*1 equitable claim on the accrued facts concerning interest of this agreement case accounts,10 fund, of the we have not been and the escrow escrow matters that are best presented practical evidence as a why, left to the district court.
matter, equitable that claim would be limit- litiga- to the of the HRA ed forum Bank v. IV. CONCLUSION Indeed, argument, at oral tion. counsel for above, For the reasons discussed we will FAB to concede intervention seemed reverse the district court’s orders and re- litigation HRA not the only Bank v. mand proceedings consistent with this interest, attaching avenue to but con- opinion. tended instead intervention was the logical approach.
most direct and
Finally, also we note the existence of a
separate possible denying basis for the in- viz.,
tervention, FAB’s to comply failure procedural requirements
with the of Rule
24(c). The Bank contends FAB did not upon par-
serve a motion intervene grounds ties stating the for intervention as America, UNITED STATES required by that rule. Ryer See v. Harris- Plaintiff-Appellee, Bros., Inc., burg Kohl 53 F.R.D. (M.D. 1971) (refusing Pa. to discuss wheth- MORISON, Loring er Samuel proper given intervention is would-be Defendant-Appellant, comply intervenor’s failure to with Rule 24(c)). longstanding Given FAB’s desire to Post; Washington CBS, Inc., et investigate agreement, the settlement al., Amici Curiae. effort it enormous underwent to unseal action, the record in the Bank v. HRA No. 86-5008. certainly FAB’s intervention was no sur- Appeals, United States Court of However,
prise. many we note Fourth Circuit. lingering questions we have about FAB’s right might Argued intervene been cleared Oct. 1987.
up had FAB set out its clearly. contentions April Decided 1988. Because the district focused court its Rehearing Rehearing In Banc analysis question, on the timeliness April 29, Denied 1988.
parties same, question did the right whether FAB as of intervene
was never adequately addressed. Al-
though have, point, given we at this been
no indication that the requirements for met,
Rule 24 can right intervention as of
we question will nevertheless remand this inquiry.
for further answer question depends
intervention
legal arguments, specific upon also right perceive involving way protect of an debtor cause the in a its interest. no case the distribution of We county government inability escrow between a comparable protect part on the FAB to bankruptcy. interest, The court held that be- any. its nor has FAB asserted performance surety bank posted county by
bond favor the debt- opinion ability express We as to FAB’s no or, compel it was entitled to intervene funds, or on the its recover the interest ability escrow county right against assert setoff the debt- in excess arbitration to recover thereby liability or and reduce the bank’s award. stressed, however, county. The court that ab- sent such intervention the had no other bank *3 (Charles Ruff, Lynch
Mark H. F.C. Neil Roman, Reich, F. Covington K. Steven & Burling, Stein, Muse, A. Jacob F. Robert Stein, Mezines, Washington, Mitchell & D.C., brief), defendant-appellant. on for Willcox, Breckinridge Long Atty., Baltimore, Md., plaintiff-appellee. (Daniel Utica, N.Y., Popeo, D. J. Paul Kamenar, D.C., Washington, Michael P. McDonald, brief), M. on Marianne Hall Washington Legal amici curiae Foundation. Goldman, (Patti A. B. Alan Morrison brief), for amicus curiae Citizen. Public (Kevin Baine, Kendall, T. David E. Victo- Radd, Washing- Connolly, ria L. Williams & D.C., brief), ton, for amici curiae The Post, Washington et al. RUSSELL, PHILLIPS,
Before WILKINSON, Judges. Circuit RUSSELL, Judge: Circuit approved DONALD been for access to it and I under- procedures.... stand these he had [that appealing The defendant conviction advised that direct or indirect been] unau- of an under four counts indictment for disclosure, thorized retention, unauthorized of 18 U.S.C. and of two violation § negligent handling Compart- Sensitive Act, Espionage provisions U.S.C. mented Information me could ir- cause (e). The violations of the Es- § reparable injury to the United States or be pionage Act involved the unauthorized used to advantage by foreign nation.... pho- transmittal of certain satellite secured obligated he understood he [that tographs preparations was] naval Soviet regulation law not to any disclose (count 1) clas- entitled receive them” “one not sified information in an unauthorized obtaining fash- posses- and the of unauthorized ion.... he had reports sion of secret advised that [that been] unauthorized disclosure retaining delivering of them without of Sensitive them Com- (count 3). partmented to “one entitled to them Information receive” me consti- *4 charged 2 and 4 of the Counts indictment tute violations of United States criminal provisions laws, violation of the theft of 18 U.S. including provisions of Section essentially C. 641. His defense was 798 and § Title ” encompass the statutes did not the conduct States Code.... and, charged against did, if they him prior For some time to the incidents with trial, statutes were unconstitutional. At he concerned, which this evidentiary also found error certain rul- doing defendant had been off-duty certain
