United States v. Richard Craig Smith

est, protect unacceptable could itself from

risks. America, UNITED STATES Appellant,

Discussing economicloss in a commercial setting, Spring distinguished Motors a tri- decision, al court Monsanto Co. v. Alden SMITH, Craig Appellee. Richard Leeds, Inc., N.J.Super. A.2d 90 (Law Div.1974), saying that involved No. 84-5240. damage consequential “property eco- nomic loss.” 98 N.J. 489 A.2d at Appeals, States Court of case, 672. In that defective chemicals had Fourth Circuit. damaged plaintiffs caused a fire that Argued By distinguishing warehouse. June 1985. Monsanto ground, court in Spring Motors Decided Dec. recognized the difference between harm to product injury the defective to extrane- property.

ous

Spring also commented on Motors potential person-

situation where claims for injuries might present.

al Since the squarely presented,

issue was not the court However,

had no need to meet it. it seems plain-

inconsistent to limit a commercial recovery damage

tiff’s to a defective

product to contract theories when no other occur,

injuries but to allow a tort action do. Jersey Supreme

The New Court has

adopted policy a fundamental that in a com- setting, loss,

mercial including economic itself,

damage product to the is a matter negotiation and allocation of risk be- parties. fortuity per-

tween the injury

sonal property damage or outside

might occur in addition injury to the product require

defective does not a differ- respect

ent rule with to economic loss. To

deviate from the basic rule would lead to

speculation inquiry unrelated to

negotiations between the commercial enti- contrary

ties. That result would be policy

state’s of encouraging agree- such event, In any passing

ments. reference Spring to a Motors case decided Alas-

ka, Kodiak Electric Ass’n. v. DeLaval

Turbine, Inc., (Alaska 1984), 694 P.2d 150 anything way but indicative of the Jersey point.

New decide

I conclude Jersey that under New law damage

the claim in this case for contract, product governed by

defective Accordingly,

not tort. I dissent.

H03 Rosenthal, Div., Dept, Samuel Crim. Justice, Washington, (Elsie L. D.C. Mun- sell, Alexandria, Va., Atty., Roberta Elkins, Justice, Dept, Washington, D.C., Aronica, Joseph Atty., J. Asst. U.S. Alexan- dria, Va., brief), appellant. Williams, T. Cummings, David William B. Alexandria, Va., Carruth, Brent Carruth Goodwin, Cal., Nuys, brief, Van appellee. WINTER, Judge,

Before Chief RUS- SELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN, WILKINSON, and SNEE- DEN, BUTZNER, Judges Circuit Sen- sitting Judge, ior en Circuit banc. WIDENER, Judge: Circuit Craig Richard Smith has been indicted on espionage five counts of under U.S.C. 793(a), 794(a) (c). trial, Prior §§ gave notice to the Smith pursuant U.S.C.App. 5§ he intended to disclose classified infor part Following his mation as defense. out procedures set in the Classified Act, U.S.C.App. Information Procedures (CIPA), seq. et the district court § hearing to conducted a closed determine use, relevance, or prof information the defendant classified 6(a). U.S.C.App. At the fered. con § hearing, clusion of the the court ruled that part of the classified information Smith sought to admissible at introduce would be Smith, F.Supp. trial. United (E.D.Va.1984). by supplying the Soviets them provision allowing eight voked interlocu- op- CIPA’s details agent INSCOM double tory sought a appeals and reversal of erations. White and Ishida told Smith allowing ruling court’s introduction this information would be of no real value of the classified information. 18 U.S.C. eight opera- Russians because those App. panel upheld A this court tions had been discontinued. be- that the finding district court’s classified came convinced that White and Ishida were question in could be working introduced indeed for the CIA and agreed to Smith, v. F.2d help by supplying specified trial. United States 750 them infor- (4th Cir.1984). panel 1215 We vacated the mation the Russians. granted and banc decision en review. We Smith seeks to introduce at trial several conclude that the district court an applied pieces of support classified information to legal in ruling incorrect standard upon the thought his defense that he he was work information, of introduction the classified ing the CIA he sold the informa accordingly and vacate the order of proof may tion to Russians. Such ne

