United States v. Phillip Ray Jeter

WELLFORD, Before MERRITT and Cir- EDWARDS, Judges, cuit and Senior Circuit Judge.

WELLFORD, Judge. Circuit Jeter, Defendant, appeals Phillip Ray on two from his conviction substantive conspiracy illicitly counts and one count for obtaining participating the distribu- and sheets used in the imprinted tion of carbon typing of secret documents against charges proceedings. The three eight-count in- were contained Jeter three other individ- charging dictment also Lambert, Madden, uals, Purdy Anita James Halsey, acquitted. and Marlene who were 1) violating guilty of Jeter was found larceny (stealing statute federal 641; 2) the property), 18 U.S.C. ment statute, justice federal obstruction of 3) 1503; conspiring under 18 U.S.C. § (as these statutes 371 to violate U.S.C. § Rule of Criminal Procedure well as Federal 401). 6(e) and 18 U.S.C. § spring jail during the While in gained interest in media apparently Jeter proceedings in Lex- coverage drug dealers surrounding reputed ington ArnoIdTCirkpatrick. attorney, P. Lambert and James who insisted that copies sympathetic wrote a letter to co-de- turned over to the court. Jeter Jeter and the Madden, fendant an associate of Lambert others were then indicted and stood trial. Kirkpatrick, picketed who had outside conviction, After trial and the court sen- protesting a local television station the un- tenced Jeter to a term of years impris- two alleged illegal coverage drug fair about onment each on the conspiracy count of her friends. activities (Count 1) larceny and the (Count property 3). Lexington count Septem- returned to sentences Jeter concurrently. were to be served began apartment ber 1983 and to visit court suspended Halsey, typist sentence on the of co-defendant for a fed- obstruction of (Count 6) count reporter court service. favor of a eral October five year probationary period Halsey’s employer gave her after materials service of involving grand sentence on the other type jury testimony two counts. investigation, from the Lambert and Hal- appeal In this Jeter makes a number of sey gave papers typ- Jeter carbon used in legal challenges to his three-count convic- ing grand jury transcripts. these respect tion. With to the conviction for government introduced evidence at trial larceny argues under 18 U.S.C. Jeter § paper that the carbon in effect created a 1) alternatively that paper carbon at copy transcripts third of the which could issue does not fall within the meaning of easily deciphered. read and Justice government property “thing value,” charged Department paid was and $1.75 2) and the value of the paper carbon does per original page per copy and 90 cents requisite not exceed the one hundred dollar page transcript grand jury pro- for the ($100) required minimum for felony con- ceedings. viction. Jeter contends a similar vein paper that his use of the arranged meeting soon thereafter carbon does not