ings by judge. the district We find the work for Fighting Ships, Jane’s an annual claims of error unfounded affirm the English publication provided current conviction. information on operations naval interna- tionally. July, 1984, Sometime before I. Jane’s, many years which for had been Summary the Facts Jane’s, publishing begun publica- had employed defendant was at the Na- periodical tion of another weekly on a ba- Intelligence Support (NISC) val Center This publication sis. new was called Jane’s Suitland, Maryland from 1974 until Octo- Weekly and its editor-in-chief was Defence ber, Wood, 1984. At the time of the incidents Derek with an office in London. prosecution, involved in this he was as- The paid varying defendant had been signed amphibious hospital ship as an amounts for such services as rendered analyst and mine warfare in the NISC and dependent Jane’s on the value of the infor- given as such security had been clearance mation he arrangement furnished. This of “Top Compartmented Secret-Sensitive with Jane’s had been submitted to and place Information.” His work approved by was what Navy subject area,” was described as á “vaulted agreement closed defendant’s that he would not persons to all Top without a Secret supply any Clear- obtain and classified informa- ance.1 In connection with his security tion on the Navy or extract unclassi- clearance, signed he had any subject Non-Disclosure fied data on and forward it to Agreement. Agree- his Non-Disclosure off-duty Jane’s. The defendant’s services ment, acknowledged the defendant that he with Jane’s had subject become a of some security had received “a controversy indoctrination con- him Navy. between cerning protection result, the nature and of Sensi- aAs the defendant had become dis- Compartmented Information, tive including satisfied employment with his Navy procedure to be followed in ascertain- and wished employment to secure full-time ing persons whether other I whom con- began with Jane's. The defendant a corre- template disclosing this spondence information have prospects with Wood on the secrecy imposed 1. Because of employees they away. in such an while were area, “Secret” material could be left on the desk periodical. with employment fendant full-time Wood and after the defendant requested opportunity had He interview sent Wood the material described in Washington preceding when the latter was in paragraph. Wood At that time the saw, next. defendant on the desk of another em- ployee in the vaulted area where he Washington June, 1984, Wood visited worked, glossy certain photographs depict- and, by arrangement, saw the defendant ing a Soviet aircraft carrier under construc- request em- connection with latter’s tion in a Black Sea shipyard. naval time, ployment. At that Wood discussed photographs, produced by a KH-11 recon- report ap- with the defendant a which had machine, naissance satellite photographing regard peared in the American given analyst had been so that he explosion recently had to an occurred analyze could and determine capabili- the Severomorsk Soviet Naval base. capacities ties and of the carrier under expressed publica- Wood the interest of his construction. The photographs were in securing additional details since stamped “Secret” and also had a “Warning an explosion very was “a mat- serious Intelligence Notice: Sources or Methods ter.” The defendant told Wood that the imprinted Involved” on the borders explosion larger subject “was a much than photographs. The defendant later thought even had and there was a lot confession said he had earlier sent an art- more behind it.” The defendant also said ist’s sketch of a Soviet carrier under con- “provide more could material on it” if struction paid Jane’s had been $200 responded Jane’s were interested. Wood *5 for his photo- services. When he saw the receiving that he was interested addition- graphs, recognized the defendant them as explosion and, al on material the if the photographs satellite of the ship, Soviet such, provide defendant were able he taken secret method utilized the use could for transmission of such material Navy in its operations. Unob- “the facsimile Jane’s machine for direct served, picked photographs up, the se- Washington transmission in our [Jane’s] them, and, cutting creted after off the bor- editorial office.” The defendant told Wood photographs ders of the which recorded