district court and remand. gate an essential element of the crimes employed by Army was charged, Smith Intelli- intent or reason to believe gence Security (INSCOM) Command be- information sold be injure would used to charged tween 1973 and 1980. He is here advantage the United to the States or of a unlawfully in selling 1982 1983 foreign country.2 and After a lengthy hearing, certain classified information to I. Victor the district court ruled Smith could Okunev, agent an part of the Soviet Union. introduce of the classified information charges upon indictment that Smith met with he relied in his defense.3 It found Okunev Soviet Commercial Com- that certain classified information rele was pound Tokyo, Japan, princi twice November vant to Smith’s defense under the February ples and once in 1983. Smith of Fed.R.Evid. therefore was gave allegedly example, Okunev classified informa- admissible at trial. For ain rul regarding agent from, tion ing appealed five INSCOM double not court found that $11,000 operations, for operations which he received of the details INSCOM White gave Okunev.1 allegedly pass Ishida to Smith to on to the Soviets were admissible because defense, In his he account the facts such information made existence below, just argues relates Smith that he probable White and Ishida other more than working believed he was for the Central Smith, supra, wise would be the case. (CIA) Intelligence Agency when he turned F.Supp. at 445. over the information Okunev. He claims sought that he was who out two men The district further found agents, claimed to be CIA Ken change White CIPA was not intended to the exist- Danny sought regarding Ishida. and Ishida admissibility; White law evidence help up setting agent Smith’s a double did not intend to exclu- allow project directed toward Russians Ja- sion of evidence to the defense pan. gain was to simply confidence because that evidence classi- Many rulings 1. nature of the Because sensitive of some court’s district case, published this challenged facts in we have based our appeal. government only publish- factual discussion on the court's categories contests introduction two opinion. ed classified information. 2. Both 18 U.S.C. and 794 §§ 793 are crimes 4. Rule 401: "‘Relevant evidence’ means evi- proof requiring of an or intent reason to believe having any tendency dence to make exist- injury that the be used information is to to the any consequence ence of fact that is of advantage of the United of a States or probable more or determination the action States, foreign country. See v. United Gorin probable less than it be without the evi- (con- (1941) 61 S.Ct. 85 L.Ed. 488 dence.” statute). struing predecessor if notify the United and the court he proffered Because the evidence fied. reasoned, reasonably expects to disclose classified in relevant, it cduld found during any (/ during his trial or formation at trial. be introduced proceeding. A defendant forbid pretrial the district this court affirmed panel A disclosing any such information den from ques- evidence in finding that the court’s U.S.C.App. giving of notice. 18 absent that the It concluded admissible. tion was specifically notice must set out 5. The applied the stan- correctly district court be the classified information under Fed.R. judging relevance dards for A rely upon in his defense. lieves he will govern- rejected It 401 and 403.5 Evid. general statement of the areas privi- governmental argument ment’s cover is insufficient. United States balancing test similar that a lege required Collins, out Roviaro the one set 1983). 1 L.Ed.2d States, 353 U.S. (1957), applied here. should be gives his defendant notice of Once the view it is one as we Roviaro standard informa intention to introduce classified balancing public calls for tion, may request a hear the United States against the indi- the information protecting the court shall determine the ing at which his defense. See right prepare vidual’s “use, relevance, admissibility or of classi applica- Roviaro, p. 628. Its p. that would otherwise fied information rule of admissi- in a more strict tion results during pretrial proceed trial or made should that standard and we think bility, U.S.C.App. Upon 6. a determi ing.” 18 § here. applied have been infor by the court that the classified nation admissible, the trou- properly may understand In order to the United States mation is us, review we should bling before ad issue substitute either a statement move to history legislative surround- CIPA and facts that the classified mitting relevant by Congress in enacted prove it. CIPA or a sum would tend information growing problem of combat the an effort to information instead mary of the classified whereby a criminal practice a graymail,6 itself. 18 U.S. information of the classified reveal classified threatens to 6(c)(1). grant the The court shall C.App. § trial in of his during the course formation if the substitution government’s motion drop forcing hope of substantially the give the defendant him. charge against Senate criminal as would ability to make his defense same 1-4 96-823, Cong., 2d Sess. Rep. 96th classified information. disclosure of the Cong. (1980), & reprinted in 1980 U.S.Code substitu denies a motion If the court a. to the enact- Prior Adm.News 4294-4298. an tion, can submit Attorney General CIPA, had no ment of the objecting to the disclosure affidavit evaluating such disclosure method at issue. 18 U.S.C. classified began. actually Often- trial claims before 6(e). such an affidavit App. Once § rather prosecution times it would abandon filed, from disclos is barred the defendant classified possible disclosure of risk than 18 U.S.C. classified information. ing the information. 6(e). can dismiss The court then App. § indictment, find counts of certain procedure for pretrial a established CIPA relating States on issues against the United admissibility of classified ruling upon the information, testimo strike the classified must A criminal defendant information.7 by procedure relevant, provides which may also “Although 7. The Act evidence 5. Rule 403: substantially portions classified doc- probative can delete value is the court if its be excluded prejudice, danger Sub- outweighed of unfair a defendant. to be discovered uments issues, misleading jury, or permitted certain cir- confusion under stitutions are also delay, waste of of undue or time, considerations U.S.C.App. No are 4. issues § cumstances. 18 presentation cumulative or needless discovery rights. regarding Smith’s here raised evidence.” classified) (Parts of this footnote ny, change or as a last resort the indict the existing dismiss Evidence law on the 6(e). The U.S.C.App. subject ment. 18 where addressed. Werner § interlocutory appeal Inc., can take an Upjohn 628 F.2d 848 Co. 1980). an adverse district court decision with respect to the disclosure of classified infor correctly The district court conclud U.S.C.App. 7. mation. 