclosed one document , one time , to one domestic news source. The document purportedly contained 1

Case: 17-15458 Date Filed: 12/18/2017 Page: 4 of 45 Ms . Winner's months-long detention without bail is baseless and unprecedented. The Bail Reform Act authorizes pretrial detention only where the defendant presents a serious risk of flight or-in serious crimes-a cases involving enumerated danger to the community. All agree that § 793(e) is not one of those enumerated crimes. Flight risk is therefore the only valid basis for detention, as every court of appeals to consider the question has concluded. The district court agreed with this analysis. Yet it improperly considered dangerousness at every tum-under the wrong standard of proof, no less-and concluded based on little more than speculation that Ms. Winner will improperly disclose information if released. This was error. Moreover, the court's portrait of Ms. Winner does not accord with reality . There is no danger of further disclosure. She is no spy; she is an idealistic young veteran who allegedly found an unfortunate, one-time outlet for her political frustrations. Under the correct standard, pretrial detention is unwarranted. Ms. Winner is no flight risk; she has strong ties to her family and the community, has no criminal record or history of evading justice, and has consented to any condition of release this Court might impose. Given the constraints imposed by classified evidence , moreover, her continued detention is severely compromising her ability to prepare her defense. Nearly every other defendant charged under§ 793(e) has been released pretrial. So should she. 2

Case: 17-15458 Date Filed: 12/18/2017 Page: 5 of 45 BACKGROUND A. Facts Reality Winner, 26, was born and raised in Texas and graduated from high school in the top ten in her class. R.29 at 36: 10. She turned down a full engineering scholarship to Texas A&M, instead enlisting in the Air Force , where during six years of service she received high evaluations and a commendation. R.97 ~ 4. Ms. Winner attended the Defense Language Institute , obtaining an associate's degree in Persian-Farsi and Dari. Id.~ 5. Today, Ms. Winner is fluent in Farsi, Dari, and Pashto , languages that the U.S. government needed for its intelligence and counter-terrorism efforts . Id. She also served for six months at the NSA in Augusta , Georgia. Id. ~ 6. Ms. Winner has never served or lived abroad. She has no criminal history. Upon being honorably discharged in December 2016 , Ms. Winner returned to Augusta , where she became a contractor for Pluribus Intern ational Corporation. Id. ~ 7. Ms. Winner already has strong connections to the Augusta community and a network of friends and colleagues. An environmentalist and vegan, Ms. Winner taught yoga and spin classes and volunteered at the local animal shelter. Id. ~ I 0, 12; R.120 at 100:22-102:2. Ms. Winner hopes to use her language skills to provide international humanitarian aid. Id. at 98: 18-99: 1. 3

Case: 17-15458 Date Filed: 12/18/2017 Page: 6 of 45 On June 3, 2017, ten armed male FBI agents appeared at Ms. Winner's home with a search warrant for her house, car, and person . R.9713. In response to questioning, Ms. Winner told two agents that she had printed an intelligence report, taken it from the office, and mailed it to a news outlet. 1 R. l 00, Ex. A, USAO-08152-53, 08161-62 . Ms. Winner was arrested and taken to jail , where she has remained ever since . R.64121; R.97 ~ 3. B. Procedural History The Government charged Ms. Winner with one count of violating 18 U.S.C. § 793(e). Ms. Winner allegedly "printed and improperly removed classified intelligence reporting , which contained classified National Defense Information .. . from an Intelligence Community Agency" and "unlawfully transmitted the intelligence reporting to an online news outlet." R.131111 , 13. The document allegedly "describes intelligence activities by a foreign government directed at targets within the United States." Id. 1 11. After a hearing, the magistrate judge ordered Ms . Winner detained pending trial based on both flight risk and dangerousnes s to the community. R.27. When the Government retracted several key factual assertions , Ms. Winner moved to reopen the detention hearing . R.96-1 , at 6-11. After doing so, the magistrate judge again ordered Ms. Winner detained. R.115. 1 Ms . Winner has moved to suppress these statements . R.63. 4

Case: 17-15458 Date Filed: 12/18/2017 Page: 7 of 45 Ms. Winner appealed to the district court, which affirmed on November 27, 2017. R.163. Although the district court stated that the only basis for a hearing was risk of flight, it nonetheless considered dangerousness, finding a risk Ms. Winner would make additional disclosures . Id. Ms. Winner filed a notice of appeal on December 11, 201 7. Trial is set for March 19, 2018. R.66. STANDARD OF REVIEW This Court reviews questions of law, including the interpretation of statutes , de novo. United States v. Allen, 190 F.3d 1208, 1210 (11th Cir. 1999). A pretrial detention order under the Bail Reform Act of 1984 (the "Act") "present[s] mixed questions of law and fact to be accorded plenary review on appeal." United Stat es v. Hurtado, 779 F.2d 1467, 1471-72 (11th Cir. 1985). "[P]urely factual findings" are reviewed for clear error. Id. at 1472. ARGUMENT I. Ms. Winner Is Entitled to Release Because the Government Has Not Shown a Serious Risk of Flight A. Flight Risk Is the Only Permissible Basis for Detention Here Before 1984, federal defendants in noncapital cases were entitled to pretrial release unless the Government demonstrated a risk of flight. See United States v. Himler, 797 F .2d 156, 158-59 (3d Cir. 1986). The Act effected a "radical departure from former federal bail policy" in noncapital cases by adding 5

Case: 17-15458 Date Filed: 12/18/2017 Page: 8 of 45 dangerousness as another basis for detention. Id. at 158. To constrain that new authority, however, Congress "carefully limit[ ed] the circumstances under which detention may be sought [based on dangerousness] to the most serious of crimes." United States v. Salerno, 481 U.S. 739, 747 (1987). The Act provides that a court "shall order the detention of [a] person before trial" if it "finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." 18 U.S.C. § 3142(e)(l) . A court may order detention, however, only "after a hearing pursuant to the provisions of subsection (t) of this section." Id. Under § 3142(±)(1), the court may hold a hearing if the case involves (A) a crime of violence, (B) an offense with a maximum punishment of life imprisonment or death, (C) a serious narcotics offense, (D) a felony for certain recidivists, or (E) certain felonies involving minors. None of those offenses is charged here. Under§ 3142(±)(2), the court also may hold a hearing if the case "involves . .. a serious risk that [the defendant] will flee" or "a serious risk that [the defendant] will obstruct or attempt to obstruct justice." All five courts of appeals to address the question have concluded that where, as here, a court holds a detention hearing based solely on the risk of flight under § 3142(±)(2), the court may order detention solely on that basis. The Third Circuit, for example, has held that, where the crime charged is not listed in subsection 6

