Theresa Marie Squillacote, a member of our Bar, was convicted by a jury of (1) conspiracy to commit espionage, in violation of 18 U.S.C. § 794(a)
&
(c); (2) attempted espionage and aiding and abetting, in violation of 18 U.S.C. §§ 2, 794(a); (3) obtaining national defense information and aiding and abetting, in violation of 18 U.S.C. §§ 2, 793(b); and (4) making false official statements, in violation of 18 U.S.C. § 1001. Ms. Squillacote was sentenced to imprisonment for 262 months. Her convictions were affirmed on appeal.
United States v. Squillacote,
On January 5, 1999, this court suspended Ms. Squillacote from practice and directed the Board on Professional Responsibility to determine the nature of the discipline that should be imposed by the court. The court specifically directed the Board to review the elements of the offenses to determine whether the crimes involve moral turpitude per se, and thus require disbarment. See D.C.Code § 11-2503(a) (2001).
On March 9, 2001, in a Report and Recommendation written by the Board’s Chair, Ms. Patricia A. Brannan, a majority of the Board concluded that the three espionage-related offenses of which Ms. Squil-lacote was convicted constitute moral turpitude per se. One member of the Board, Mr. Paul L. Knight, dissented in a written opinion. A copy of the Board’s Report аnd Recommendation, including Mr. Knight’s dissent, is attached hereto as Attachment A. Both Bar Counsel and Ms. Squillacote excepted to the Board’s recommendation, contending that the espionage-related offenses do not constitute moral turpitude per se.
So ordered,. 1
ATTACHMENT A
REPORT AND RECOMMENDATION OF THE BOARD ON PROFESSIONAL RESPONSIBILITY
This matter comes before the Board on Professional Responsibility (the “Board”) to determine the discipline to be imposed upon Respondent, a member of the Bar of the District of Columbia Court of Appeals (the “Court”). Respondent was convicted by the United States District Court for the Eastern District of Virginia of conspiracy to commit espionage, attempted espionage, obtaining national defense informаtion, and making a false statement. We conclude that because Respondent was convicted of a crime that involves moral turpitude per se, she should be automatically disbarred by the Court pursuant to D.C.Code § ll-2503(a).
Background
Procedural History
Respondent is a member of the Bar of the Court, having been admitted by examination on February 28,1984. Brief of Bar Counsel at 1.
Respondent was indicted, along with two other co-defendants, in the United States District Court for the Eastern District of Virginia, Aexandria Division (the “District Court”), by the February 1998 Term of the Grand Jury. Indictment, United States v. Clark, Crim. No. 97-948-M (E.D.Va.). On October 23, 1998, she was found guilty by jury verdict of: (1) conspiracy to commit espionage, in violation of 18 U.S.C. § 794(a), (c) (“Count 1”); (2) attempted espionage and aiding and abetting, in violation of 18 U.S.C. §§ 2, 794(a) (“Count 3”) 1 [;] (3) obtaining national defense information and aiding and abetting, in violation of 18 U.S.C. §§ 2, 793(b) (“Count 4”); and (4) false statements, in violation of 18 U.S.C. § 1001 (“Count 5”). Judgment, United States v. Squillacote, No. 98-CR-61-2 (E.D. Va Jan. 22, 1999) (Hilton, C.J.).
Bar Counsel filed a certified copy of the docket entry reflecting the findings of guilt with the Court on December 15, 1998; a certified copy of the judgment of conviction was later reported to the Court on February 12, 1999. On January 5, 1999, the Court suspended Respondent and directed the Board to institute a formal proceeding for determination of the nature of the final discipline to be imposed, and specifically to review the elements of the offenses for the purpose of determining whether or not the crimes involve moral turpitude within the meaning of D.C.Code § 11-2503(a). In re Squillacote, No. 98-BG-1847 (D.C. Jan.5,1999).
Facts
In a case such as this, where our only task is to decidе whether the statutes Respondent was convicted of violating involve moral turpitude
per se,
the facts of the actual case are largely irrelevant.