Jeter justice fall within the federal grand jury target obstruction of with Lambert to show (18 1503). statute U.S.C. As to the sample page him a of the con- § carbon tran- spiracy charge, argues he that the scripts. explained Jeter that he wanted to insufficiently illegal ment identified the ob- get government thought even with the ject conspiracy of the and also failed to that treating was also introduce sufficient evidence for a convic- Lambert, unfairly. Lambert who knew argues Finally, larceny tion. Jeter that the reputation, Jeter refused to trust and obstruction of statutes must Jeter until a mutual friend vouched for vagueness suffer from unconstitutional friend, Piper Jeter. This mutual Edwin and overbreadth under the First and Fifth (who indictment), was included if applied Amendments to his breaches of eventually transcripts delivered the carbon grand jury secrecy. to Lambert. eventually Jeter became a frequent visitor at Lambert’s house. The essentially Appellant Jeter raises the government introduced evidence that Lam- except pertaining same issues those to the associate, bert instructed another Rocco conspiracy question This count. is whether ($300) Lango, give three to hundred dollars legitimate falls his outside the Jeter, apparently to to cover some of his statutory scope of the felonies for which he expenses. (larceny was convicted—18 U.S.C. 641 § government property) and 18 U.S.C. 1503 § papers Lambert took carbon to his (obstruction justice). Madden, subject who was also the associate grand jury testimony. of discussion essentially suggests He two reasons for retyped transcript testimony Madden believing that these statutes do not reach documents and made more broadly enough activity. from the carbon to cover his illicit First, copies. They copies argues secrecy grand then took of the re- he target protected exclusively by typed transcripts jury proceedings Kirk- contempt power patrick. copy his the criminal under Federal Lambert also took a 6(e) 6(e) I. RULE APPLIES TO Procedure WHETHER of Criminal Rule secrecy precludes rule PRE- language of this JETER’S ACTIVITY AND/OR statutory frame- any other UNDER application CLUDES PUNISHMENT specific Second, argues that the he work. RULE. ANY OTHER STATUTORY 641 and 18 U.S.C. of 18 U.S.C. application argument first address Jeter’s We statutory construc- require 1503 would 6(e)(2) Federal Rules of Crimi- Rule fail due meaning that would of their tions and ex- Procedure constitutes “the sole nal overbreadth constitutionally deficient safeguarding means of clusive vagueness. 6(e)(2), testimony.” ti- Rule therefore, emphasize, must We Secrecy” pertaining tled “General Rule of question essential nature of the precise grand juries, provides: to federal appellant no appellant. The by the raised interpreter, a grand juror, A an ste- activity is be argues that his own where operator recording nographer, an punish of criminal yond the boundaries device, typist who transcribes record- by the First Amendm protection ment due to testimony, attorney ed con claims that no He nevertheless ent.1 any person to whom government, or stat stitutionally construction valid paragraph disclosure is made under activity. Accord presently ute covers (3)(A)(ii) shall not this subdivision Jeter, 6(e) is the exclusive ing occurring disclose matters before the secre punishment means except provided grand jury, as otherwise applicable rule is not and the cy violations obligation for in these rules. No se- to him. person crecy may imposed any be 1) indisputably here an At issue are: rule. A except in accordance with this against statutory prohibition broad-gauged may knowing violation Rule 6 be of jus- system federal of with the interference contempt punished as a court. of 1503); 2) statutory (18 tice U.S.C. § added). (Emphasis The above referenced taking prohibits the plainly framework 6(e)(3)(A)(ii), another provision, Rule adds from the any “thing of value” of secrecy by this group to the list covered 641); 3) (18 a federal ment U.S.C. § according group, to Rule rule. This contempt pow- criminal triggering rule 6(e)(3)(A)(ii), composed of is against the viola- er use as a sanction (ii) personnel as are government such (Rule 6(e)). We grand jury secrets tion by attorney for the necessary an deemed argu- no reasonable basis for Jeter’s find attorney to assist an First that his deserves ment performance of such government in the seriously con- protection. We crimi- attorney’s duty to enforce federal argument that either or both sider his nal law. in the specific statutes chosen here the two 6(e)(2) represents the main prosecution and conviction of Jeter do pre- statutory expression of the common activity. apply to his Doug- Jeter, event, speech. with See any interference Appellant could not make stitutional Northwest, grand Stops passing Company of secret v. Petrol a credible claim that las Oil 1667, 1672, deserving 211, 218, jury information was somehow 60 L.Ed.2d S.Ct. U.S. protection. In Frohwerk (1979) functioning grand First Amendment ("proper our 249, 204, 206, S.Ct. grand secrecy system depends upon 250, stated: Justice Holmes 63 L.Ed. 561 Johnson, jury proceedings"); United States that neither Hamilton "We venture to believe 1233, 1238, 503, 513, 87 L.Ed. Madison, competent person nor other nor (1943) grand jury proceedings (secrecy of later, supposed crimi- that to make or ever then system justice); “indispensable” see also counseling be an murder ... would of a nal Wright, & Procedures Federal Practice 1 C. By speech.” with interference unconstitutional (1982) (“The great importance of at § token, suppose that no one would the same secrecy grand jury while preserving the punishment to transmit scheme criminal considering grand jury a matter can is still exclusively to sus- information secret pected hardly questioned"). grand jury targets represents uncon- sumption grand jury proceedings ment, or any person to whom disclosure is should remain secret. See United States paragraph (3)(A)(ii) made under of this sub- Co., v. Proctor & Gamble U.S. [i.e., division necessary governmental 2 L.Ed.2d 1077 personnel]” [emphasis It simply added]. (1958); Douglas see also Oil Co. v. Petrol illogical to attempt 6(e)(2) to construe Rule Northwest, Stops U.S. 99 as mandating that all other classes of (1979). By individuals can act destroy terms, however, 6(e) applies its own “Rule proceedings without criminal privy ... to individuals who are to the sanction.2 information contained a sealed document positions virtue of their in the crimi ” II. WHETHER JETER’S ACTIVITY justice system. nal Newspapers Worrell CONSTITUTED OBSTRUCTION OF Indiana, Westhafer, Inc. v. 739 F.2d JUSTICE UNDER 18 U.S.C. § (7th Cir.1984) added), (emphasis — -, aff'd, justice statute, obstruction of see also Fund For U.S.C. specifically forbids the influ- Constitutional Government v. National encing, intimidation, or impeding of any Archives, (D.C.Cir. 870 n. 33 witness, juror, or court official. The stat- 1981); Wright, 1 C. Federal Practice & ute also clause, contains an omnibus which Procedure at 146 n. 13 punishes general obstruction of the arguing

Jeter is thus correct in “due that he is justice.” administration of The omni- 6(e)(2) persons not one of the on which Rule bus clause covers “whoever ... corruptly imposes responsibility secrecy. He force, or threats of by any threaten- right present had no official to be or to ing communication, influences, letter of ob- grand jury testimony pro- transcribe structs, or impedes, or endeavors to influ- ceedings. expand We cannot ence, obstruct, impede, the due adminis- jury secrecy beyond plain rule lan- tration justice” [emphasis added]. guage 6(e)(2) of Rule encompass order to Jeter. As noted, the Second Circuit has key “the words in the statute [section 1503] hand, however, On the other the ” ‘corruptly’ are and ‘endeavors.’ United plain language 6(e)(2) of Rule does sup not 1111, Cioffi, States v. 493 F.2d 1118-1119 port part that of Jeter’s contention that (2d Cir.), 419 U.S. 95 punishment this rule somehow forbids of S.Ct. 42 The stat unjustified grand jury disclosures under utory language clearly encompasses “en statutory 6(e)(2) other rule. Rule attempts deavors” or to obstruct the ad obligation states: “No secrecy may of be justice ministration of regardless of the imposed any person except in accord in success actual obstruction. See United ance with surrounding this rule.” The lan Russell, 138, 139-40, States v. 255 U.S. 41 guage clearly supports the view that this (1921) S.Ct. L.Ed. (construing 65 553 only against limitation refers to action the language predecessor statute); similar aforementioned class of individuals who (“The Cioffi, endeavor, 493 F.2d at 1119 on-going obligation owe a formal and of not, whether secrecy gist due to their successful or is the of the connection with the offense.”). grand jury juror, interpret justice an obstruction of stat “[a]— er, stenographer, operator a an ute also contains require of a record a clear mens rea device, ing typist scope who record ment that limits its transcribes to those who testimony, attorney ed for the “corruptly” intentionally seek to ob- 6(e)(2) -, supplies general provi 2. While Rule "the 105 84 L.Ed.2d 309 it secrecy give prescribes sion for in order to to and also and limits the exercise of the effect protect [grand jury] contempt powers sealed records." Worrell court’s criminal for all disclo- Indiana, See, Newspapers Westhafer, 6(e). e.g., Inc. v. 739 sure mentioned in Rule 6(e)(1), Rules — (7th Cir.1984), (e)(2), (e)(4), (e)(6). F.2d 1223 aff'd 676 Howard precedent justice. provides substantial the administration