Case: 17-15458 Date Filed: 12/18/2017 Page: 9 of 45 (t)(l ), "the statute does not authorize the detention of the defendant based on danger to the community." Him/er, 797 F.2d at 160. Instead, the defendant "may be detained only if the record supports a finding that he presents a serious risk of flight." Id. The First Circuit likewise has held that "detention is based on dangerousness ... can be ordered only in cases involving one of the circumstances set forth in § 3142(±)(1)." United States v. Ploof, 851 F.2d 7, 11 (1st Cir . 1988); see also United States v. Byrd, 969 F .2d 106, 110 ( 5th Cir. 1992); United States v. Twine, 344 F .3d 987, 987 (9th Cir. 2003); United States v. Friedman, 83 7 F .2d 48 , 49 (2d Cir. 1988) . Importantly , the circuits reached this consensus before Congress amended the list of crimes in § 3142(±)(1) three times in the mid -2000s. See Intelligence Reform & Terrorism Prevention Act of 2004, Pub . L. No. 108-458, § 6952, 118 Stat. 3638; Adam Walsh Child Protection & Safety Act of 2006, Pub. L. No. 109248, § 216,120 Stat. 587; William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L. No. 110-457, § 224(a), 122 Stat. 5044. "Congress's decision ... to amend [the list of crimes in§ 3142(±)(1)] whi le still adhering to the operative language [in the rest of the statute] is convincing support for the conclusion that Congress accepted and ratified the unanimous holdings of the Courts of Appeals .... " Tex. Dep 't of Hous. & Cmty. Affairs v. Inclusiv e 7

Case: 17-15458 Date Filed: 12/18/2017 Page: 10 of 45 Communities Project, Inc., 135 S. Ct. 2507, 2520 (2015); see also United States v. Giordano, 370 F. Supp. 2d 1256, 1261 n.3 (S.D. Fla . 2005). "There is no indication . .. [this Court] would interpret section 3 l42(f) any differently." Id. at 1262-63. Indeed, this Court twice has affirmed pretrial detention orders based on flight risk without even mentioning dangerousness in its recitation of the factors the statute instructs courts to consider . See United States v. Kachkar, 701 F. App'x 744, 746 (11th Cir. 2017); United States v. Clum, 492 F. App'x 81, 85 (11th Cir. 2012). That indicates this Court agrees that, in risk-offlight cases under § 3142(f)(2), dangerousne ss is not relevant to the decision between detention and release. The consensus among the circuits accords with the statutory text and structure, as well as common sense. By setting forth the criteria for a detention hearing , § 3142(f) limits both the categories of cases where a hearing is authorized and the interests that can justify detention when a hearing occurs. If a court holds a hearing only because the case involves a serious risk of flight, common sense dictates that the court may order detention only for that reason . A court may not hold a hearing based on flight risk, but then order detention based on dangerousness. Structurally , moreo ver, the statute treats dangerousnes s-based detention as a special category. The statute provides that a court may order detention based on 8

Case: 17-15458 Date Filed: 12/18/2017 Page: 11 of 45 dangerousness only by "clear and convincing evidence." 18 U.S.C. § 3142(f). And § 3142( e)(2) creates "a rebuttable presumption ... that no condition .. . will reasonably assure the safety of any other person and the community" in a subset of the cases "described in subsection (f)(l )." The statute thus directly ties dangerousness-based detention to cases under§ 3142(f)(l ). The legislative history confirms the point. The Senate Committee Report repeatedly ties the cases described in§ 3142(f)(l) to dangerousness. It states that those cases "comprise the greatest risk to community safety," warrant ing a hearing to determine whether "any form of conditional release will be adequate to address the potential danger the defendant may pose." S. Rep . No . 98-225 at 21 (1983); see also id. (other similar statements). When discu ssing cases under§ 3142(f)(2), by contrast, the Report does not mention dangerousne ss. Rather , the Report makes clear that a court's detention authority in those cases "reflect[s] current case law." Id. As explained, pre-1984 practice did not permit pretrial detention based on dangerousness in noncapital cases. The Supreme Court, too, has read the Act to limit detention based on dangerousness to cases under § 3142(f)(l). In United States v. Salerno, the Court upheld the statute's provisions authorizing dangerousne ss-based detention against challen ges under the Fifth and Eighth Amendments. 481 U.S. at 755. Citing § 3 l 42(f) and describing the crimes listed in subsection (f)(l ), the Court explained 9

Case: 17-15458 Date Filed: 12/18/2017 Page: 12 of 45 that the Act "carefully limits the circumstances under which detention [based on dangerousness] may be sought to the most serious of crimes." Id. at 747. That interpretation was critical , moreover, to Salerno's holding . The Court upheld dangerousness-based detention because the statute "operates only on individuals who have been arrested for a specific category of extremely serious offenses " and thus "narrowly focuse s on a particularly acute problem in which the Government interests are overwhelming." Id. at 750. If that were not so, the statute's constitutionality would be dubious . And the Act "must be construed, if fairly possible, so as to avoid not only the conclu sion that it is unconstitutional but also grave doubts upon that score ." Alm endarez -Torres v. United Stat es , 523 U.S. 224, 23 7 (1998) (quotation marks omitted). B. The District Court Improperly Ordered Detention Based on Dangerousness The district court addressed Ms. Winner ' s arguments regarding the relevance of dangerousness in a single confusing footnote. The court's clearest statement is unequivocal: "The Government cannot move for detention on the basis that Defendant poses a danger to the community under 18 U.S.C. § 3142(f)(l) because she does not meet any of the criteria set forth therein. " R .163 at 2 n.2. The court confusingl y added , however, that "the 'dangerousness ' of this Defendant is still a factor to be considered under ... § 3142(g)(4). Moreover, the 'dangerousness ' of Defendant as a factor also 'emanates ' from § 314 2( e)(1 )' s 10

Case: 17-15458 Date Filed: 12/18/2017 Page: 13 of 45 requirement that the Court consider whether any condition(s) may reasonably assure the safety of the community. " Id. (citation omitted) (quoting United States v. King , 849 F.2d 485, 487 (11th Cir. 1988)). To be sure, in language paralleling§ 3142(e)(l), the statute in§ 3142(g)(4) directs a court to consider , among other factors, '"the danger to any person or the community that would be posed by the [defendant]'s release." That directive , however, does not permit pretrial detention based on dangerousness in a case not covered by§ 3142(f)(l) . Just because a court must consider a factor does not mean that factor will be relevant, or relevant in the same way, in every case. In risk-of-flight cases under § 3142(f)(2), a court generally may not consider dangerousness in deciding whether to detain. Dangerousness is relevant to that decision only insofar as it suggests a risk of flight-a particularly dangerous defendant , for example, might commit a crime to facilitate his flight. See Giordano, 370 F. Supp. 2d at 1269-70. Beyond that, courts in cases under § 3142(f)(2) may consider dangerousness "only in setting conditions of release. " Himl er, 797 F.2d at 160. The district court here far transgressed those limitations. The court plainly ordered detention because it believed (wrongly, se e infra pp.20-23) that Ms. Winner poses a danger of improper disclosure. 11