the provide also that he could Wood with other “Top Warning Secret” the words No- material. While there was no direct state- any well of tice as as indication their compensation about ment what the defend- source, person- mailed them to Derek Wood ant would receive if he sent material to ally. Weekly published Jane’s the practice Wood that the was used had been Defence weekly photographs edition few past that when the defendant had the days pictures later and made the available furnished material of interest had Jane’s agencies.2 to other news One these paid the defendant. When Wood returned published August 8, photographs was on days later, London a few he received in Washington the Post. the from the When typed defendant “about three Navy pages photographs, they officers saw the background of material on Severo- began later, A a search and discovered that the days morsk.” few the defendant photographs been transmitted had stolen. An investi- to Wood “two other items on begun explosions gation immediately further ascertain that had the was occurred at identity on site different the of the thief. dates also a mention particular explosion of one in East Germa- theft, investigation the of the the de- ny.” interrogated. fendant was He denied ever activity seeing photographs professed of the defendant which led the prosecution began July nothing on purloining know about days a few after photographs.3 persevered the interview of the de- He in this denial Shortly payment denying after Wood was that he authorized 3. Even while the defendant this. photographs responsible delivery was during $300 the defendant for his services Wood, telephoning Wood in period Derek he was when the had defendant furnished photo- London to exult that the theft of the graphs him this information. to ["him"]. could not traced time, cers, however, so going for some even far as to day obtained a second identify employees fellow who he said two warrant to search the defendant’s home. disappear- questioned should about That presence search revealed the of two August 22, photographs. On ance of the intelligence reports “secret” NISC on the seized the authorities defendant’s explosion at Severomorsk an envelope typewriter analysis An ribbon work. only” marked “For Derek Wood in defend- numerous letters to ribbon revealed apartment. ant’s summary Jane’s, including a of a secret At trial the Government offered evidence explosion. report Severomorsk At on the of defendant’s admission theft of the time, Navy about the same also was photographs, cutting of his off the “Se- photographs a return of able to secure “Intelligence cret” and Service” statements fingerprint from A Jane’s. discovered photographs outer sides of the and of photographs finger- on one of the his mailing photographs of the to Derek print was identified defend- Wood. proof There was also of the defend- information, ant. the FBI inter- With this attempt ant’s employment secure viewed the defendant anew arrest Jane’s and of payment Jane’s to the de- followed defendant October fendant. The presented proof Government 1984.4 of much of this letters of the defendant arrested, repeated When defendant to Jane’s or Wood. The Government also many any his connection denials with the offered in evidence military the “Secret” photographs, though theft of the ar- found in apart- information the defendant’s resting told him had officer discovered way ment. The defendant of defense photographs, on the fingerprints dem- presented witnesses who testified that the onstrating that he was not truthful when photographs and the secret documents photographs. he said he never seen the had secretary found in the apart- defendant’s point, At defendant asked for a nothing way ment involved of infor- interrogation. break in the When the inter- mation that could be harmful resumed, view was the defendant renewed advantageous States or to the Soviet Un- his denial of connection with the theft. ion. The Government offered rebuttal tes- *6 However, arresting the officers told him timony photo- to that the demonstrate they accept his did not denial and one of graphs, governmental as well as the other proceeded the officers to summarize the military defense secret documents found in demonstrating material had the de- apartment, provided defendant’s informa- guilt. At fendant’s the end of the summar- advantage tion of to the Soviet Union and ization, suggested one of the officers that against the interests of the United States. perhaps publi- the defendant had felt that At testimony, the conclusion of the the cizing progress the the Soviets were mak- defendant moved for a directed verdict. ing in developing a naval force would en- The motion was denied. The cause was greater Navy appropria- able the obtain jury then submitted the which returned