struct due supporting a under conviction of Jeter Cioffi, supra, 493 See 1119. F.2d at Jeter, nevertheless, 1503.3 ar- 18 U.S.C. § of the to the construction first look We gues adopted that this court has more 1503 to de U.S.C. 18 omnibus clause § language of the omnibus restrictive view specific the kind it reaches termine whether 18 1503. U.S.C. § United In by Jeter. attempt launched Essex, v. In 407 F.2d Howard, (5th Cir.), v. States F.2d (6th Cir.1969), appeal this court heard the Ritter United sub nom. cert. denied defendant who had been convicted States, testimony. trial In 1503 for false under § Fifth cited (1978), the Circuit L.Ed.2d considering whether omnibus clause courts emb numerous concurred with perjury, acts of we stated: reached “the omnibus clause that racing view As a criminal statute U.S.C. § itself, regard justice at obstruction aims requires general strict construction. that re to reach of the means used less end, moreover, at its must be read clause United 1334-35. See also Id. at sult.” only to embrace acts similar those London, F.2d 1566-67 language. preceding specific mentioned How following Cir.1983) (11th (citing and ili Ha Howard, case, ard ). in the instant In Cir.1958). selling se were accused the defendants Id. at Essex clearly 218. invoked rule The Howard testimony. cret regarding strict construction of criminal bribing judge court stated that “[i]f ejusden generis.4 known as In statutes grand jury material consti disclose Essex we decided that U.S.C. § then so does justice, tutes an obstruction testimony, failed to reach such acts of false of that materi disclosure appropriation and specific statutory but because clause], for the re al the omnibus charge perjury, 18 U.S.C. was [under same, proceed particular clearly sult is the to cover tailored In instant case there is F.2d 1335-1336. criminal action. ing is at breached.” personnel, were whether defendants Howard the Fifth Circuit decided not trial, among things, ob- prosecuted at convicted the two defendants could under Section 1503 and vio- struction U.S.C. In dictum the Howard court 6(e). appeal the Ninth Circuit lation Rule On two “defined Rule stated defendants challenge to reach defendants’ refused 6(e) by selling transcripts." Id. at 1336. We 6(e) represented a because it Rule convictions as insuffi- this dictum statement Howard find its would sentence and elimination concurrent 6(e) support for the view also cient reduce the defendants’ sentence. 445 6(e) may actually Jeter. Rule still have covers 1089; Maryland, see Benton v. at 790, applied to one the Howard defendants at least (1969) (Ritter) reporter,” because he was a "court id. at (discretionary use of "collateral sentence" doc- apparently n. and thus one those 1335 trine). contrary posi- Friedman takes no Thus explicitly necessary personnel cov- persons employ- other than tion that 6(e). opinion The ered under Rule Howard 6(e)(2). punished can be under Rule ees having appears to the defendant as treat other reporter. Its as the court state- the same status ejusdem generis that: rule of states therefore, 6(e), may not conflict ment Rule general where words follow an enumeration understanding our about the limited reach with things, by particular persons or words of event, 6(e)(2). any In Howard does not of Rule general specific meaning, such words are exclusivity support view Jeter’s about extent, their but not to be construed in widest 6(e)(2) under Sec- because the convictions only persons applying or to held as to are be upheld. 1503 were tion things general or class as of the same kind Friedman, v. F.2d 1076 In United States specifically mentioned omit- [citations those (9th Cir.), rule, however, cert. denied sub nom. Jacobs United necessarily does not ted]. require L.Ed.2d 275 general provision be limited that the appeal things specifically the Ninth Circuit considered scope the identical its apply convicted on of two defendants who had been Nor does it when context named. contrary numerous counts for involvement in scheme intention. manifests 1979). Although ed. grand jury transcripts. DICTIONARY464 distribute LAW BLACK’S obviously applicable statutory no such specifically rejected tion. We argu charge limiting scope by the omnibus ment advanced defendant that § clause. covers justice “obstruction of achieved through intimidation,” force or id. at Contrary to argument, Jeter’s and affirmed that the omnibus clause could this court has never held that obstruction applied against a defendant who hid a from under the omnibus clause must stem testifying witness from before the “intimidating In actions.” jury. The Ninth Circuit itself has recently (9th Cir.1970), Metcalf, F.2d repudiated the intimidating action Metcalf the Ninth Circuit limi endorsed this severe limitation as mere “dicta” that does not being required by ejusdem tation as gener accurately reflect law in that circuit. limiting is. Such the omnibus clause Rasheed, See United States v. 663 F.2d actions,” however, “intimidating jus is not (9th Cir.1981), 851-52 necessary symmetry tified between U.S. specific general the statute’s criminal Lester, United States v. prohibitions under ejusdem generis. The (9th Cir.1984). 1293 n. 3 specific prohibitions initial in 18 U.S.C. areWe satisfied that no rule of statutory clearly cover more than “intimidat prevents construction Section 1503 from ing plain language actions.” The there applying to Jeter’s conduct in this case. applies corruptly, to “whoever or activity His reasonably can be character- force, by any threatening threats of or an attempted ized as obstruction of communication, letter of in endeavors to ” the meaning within of the statute. United fluence, intimidate, impede any or wit Howard, supra. ness, or court official. 18 U.S.C. § added). (emphasis specific part The first Appellant complains Jeter also that the the statute thus corrupt covers the but not use of the omnibus clause in 1503 to bribery necessarily coercive illicit other his activity reach necessarily involves an persuasion judges, witnesses, overbroad construction in violation Thus, according principles officials. to the complain- First Jeter Amendment. is thus ejusdem generis, the omnibus clause ing any encompassing construction apply can also to non-coercive conduct used constitutionally this statute is invalid “not by Jeter obtain informa rights ... expres- because own of free [his] typist tion from his violated, friend. sion are but because the existence statutory may ... [of construction] Faudman, States v. cause others hot the court to refrain before (6th Cir.1981), specifically this court re- constitutionally protected speech from jected intimidating actions limitation. Oklahoma, expression.” Broadrick v. explicitly We refused to follow “the more view of restrictive the statute U.S.C. [18 (1973).5 espoused in Id. at § 1503]” Metcalf. We held that the omnibus clause reached similarly complains Jeter use who purposefully defendant de- altered or against the omnibus clause his in stroyed corporate sought records in a a statutory volves construction that is void- grand jury investigation. for-vagueness Id. In the sub- process the due clause sequent case of United States v. Fifth thus com Amendment. Jeter Schaff- ner, (6th Cir.1983), 715 F.2d 1099 reit- plains covering we construction rejection activity erated our of the limita- would 1503 transform Section into Metcalf 571, 558, York, 5. We note that some of have v. U.S. 68 members the Court Saia New 334 S.Ct. 1155, J., exceptional aspect 1148, (1948) (Jackson, denounced this First of 92 1574 L.Ed. jurisprudence attempt Amendment as an at dissenting) imagin- on the basis "irrational Hamlet,” "playing ‘Hamlet’ without Winters v. State, Aptheker Secretary ings,” 378 v. U.S. 527, 675, York, 507, 665, New 333 U.S. 68 S.Ct. 525, 1659, 1673, 500, 84 S.Ct. 12 L.Ed.2d 992 (1948) J., (Frankfurter, dissenting), 92 L.Ed. 840 J., (1964) (Clark, dissenting). "abstract, deciding questions,” and as academic 678 constitutionally cog vague that We can see no so in “terms statute drafted

