* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 29 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. WEN HO LEE,

Defendant-Appellant. No. 00-2002 (D.C. No. CR-99-1417-JC ) (D. N.M.)

ORDER AND JUDGMENT *

Before TACHA , BRISCOE , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Defendant Wen Ho Lee appeals from a district court order denying his motion for revocation of the magistrate judge’s pre trial detention order. Lee,-2-

a former nuclear physicist at Los Alamos National L aboratory (LANL), was indicted on fifty-nine counts of violating the Atom ic Energy Act, 42 U.S.C. § 2275 (receipt of restricted data) and 42 U.S.C. § 2276 (tampering with restricted data), and the Espionage Act, 18 U.S.C. § 793 (gath ering, transmitting or losing defense information). He faces a maximum sentence of life imprisonment on these charges. Under the Bail Reform Act, 18 U.S.C. §§ 3141-51, a defendant charged with an offense punishable by life imprisonment maybe denied bail if, after a hearing, the government demonstrates by clear and c onvincing evidence that “no condition or combination of [release] conditions wi ll reasonably assure . . . the safety of any other person and the community.” 18 U.S.C. §§ 3142(e), (f)(1)(B). In determining whether the release of a defendant w ould endanger the community, the court must consider the nature and circumstance s of the crimes charged; the weight of the government’s evidence; the history an d characteristics of the defendant; and the nature and seriousness of the danger posed by the person’s release. 18 U.S.C. § 3142(g). The magistrate judge ordered Lee detained on the gr ound that Lee posed a “clear and present danger to the national security of the United States.” Appellant’s App. at 320. Following a three-day det ention hearing, the district1 The Honorable James A. Parker presided over the det ention hearing

because the district court judge to whom the case w as assigned was unavailable.

2 806 megabytes of data is equal to approximately 806 reams of paper. The computer forensic data showed that it took 70 days over a two-year period to transfer the huge volume of classified files from t he classified computer system to the unsecured, open computer. -3- court 1 ordered Lee’s continued detention. In a detailed nineteen-page order, the district court found that the government had sh own by clear and convincing evidence that no combination of conditions of relea se would reasonably assure the safety of the community or the nation. See United States v. Lee , No. CR. 99-141 JC, 1999 WL 1279142 (D.N.M. Dec. 30, 1999). We rev iew the district court’s determination of mixed questions of law and fact co ncerning the detention decision de novo , while accepting its findings of historical fact i n support of the decision unless they are clearly erroneous. See United States v. Kinslow , 105 F.3d 555, 557 (10th Cir. 1997). We affirm. Lee is charged with “downpartitioning” nineteen computer files containing 806 megabytes of classified and confidential restri cted data relating to nuclear weapons research, design, and construction from sec ure, separately partitioned, classified computer networks at LANL, and transferr ing the files to a separate, unsecure computer system. 2 Lee is charged with then downloading seventeen of these classified computer files from the unsecure c omputer network to nine portable, magnetic computer tapes, and with downloa ding a classified nuclear-4-

weapons design code and its auxiliary libraries andutilities codes directly from the secured computer network to a tenth portable co mputer tape. Investigators located some of the portable tapes in Lee’s desk atLANL in March 1999, after he had been terminated from LANL because of an unrelat ed security breach. Seven of the portable computer tapes, containing mo st of the 806 megabytes of classified data, remain unaccounted fo r. The government presented evidence that the missing tapes contain all of the information necessary to design, build, operate, and evaluate a complete portfolio o f thermonuclear weapons, from very simple, easily manufactured weapons, to the mo st complex thermonuclear weapons the United States is capable of designing. Experts testified that if these tapes fell into the wrong hands, it would “change t he strategic global balance,” and that the risk “represent[s] the gravest possibl e security risk to the United States.” Appellant’s App. at 182, 602. The district court found that “Lee’s release from c ustody at this time poses a danger to the United States because of the risk that [he] will find a way to, and will be inclined to, reveal to unauthorized persons the location of the seven missing tapes or to assist an unauthorized po ssessor in understanding and utilizing the information contained in the tapes.” Lee , 1999 WL 1279142, at *8. The district court found that the nature of the off enses Lee is alleged to have committed are “quite serious and of grave concern t o national security.” Id. at *5.-5-