Case: 17-15458 Date Filed: 12/18/2017 Page: 14 of 45 The court repeatedly emphasized, for example, the "cove rt communications package" Ms. Winner allegedly created, which (notwithstanding Ms. Winner's offer to avoid accessing the Internet) could facilitate anonymou s communication. R.163 at 5-6, 12. The court also dismissed the fact that the case involves only "one document, one time, to one recipient, with no allegation s of financial gain" because "the Government caught this Defendant before any more damage could be done." Id. at 6 n.5. The court further noted that Ms. Winner once inserted a thumb drive into a secure computer for two minutes. Id. at 10 Although there is no evidence Ms. Winner downloaded any classified information , the court repeatedly stressed that the Government "has not located the thumb drive. " Id. ; see id. at 14 (similar) . The court also observed that Ms . Winner "researched ways to send information to news outlets anonymously and accessed classified information outside of her job duties. " Id. at 12; see also id. at 10-11 (similar). In the court's view, Ms. Winner "sought out employment in a classified position with the intent to anonymously share information with news outlets and to cover her tracks while doing so." Id. at 13. The court noted that the Government "has not concluded that [Ms. Winner] has not had further access to classified information. " Id. at 14. And the court found that "releasing Defendant prior to trial would pose a danger to the community, particularly to the national security." Id. ; see id. at 15-16, 17 (similar). Indeed , the danger of disclosure was so central to the court's reasoning that it 12

Case: 17-15458 Date Filed: 12/18/2017 Page: 15 of 45 described flight risk as an "[ a]dditional[]" consideration on which the Government "presented other significant evidence." Id. at 14. The comt 's reliance on dangerousnes s is perhap s cleare st in its rejection of Ms. Winner' s offered conditions of release. In the court's view, Ms. Winner's "promi ses" were insufficient because they "do not adequately protect against potential further unauthorized disclosures." Id. at 16. The court even invoked a precautionary principle : "C lassified information cannot be retrieved or undisclo sed once it is released, so the potential of harm to national security is too great a risk to place upon the promises of this Defendant." Id. That misguided reasoning is improper where Congress has determined flight risk is the only basis for depriving a citizen of her liberty before trial. The district court's error in ordering detention based on dangerousne ss requires reversal. C. The Government Has Not Shown a Serious Risk of Flight Detention is not neces sary to ensure Ms. Winner ' s appearance in court. The district court found Ms. Winner posed a serious flight risk given her "desire to live abroad," her language skills, $30,000 in her bank account, and a "prop ensity for travel " demon strated by a vacation to Belize over Memorial Day weekend. Id. at 14-15. But those facts do not distinguish Ms. Winner from million s of Americans, or from other defendants charged under § 793, nearly all of whom have been released on bail. Nor do those facts distinguish Ms. Winner from Paul Manafort 13

Case: 17-15458 Date Filed: 12/18/2017 Page: 16 of 45 and Rick Gates , who were recently released despite facing charges of being unregi stered foreign agents, laundering tens of million s of dollars through foreign bank accounts, and lying to investigators, even though Manafort has millions of dollars in assets and three passports with different numbers. United States v. Manafort, No. 1: l 7-cr-00201-ABJ, ECF Nos. 14, 95 (D.D.C. Dec. 15, 2017). Each of the four factors in § 3 l 42(g) favors release here. 1. Nature and Circumstances of the Offense Alleged The Government charged Ms. Winner with one violation of§ 793(e), based on the alleged unauthorized disclosure of one document to one domestic news source. That offense does not render Ms . Winner a flight risk. Pretrial detention under§ 793(e) is rare. In case after case, courts have granted pretrial release to defendants charged with disclosing or retaining classified information-often far more information than is at issue here. See R.96- 1 at 15-20. Below, the Government identified just one other case where a defendant charged under this statute was detained pretrial. R.131 at 11 n.4. The facts here do not remotely resemble that case, which involved a defendant who allegedly hoarded 50 terabytes of classified information over a 20-year period and had ongoing issues with mental health and alcohol abuse. See United States v. Martin, No. 1:17-cr-00069-MJG, ECF Nos. 21, 24 (D. Md. Oct. 21, 2016). 14

Case: 17-15458 Date Filed: 12/18/2017 Page: 17 of 45 The district court here reasoned that the actual circumstances of the offense charged are "of little importance" because "the Government caught this Defendant before any more damage could be done ." R.163 at 6 n. 5. But the question is whether the nature and circumstances of the "offense alleged'-and consequences of the charges-give the potential Ms. Winner a strong "incentive" to flee. United States v. Ellis, 646 F. App 'x 889, 890 (11th Cir. 2016) (mem.). Speculation about hypothetical offenses that Ms. Winner never committed constitutes no more than an assessment of future dangerousness, which, as demonstrated , is irrelevant in this case. 2. Weight of the Evidence The weight of the evidence likewise does not suggest Ms. Winner will flee. By its terms ,§ 793(e) does not criminalize the disclo sure of all classified information. Rather , the Government must establish beyond a reasonable doubt that Ms. Winner knowingly disclosed a document "relat[ ed] to the national defense." Material "relating to the national defense " must be "potentially damaging to the United States or .. . useful to an enemy of the United States" and "closely held" by the U.S. government. United States v. Morison, 844 F.2d 1057, 1071-72 (4th Cir. 1988); see also R.132 at 3-4 (citing additional cases). Information in the public domain generally is not closely held . See United States v. Ros en, 445 F. Supp. 2d 602, 620-21 (E.D. Va. 2006). More than 50% of 15

Case: 17-15458 Date Filed: 12/18/2017 Page: 18 of 45 classified documents do not qualify as "re lat[ ed] to the national defense." See Too Many Secrets: Overclassification as a Barrier to Critical Information Sharing: Hearing Before the Subcomm. on National Security , Emergin g Threats, and International Relations of the H Comm. on Government Reform, l 08th Cong. 263 at 82-83 (2004) (testimony of J. William Leonard). The district court brushed aside these elements, asserting that Ms. Winner's purported "admission" that she took the document out of the NSA and mailed it to a news outlet "appear[s] to hit upon all the elements of the crime." R.163 at 7. Ms. Winner has moved to suppress those statements. R .63. Regardless , nothing in the record - not Ms. Winner 's purpo11ed "admission," her alleged statements to her sister that she "screwed up" and "leaked a document ," or even evidence that Ms. Winner "was the source of the leaked document" -c ontradict the fact that the document here presented no potential damage to national security and was already in the public domain. R.163 at 7-8. Indeed, the prosecution will have difficulty proving that the information in the document is even true, let alone damaging. The President himself has repeatedly and publicly cast doubt upon it. 16