a necessar in this intelligence speech-act must nizable Jeter’s conduct men of common differ as to its meaning, publish and than the ily guess at its case. Rather information Con Connally General application.” general public, clearly attempt to the Jeter Co., 46 S.Ct. 269 U.S. struction his illicit from all keep ed to action secret (1926). 126, Fifth 127, L.Ed. 322 Jeter’s 70 grand targets and his persons but void-for-vagueness argument Amendment co-conspirators.7 His conduct would First Amendment with his is intertwined type of merely to constitute another seem agree with the argument. We overbreadth ordinary in a con criminal communication law cov an overbroad “whenever view that spiracy traditionally that has been found form activities and ering first amendment undeserving any pro First Amendment privi of first amendment less standards 206, Frohwerk, 249 U.S. 39 tection. See at opera result is an leges conjoined, the are (cited supra ).8 at 250 at n. S.Ct. tive, reality suffering due legal injurious primary conduct which is affected [T]he Note, vagueness.” The First process to a by the law at issue must substantial Doctrine, 83 Overbreadth Amendment expressive and extent be the kind of 844, (1970).6 Harv.L.Rev. which at least associational behavior application particular In case this a to the protection has colorable claim In inappropriate. is doctrine overbreadth [AJmendment. [First] 601, Oklahoma, 413 U.S. Broadrick Note, First Overbreadth Amendment (1973), 2908, the Su 37 L.Ed.2d S. Ct. 844, (1970) Doctrine, 83 Harv.L.Rev. the over- application of preme limited Court added). (emphasis ordinary expression An stating “particu by doctrine breadth by conspiratorial as demonstrated intent merely speech larly and not where conduct expressive is the kind of or asso- Jeter involved, overbreadth is we believe ciational with even a colorable behavior real, only but of a must not statute protection. to claim First Amendment well, in relation to judged substantial statute The obstruction sweep.” plainly legitimate Id. statute’s over- requires unconstitutionally neither 615, accept at at 2917. We cannot 93 S.Ct. application vague to Jeter’s con premise possible all con broad speculative duct, failed that some since he to establish encom statute structions obstruction activity regarding protected constitutional activity substantially have a passing Jeter’s must rights. passing information chilling effect First Amendment subscribers, who, "A,” terms of which 6. overbroad statute covers both [A]n five “B,” priv- agreement, unprotected activity, subscription is is which could not dissemi- vague may ileged; trigger 'strong restrictive “any statute on a it nate further” failed to “A," reading be but on some rea- confined to free of commercial [or interest in the flow readings "B.” In ei- ”, sonable its terms reach 105 S.Ct. at 2947 other kind information’ of] case, wishing engage privi- ther an actor Board). pass- Virginia Pharmacy (quoting leged doubt as inhibited exclusively ing information immunity statutory from burdens. jury targets here between Jeter 83 Harv.L.Rev. at 871 n. 104. principal this First has even less relation to regarding a free flow interest emphasized Court has numerous cases the public information. importance values First Amendment See, e.g., public Vir- free flow of information. Virginia ginia Pharmacy Consumer Board v. Note, Amendment Over See also The First Council, Doctrine, (1970) breadth 83 Harv.L.Rev. Mandel, (1976); L.Ed.2d 346 Kleindienst (noting ‘conspir that "the affected activities 762-63, 33 L.Ed.2d great acy run of situations bear laws ... FCC, (1972); Broadcasting Co. v. Red Lion protec claims First Amendment no colorable tion."); Alstyne, Graphic generally A see Van case of Dun & In the recent Clause, Speech Free Review the Calif.L.Rev. — Builders, Inc., Bradstreet, Inc. v. Greenmoss Greenwalt, Speech and 115-120 U.S.-, Crime, J. 645. Research Am.Bar Found. however, Supreme emphasized that Court report available to credit “made commercial within 1508 if statute also fall sures of material. We are also § prohibit particular activity. inadvertent, construed to his dealing with negligent, or justice of We hold the obstruction even non-purposeful reckless disclosures. applied pass here statute as and construed reach is clearly statute limited es test set out the constitutional Broad constitutionally to such unprotected and Oklahoma, 413 rick v. U.S. 93 purportedly illicit as that under- 37 L.Ed.2d 830 S.Ct. Jeter; taken its application therefore to proves vague fashion that also its lack Jeter is neither overbroad under the First ness. nor void-for-vagueness the Fifth Amendment.9 justice pos-