jump tions. The defendant seemed to guilty verdict of on all counts. Sentenc- suggestion. The Government did not ing appealed The followed. defendant has accept proposed because excuse of all his conviction on various claims error. indicating the it had that evidence the de- the We find all claims without merit and making fendant was available secret mate- judgment affirm the of conviction. rial and to Wood Jane’s as a means of The furthering application employment denying defendant’s claim of error his for He, payment. however, his motion naturally Jane’s and directed verdict did separate arguments: not that he divides the admit had sent other infor- into two Wood, mation particularly relating charges first set forth in addresses the explosion charging Severomorsk. The offi- counts 1 and of the indictment objection rogation. There was no entered the defend- legality ant to the voluntariness or of the inter- (e); 793(d) organization London, and the located in England, of sections violations and 4 agent foreign relates to counts 2 and and not to power. second short, charges of section 641. His con- violations he press; leaked the he did not respect with to the first claim un- foreign tentions transmit to a government. 793(d) (e) and follows, sections are his der therefore under his construction of activity as set forth the two counts of statutes, the he guilty that was not of their not the literal or the indictment was within violation his transmittal of this national prohibitions intended of the relevant stat- material, security though, even under the that, prohibition and if within the utes government’s proof, he had without autho- statutes, literally or in the whether read rization clandestinely and abstracted that intent, legislative with such statutes accord highly material from the secret national constitutionally vagueness invalid for office which he worked and position His with refer- and overbreadth. had, publica- with reason to know that prosecution ence to the under 641 is section tion of reasonably such materials would simply covered by that his conduct imperil secrecy and confidentiality of statutory prohibition. shall discuss We intelligence-gathering nation’s capabili- begin- error separately, the two claims of ties, communicated such materials to one ning relating to convictions with those them, “not entitled receive” reasonably 793(d) (e). sections and under knowing receiver material publish it to all the world. Such is
II. ground the initial on defendant acquittal declares that his motion for The under Convictions Sections charges 793(d) (e) in counts one and three of the (section 793(d) (e)) indictment was erro- defense of the defendant initial neously overruled. stated Counts and (sections 793(d) (e)), predicate 3 of indictment defendant does not his ar- gument relating scope rests what he conceives to be mean statu- ing scope tory meaning language on the espionage two statutes actual facial charged violating. posi It is his It is fair to say statutes themselves. that, themselves, properly applied, construed and he concedes statutes prohib phrasing, ambiguous these two subsections of 793 do their literal are not charged provide in on their no warrant for conduct of which he is face specifically, plainly ap- those counts. more it is his contention.6 Both statutes Stated prohibitions ply having to national his view that the of these two “whoever” access narrowly strictly subsections are defense information has section communicate[d], “in represented “wilfully confined to conduct classic delivered] *7 5by person not spying espionage activity” persons and or ... to a entitled transmitted] who, it,” activity in or it in the course of that had receive has retained violation 793(e). language of section of the security transmitted “national secrets to two governments spies no agents foreign of with intent statutes includes limitation or to injure agent government,” argued foreign He “an of a either United States.” transmittee of charged of which is as to the transmitter or the conduct information, simply they does fit within of declare no ex- the mold “clas defined, spying” emption in of leaks to the sical as that term favor one who was It security press. “anyone.” since he It is difficult transmitted covers more any language secret definite materials involved the indictment conceive of recognized to a naval and clear. international news Congress Appellant’s only choose has brief at 19-20. the harsher when spoken language,” United in clear definitive 6. Because we find the statute involved to be 347, 515, 336, Bass, 404 92 S.Ct. States v. U.S. unambiguous, clear and the rule "when 522, (1971), inappli- 488 is 30 L.Ed.2d therefore readings there are a two rational of criminal cable here. statute, other, one we harsher than the are to