18 § merely procedural ed that CIPA was tool appeal construction This concerns the pretrial requiring ruling court on the meaning 6 of CIPA as sets out admissibility of classified information. The use, deciding court’s role looked at groups then the two or in relevance of classified hearing classified information at a CIPA legislative as evidence. his formation and concluded that tory is clear that not intend to did Smith’s defense. Under the standards existing governing law admis alter 401, we find Fed.R.Evid. no error in the sibility Thus, of evidence. the Conference district court’s conclusion as to some of the provided agree Report “... the conferees classified information it held should be ad that, report accompany as noted mitted which make Smith’s account 4736, nothing and H.R. in the con S.1482 probable more events than without change substitute is ference intended to and hence relevant. standards rele of some The relevance of the information admissibility.” Confer vance House apparent reviewing Smith’s de- 96-1436, Report Cong.2d No. ence 96th deny not gave fense. He does that he (1980), 12, U.S.Code, p. reprinted in Sess. classified information to the He Soviets. 4307, Cong. Adm.News, p. & 4310.8 The charges against him solely defends the that have the matter circuits considered grounds he did not have the neces- agree legislative history with the cited that sary reason to intent or believe the infor- ordinary rules of evidence admis determine mation be used to harm the United sibility under CIPA. v. United Wil States give advantage foreign States to a or to (2d Cir.1984); son, 750 F.2d 7 United Instead, thought nation. he claims that he Wilson, v. 732 States F.2d 404 the United aiding he was work- — 1984), -, cert. den. S.Ct. setting up for CIA in a double 609, 83 L.Ed.2d 718. No new substantive agent operation.9 was created law the enactment CIPA. Collins, supra, Neither Not all evidence is at 720 F.2d at 1199. admissible trial, adoption Rules of did of the Federal however. Fed.R.Evid. 402. The argued admissibility it be is con- 8. Should that our decision a standard (see trary understanding trial, its of the House intends to retain current committee Intelligence Select Re- Permanent Committee on law." The Committee’s later recital 96-831, (1980), p. port Cong.2d No. 96th Sess. not balance the court should national 14-15), Report reading we think a of the House against right light necessary report reads into the a in inconsistency entirely obtain the information inconsistent itself, report within the existing intent to with the committee’s retain report provided use, relevance, existing that “the standards of admissibility law as to if it read to forbid all admissibility of informa- and/or Thus, balancing. we do not read into the Sen- tion or materials in criminal trials not be affect- necessary inconsistency, Report ate a and con- "higher We think the of admissi- ed." standard any Report do the House strue it as we mean bility” rejected Report mentioned House already required balancing by existing not law. 15, 12, higher p. may only n. stan- mean a Report notably leaves out all Conference already required dard than that matters, states, to such as we reference existing legisla- law. Our construction text, that the have noted in stan- history supported by Re- tive Conference dards for relevance admissibil- text, port we have as well as mentioned in the ity unchanged. We follow the Conference 96-823, Sess., Report Cong.2d p. Senate No. 96th Report. (1980), Cong, reprinted 1980 U.S.Code Adm.News 4294-4301. classified) (Parts footnote are of this reasoning applies Report. Like to the Senate 8, report question provides, p. That "... on public interest nondisclosure if the evi- argues that even right prepare a defense. A defendant’s it should question is relevant dence on disclosure of such information decision privilege similar under a excluded “particular depend must on the circum recognized by Roviaro privilege informer’s case, 623, taking into 53, stances of each considera States, 77 S.Ct. 853 U.S. v. United charged, possible crime defens (1957). that the tion the We believe 1 L.Ed.2d es, significance possible of the inform an error of law court committed testimony, and other relevant factors.” ruling er’s privilege before applying such 62, Roviaro, supra, 353 U.S. at 77 S.Ct. at admissi- relevant classified relevant, approval in quoted Rugendorf v. may be Although evidence ble. 534-35, 84 528, States, com- because of 376 U.S. yet may be inadmissible United (1964). 825, 829, 11 L.Ed.2d 887 respect to the tes- S.Ct. privileges with mon law com- 501. Some such timony. Fed.R.Evid. The defendant in Roviaro was convicted attorney- include the privileges law mon il- selling heroin to one John Doe and Reinicker, 11 v. privilege, Chirac client legally transporting that heroin. Roviaro (1826); L.Ed. 474 24 U.S. Wheat identity learn the of John Doe. moved to v. United privilege, Trammel marital trial, prosecu- The motion was denied. At 906, 63 States, 445 U.S. part in tion witnesses described John Doe’s (1980); military or state se- L.Ed.2d 186 drug pro- but he never transaction crets, Reynolds, 345 U.S. or identified. The Court vacated the duced (1953); and the L.Ed. 727 concluding Doe conviction after that John privilege, Roviaro informant’s to the defendant was material witness States, supra.10 participation of his the crime.11 because only par- other a Because John Doe was recognizes the existence of Roviaro ticipant charged, in the crimes his testimo- to withhold qualified privilege might have regard- ny “highly relevant and furnish information persons who Roviaro, defense.” helpful to the activity to law enforcement been ing criminal 63-64, 77 S.Ct. at 629. designed supra, 353 U.S. privilege Such officials. interests of law en- and foster the protect arise from nondisclo Dual interests to aid by encouraging citizens forcement of informers and the information sure public fear of dis- justice without criminal First, public interest served possess. closure. encourages nondisclosure because one, information to come forward with qualified persons privilege The is a law enforcement. can aid effective once the privilege The ceases however. Second, per safety and cease, is, once disclosure for it reasons pro the information is best supplying have cause to son to “those who would occurs identity Roviaro, of his to tected nondisclosure su communication.” resent the may cause him harm. United 60, The those who at 627. at 77 S.Ct. pra, 353 U.S. (1st Estrella, 1151, F.2d 1153 in v. 567 way when the States give also privilege must Cir.1977). interests must be bal Those communica of his or the contents formant right to against a defendant’s defense anced helpful to the relevant and tion “is privilege The must his defense. accused, present a fair essential to or is of an require Roviaro, “fundamental give way to the su a cause.” determination Pitt, v. 60-61, ments of fairness.” United States at 628. 77 S.Ct. 353 U.S. at pra, Cir.1967), 322, (4th quoting F.2d 325 382 required to balance trial court is The government that as recog- conceded in Roviaro 11. The Court had 10. Even before Roviaro the indictment, selling heroin to count one of the "public policy disclosure of forbids nized that Doe, appropriate but not as disclosure was John essential to the unless an informer’s two, transporting The Su- the heroin. to count 251, States, U.S. 305 Scher v. defense.” 254, necessary as to preme disclosure Court found 174, 176, (1938). L.Ed. 151 83 59 S.Ct. counts. both 1108

