United States v. Jeffrey Sterling
2013 U.S. App. LEXIS 14646
| 4th Cir. | 2013Background
- Jeffrey Sterling is a former CIA officer indicted for unauthorized retention and disclosure of national defense information.
- Sterling participated in Classified Program No. 1 and handled Human Asset No. 1 during 1998–2000.
- Sterling filed discrimination suits, leading to investigations and settlement disputes; the CIA invoked state secrets doctrine in related litigation.
- Sterling allegedly leaked classified information to James Risen, who published details in The New York Times and later in a book State of War.
- Prior to trial, the government sought Risen’s testimony and moved for a protective order; the district court issued rulings on testimonial privilege and disclosure.
- Two evidentiary rulings are at issue: (a) Risen’s trial subpoena privilege; (b) cameras/identities of CIA witnesses under CIPA and related procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the First Amendment reporter's privilege applies in this criminal case | Risen seeks First Amendment privilege to avoid testifying about sources | Branzburg rejects reporter’s privilege in criminal prosecutions | No First Amendment testimonial privilege in criminal trial |
| Whether a federal common-law reporter's privilege should be recognized in this criminal case | Rule 501 allows creation of common-law privileges; Branzburg is outdated | Branzburg controls; no common-law privilege for reporters in criminal cases | No federal common-law reporter's privilege recognized |
| Whether LaRouche three-part test governs reporter's privilege in criminal cases | Three-part LaRouche test should govern disclosure | LaRouche does not apply to criminal prosecutions; Branzburg controls | Even if applied, government satisfied LaRouche factors; Risen testimony not privileged |
| Whether the district court properly ordered disclosure of CIA witnesses' identities to Sterling and the jury under CIPA | Killing identities protects safety; no disclosure to jury needed | Some disclosure to Sterling and jury may be necessary for confrontation | Disclosing witness identities to Sterling but not to the jury was improper; district court reversed on jury disclosure |
| Whether the district court abused its discretion in sanctioning the government for Giglio material delay | Two witnesses improperly struck for late Giglio material | Sanctions appropriate to enforce discovery orders | Sanction reversed; striking witnesses reversed; continuance preferred |
Key Cases Cited
- Branzburg v. Hayes, 408 U.S. 665 (U.S. 1972) (no First Amendment reporter's privilege in criminal cases absent harassment or bad faith)
- Judith Miller, 438 F.3d 1141 (D.C. Cir. 2006) (circuit decision on reporter's privilege in national-security leak context)
- LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986) (civil reporter's privilege with three-part test; influence on later rulings)
- In re Shain, 978 F.2d 850 (4th Cir. 1992) (refused broad reporter’s privilege in criminal context)
- Jaffee v. Redmond, 518 U.S. 1 (U.S. 1996) ( Rule 501 and creation of privileges recognized by courts; psychotherapist-patient privilege example)
- Nixon v. United States, 418 U.S. 683 (U.S. 1974) (emphasizes need for evidence in criminal context; limits on privileges)