The obstruction of statute culpability limited sesses a standard constitutionally its coverage

confines un- III. WHETHER JETER’S ACTIVITY protected activity, from which stems its CONSTITUTED A LARCENY IN- explicit requirement per- mens rea that a A VOLVING “THING OF VALUE” “corruptly” son must endeavor to interfere EXCEEDING THE $100 FELONY justice. with the due administration of REQUIREMENT. impede must the due Thus one administra- statute, larceny federal 18 U.S.C. general justice tion of with intent of 641, applies to knowledge as the specific well as intent of embezzles, steals, Whoever purloins, purpose to v. obstruct. Pettibone United knowingly or converts his or the use States, 207, 542, 197, 546, 148 U.S. another, use of authority, or without (1893)(“the specific 37 L.Ed. 419 intent to sells, conveys disposes or any record justice] violate the statute [obstruction thing ... or value the United conviction”); justify must exist to United or States ... Rasheed, 843, F.2d States v. receives, conceals, Whoever or retains (“We Cir.1981) ‘corrupt hold that word with same intent to convert it ly’ as used the statute [Section 1503] gain, knowing own use it or to have been means that act must be with done embezzled, stolen, purloined or converted obstructing

purpose justice”) (emphasis added), Phillips sub cert. denied nom. v. person In order to convict a of a 1157, United U.S. S.Ct. 641, felony govern under 18 U.S.C. (1982); 71 L.Ed.2d 315 United States proof beyond ment must show a reasonable Ogle, (10th Cir.1979) 613 F.2d government property doubt that the stolen (“specific requiring intent a bad motive is had value in excess of $100. part crime”), denied, cert. DiGilio, (3d Cir.1976), Lupo cert. sub denied nom. v. United Haas, 220 States, (5th Cir.1978)(“[K]nowledge and intent are (1977). L.Ed.2d 749 The statute declares conviction____ necessary sustain a It is government property one who steals settled that these elements neces two are $10,000 Shall be fined not more than or sary ingredients of offense” under Sec imprisoned years, not more than ten or 1503), tion both; if property of such but value does not exceed the sum he shall $100 dealing $1,000 simply impris