See In re Colson,
Respondent was married to co-defendant Kurt Stand. Stand, whose parents were born in Germany, was recruited by the foreign intelligence arm of the East German intelligence agency. The East German agency trained Respondent and Stand. Respondent moved to Washington, D.C. and attended law school at the suggestion of the East German intelligence agеncy. Respondent worked as an attorney at the National Labor Relations Board, then on detail to the House Armed Services Committee. In 1991, she began work as an attorney at the Department of Defense (the “DOD”). At the DOD, she held a security clearance and had access to valuable information.
After the collapse of East Germany, 3 Respondent and her co-conspirators began spying on behalf of the then-Soviet Union. After the Soviet Union dissolved, Respondent continued her activities on behalf of the Russian Federation.
In 1995, Respondent established an espionage relationship with the Republic of South Africa by writing a letter, under a false name, to a senior official in the South African government and the South African Communist Party. Respondent and a co-conspirator then attempted to commit espionage with an individual who purported to be a South African intelligence officer but who, in fact, was an FBI agent operating undercover. Respondent copied three classified Department of Defense documents and delivered them, with an additional, original document, to the undercover agent. Respondent continued meeting and corresponding with the undercover agent until her arrest in October 1997.
Analysis
Our inquiry begins with D.C.Code § 11-2503(a), which provides in pertinent part:
When a member of the bar of the District of Columbia Court of Appeals is convicted of an offense involving moral turpitude, and a certified copy of the conviction is presented to the court, ... the name of the member of the bar so convicted shall be struck from the roll of the members of the bar and such person shall thereafter cease to be a member.
The question for the Board, then, is whether Respondent has been convicted of a crime of moral turpitude. “To be sure, the statute is mandatory in its terms.”
Col-son,
Respondent was convicted of four offenses: (1) conspiracy to commit espionage, 18 U.S.C. §§ 794(a), (c); (2) attempted espionage and aiding and abetting thereto, 18 U.S.C. §§ 2, 794(a); (3) obtaining national defense information and aiding and abetting thereto, 18 U.S.C. §§ 2, 793(b); and (4) making a false statement, 18 U.S.C. § 1001. Neither the Court nor the Board has ever considered whether any of the three espionage-related offenses constitutes moral turpitude per se. We accordingly proceed, as Colson directs, to consider whether any of those offenses involve moral turpitude per se.
There is no easy, bright-line definition of “moral turpitude.”
See Colson,
(1) “the act denounced by the statute offends the generally accepted moral code of mankind,” id. at 1168; or
(2) “[a]n act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man,” id. (quoting 2 Bouv. Law Dictionary 2247 (Rawle’s 3d rev.)); or
(3) the “[c]onduct [is] contrary to justice, honesty, modesty, or good morals,” id. (quoting Black’s Law Dictionary 1160 (4th ed.1951)).
In evaluating the statute, we consider whether the least culpable offender under the terms of the statute necessarily engagеs in conduct that offends the
Colson
standard.
See In re Hutchinson,
Counts 1 and 3, 18 U.S.C. §§ 2, 791(a), (c).
In general, § 794(a) makes it a crime
Count h, 18 U.S.C. § 2, 793(b). Section 793(b) punishes the obtaining of national defense information with the intent or reason to believe that the information will be used to the injury of the United States or to the advantage of a foreign nation. 5
We first analyze the convictions under Counts 1, 3 and 4, because similar issues are raised by the statutes involved. Together, § 793 and § 794 punish both the acts of obtaining and transmitting in the course of espionage.
Bar Counsel contends that the offenses at issue here do not involve moral turpitude per se. Bar Counsel concludes that moral turpitude is not present on the face of the statutes because a defendant could be convicted based on intent to cause injury to the United States or to give advantage to a foreign nation (without necessarily harming the United States). Bar Counsel apparently assumes that the only element of such an offense that would involve moral turpitude per se would be to harm the United States, which is not necessarily present in every ease of a conviction under § 794(a) or § 793(b). See Brief of Bar Counsel at 8.
We disagree with Bar Counsel’s effort to separate the purposes of harming the United States or giving advantage to a foreign nation. When the Board аsked by
In upholding the espionage statutes against constitutional attack, the Supreme Court in
Gorin v. United States,
The Court in
Gorin
explained why espionage is a serious crime damaging to the national interest even where the destination of our nation’s secrets through espionage is a friendly nation. “No distinction is made between friend or enemy. Unhappily the status of a foreign government may change.”