Roviaro, 60, 910, supra, 1257, 353 at 77 at U.S. S.Ct. U.S. 102 S.Ct. 71 L.Ed.2d 448 (1982). The defendant must come forward something speculation as more than The District of Columbia Circuit followed the usefulness of disclosure. such United McCray Illinois, 300, v. 386 U.S. 87 S.Ct. Grisham, (8th States v. 748 F.2d 460 Cir. 1056, (1967), 18 L.Ed.2d 62 which followed 1984); Pantohan, v. United States 602 Roviaro, as concluding basis that a (9th Cir.1979); 855, F.2d 858 United States privilege allowing exists Skeens, 1066, (D.C.Cir. v. 449 F.2d drug refuse disclose the location of sur 1971). required despite Disclosure not operations in veillance United States v. that a may fact criminal defendant Green, 1148, (D.C.Cir. 670 F.2d 1154-55 have no other means of what 1981). The protected by interests be pos information the informant nondisclosure are the same in both instanc sesses. Valenzuela-Ber es. Hidden operations surveillance can be nal, 3440, 858, 870-71, 458 U.S. useful law only enforcement if they tools 3448, (1982). 73 L.Ed.2d 1193 Disclosure is remain hidden safety and secret. The only required after a court has determined police manning operation officers such an testimony highly the informer’s rele may endangered by public disclosure. 870, vant. Id. S.Ct. 3448. One cooperation The public in participat important the most factors to be considered operation in such an compro could be materiality is the of the evidence mised disclosure. These harms must be particular Grisham, defendant’s defense. balanced need defendant’s supra, 748 F.2d at United States v. the information. And in United States v. Barnes, (8th 1973). 486 F.2d Harley, (D.C.Cir.1982), 682 F.2d 1018 testimony The decision whether the privilege court extended the to trials. helpful informer be relevant and usually judge’s within the trial discretion. find principles Roviaro, We Soles, See United States v. 482 F.2d Green, applicable and Harley here. The (2d Cir.), cert. den. 94 government protected by interest nondis- (1973). 38 L.Ed.2d 319 analogous. closure is The has in protecting a substantial sensi- privilege does gathering tive sources and methods of give way simply because the defendant gathering formation. of such informa- identity. knows the informant’s name or tion and the closely methods used resemble Hargrove, See United States v. F.2d gathering of law enforcement informa- (4th Cir.1981). Protection of The confidentiality tion. of sources and justify informant can nondisclosure of his the methods used both instances are address or location. United supply critical. Persons who Aguirre Aguirre, 716 293 1983). regarding tak- matters identity When the informant’s in place foreign likely countries known the are to to defendant but his location not, be located outside United the States. Their balancing public the same of the inter safety immediately placed would in jeop- est in be nondisclosure the defend ardy public. ant’s if their need disclosure must occur. made Revealing such an Tenorio-Angel, States v. F.2d information absent es- 756 (11th Cir.1985). 1505 need Defendant must still sential a defendant would also up significantly drying primary show that disclosure in the of will aid result source Diaz, his defense. v. intelligence 655 of information to our communi- (5th Cir.1981), F.2d ty.12 cert. den. Bishop, agency of the Much Baldwin information win and the CIA’s involvement in that sought be operation. to our disclosed here falls within Included this information are East, interpretation government privilege. operations of such a other of CIA in the the Far relating example, Smith seeks to introduce evidence to seem which would to have no relevan- well, operation cy any Bishop, the details of the Bald- this case under standard. As who would have cause to the com- domestic informers resent enforcement