We are not this be fined not more than legitimate year, case non-corrupt with disclo- oned not more than both. one witnesses”). personnel obligation punished 9. Grand who are with We are ‘‘knowing" 6(e) contempt upon for a violation not here called to decide whether under punished cannot also be under the obstruction some circumstance information obtained they pos- statute for disclosures unless published from a witness and then could consti- sufficiently purposeful "corrupt” sess a intent. regardless tute an obstruction under the statute 6(e) advisory See Fed.R.Crim.P. note committee publisher's of die intent. ("The 6(e) impose any rule does not [Rule ] face, par proscribed by means or cenous activities Section “value” The word value, Finally, if in the price, cost whole- we consider “information” or either market “thing greater. statutory construction of of value” retail, is or whichever sale constitutionally is invalid on First Amend- prosecuted and government The ment overbreadth or Fifth Amendment theory 641 on the Jeter under convicted grounds. vagueness in that the information paper a discard constituted the carbon question theOn of whether Section in of As one “thing $100. value” excess of “thing intangi value” involves both government introduced proof, the forms, form of tangible property ble and this court paid the price testimonial evidence about has in the held affirmative. See Burnett copy a transcript original and States, (6th Cir.1955) for the United ($173.25 originals for the and $89.10 (affirmed conviction under Section 641 also refers to oth- government The copy). wrongful per use of services and labor copies another transcript originals and er by government employees); formed see apparently re- investigation which Jeter Croft, also United States v. 750 F.2d typist-acquaintance. The from the Cir.1984) ceived (7th (endorsing Burnett’s origi- transcripts and all received 641). cost of Congress’ very of Section The view $350. then have totalled nals would expansive “thing use of the more of value” “property” strongly implies rather than emphasized government also evi The beyond coverage tangible mere entities. indicating that Lambert authorized dence Hung, v. Troung See United States Dinh to Jeter. The $300.00 transfer Cir.1980) (4th (separate 629 F.2d in ef government that this transfer claims Winter, J., opinion by reaching section of the ma represented consideration for fect judges did Section 641 issue two through Jeter’s efforts. terials furnished case); espionage Chap not reach contra exchange, according to the $300 Thus this States, pell 270 F.2d 274 v. United government, price for represented the Cir.1959) (disagreeing with Burnett and the “thieves’ market.” “information” on intangible government holding value (“value at 538 F.2d Digilio, supra, See employee’s beyond scope to be labor to may by be reference a established 641). Section charge); thieves’ market” Section Solimine, see question The next Jet- —whether (6th Cir.1976) (recognizing concept a larcenous er’s conduct constitutes but not Section 641 thieves’ market by proscribed Section 641—also deserves case), cert. denied sub nom. response. argues Jeter Sclafani clear affirmative States, represent does one vigorously that he not steals, “embezzles, purloins, or know who ingly converts under Section 641 be ...” theory government’s The crux of the government cause the did not lose the property as its of information treatment property possession “thing The value” under statute. informational to But the due his activities. tangible property constituted entity 641 not indicted Jeter under Section discard material otherwise could carbon simply invoking litany of embezzle “thing certainly represent of value” ment, stealing and/or conversion. anything more than over and involve $100 government charged Jeter a misdemeanor violation. embezzle, willfully knowingly did and ment’s on the information as the reliance steal, use “thing purloin and convert to own prime question raises as of value” others, without au- and the use of Section 641 should construed whether sell, dispose prop- convey did tangible thority forms of applying the Unit- not, things If records and value erty things we must value. ,pf is in excess the value of ed which consider whether Jeter’s distribution $100.00, wit, paper lar- carbon one of the information constituted relating contained therein information Under the of justice obstruction 5, 1983, occurring on statute, matters October heretofore, person as noted a must grand jury____ [emphasis a add- before specific have the intent justice to obstruct ed]. making in a disclosure. Under Section This half of if second Jeter’s Section 641—re- “information” is a construed as statutory selling, garding conveying, value,” unauthorized “thing person possess a must disposing things of records and/or knowledge that he or she is trans government— value to United States mitting government information to be distinguishable a describes set activities guilty of a criminal offense. This distinc that are conviction alone sufficient for un- tion concerns, raises First Amendment der hold Section 641.10 And we that the also vagueness concerns about under the clearly evidence could have convinced a Fifth Amendment. guilty jury reasonable that Jeter was At least three other circuits have ad- proscribed 641. such Section dressed or touched on question this wheth- question regarding last The con er government “information” constitutes again struction of Section 641 turns to the property “thing of value” under Section claims of First Amendment overbreadth None, however, 641. par- have faced this vagueness. and Fifth Amendment Like ticular involving situation a constitutional statute, justice the obstruction of Section challenge a party, from defendant not a possesses limiting some standards for government employee. First, applies only conviction. Section 641 conveyances government prop to those Friedman, In United authority.” erty made “without Thus (9th Cir.), cert. denied nom. sub Ja many may routinely pass officials States, cobs v. United running information without (1971), the Ninth afoul of statute. In Morrissette v. Circuit “the defined information” contained States, United grand transcripts jury statutory as the (1952),moreover, 96 L.Ed. 288 “thing of value” under Section 641. The Supreme flatly rejected the idea Court went uphold jury Friedman court on to a liability Section 641 contained strict stan two conviction under Section 641 for indict dard and held that the statute contained a parties ed were with who found traditional criminal intent standard for all grand transcripts jury of their trial. How Therefore, proscribed activities. while not ever, party neither defendant Friedman apparently requiring “specific intent” any regarding raised constitutional issue action, purposeful id. at S.Ct. at within the inclusion “information” found in the obstruction of statutory “thing of a definition value.” statute, requires Section 641 still the tradi (noting See 445 F.2d at the absence of “knowing” tional criminal mens rea of ac law, any argument “as a matter of tion. Thus a disclosure of valuable infor transcripts information contained in the 1) inadvertent, 2) merely mation that was government property.”) was not 3) negligent, or too reckless would fail to Digilio, F.2d 972 trigger prohibitions criminal of Section (3d Cir.1976), Lupo 641. nom. cert. denied sub statute, selling/conveying/disposing It should be half Section remembered that part, targets relevant argument attempts to Jeter's here follow the embezzles, steals, purloins, Whoever or know- presented by analysis lead of the Prof. Nimmer another, ingly converts his use or the use of Security Speech: The National Secrets v. Free sells, authority, conveys, dispos- or without Case, Ellsberg Issues In the Undecided thing es of record ... or of value of the Left language 315-23 Stanf.L.Rev. States____[emphasis added]. Jeter, against government’s indictment government only Thus the to convince had however, exempts statutory clearly it from guilty of either that Jeter was either argument launched Prof. Nimmer. embezzlement/stealing/conversion half or the virtually we Here are confronted with v. United speech activity de under the First the Third Cir- minimis 50 L.Ed.2d involving of se- Amendment communication jury convictions Sec- cuit affirmed exclusively parties pro- cret information who tion defendant in a people conspiratorial FBI handful of small from files. copies documents cured however, group, targets jury investiga- Court, also did Digilio ultimately in ex- $300 tion. Jeter received First Amendment overbreadth reach the change passing on these vagueness issues and Fifth group, not anyone secrets this small The defendants appellants. the raised guilty selling undoubtedly of else. Jeter is of copies FBI in had obtained Digilio something rightfully of that the United States through unauthorized use records keep possession, in its by desired exclusive copying machines government Thus, “thing difficulty of no Digi- in value.” We find employee ment confederate. holding in that such conduct in kind of were made at this copies themselves lio the constituted limited circumstances violates Section 641. government expense and essence, attempt We do not to determine In there- the consti- government property. tutionality fore, tangi- “Pentagon the of 641 in a held that Section Digilio Court the entity Papers” the kind of situation. constituted property ble itself 641 and stated that value Section Considering alternative for our bases case decide whether “we need not in this holding application on the of Section 641 to information falls within appropriation of case, the facts this we note that 641.” 538 F.2d at § might “concurrent sentence” doctrine States, v. 412 Girard, invoked. Barnes United 601 F.2d 69 See States v. United Cir.1979), 39 (2d U.S. Circuit affirmed a the Second (1973); L.Ed.2d 380 v. 641 jury conviction under Section (9th Cir.), 594 Boyce, F.2d 1252 cert. selling and unauthorized transmission denied, 444 62 Drug En- information from the federal (1979); (DEA). Ethridge L.Ed.2d 73 Agency The United forcement defendants (6th denied, States, Cir.), agent F.2d were a DEA and confed- Girard formerly erate for DEA. The 419 U.S. who worked Gallo, part rejected United States v. court thus claims