Gorin,
The facts of
Gorin
highlight why the Board recommends here that §§ 794(a) and 793(b) be held to involve moral turpitude
per se.
In
Gorin,
an American civilian military official, Salich, had transmitted over fifty secret reports concerning Japanese activities in the United States before World War II to a Soviet spy, Gorin.
See Gorin,
Respondent hypothesizes a prosecution under § 794 “against a civil servant working within a government office who, with intent to aid a peacetime ally of the United States, faxed a photograph of a new American fighter plane to a private citizen in Great Britain.” Resp. Reply at 4. Such disclosure, to be punishable under § 794, would have to be done intentionally for the purpose of aiding another foreign power. The act of disclosure inevitably breaches the trust reposed in that employee to keep the mаterial secret. Once the circle of secrecy is broken, there is no control over how the defense information will be used or where it will go. Those dangers and realities accompany every violation of § 794. It is the breach of trust that offends the generally accepted moral code of mankind when it occurs in a context of secret information involving the national defense.
The second
Colson
factor for moral turpitude is instructive here. Moral turpitude includes an “act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.”
Colson,
Although not conclusive, we note that even a defendant who violated § 794 intending, as Bar Counsel and Respondent hypothesize, solely to aid another foreign nation (without harming the United States) could still receive the death penalty.
6
Even when the death penalty is not sought by the United States, the penalties for someone convicted of these statutes are severe. A single viоlation of § 794(a) can be punished with life imprisonment or a term for years. A violation of § 793 can be punished with up to ten years of incarceration. The United States Sentencing Guidelines make clear, in practice, the severity of these offenses. A violation of § 793 warrants a base offense level determination of between 30 and 35, while a violation of § 794 results in a base offense level between 37 and 42.
See U.S. Sentencing Guidelines Manual
§§ 2M3.1,
It is clear why Congress and the Sentencing Commission have seen fit to provide such severe penalties for the offenses in question. Espionage — its component parts being the gathering and transmitting of national defense information — is a crime against the security of our republic. Unlike an assault or theft, the victim here is not one person but the entire nation.
Thus, we conclude that a criminal conviction under 18 U.S.C. § 793(b) or § 794(a) constitutes a conviction of a crime of moral turpitude per
se.
Respondent’s convictions were for conspiracy to commit espionage under § 793(b) and attempted espionage under § 794(a). The fact that those convictions were for conspiracy and attempt counts does not alter the conclusion that her crimes involve moral turpitude
per se.
In
In re Lobar,
Count 5, 18 U.S.C. § 1001.
In
In re Sweeney,
Conclusion and Recommendation
Based on the foregoing, the Board recommends, pursuant to D.C.Code § 11-2503(a), that Respondent’s name “be struck from the roll of the members of the bar.” D.C.Code § ll-2503(a).
BOARD ON PROFESSIONAL RESPONSIBILITY
By: s/ Patricia A. Brannan
Patricia A. Brannan
Chair
Dated: March 9, 2001
All members of the Board concur in this Report and Recommendation, except Mr. Wolfson and Ms. Taylor, who were recused, and Mr. Knight, who has filed a separate dissenting opinion.
DISSENT OF BOARD MEMBER
PAUL L. KNIGHT
After considering thе two espionage statutes in question, namely 18 U.S.C. § 793(b) and § 794(a), I am not convinced that they involve moral turpitude
per se.
The statutes in question prohibit a very broad range of conduct, some of which may not offend the generally accepted moral code of mankind or implicate moral depravity as that term is used and defined
Respondent was convicted of aiding and abetting attempted espionage, in violation of 18 U.S.C. §§ 794(a) & 2, aiding and abetting the obtaining of national defense information, in violation of 18 U.S.C. §§ 793(b) & 2, and making false statements, in violation of 18 U.S.C. § 1001. The elements of aiding and abetting attempted espionage, summarized from the instructions used during Respondent’s trial, are: (1) that she aided and abetted an attempt to transmit documents or information relating to the national defense to a foreign government or its agents; (2) that she acted with the intent, or with reason to believe, that the documents were to be used to the injury of the United States or to the advantage of a foreign nation; and (3) that she acted willfully. See Brief of Bar Counsel, Tab D. The elements of her conviction for aiding and abetting the obtaining of national defense information are: (1) that she aided and abetted the taking, copying or obtaining of national defense documents; (2) that the national defense documents were taken, copied or obtained with the intent, or with reason to believe, that the information was being used to the injury of the United States or to the advantage of any foreign nation; and (3) that she acted willfully. See id.