Law are; typical in- This is not the infor- their enemies munication.” know who generally give do To criminal agents ofttimes not. mant case where the defendant telligence police usually of more the the com- informer the one that resent the domestic Here, foreign significant part than informer munications. of protection the security of place to the risk of harm arises from disclosure to seems us to the CIA danger foreign public. government’s on a lower interest from the The the nation although may of nation from have protectable Smith plane than the still In privi- to danger domestic criminals. had access the information. The from by previous as well opinion lege extinguished national interest is is not disclo- our govern- with the as with alone. The by cooperation CIA sure to served police. protected here includes the domestic ment to be public. of the information to the disclosure reasoned, al- Supreme has As the Court privilege We therefore conclude action, a civil in the of beit context not cease Smith had access did because has inter- compelling has a “The Government the information. to secrecy protecting both est argues govern- that even if security and our national formation to exists, type privilege es- in the confidentiality so ment’s Roviaro appearance of operation privilege of our government’s effective exercise sential po- If procedure service.” ... must follow the substitution foreign intelligence 6(c) intelligence sources tentially of CIPA rather than seek exclusion valuable Agency altogether. Adoption will be to think that the evidence come confidentiality of argument unable maintain would result a sub- Smith’s them, well relationship many evidence, could change its in the law stantive supply information refuse exactly what said was not CIPA Agency place. first designed to enact- do. Had CIPA not been ed, raised its court could have chance that some

