United States v. Kim
808 F. Supp. 2d 44
D.D.C.2011Background
- Defendant Kim was indicted on two counts: Count One for willful disclosure of national defense information under 18 U.S.C. § 793(d) and Count Two for making a false statement to FBI agents under 18 U.S.C. § 1001(a)(2).
- Count One involved allegedly disclosing TOP SECRET/Sensitive Compartmented Information about sources/methods and foreign military capabilities to a reporter not entitled to receive it.
- Count Two alleged Kim lied about meetings with the reporter when questioned by FBI agents in Sept. 2009, after having met the reporter in March 2009.
- Kim moved to dismiss Count One under the Treason Clause and on due process and First Amendment grounds, and to dismiss Count Two with an evidentiary hearing; the Government consolidated its opposition.
- The Court denied all three motions, upholding the prosecutions under § 793(d) and § 1001(a)(2) and rejecting each of Kim’s challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Treason Clause preclusion of § 793(d) prosecutions | Rahman/Drummond view; Treason Clause is exclusive | Espionage Act prosecutions cannot be used under § 793(d) | Count One does not violate the Treason Clause |
| Due process vagueness of § 793(d) as applied to oral disclosures | § 793(d) is vague to cover intangible information | Classification context and scienter cure vagueness; no fair warning issue | § 793(d) provides adequate notice; willfulness cures vagueness concerns |
| First Amendment challenge to § 793(d) as applied to oral disclosures | First Amendment protects speech, including disclosures | Disclosures to unauthorized recipients are not protected; speech integral to crime doctrine applies | First Amendment challenge failed; statute not unconstitutional as applied |
| Materiality and recantation defenses to § 1001(a)(2) | Materiality must be proven; Brogan exculpatory no not applicable | Recantation defense should negate § 1001 liability | § 1001(a)(2) does not require actual reliance; materiality is jury issue; recantation not a defense here |
Key Cases Cited
- Cramer v. United States, 325 U.S. 1 (U.S. 1945) (treason scope and Espionage Act prosecutions distinct from treason clause)
- United States v. Rahman, 189 F.3d 88 (2d Cir.1999) (Espionage Act prosecutions not governed by Treason Clause)
- Frohwerk v. United States, 249 U.S. 204 (U.S. 1919) (espionage prosecutions may proceed without treason conviction constraints)
- Wimmer v. United States, 264 F.11 (6th Cir.1920) (spirited discussion of treason vs. espionage prosecutions)
- Gorin v. United States, 312 U.S. 19 (U.S. 1941) (national defense language sufficiently definite; due process concerns minimal)
- Morison, 844 F.2d 1057 (4th Cir.1988) (information relating to national defense not limited to tangible items; classification controls scope)
- United States v. Morison, 604 F. Supp. 662 (D. Md. 1984) (classification restrictions clarify who may receive information)
- United States v. Girard, 601 F.2d 69 (2d Cir.1979) (classification regulations provide clarity on not-entitled recipients)
- United States v. Gaudin, 515 U.S. 506 (U.S. 1995) (materiality jury question; court cannot resolve materiality pretrial)
- Brogan v. United States, 522 U.S. 398 (U.S. 1998) (exculpatory no defense rejected; materiality defined; perjury analogies)