United States v. Jeffrey Sterling
860 F.3d 233
| 4th Cir. | 2017Background
- Jeffrey Sterling, a former CIA officer who worked on a classified program to disrupt Iran’s nuclear capability, was indicted in the Eastern District of Virginia for multiple offenses under 18 U.S.C. § 793 and related statutes after a reporter (James Risen) published program details.
- FBI investigation produced circumstantial evidence (numerous short phone calls between Sterling in Virginia and Risen in Maryland in 2003, an email from Sterling to Risen, and testimony linking Sterling to the program).
- In 2006 the FBI seized four classified documents from Sterling’s Missouri home; the government introduced those documents under Fed. R. Evid. 404(b) to show a pattern of retaining classified materials.
- A grand jury subpoena in June 2006 sought CIA-related documents; forensic snapshots of Sterling’s Hotmail account showed a March 2003 email to Risen present in April 2006 but missing in July 2006. The government argued Sterling deleted it to obstruct the grand jury.
- The jury convicted Sterling on all counts except mail fraud; district court sentenced him to concurrent 42-month terms. On appeal the Fourth Circuit affirmed all convictions except it vacated the conviction for delivery/transmission to Risen of the program letter (Count V) for lack of proven venue.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Sterling) | Held |
|---|---|---|---|
| Venue for counts alleging disclosure/conveyance to the public and to Risen (Counts I, II, IV, VI–VII, IX) | Phone calls and emails originating from Sterling’s Virginia home were sufficient to show essential conduct occurred in EDVA; venue proper. | Communications do not prove substantive transmission or that essential acts occurred in EDVA; venue improper. | Affirmed: Circumstantial evidence (calls, emails, timing, and relation to Risen) supported venue by preponderance for these counts. |
| Venue for Count III (willful retention of program letter under § 793(e)) | Evidence that Sterling had the letter while living in EDVA supports retention there. | Mere proximity or earlier possession is insufficient without direct proof of retention in EDVA. | Affirmed: Jury could infer unlawful retention occurred in Sterling’s EDVA residence by preponderance. |
| Venue for Count V (delivery/transmission of the physical program letter to Risen under § 793(e)) | Because Sterling kept the letter in his Virginia home, the transmission likely began there; venue proper. | Government offered no evidence of how/where the physical letter was handed to Risen; venue not proved. | Vacated: Government failed to prove an essential conduct element (where transmission began) — jury would have had to speculate. |
| Sufficiency of obstruction conviction under 18 U.S.C. § 1512(c)(1) (Count X) | Deletion of the March 2003 email after subpoena was issued shows corrupt intent to impair a grand jury investigation. | The email was not specifically requested by the subpoena and did not contain program details, so deletion could not have been intended to impair the grand jury. | Affirmed: A jury could infer Sterling deleted the email to conceal it from the grand jury; intent satisfied beyond a reasonable doubt. |
Key Cases Cited
- Sterling v. Tenet, 416 F.3d 338 (4th Cir. 2005) (prior civil suit involving Sterling and state-secrets dismissal)
- United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (granting limited reporter privilege rulings related to Risen)
- United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) (analysis of § 793(e) venue where transmission occurred via intermediary)
- United States v. Ebersole, 411 F.3d 517 (4th Cir. 2005) (approving an "act in furtherance" venue instruction for continuing offenses)
- United States v. Evans, 318 F.3d 1011 (10th Cir. 2003) (rejecting venue-by-vicinity where location of essential conduct was unproven)
- United States v. Strain, 396 F.3d 689 (5th Cir. 2005) (circumstantial evidence insufficient for venue where inferences lacked evidentiary hook)
- United States v. Gravely, 840 F.2d 1156 (4th Cir. 1988) (documents need not be under subpoena for an obstruction conviction if defendant should have known grand jury would seek them)