Even small then privilege of a identi- trial. trial order disclosure source’s balancing test intelligence gather- engaged have ty impair could well should up like a If it determined that ing and sources to “close of Roviaro. cause coop- taking superior, To some sources to interest was clam.” induce erate, account, tender as proper must factors into Government all confidentiality yet an assurance That is absolute would not be disclosed. law, “The avail- possibly as it can. continued that such a decision but CIPA dictates depends ability [intelligence] sources prior made to trial. ability to upon guarantee the CIA’s construing court decisions CIPA might com- security of holding In consistent with our here. Unit- danger promise them and even [their] (1st Pringle, ed States safety.” personal Cir.1984),the were convicted of defendants —Sims, U.S.-,-, CIA conspiracy to mari- possess possession and (1985), 1881, 1891, partially 85 L.Ed.2d import ship after a juana with the intent States, 444 Snepp v. United quoting charge in their marijuana full of 765 n. 509 n. sought have the The defendants seized. (1980). 766, 62 L.Ed.2d 704 produce regarding surveillance, boarding seizure of privilege applicable

We find ship. supplying the infor- Instead their has had access though even here mation, hear- government moved for a at trial. he seeks admit the information prevent release of “those under CIPA to protection from speaks of Roviaro sure, many them is sus- permitted of the details when balance opinion. proved properly pect bal- in this are as we later district court to be discuss public interest in nondisclo- anced Following material. an in camera ex relevant evidence light was admissible applicable material, parte privilege. examination of the the dis- require trict court refused to the release of Having held that the district court erred the information to the defendants. The by its failure to consider the appeals court of affirmed after applying privilege arriving at its conclusion that agreed Roviaro. It with the district question the evidence in was admissible at trial, we think it is not that the information “was not out of order to relevant to call to that court’s princi- attention some of the guilt the determination of the or innocence ples established, the cases have although defendants, helpful was not lay we do not any down at this rigid time defense and was not essential fair rule, requires “[wjhether Roviaro that determination of the cause.” Pringle, su- proper balance renders nondisclosure er- pra, significance 751 F.2d at 428. The depend roneous must upon particular course, Pringle, applied is that it Rovia- case, circumstance of each taking into con- as the ro standard its construction of sideration the charged, possible crime CIPA. defense, possible significance We find no case CIPA that has involved informer’s testimony, and other relevant reject the issue now before us. We Smith’s factors,” p. p. 629. A argument that several cases hold that rele- may district court only order disclosure vancy only the information is the determination is at least to be made “essential defense,” Scher, supra, 305 U.S. at cases, the trial court. In those the trial 254, 59 S.Ct. at 176: “necessary to his court determined defense,” Rugendorf supra, 376 U.S. at relevant so that it did go not need to fur- 829, quoted Pitt, 84 S.Ct. at ther and decide if that relevant evidence supra, 325; Skeens, 382 F.2d at supra, Wilson, was admissible. United States v. 1070; 449 F.2d at merely neither cumu- (5th Cir.1984) 732 F.2d (affirming corroborative, lative nor Harley, supra, the district holding court’s that evidence 1021,Estrella, 682 F.2d at supra, 567 F.2d immaterial); was irrelevant and speculative, nor Tenorio-Angel, Wilson, States v. 721 F.2d 1511, Grisham, 756 F.2d at 748 F.2d at Cir.1983) (sustaining holding by the dis- 464; Pantohan, 858; Estrella, 602 F.2d at trict court that the information was not 1153; Skeens, 567 F.2d at 449 F.2d at 1070. material). relevant and hold, however, We do equate that we holding Our disclosure of the supported by also classified information sought in this case with the disclosure of language by Congress used CIPA, in 6 of the various sought kinds of information requiring upon the district court to rule construing about informers the cases use, relevance, or admissibility of classified Roviaro. The standard of Roviaro admis- information. language Such is consistent sibility is at the least more restrictive than law. Had wished ordinary rules of relevancy would indi- to allow all relevant classified information cate. automatically trial, to be admissible at judgment of the district court provided. would have so The error of the vacated and the case is remanded for re- district court here in doing just that. consideration not inconsistent with this go analysis It did not further with its than opinion. determine that the evidence was relevant. It should still any have determined whether VACATED AND REMANDED 13. In applying purposes, its rule that relevance and admis- lished for cover CIA sibility synonymous, per- deposited Bishop, the district court funds into Baldwin’s account. permitted mitted Smith to introduce into evidence broad It also the defense to show the activi- Bishop, agent classes of classified information about ties of a CIA known as Richard Cava- Baldwin, including Bishop, naugh, including agent programs evidence that Bald- double organization, win was charges. used as a CIA cover Far East not related to the current Bishop, permitted Cavanaugh subsidiaries of Baldwin were estab- Smith was to show that