Case: 17-15458 Date Filed: 12/18/2017 Page: 19 of 45 The document here was not "relat[ ed] to the national defense" under § 793(e). Far from showing a risk of flight, the weight of the evidence shows that Ms . Winner has a strong defense, which she has every reason to appear at trial to vindicate. 3. History and Characteristics Ms. Winner's history or characteristics demonstrate that she will appear in court. Ms. Winner has no criminal record and no history of missing court appearances or ignoring court orders. She has an outstanding record of academic performance and military service, and is a talented linguist desiring to serve her country and engage in humanitarian work. Her ties to the community in Augusta are strong, and she has loving relationships with her family. Her mother has already made arrangements to move to Augusta to live with her, and is willing to post her property as bond. There is no basis to believe Ms. Winner would abandon her family and community. Even the magistrate judge noted, " If we were dealing with the person Miss Winner's parents know and love, then there would be no question that she ought to be released ." R.29 at 106:23-25. Nevertheless, the district court ordered detention based on evidence that Ms. Winner conducted Internet searches about traveling, working, and living in various countries. R.163 at 10. But it would be surprising if someone with Ms. Winner's language skills did not research those 17

Case: 17-15458 Date Filed: 12/18/2017 Page: 20 of 45 things. And the other evidence the district court cited pertained to its erroneous and improper finding of dangerousness , which has no bearing on whether Ms. Winner is a flight risk. Id. at 10-12. 4. Danger Posed by Release If Ms. Winner's "dangerousness" can be considered at all, it is relevant only to assessing flight risk or setting the conditions of her release. The district court cited no evidence-and the Government offered none-that Ms. Winner is dangerous in a way that would increase her risk of flight. And there is no basis for belie ving Ms. Winner would commit crimes that would enable her to flee, or that she would present a danger to society in an attempt to flee. See Giordano, 3 70 F. Supp. 2d at 1269-70. D. Conditions Would Reasonably Assure Ms. Winner's Appearance A variety of conditions would reasonably assure Ms. Winner's appearance. She agreed to numerous restrictions and conditions on release , including but not limited to: (1) residing in her home with her mother as third-party custodian; (2) not traveling beyond Richmond County , Georgia without the permission of her Pretrial Services Officer and the Government; (3) not accessing the Internet or possessing any electronic device capable of doing so; (4) avoiding communication with any media outlet; (5) having regular contact with her Pretrial Services Officer; (6) wearing a monitoring bracelet; (7) surrendering her passport and not obtaining 18

Case: 17-15458 Date Filed: 12/18/2017 Page: 21 of 45 a new one; and (8) her mother and step-father posting their property as a bond. R.97 ,r 15; R.128 at 22-23. The district court disregarded all these proposals, asserting it had "reasonably conclude[ d]" that "Defendant will flee despite these conditions and assurances ." R.163 at 15-16. To be sure, the court need not recite every possible condition and explain why it is inadequate. United States v. Clum, 492 F. App 'x 81, 85 (11th Cir. 2012). But the perfunctory statement here does not withstand scrutiny. The Government presented no evidence Ms. Winner could or would flee under such restrictive conditions. In case s involving defendants facing similar and more serious charges, other courts have found conditions far less stringent to be sufficient to reaso nably assure the defendant's appearance. John Kiriakou , for example, who allegedly disclosed a CIA's officer's identity to a reporter, was released on condition, among others , that he post a $250,000 bond, remain in the D.C. metro area, surrender his passport, and report to his Pretrial Services Officer. United States v. Kiriakou, No. l :12-cr-127 , ECF No. 8 (E.D. Va. Jan. 23, 2012); see also R.96-1 at 15-20 (comparing release conditions of thirteen defendants facing similar charges). The district court gave no reason why similar restrictions would be insufficient here. 19

Case: 17-15458 II. Date Filed: 12/18/2017 Page: 22 of 45 Even if Dangerousness Were a Valid Ground for Detention, Ms. Winner Is Entitled to Release As exp lained, Ms. Winner must be released pending trial because the Government has not demonstrated she is a serious flight risk. But even if dang erousness were relevant , detention is unwarranted. While detention based on flight risk may be supported by a preponderance of the evidence , pretrial detention based on dangerousness must be supported by "clear and convincing evidence." 18 U.S.C. § 3142(f) . But the district court express ly found dangerousness "by a preponderance of the evidence." R.163 at 17. That plain legal error alone requires reversal. Regardless , the district court 's conclusion is unsupported by the record. The court found Ms. Winner poses a danger based on "uncertainty [about] Defendant 's leve l of knowledge or possession of classified information ," combined with "evidence" that she "planned to anonymously release information to online news outlets and that she has antipathy toward the Un ited States." R.163 at 14. That is plainly at odds with Ms. Winner's history and characteristics. See 18 U.S.C. § 3142(g)(3). Far from being a spy, she is a young veteran whose misguided impulses and political passion allegedly led her to commit a sing le, isolated offense. The district court's findings to the contrary rest on a distorted picture of Ms. Winner. The district court referenced a note Ms. Winner wrote to her self after the 20

Case: 17-15458 Date Filed: 12/18/2017 Page: 23 of 45 election stating that she "want[ ed] to burn the whitehouse down. Find somewhere in Kurdistan to live ... or Nepal haha maybe." R.163 at 10. But understood in context , Ms . Winner plainly was not planning to commit arson and become a fugitive. Like countless Americans who have joked about moving to Canada or elsewhere , she was expressing nothing more than deeply felt political frustration. See, e.g., Meg Wagner, The Complete Guide to Fleeing Donald Trump 's America, Daily News (Nlar. 2, 2016), http://nydn.us/lLwjKWW. The other evidence the district court cited-that Ms. Winner inserted a thumb drive into a secure computer for two minutes; researched the Taliban; took notes about a private Internet browser, burner email accounts, and SIM cards-is no more persuasive. R.163 at 10-12. The Taliban is a matter of public concern relevant to Ms. Winner's occupation, and there is nothing suspicious about protecting one's privacy. The district court also emphasized that Ms. Winner said she "hate[d] America. " Id. at 12. But Ms. Winner does not actually hate America-s he was simply upset by the country's face after the 2016 election. Similarly , Ms. Winner 's various statements to her sister on Facebook, including statements supporting Edward Snowden and Julian Assange, are reactions of an impassioned person to the national political discourse. The nature of the alleged offense itself also suggests no danger to national security. See 18 U.S.C. § 3142(g)(l). Ms. Winner "wasn't trying to be a Snowden 21