Girard (6th Cir.1985); overbreadth and First Amendment Fifth Cir.1980), Hung, F.2d 908 by stating Truong Dinh vagueness that the rt. defendants “must have known that the sale ce Since concur prohibit- L.Ed.2d of confidential DEA records was imposed on counts one rent sentences were regulations ed. DEA’s rules and own three, the lead these we could follow forbidding may be such disclosure con- deciding an issue cases which have avoided as sidered both a delineation and clarifi- whose resolution favor defendant proscribed by cation of conduct stat- not his sentence. We do would reduce Subsuming ute.” 601 F.2d at 71. holding on this doc vagueness rest our Section claim into that First Amend- trine, applicability. merely but note its overbreadth, ment the Girard Court went conducting reject necessity analysis such an under the circumstances. THE GOVERNMENT IV. WHETHER REQUISITE Id. THE ESTABLISHED THE ELEMENTS OF CONSPIR- Although all these other Section 641 ACY COUNT. distinguishing aspects, we cases have some clearly 1 of the indictment deeming the lead Count follow of Girard charges Jeter and other defendants with application inappro- instant of Section 641 conspiratorial object purpose of priate for First Amendment overbreadth (or obstructing justice under 18 U.S.C. vagueness) scrutiny. Fifth Amendment § statute, stealing government property and the 18 U.S.C. should be inter- preted 641. This count suffi- criminalizing under 18 U.S.C. as the misuse or mis- ciently defendant of nature of appropriation advises of secret testimo- charge. criminal See Davis United ny judicial or other similar confidential in- (6th Cir.1958) (re- formation. Neither expressly statute conspiracy jecting argument count makes the appropriation of such informa- precision” must “technical all ele- list with Improper tion a respecting crime. conduct ments; “specific reference to a section of grand jury judicial confidential sufficient”). the statutes is Even if the punished, information should be as it tradi- alleged property is theft been, tionally has civil and criminal con- questionable, the obstruction of tempt proceedings. charge unquestionably an sufficient proper functioning of our charge “object” conspiracy. to the depend system upon does The indictment includes the other two re- grand jury proceedings, Douglas Oil Co. v. 1) alleged an quired conspiracy elements of Stops Northwest, Petro 218- 2) alleged overt act in furtherance and 19, 99 S.Ct. Falcone, agreement. United States v. (1979), policy but the of secrecy has histori- 204, (1940). 205, U.S. 85 L.Ed. cally by been through enforced the courts government argues Jeter that the Note, the use of contempt power. the See present failed sufficient evidence estab Jury The Grand as an Investigatory lishing conspired someone else with Body, 590, 74 Harv.L.Rev. 600-01 emphasizes brief that the other Jeter. His Misappropriation of grand jury (Madden, Lambert, co-conspirators indicted transcripts records or violates Federal Yet, Halsey) acquitted. and were as the (4) 6(e)(1), Rules of Criminal Procedure and contends, government the evidence could (6) require which that the records feder- still jury have convinced the that Jeter grand secret, jury proceedings al kept be in “go-between” conspired with unindicted custody the government or control of the Piper, brought together Edwin who Jeter person or under violating seal. A this rule grand and the with Lambert delivered may punished be under contempt papers carbon to Lambert. See United 401(3), gives U.S.C. which the court the 210, Sandy, 605 States v. 215-16 power punish contempts in of a violation Cir.), cert. denied sub nom. Friedlander v. procedure “court rule or order.” The in contempt proceeding pre- such a is (1979)(even though a num 42(b): by dispo- scribed Fed.Rule Crim.Pro. co-conspirators guilty, ber are found not upon open sition notice judge oral the evidence can connect a defendant and an application court on of the the court or U.S. co-conspirator). unindicted We find that Attorney adequate with time allowed for government sufficiently charge did Jet- preparation a rea- defense and conspiracy, presented er with it and that sonable statement of the basis and factual adequate proof conspiracy to sustain a con proceeding. nature of the viction. utilizing contempt pow-

The virtue of CONCLUSION er narrowly is that it can be focused on a summary, 6(e), specific misappro- we find none Jeter’s of Rule violation arguments convincing, accordingly records, priation we of secret disclosure each of the the convictions on can with the be exercised accordance Affirm counts. procedural safeguards provided by Rule , 42(b), and, consistent with the court’s role MERRITT, dissenting. Judge, Circuit controlling safeguarding statute, jury proceeding, need not exercised at federal be

Neither theft if discretion U.S.C. nor the all the court concludes in its obstruction secrecy upheld against vague- had harm- 288 cannot be no that the violation investigation. merely on ness ful effect and overbreadth because the misappropriation particular of some kinds of this rejection traditional The court’s government clearly pro- is information problem of unauthorized approach to hibited some statute or rule. See records raises seri disclosure Nimmer, Security National Secrets v. problems. First Section ous Amendment Speech: Free The Issues Undecided Left statute, no contains standard the theft Case, the Ellsberg 26 Stan.L.Rev. is determining person to be held when (1974)(suggesting if unauthorized criminally liable as one who “converts dissemination of information another, or without his use or the use of constitutes “conversion” section under sells, conveys, disposes authority, then that section overbroad and is as thing of value of the United States.” ... of the First violative Troung Hung, Dinh See parade numerous ordinances struck down (4th Cir.1980), 924-25 they as overbroad because lacked stan- guide granting parade dards to officials in Hub United States v. L.Ed.2d permits). (D.D.C.1979). bard, Un F.Supp. interpretation, court’s the statute der the In reaching the conclusion that mis any disclosure or punish be used to could appropriation government grand jury in information made misappropriation of punishable formation is also ob though 6(e) authority” even “without justice statute, struction of section obligation provides that specifically “[n]o exclusively relies court on United may imposed any person Howard, (5th Cir.), 569 F.2d 1331 rule,” except in with this accordance nom. denied sub Ritter v. United 6(e) Advisory Note on the Committee Rule States, 439 U.S. impose any that “the not states rule does (1978). in The court Howard obligation on witnesses.” construed the omnibus clause of section punishing corruptly or “whoever ... major- for support The reasoned the force, threatening by by or letter threats theft ity’s construction of the statute communication, obstructs, influences, Girard, 601 F.2d United States v. influence, impedes, or endeavors to ob (2d Cir.1979),1 rejected a First which impede, struct the due administration of challenge to sec- overbreadth covering grand the justice” jury as sale of Drug Agen- tion 641 because Enforcement transcripts. mistakenly It found that this regulations cy rules and forbade disclosure reading of the “con statute was broad computerized informant lists and deline- legislative history showing by firmed” proscribed the conduct theft ated the section 1503 was intended to cover con- government’s argument statute. occurring tempts presence outside the criminalizing misuse of infor- court, only contempts occurring while statute, under which itself mation the theft presence within the court’s were intended limiting contains no standard and which statute, contempt under the punished to be broad, interpreted has to criminalize a been The court then reasoned as section 401. range open-ended wrongful takings, well follows: law, beyond the confines of the common form, pro- States, In its current section