lili important BUTZNER, ing “public the in ef- Judge, dissent- interest Senior Circuit WINTER, Judge, law ing, fective enforcement” served the with whom Chief MURNAGHAN, ERVIN, PHILLIPS, identity informants, of of protection the and Judges the Court Roviaro ruled that disclo- join: Circuit of such is sure sensitive information not opinion For reasons set forth the required unless the information “is rele- Smith, 750 F.2d panel, helpful vant and of an defense (4th Cir.1984), I believe the district accused or essential to fair determi- interpreted applied the properly and nation of a cause.” 353 U.S. 60-61 at Act, 18 Procedures Classified Information Thus, S.Ct. the Court [77 628]. U.S.C.App. 3, its order be af- and should in the found informant that the situation are firmed. additional comments Two significant in non- prompted opinion of the en banc by the requires disclosure that more demand- court. employed. standard than relevance be Certainly a similar standard would be I appropriate involving in cases national aware of the was matters, pro- for the interest in pending impress legislation desire tecting confidentiality of classified admissibility of evi- classified standard more, if equally, information is not com- dence derived from Roviaro United pelling protecting than that in identi- States, 1 L.Ed.2d 353 U.S. ties of law enforcement informants. (1957). attorney general An assistant 7, 1980, Testimony of Feb. before Subcom- testified: mittee on Criminal Justice the Commit- and material” standard “relevant Judiciary, No. tee on S. 96-57 at 18. inclusion in 1482 is propose we for S. testimony House by the In before a adopted standard Subcommit- based tee, attorney general explicit- Supreme the assistant Court Roviaro v. United States, 623, 1 ly the standard 353 U.S. characterized derived [77 (1957) an “important” Roviaro as difference be- L.Ed.2d 639] to ob- and the administration whether the defendant entitled tween House Noting govern- and of a that the House bill did not tain disclose bills. Not- “relevant ment informant in a criminal case. include Roviaro standard of Certainly they specu- engaged prior no activities without autho- at best. are better than covert style” support and his "free offended rization that lance and admission lative hence do not superiors. permitted was Tenorio-Angel, his Smith further privileged information. began to rela- 1511; show that the CIA terminate its Grisham, supra, supra, 756 F.2d at tionship Bishop, part Baldwin to an with due in 858; 464; Pantohan, supra, 602 F.2d at investigation. IRS Estrella, Skeens, supra, supra, 567 F.2d at range proof The broad the district court F.2d at concerning Bishop, permitted Bald- would have court, its brief In in this around the activities of Cava- win centered objection that if shows states has no Smith Yet, naugh. discovery permitted despite wide White and him to that Ishida told communicate proffer of the defendant and the defendant’s through telephone them which number acquainted testimony witnesses of numerous Bishop, in fact a Baldwin and was number intelligence community even with with the calls that number transmitted Bishop, East and the States Far Baldwin agents. would to be ad- CIA These facts seem intelligence operations, con- Smith has failed to balancing test under the we have out- missible agent operation. Cavanaugh double nect to his opinion. They would be lined text of lengthy proffer testimony, Smith does In his cumulative, defense, merely essential White Ishida would not even claim that speculative. nor All the balance corroborative Cavanaugh. testify he Yet worked held admissible classified information Cavanaugh jury would ask to infer heading "Bishop, the district court under agent operation that he directed his double we think inadmissible Baldwin Information” Cavanaugh trying dangling was left because holding that the of the district court admit- protect himself. ting the same an abuse of discretion. Thus, jury ask the inferences marginal and of relevance to draw strained material,” length at the government he testified information known but reasons this omission should be rectified. unknown to the existing defendant. Under 1979, 7, Aug. of before Testimony Subcom- Congress standards which the intended to Legislation the intact, mittee on of Permanent Se- leave did Roviaro not exclude the Intelligence, lect at 8-11. Committee introduction of relevant known evidence to appeal government’s argument The this the defendant. at n. See essentially paraphrase is of the assistant at 627 n. God- general’s testimony. attorney kins, Cir.1976). 527 F.2d 1325-27 Consequently, majority the to unable cite Congress the rejected The assistant at- privilege case which the informer’s torney general’s recommendation. Con- was successfully invoked to bar a defend- gressional incorporate intent not to the Ro- calling ant from an informant as a witness legislative viaro standard is manifest from his whereabouts Report history. The Senate states: to testimony known the defendant and his however, emphasized, It should be that was relevant. the court should not the national balance security interests the Government of existing gov- If under standards Roviaro against rights the the to of defendant erned of evidence known to the The obtain information. sanctions defendant, the there would be little need against designed the Government are to simple pretrial for Act. A the disclosure again. make the defendant whole alibi, required rule such as those insani- ty, rape government or if suffice the S.Rep. Cong., 2d No. 96th Sess. required to to U.S.Cong. disclose the court the reprinted in 1980 and Ad.News necessary accept information to balance intelli- 4303. We the notion cannot gently defendant's needs expressed majority opinion note 8 of the Act, unequivocal security. of The this statement is incon- interests national however, designed congressional sistent intent. It to shield the government explain- clear necessity text of the Act and its from the legislative history ing hearing court at contem- courts, Executive, by 6(a) tended the not the plated information that decide to expose ordinarily by whether relevant classi- government furnished fied subject request sanctions when Roviaro is denied under incorpo- provides. Act The does not existing Act law. rate the Rovario It standard. omitted application The of Roviaro to exclude requirement that the be “relevant defendant, relevant evidence known to the material,” urged by the Department as confining principles its to dis- instead spokesman. majority Justice’s Now the covery requests, the ex- significantly alters opinion Congress reject- embraces what the isting determining standard for the admis- ed. sibility evidence in contravention ex- is not seeking disclosure congressional press intent. This novel al- government of evi- two items of classified teration of the standard made at cost subject appeal. dence that are the of this introducing into a draft- confusion well possess- He has no need to it. He discover ed, straightforward procedure once es it in this evidence and seeks to introduce protects national and affords the his ruled defense. has Contrary a fair trial.