Case: 17-15458 Date Filed: 12/18/2017 or anything." R.100, Ex . A, USA0-08162. Page: 24 of 45 There is no allegation that she sought or received financial gain. The allegation is that she disclosed one document regarding as a specific reaction to persistent, public denials by the President about . See id. at USA0-08174 ("[T]hat info[rm]ation . . . had been contested back and forth back and forth in the public domain for so long . .. why isn ' t this out there ? Why can't this be public?"). Ms. Winner's isolated alleged offense does not suggest any ongoing danger to the community. That is particularly so when Ms. Winner has already felt the consequences of her alleged actions. She has been detained for more than six months. Her indictment and detention have shattered her life and career. If released , she will not improperly disclose information. Regardless, there is no evidence Ms. Winner possesses any documents that could harm national security. The court made much of Ms. Winner's insertion of a thumb drive into a secret computer , but there is no evidence Ms. Winner downloaded any classified information. R.163 at 10, 14. If speculation that Ms . Winner might remember classified information were enough, then no person who once held a security clearance could ever be released pending trial . Finally , the district court failed to explain why Ms. Winner's proposed conditions of release would not mitigate any purported risk. The district court's 22

Case: 17-15458 Date Filed: 12/18/2017 Page: 25 of 45 bare assertion that the offered conditions "do not adequately protect against potential further unauthorized disclosures, " R.163 at 16, does not withstand scrutiny. III. Ms. Winner 's Detention Is Impeding Trial Preparations Ms. Winner has been detained for more than six months. Trial is scheduled for March 19, 2018, and Ms. Winner's detention is obstructing her consultations with counsel. Even though her attorneys possess security clearances, they cannot discuss any classified information with her in jai l, and instead must do so in a SCIF, requiring complex coordinat ion with the Government and the Bureau of Prison s. See R.164-1 at 3-4. This Court should order Ms. Winner's release now, before her unlawful detention impedes her defense any further. CONCLUSION For the foregoing reasons, the decision below should be reversed. Respectfully submitted, Isl Joe D. Whitley Joe D. Whitley (756150) BAKER, DONELSON, BEARM AN, CALDWELL & BERKOWITZ , P.C. 34 14 Peachtree Road , NE, Suite 1600 Atlanta, GA 30326 (404) 577-6000 jwhitley @bakerdonelson.com Counsel for Defendant-Appellant 23

Case: 17-15458 Date Filed: 12/18/2017 Page: 26 of 45 CERTIFICATE OF COMPLIANCE The foregoing motion complies with the type-volume limitation of Federal Rules of Appellate Procedure 27(d)(2)(A) and 32(a)(5)(A), (6). The motion contains 5199 words, excluding those parts of the motion exempted by Eleventh Circuit Rule 26.1-3( c ). This motion complies with the typeface and type style requirements of Federal Rule of Appellate Procedure 32(a)(5) and 32(a)(6) because this motion has been prepared in a proportionately spaced typeface using Micro soft Word 2010 in Times New Roman 14-point font. Respectfully submitted , /s/ Joe D . Whitley Joe D. Whitley Georgia State Bar No. 756150 Counsel for Defendant-Appellant 24

Case: 17-15458 Date Filed: 12/18/2017 Page: 27 of 45 CERTIFICATE OF FILING AND SERVICE Pursuant to Federal Rule of Appellate Procedure 25 and Eleventh Circuit Rule 25, I hereby certify that on December 18, 2017, I caused the foregoing motion to be filed with the Court, and to be served on counsel for the Government, by hand. Respectfully submitted, Isl Joe D. Whitley Joe D. Whitley Georgia State Bar No . 756150 Counsel for Defendant-Appellant 25

Case: 17-15458 Date Filed: 12/18/2017 Page: 28 of 45 ATTACHMENT

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 1 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 29 of 45 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERNDISTRICT OF GEORGIA AUGUSTA DIV I SION UNITED STATES OF AMERICA * * vs. * * REALITY LEIGH WINNER * 0 RD Pursuant Winner to has Judge ' s filed an appeal de novo and before Magistrate and the appropriate trial under whether reasonably 1 Government the any Bail "condition assure the United review of the the Reality States 5, the After detention finds the an proceedings of that Detention Leigh Magistrate 1 2017. arguments Court affirms I. When the the October law, therefore Defendant of Judge, relevant and from Order independent brief, ER 18 U.S . C . § 3145(b), Detention the CR 117-034 counsel in detention is Order . LEGAL STANDARD seeks Reform or to Act, detain the combination appearance of the a defendant Court of person must pending determine conditions as required will and Section 3145(b) contemplates that the detained defendant will file a motion to revoke the detention order ra t her than an "appeal." Because there is no subs ta n ti ve difference, the Court will use the term chosen by Defe n dant .

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 2 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 30 of 45 the safety of any other § 3142(e) upon (1). A hearing motion of serious risk 3142(f) (2) (A). (11 United 1985). This Court's de novo. Cir. review United 1985) States (stating constrained to for such a serious Cir. look judgment of the detention decisions). the Court shall the nature and and the that Government The evidence. th the that demonstrating the person for community." purpose in person a will case will of flight States v. Medina, Hurtado, the abuse of discretion In consider circumstances 2 F .2d the § of 1481 court "is defer (11 th not to the proof, factors: charged is reviewing Government's offense 1402 decision when relevant of 1467, or to the fo llowing of u.s.c. 1398, Judge's officer" assessing the "a burden F.2d district judicial 18 the 775 779 that prior involves by a preponderance of the Magistrate v. "2 bears risk be conducted that flee. Government 18 U.S.C. ; (1) (2) the The Government cannot move for detention on the basis that Defendant poses a danger to the community under 18 U.S.C. § 3142(f) (1) because she does not meet any of the criteria set forth therein. United States v . Giordano, 370 F. Supp . 2d 1256, 1258- 62 (S.D. Fla. 2005); accord United States v. Twine, th Cir. 2003) ; United States v. Byrd, 969 F.2d 344 F.3d 987 (9 1992); United States v. Friedman, 837 F.2d 106, 110 (5 th Cir. 48 (2d Cir. 1988); United States v. Himler, 797 F.2d 156 (3d Cir. 19 8 6) . Importantly, the "danger ousness" of this Defendant is still a factor to be considered under 18 U. S.C . § 3142(g) (4). Giordano, 370 F. Supp. 2d at 1261 n.l. Moreover, the "dangerousness" of Defendant as a factor also requirement that the Court "emanates" from § 3142 (e) ( 1) 's consider whether any condition(s) may reasonably assure the safety of the community. See King, 849 F.2d at 487. 2