Morissette United 240, 254, disobedience or resistance 266 n. 96 L.Ed. scribes Friedman, viction, 6(e) violating by possessing for Rule Cir.), grand jury disclosing recorded Jacobs unreleased cert. denied sub nom. v. United States, proper punish- testimony, means of 404 U.S. S.Ct. was L.Ed.2d event, ment; (1971), opinion in Fried- affirmed in court's a conviction both simply of wheth- contempt man not discuss the issue statute and the theft statute for a does grand jury grand jury informa- conspiracy misappropriation er recorded obtain above, testimony. punished theft statute. contempt under the As noted con- tion should be 6(e), 6(e), rule, requirement re- of Rule as a such as Rule which which viola- court proceedings to be se- punishable of a court rule is quires tion as a and Ritter defied Howard contempt though occurring cret. Since even outside selling transcripts, they 6(e) by court, presence provided of the contempt as defined sec- committed 42(b) procedures of Rule are followed. See omitted) 401, (citation ... and since tion Wright, 3 C. Federal Practice and Proce- contempt perpetrated was out of their dure, (1982); Note, at 819 Proce- court, prohibitions it falls within Trying Contempts dures in the Feder- for section Courts, (1959). 73 Harv.L.Rev. 353 al necessity punish- 569 F.2d at 1336. There is therefore no ing misappropriation infor- read- syllogism rests on a mistaken This mation under the obstruction statute lest it States, ing Nye v. escape punishment altogether. 810, 85 L.Ed. 1172 which Act of March history out the set addition, construing the theft and ob- (4 487), creating the the statute 1831 Stat. struction misappro- statutes criminalize statutes in lan- contempt and obstruction priation information violates virtually to the current ver- guage identical firmly principle the sound and established Nye It sions. was conceded that federal substantive criminal statutes passed to curtail the summa- 1831 Act was manner, should be construed in a limited powers Nye of federal courts. ry contempt Congress unless plainly states an intention contempt limited the held that the 1831Act construed, liberally that the statute be by precluding powers of federal courts in the RICO statute discussed Justice contempts con- summary punishment of opinion Blackmun’s for the Court Rus- obstructing justice sisting of misbehavior sello v. United place physi- unless the took behavior 78 L.Ed.2d S.Ct. proximity cal of the court. 313 U.S. at principle two reasons for this of limited 48-49, speak at 815-16. It did not requirement construction are the of clear power nonsummary to or curtail of public respect notice of criminal laws contempts notice and punish courts to after jurisdiction contrib- limitations on which rule, hearing, contrary and it did systematization of and to utes to the law theory, that the cre- the Howard court’s liberty. individual ation of the statute divested obstruction danger neglecting principle The punish con- power the courts of the all plain: limited construction is under the tempts occurring pres- the actual outside view, improper release of all Court’s ence of the court and left the alterna- including judicial confidential information — prosecution tive of under the obstruction opinions, panel assign- votes and judicial statute. constitute theft of ments —would Instead, if occurs obstructive behavior jus- property ment and an obstruction court, may it proximity within the limiting establishes no tice. Court 401(1), punished under 18 U.S.C. § newspaper reporter principle. lawyer A hearing proce nonsummary notice and if finds out apparently go jail she would 42(b), see, e.g., Higgins dures of Rule panel of the by stealth in advance what (D.C.Cir.1946), 160 F.2d 223 Sixth Circuit will hear a case when 840, 67 hold. opinion released or what it will will be (1947)(an attempt L.Ed. 1851 to influence a judges law clerks and secretaries juror in was the corridor of the courthouse subject prosecution criminal would be and, as punishable contempt), both telling out of school. tales Howard, Friedman, 1078, and 445 F.2d at prob- foregoing For the reasons these misappropria recognized, 569 F.2d at to be handled lems should continue tion of records and tran contempt power, and the courts under the scripts contempt violating is a question language of the statutes should to include them.

not be inflated BOALS, Plaintiff-Appellee,

Charles L.

Cross-Appellant, GRAY, Superintendent,

Frank H. Ohio Reformatory, Defendant-Appel-

State

lant, Cross-Appellee. 83-3887,

Nos. 83-3896. Appeals,

United States Court of

Sixth Circuit.

Argued June 1985.

Decided Oct.

As Amended Oct.

Rehearing Rehearing En Banc Denied 9, 1985.

Dec.

Case Details

Case Name: United States v. Phillip Ray Jeter

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 11, 1985

Citation: 775 F.2d 670

Docket Number: 84-5453

Court Abbreviation: 6th Cir.