that it is relevant and admissible. Act, court, provisions of the in a hear- statute, required 6(a), legislative its have to text Section history, produce interpreting require and cases it establish infor- support that the Act does stan- mation its claim that not alter security outweigh dards for relevance and admis- interests national sibility Existing ap- of evidence. need introduce evi- standards defendant’s ply discovery already possesses. to requests Roviaro of dence which he Alter- gested natively, try the court will have to ade- its brief quately these without the infor- serve the needs the defendant. interests balance contemplates it which Roviaro mation Appellate pre-emption have. should judge’s specified by functions Section 6(c)(2) Act, by is unauthorized and it is Roviaro, course, applicable is still prejudicial. deprives It the defendant of discovery requests. clearly This is ex- hearing Congress intended him to have. Pringle, plained predicate rulings, As a to one of its (1st Cir.1984), major- on which majority misapprehends the reasons the de- pointed There out that ity relies. the court fense seeks to introduce certain evidence “possessed classi- none of the defendants and the ruling. basis for district court’s threatened to fied which App. 315, 326-27, appellees See brief Quite contrary, they disclose. 9-12; supplemental 7-8, appellees brief seeking classified information which which set forth the reasons the defense sought protect.” 751 F.2d seeks to introduce evidence and the Consequently, 427. the court held that rationale of the district court’s decision ad- refusing err in district court did not mitting hearing contemplated by it. A Sec- discovery convening hearing a un- without 6(c)(2) tion would enable the district court 6(a). apparent It is that Prin- der Section to avoid an error. such quite dealt with situátion different gle appeal in this from the issues raised about respectfully I dissent. 6(a) hearing. the Section majority opinion, there is which departs proce- from the precedent, both no existing

dure set out the Act and determining admissibility

standards evidence that the intended to departure Sadly,

leave intact. is alto- needless. If a district court follows gether DONOVAN, Raymond Secretary J. step step by procedures established Labor, Department congressional Act and adheres to the Labor, Appellee, apply standards for admonition evidence, in national secur- INC; DINER, William Doxa- BEL-LOC ity, judge which the district all mem- nas, Individually and as an officer protect, of this court seek to will be bers Corporation, Appellants. time, preserved. At the same the need of No. 85-1081. evidence, present the defendant Congress recognized, will be ad- which of Appeals, United States Court provided the Act. dressed manner Fourth Circuit. Argued Oct. 1985. II Decided Dec. 6(c)(2) Act directs the dis- Section hearing on a motion trict court to hold a proce- for an alternative for disclosure of classified informa-

dure resolved, appeal Until this the dis-

tion. hearing pursu- cannot

trict court conduct Nevertheless, to this section. without

ant hearing, majori-

a motion and without sug- decreed that two alternatives

ty has

Case Details

Case Name: United States v. Richard Craig Smith

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Dec 4, 1985

Citation: 780 F.2d 1102

Docket Number: 84-5240

Court Abbreviation: 4th Cir.