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 3 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 31 of 45 weight of the evidence characteristics and of mental length past any and person Defendant's review, the or this may necessary or and States v. Court has King, the during it conduct 849 F.2d thorough additional factual Defendant's 485, that and of reasoned evidence disputes request 490 that for the prior required, require t he Court detention 3 on this detention is United Here, not had the hear i ngs counsel. there the and hearing. would further a hearing by evidence hearing and danger posed Judge 's additional of court pleadings 1988). because two be (11 th Cir. an oth er at In conducting on that abuse, of the would Magistrate briefs is that own evide ntiary particularly transcripts ousness entirely the its or alcohol § 3142(g). may conclude determined decision, rely community appearances seri community financial community, to drug and 18 U.S.C. developed the concerning nature the Court proceedings, of (4) in and physical employment, relating record release. evidence this and character, ties, residence history history, proceedings; to of (3) the history including family conduct, criminal Defendant; Defendant, condition, resources, ties, against the aid in benefit and the Further, are no evidence. matter no relevant Thus, is denied.

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 4 of 17 Date Filed: 12/18/2017 Page: 32 of 45 Case: 17-15458 II . On appeal, ignored certain unsupported by balanced erred the in the conditions conducting sets concluded that forth the Defendant's condition assure appearance factors set all forth of Nature Defendant which trial. in the Bail provides Circumstances with in the relevant 4 record law. of the conditions community will Act, 18 U.S. C. on appeal. a violation part: Offense of and now examine of the and and properly Defendant, of , the properly against error , Despite Judge Court Reform trial. hearings detention of assure entire combinations This weigh charged to to accurately and safety ' s assertions and is the which Defendant rise or at the Magistrate giving failed at Detention facts flight. reasonably appearance of Judge of Judge two detention the factors reasonably 793(e), Order both risk of are improperly Magistrate would review that whole, Magistrate of the the no a a serious that Judge findings the and her contentions, the A. the Magistrate made as is a de novo transcripts considered addressing Defendant community that , the Consequently, and the that and factors the 3142 (g ) , evidence, that Defendant's the the argues finds would evidence evidence. of thoroughly favorable also After Court argues that safety including Defendant finding Defendant consider ANALYSIS § while Charged 18 U.S. C. §

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 5 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 33 of 45 Whoever having unauthorized possession of, access to , or control over any document related to the national defense, willfully communicates , delivers , transmits, or causes to be communicated, delivered or transmitted . to any person not entitled to receive it ... shall be fined . . or imprisoned. The Magistrate Judge circumstances bec a use of of releasing the concluded the offense ongoing Defendant of 18 U.S.C. presumption in favor nevertheless charges classified, top-secret online (See of news the Coupled classified with information the NSA, does 3 4 document which was during particularly not create not While a rebuttable indictment authority entitled to nature Defendant in the of a to receive A plain serious light by transmitted , Doc . 72.) in detention 2. ) superseding service and posed at willfully that her of Order, the the evidence "nature security without Indict. demonstrates with favor national Defendant Superseding indictment offense. § 793(e) that in (Detention of detention, outlet, generally to II a violation the weigh risk .. that an it. reading of the had access to Air Force and the "cover t 3 Contrary to Defendant ' s emphasis on this point, the fact that the offense charged does not create a rebuttable presumption of detention is not determinative of this particular factor; if it was , there would be no reason to list this factor as an independent relevant consideration . 4 A document is classified "TOP S~CRET if the unauthorized disclosure of that information could be expected grave damage ·to the national security. " to cause exceptionally (Superseding Indict . , i 3 (emphasis added).) 5

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 6 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 34 of 45 communications around package" the antipathy time toward Defendant's has transmission of affect national been the B. home, of Defendant Garrick that out the did crime is she not have and unassailable. with one especially her the apparent gravity The fact of that count -re lated to not mitigate serious given that the the one matter may warrant of 5 the the Evidence execution admitted willfully NSA and she had created of America, document-does security. time that NSA position States charged one of the infra) United offense, Weight At the which the of nature of taking alleged Defendant her of (discussed of secreted it the to authority search FBI Special to mailed the to the Agent classified online receive document news it. Justin 6 outlet, (Tr . of 5 Defendant harps on the fact that she has only been charged with the disclosure of "one document, one time , to one recipient , with no allegations of financial gain." (~ , Def.' s Appeal Br., Doc . 128, at 13.) The Court finds this fact to be of little importance because it may reasonably be said that the Government caught this Defendant before any more damage could be done. Indeed, Defendant had only recently begun her employment with the NSA contractor, Pluribus International, and had only recently researched how to disclose information to news outlets anonymous ly . Also, financial gain is not the only reason a person may disclose classified information to a news outlet. These other takes on the "only once" argument are reasonable given the evidence discussed infra regarding Defendant ' s development of a "covert communications package," her antipathy toward America, and her research into living and working abroad. 6 document In out fact, of the Defendant NSA building. initial ly denied (Tr . of Interview 6 taking any , at 08145-

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 7 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 35 of 45 Interview, Doc . 100, disputed the whether be specific the 7 defense found admission elements at to these relevant that motion to been fully point it the vetted admissions to statements to "leaked complains Ex. that in to the appear has particularly the national mens rea to req u isite warrant The motion and is proceeding, to hit upon her 6. ) Magistrate to are to certainly immaterial. the the statements search sister Agent, tha t she (Detention The use of the Judge the her all the did not suppress, not FBI during subject to in addition has up" the pending has thus, De f endan t "s c rewed a however, resolved; Besides, Special a d o cument . " Doc . 109, the facts initial suppress. is crime, was related point Defendant crime. the of this While this she possessed guilty, the of document and whether Defendant execution elements classified of consider Ex. A, at 08161-62.) not at this to also and that Hr'g Tr . , Sep t . 2 9, word " l eaked" indicates the made she 2 0 17, a 46.) And, when she admitted that she had printed a classified document, she initially claimed to have placed it in the burn bag and denied taking it out of the building or mailing it to anyone . (Id . at 08152-08158.) This suggests a certain level of deception. 7 As pointed out admitted that she knew regarding sources and information that would United States. (Detention 081 7 2.) by the Magistrate Judge, Defendant the document contained i nformati o n methods of collecting c lassified be valuable to adversaries of the Order , at 4 ; Tr. of Interview, at 7