Both the indictment and the jury instructions show that Respondent’s purpose in obtaining the documents was charged in the disjunctive. She could have been found guilty by the jury regardless of whether her purpose was to harm the United States or to help another сountry. If the offense only involved the attempt to harm the United States, it might well involve moral turpitude per se; however, trying to help a foreign country might not. For example, a lawyer could be found guilty of violating these statutes even if the foreign country was a close ally, such as Canada or Great Britain, an even if the national defense information was provided free of any quid pro quo and for purely humanitarian purposes — such as, hypothetically, to help either of these countries rescue their citizens who were in mortal danger due to a terrorist threat. Under the leаst culpable defendant analogy, it is possible that such a misguided but well-intentioned lawyer could be convicted under either 18 U.S.C. § 793 or § 794. Such a conviction might not inherently involve moral turpitude.
While the majority opinion correctly points out, per
Gorin v. United States,
In order to prove the offenses charged under 18 U.S.C. §§ 793(b) & 794(a), the government must show that [the defendant] intentionally performed the acts charged and that he did so with “intent or reasоn to believe that the information [delivered] is to be used to the injury of the United States, or to the advantage of any foreign government.” Contrary to the suggestion of [the defendant], this showing is all that the Supreme Court required when it stated that a person may not be convicted under these statutes absent a showing of “bad faith.” See Gorin v. United States,312 U.S. 19 , 27-28,61 S.Ct. 429 , 433-34,85 L.Ed. 488 (1941).
Id. at 1277-78.
Thus, the contention of the defendant in
Miller
that the government should have been required to show that the defendant
With regard to 18 U.S.C. § 793(b), it even allows the prosecution of individuals who can, in the normal course of their employment, lawfully possess such national defense information. This lawful possession becomes a criminal offense only if there is additional proof of an intent by the possessor of this information that it was to be used to the injury of the United States or to the advantage of any foreign nation. If this possession was solely under the second prong, i e., with intent to give advantage to a foreign nation, such conduct, while illegal, might well stem from humanitarian underpinnings and not involve moral turpitude. It is also significant that there is no requirement under § 793(b) that any national defense information actually be transmitted to a person or country not entitled to receive it. That activity, i.e., the actual transmission of such national defense information, is prohibited by § 793(d), if the national defense information was lawfully obtained, and by § 793(e), if the acquisition of such information was by unauthorized means.
Based on a review of the elements of these offenses, it does not appear that they necessarily involve moral turpitude
per se.
Since there is an issue, we should err on the side of having an evidentiary hearing and developing the facts.
See Colson,
s/ Paul L. Knight
Paul L. Knight
dated; March 9, 2001
. The Grand Jury appears not to have returned a true bill as to a “Count 2.” The indictment refers only to Counts 1 and 3-5. See Indictment, United States v. Clark, Crim. No. 97-948 M (E.D.Va.).
Notes
. On or about March 23, 2001, Ms. Squilla-cote filed an affidavit in conformity with D.C. Bar R. XI § 14(g).
. This brief factual statement is drawn from the Fourth Circuit opinion affirming Respondent’s conviction,
United States v. Squillacote,
. East Germany (the German Democratic Republic) and West Germany (the Federal Republic of Germany) were unified on October 3, 1990.
. Section 794(a) reads:
(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life.
. Section 793(b) reads:
(b) Whoever, for the purpose [of obtaining information respecting thе national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation,] and with like intent or reason to believe, copies, takes, makes or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense[,]
Shall be fined under this title or imprisoned not more than ten years, or both.
. The death penalty is authorized only when a United States agent is killed as a result of the espionage, or the national defense information concerned nuclear weaponry, military spacecraft or satellites, early warning systems, other means of defense or retaliation against large-scale attack, war plans, communications intelligence or cryptographic information, or any other major weapons system or major element of defense strategy. 18 U.S.C. § 794(a). Although these special circumstances may not be present in a "least culpable” case, the fact that the death penalty is authorized at all for this offense gives the Board significant pause on the question of moral turpitude.