The district court also found that the circumstance s under which Lee is alleged to have acted are “deeply troubling” and “highly suspi cious.” See id . at *5, *7. These findings are not clearly erroneous. See Kinslow , 105 F.3d at 557. The “potentially catastrophic” risk to the safety o f the community, indeed the nation, presented by Lee’s ability to communicate information about the location of the missing tapes or their contents if he is released pending trial,
Lee , 1999 WL 1279142, at *9, is unprecedented, but nev ertheless, within the boundaries of the Bail Reform Act. In adopting the Bail Reform Act, Congress specifically recognized that the “concern about saf ety [under the Bail Reform Act should] be given a broader construction than merelydanger of harm involving physical violence.” S. Rep. No. 225, 98th Cong., 2 d Sess., at 13 (1984), reprinted
in 1984 U.S.C.C.A.N. 3182, 3195; see also United States v. Cook, 880 F.2d 1158, 1161 (10th Cir. 1989); United States v. King , 849 F.2d 485, 487 n.2 (11th Cir. 1988) (“The term ‘dangerousness’ as used in the Bai l Reform Act of 1984, has a much broader construction than might commonly be un derstood in everyday parlance.”). Congress recognized that the concept of danger under § 3142 could be “extended to nonphysical harms such as corruptin g a union.” 1984 U.S.C.C.A.N. at 3195-96. We can conceive of few gr eater threats to the safety of the community than the risks presented in this case

.-6-

Lee contends that his release does not pose a risk to the community because he destroyed the missing computer tapes. In support of this claim, however, he presented only a “broad, non-specific” representati on in a letter he signed when he was fired stating generally that he had destroye d all classified materials in his possession. Lee , 1999 WL 1279142, at *8. The district court found that Lee presented insufficient evidence for it to concl ude that the tapes had been destroyed. See id. This factual finding is not clearly erroneous. Lee argues that the district court violated his Fif th Amendment rights against self-incrimination by drawing an adverse in ference from his failure to present sworn testimony or otherwise to provide mor e specific evidence indicating he destroyed the missing tapes. See id. at *8, *9. Lee relies upon Mitchell v. United States , 526 U.S. 314, 119 S. Ct. 1307, 1316 (1999), in wh ich the Supreme Court recently held that a defendant who has pleade d guilty does not waive his right to remain silent at his sentencing hearing an d that the sentencing judge may not draw an adverse inference from his silence. Le e argues from this ruling that the district court erred in drawing a negative infe rence from his failure to present sworn testimony that he destroyed the missing tapes

. Lee cites us no authority applying a no-adverse inf erence rule to § 3142 detention hearings, nor are we aware of any such pr ecedent. We decline to extend Mitchell’s adverse inference rule to the circumstances in thi s case. Even-7-

assuming that the Mitchelladverse inference rule did apply to § 3142 detenti on hearings and that the district court’s comments wou ld be construed as an adverse inference on Lee’s failure to testify, any error wo uld be clearly harmless. The court’s comment on Lee’s silence was merely cumulat ive of the court’s overall assessment of the evidence in the record concerning Lee’s purported destruction of the tapes. See Chapman v. California , 386 U.S. 18, 22 (1967). After an independent review of the record, we concl ude that the district court properly analyzed the relevant factors under the Bail Reform Act and correctly determined that the government met its bu rden of establishing by clear and convincing evidence that there are no con ditions or “combination of conditions of release that will reasonably assure the safety of any other person and the community or the nation.” Lee , 1999 WL 1279142, at *9. We AFFIRM substantially for the reasons stated in the distric t court’s detailed opinion dated December 30, 1999. The appellee’s unopposed motionto supplement the record is granted.

ENTERED FOR THE COURT PER CURIAM