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 8 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 36 of 45 certain consciousness possession and Moreover, Order, as at leaked the document History The Court history Judge of her and lack her Magistrate Judge "Characteristics release are notes such opened weighing her the source service of Defendant her honorable In discussion in favor the 8 Air the 8 her. believes the to family point of factor Defendant's Force, and service strong of this of of characteristics history. in against FBI to the Defendant her his ( Detention was aspirations, a criminal Judge the positive as a "leak." evidence that the called led Defendant overlooked be lawful which a nd Characteristics first because Magistrate be compelling humanitarian of not facts that Defendant, country, the investigatory will C. would by conclusion Magistrate wrongdoing transmission expressed 3), independent of clean the ties, fact, the noting: pretrial criminal At the detention hearing on September 2 9, 2017, Special Agent Garrick testified that of the six individuals that printed the subject document, only two had printed both the Intelligence Report and the attachment, both of which ended up in the possession of the online news outlet. Of the two, the investigation revealed that the document was printed by Defendant on May 9, 2017, that the document was mailed from Augusta, Georgia on May 10, 2017, and that Defendant had contacted the recipient news media outlet. (Detention Hr'g Tr., Sept. 29, 2017, at 22-24.) The i nv estigation also revealed that on the day the classified document was printed, Defendant had researched on line how to anonymously submit information to two news outlets. (Id. at 27.) After that date, Defendant performed several searches for those news outlets and information related to the potential leak of classified information to see "if leaked information had been published by those particular media outlets." {Id.) 8

Case 1:17-cr-00034-JRH -BKE Document 163 Filed 11/27/17 Page 9 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 37 of 45 history, at and loving 5.) The negative state Magistrate factors America, misused career, finding: Edward on went positive, and past found computer and to outset of her work as an NSA subcontractor." takes particular "hates" umbrage America Julian and that she review of her evidence admittedly ' hates' her Air Assange, and began from the (Id.) very Defendant characterization "admires" Force that Edward she Snowden and Assange. Upon a de novo detention hearing testimony of Special concludes that the pertaining to conduct in community the ties her family for environmental lack of criminal The this the to compelling information at that conduct. during preparations find relevant Julian classified to Order, pointing "Defendant Snowden leak then Judge a top-secret admires ( Detention ties, Magistrate this parents." the few community the support Judge outweighed of mind, Specifically, to and committed ties, Court of the September Agent , character, before significantly commendable her submitted 20 17, Court from her and outweigh the positive service in animals, the the the similarly the mental arrest, and at particularly this implications Defendant's issues 29, Garrick negative months evidence evidence state her , her lack of aspects Air Force, humanitarianism of car e , and record. will now recount finding: 9 the evidence that supports

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 10 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 38 of 45 • On November 9, 2016, while in the waning days of her service in the Air Force, Defendant researched whether a top secret computer will detect a thumb drive. On this same day, Defendant inserted a thumb drive into a top secret computer for approximately two minutes . ( Detention Hr' g Tr., Sept . 29 , 2017, at 48- 49 . ) The Government has not located the thumb drive . • Immediately after removing the thumb drive, Defendant printed a top secret intelligence report which was "not associated in any way with [her] duties/assignments." The Government does not know what Defendant did with the document. (Id. at 49.) • Defendant performed multiple searches for jobs requiring a security clearance in November 2016 at the same time that she researched for information pertaining to the Taliban and for information about an organization called Anonymous, an affiliation of hackers. (Id. at 50-51. ) • In handwritten notes apparently regarding employment opportunities , Defendant writes "I want to burn the whi tehouse down. Find somewhere in Kurdistan to live ... or Nepal haha maybe." (Id . at 32, Ex. 7.) • Included in Defendant ' s handwritten notes are references to Taliban military leaders . (Id . at 37, Ex. 7.) Defendant also performed internet searches in October , November, and December of 2016 for the Taliban media website , the Taliban office in Qatar, and the Taliban YouTube channel . (Id . at 3 7-3 8, Ex . 8 . ) • Other internet searches involve traveling, working and living in Kuridstan , Iraq, Afghanistan, Jordan and Palestinian territories, to include information pertaining to f l ights to Kurdistan and Erbil, moving to Palestine, and obtaining visas for Kurdistan and Afghanistan. (I d . at 40-42 , Ex . 8 . ) • On February 7, 2017 , two days prior to her first day of employment with the NSA contractor, Pluribus International , Defendant captured a screenshot of how to securely drop information to eight different news outlets. The image is titled, "If you see abuse . Leak it." (Id . at 26 , Ex. 4 . ) 10

Case 1:17-cr-00034-JRH - BKE Document 163 Filed 11/27/17 Page 11 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 39 of 45 • On February 9, 2017, immediately after undergoing her initial security training with the NSA, Defendant sent a message to her sister, in which she said of her security training "it was hard not to laugh" when the security officer said "'yeah so uh we have guys like Edward Snowden who uhh thought they were doing the right thing, but you know, they weren't so us we uh have to keep an eye out for that insider threat, especially with contractors.'" (Id. at 42-43, Ex. 9.) • On February 25, 2017, Defendant messaged her sister, "I have to take a polygraph where they're going to ask if I've ever plotted against the gov't. #gonnafail." She then said, "Look, I only say I hate America like 3 times a day." When Defendant's sister asked, "But you don't actually hate America, right?", Defendant responded: "I mean yeah I do it's literally the worst thing to happen on the planet. We invented capitalism the downfall of the environment." (Id. 44, Ex. 11.) • On March 7, 2017, Defendant messaged her sister that Vault 7 9 was "so awesome" and that it had "crippled the program." When her sister asked, "So you' re on Assange' s side," Defendant responded, "Yes. And Snowden." (Id. at 45, Ex. 12.) • Defendant wrote n otes describing how to download and install Tor 10 on its most secure setting; researched how to swap SIM cards on her phone; researched burner email accounts (e.g., slippery.email); and wrote down the URL for a burner email account. (Id. at 32-36.) 9 Vault 7 is Wikileak's alleged government information. (Detention at 45. ) 10 compromise of classified Hr'g Tr., Sept. 29, 2017, The Tor network "is a method in which someone can access the internet -- not only the internet, but also the deeper, dark web on a completely anonymous level." ( Detention Hr'g Tr., Sept. 29, 2017, at 34.) The Tor network was installed on a computer in Defendant's home on February 1, 2017, several days after Defendant was hired by Pluribus Internat io nal and t e n days pri o r to her start date . (Id. at 34; Tr. of Interview, at 08144. ) 11

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 12 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 40 of 45 • On the note about the burner email ac cou nt, there is "specific identifying information related to foreign intelligence targets associated with terrorism activity being followed by the U.S . Government as part of its national security mission." (Id. at 39-40.) The use first of the point word choosing, but message sister, Sept. sister. "Hate" pass 29, other non-nefarious it's [It~ is email is a Magistrate that its that it or individual (Id. at are taken alone, is reasonable, that Defendant agent's benign researched anonymously outside of her 12 job be one. that there information as though The credit that outlets Garrick communicate proffer news 36.) TOR, can to the to offered Agent could give evidence Defendant appears Court acts Hr' g may research Special an of her Defendant a person the White ( Detention while totality, the testimony conclusion package which to burn the SIM cards, that word to describe like and this of these classified in her Judge each information used herself another." Defendant's of of his with over light reasons in was not an apt Also, into Judge "hyperbole" the communications way anonymously as 104), and is through justifiable. "taken a covert also she would off at accounts, that is noted t his evidence Defendant Defendant, 2017, America testified that this Magistrate word that hates burner from by the And while would take was the emotion House down. Tr., "hate" to her a person's to duties. the testimony, reasons for especially in ways and to send accessed In short,

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 13 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 41 of 45 Defendant attacks conclusions from (Def.'s Appeal totality, the Order to ruling . 11 be the the Br. intent to to cover had Court out her humanitarian the Court But of story. her free admitted in environmental of the humor, reject that testimony the Middle She 11 religion, well the strong as some of an her painted is one view Judge gloss-the has she evidence, sister, Magistrate accept and also the and that as the with argues explain on a person news outlets East its ultimate shows Defendant can its position with of her Defendant's behavior-and evidence in Detention in bents, gloss Certainly, to the evidence correct education. Defendant's through so. "unsupported" Judge's a classified doing and the Magistrate information interest sense are while reasonable and all indeed, in share and interesting of the employment tracks taking aforementioned background comments. yet and the Judge's as "sweeping" finds anonymously her primarily 9), sustainable a legitimate given evidence at In conclusion, who sought Magistrate but and now this minimalization reasonable inference While Defendant quibbles with the Magistrate Judge's characterization of Defendant as an admirer of Snowden and Assange, her comments to her sister endorse the conduct of these men. No matter the word choice, the point to be taken from the evidence is that Defendant condoned divulging classified information as she was "on their side." What the Magistrate Judge did not do in his Detention Order, contrary to Defendant's assertion, was equate Defendant's conduct to the "ex:treme conduct" of Snowden and Assange. (See Def.' s Appeal Br., at 2.) 13

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 14 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 42 of 45 from the evidence mind are of D. the release Force not is a possession to with respect outlets States, trial the the would and pose national weigh Government to in has to access 2017, finds that a danger to the or her has not had in concluded information. Given of together with or evidence to online toward the Defendant community, the knowledge information releasing Air has 91.) antipathy the has at release of and Government level information, has printed the it Defendant's she she to classified 29, to potential employ while news United prior particularly to to security. Defendant's few ties to the documents, Sept. that Court information Defendant to ano n ymously As discussed, each that classified news a position Defendant's Further, had further uncertainty she planned find while for. Tr., that of accepted in Hr'g of state by Release inserted (Deten t ion possession and Posed document classified not leak to conclude other she has to leap Danger The classified she able conduct may have intentions unaccounted been of Defendant not drive are that that troubling. thumb past and Seriousness found it Defendant's concern. NSA with outlets, the serious Nature Having with that the favor the presented risk this of statutory of Government. other for evidence As mentioned, she 14 has shown consideration Additionally, significant flight. community, factors the relative Defendant a strong intent has to

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 15 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 43 of 45 live and work matters to of abroad, the Kurdistan desire to charge Taliban. and live finds would Middle Eastern of beyond the Indeed, that mere finds Defendant is Defendant complains her The consideration in considered surrender the concludes that, to flight did not consider, however, It need evidence 15 wish not that ( for post ing may even the Court probable. the evidence Judge enunciate this that Defendant to cause her every Court instance, and not proposed assure of a property bracelet) did the reasonably conditions a monitoring this of whether suffices wear upon Magistrate would Order . with tak es of her risk. the the to be in America, jurisdiction to travel evidence of passport, based This many account prior for and in bank just by a preponderance release its her realm that Court, in the Dari, herse lf propensity into a felony Farsi, the proposed of her agreement and a serious and therefore in Finally, the This Further, sustain Belize. fleeing Court appearance. wish to flights by facing $30,000 her in Afghanistan. America. and . theoretical on of live a start trip in fluency demonstrated Defendant conditions States to airline quickened , and the with solo the discuss, her her an interest researched visas no doubt countries her a three-day work Defendant's Defendant chances is enable provide arrest, and United that Pashto will Erbil by demonstrated She even abroad brought Court and she has has the bond, and reasonably does not harm to national

Case 1:17-cr-00034-JRH-BKE Document 163 Filed 11/27/17 Page 16 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 44 of 45 security, flee and despite the these Defendant's means bracelet, contact with potential the so the a risk be in and refrain from 12 do place or the did Leigh urges this painting cannot Winner Court a very ignore to detained adopt different another usage . and against Cl assified un - disclosed once it is is too Defendant. 13 security of this a CONCLUSION the Judge wear l y protect promises of the Reality internet of harm to national upon will Moreover, county, disclosures Upon a de novo review Magistrate the adequate retrieved I II . that not Defendant assurances. remain potential to abroad, and unauthorized cannot released, live to media. further information to conditions promises monitoring great has record not err pending its view pi c ture reasonable , the in trial. of the Cour t concludes ordering While Defendant Defendant e v ide nce, of Defendant, the and supp o rted picture indeed Court of 12 The Gov ernment states in a footnote that Defendant had put a member of the media on her jail visitor list and that this visitor came to see Defendant in jail o n October 14 , 2017 . While the jail terminated the visit, this encounter took place just a few days prior to Defendant filing her appeal. (Gov't Br. in Opp'n, Doc. 131 , at 18 n.7 . ) 13 See King, 849 F.2d at 487 n . 2 (explaining that the Senate Judiciary Committee intended a broad construction of "danger to the community" to encompass the risk that the defendant may engage in criminal activity to the detriment of the community (quoting the Report of the Senate Committee on 2d Sess. the Judiciary, S. Rep. No. 98-225, 98 th Co ng., ( 1984))). 16

ase 1:17-cr-00034-JRH -BKE Document 163 Filed 11/27/17 Page 17 of 17 Case: 17-15458 Date Filed: 12/18/2017 Page: 45 of 45 Defendant. Through Court by a preponderance is finds a serious conditions flight will (particularly Defendant Judge's considered risk reasonably Detention safety or 128) and of October evidence, that Defendant of of the community the the AFFIRMS appearance Court the of DENIES Magistrate 5, 2017. Georgia, this 2017 . RANDAL '. HALL, CHIEF UNITED STATES DISTRICT COURT SOUTHERNDISTRICT OF GEORGIA 17 the or combination Accordingly, ORDER ENTERED at Augusta, of November, evidence the security) (doc. Order of the assure required. appeal view of the and no condition national as Defendant's its day