1064 Cases, however, 631, 643, 2053, the statutes 436 U.S.
Admitting,
98 S.Ct.
2061,
(1978),
Com-
facially
citing
are
islative
that sections
prosecutions
It is true that some
were not intended to be
appli-
restricted in
these statutes
involved
defendants al-
spying”
cation to
“classic
were intend-
leged
acting
foreign
ed to
have been
for a
anyone
criminalize the disclosure to
government though many
“not entitled to
it.” Accordingly,
receive
of them also con-
language
793(d)
whether we look to the literal
(e)
tained counts under sections
(1917).
Cong.Rec.
13. 54
did
That statute
not include
clas-
assumed,
provision.
(la-
sification
as Senator
Justice)
H.R.Rep.
Cong.,
ter
14.
Sutherland later
No.
81st
1st
indicated in the
Sess.1949.
Act,
Obviously the Committee has
discussion of
blended the later
the 1917
that the administra-
(e)
(d)
point.
(e)
particular
authority
codified with
tion—in
Later was
President had
—the
provide by
regulation"
made a new
might
subsection.
"rule
who
lawfully
"not
receive" defense information un-
Schmidt,
Edgar
Espionage
15.
der both the
as
1911 statute
well as under
Statutes
Information,
authority
depend
Publications
Co
1917 statute and
did not
of Defense
(1973),
lum.L.Rev.
quent
refer to the
Espionage
subse
on the
section 6
enactment of
Act,
finally
Certainly,
elimination from
Congress
enact
per-
Act of 1917.
if
had
ed,
Act
section 6 of the
as drafted
ceived that the
failure
enact a classification
Department
gave
This
of Justice.
section 6
act in the 1917 Act made section
a nulli-
power
censorship (prior
President
re
ty,
unlikely
Congress
it would seem
straint) through classification of defense infor
in the 1950 revision have reenacted such a de-
argue
mation. The authors
that this action of
fective statute.
Congress
way
application
in some
nullified the
update
by Edgar
For an
the article
793(d).
of section
Schmidt,
written after
district court trial in
agree
Morison,
Schmidt,
validity
We do not
that the
Edgar
Curtiss-Wright
of section
see
depended
on the enactment of Section 6
Comes Home:
Power
Executive
and National
(the censorship provision).
It must be remem-
Security Secrecy, 21 Harv. C.R.C.L.L.Rev. 349
new;
bered that section
was not
(1986),
it was
particularly its discussion of “The Mori
merely a
Case,”
restatement of
earlier statute enact-
pages
son
to 407.
ed in 1911 which criminalized disclosure of
"any
Russo,
knowledge
anything
document
16. United
... or
States v.
No. 9373-WMB-CD
(C.C.Cal.),
"any
prosecutorial
connected with
person
national defense” to
dismissed
miscon
Times,
May
entitled to receive it.” 36 Stat.
section
duct. New York
*10
prosecution
apparently only
public
one
Haig
and that
trial.
Agee,
v.
453 U.S.
prior
“spy”
this one
someone not a
has
(1981).
101 S.Ct.
tions
him.
doWe
not
[which
(e)
being
until
not
added
the 1950 think
that the First Amendment
asy-
offers
any
hardly received
attention” in lum under
circumstances,
revision]
those
proven,
if
Rabban,
Emergence
The
discussion.
that
merely
the
because
transmittal
towas
a
Doctrine,
First Amendment
Modern
representative
press.
the
This conclu-
1205,
(1983).
leg
What
U.Chi.L.Rev.
sion in our view follows from the decision
793(d)
section
as there
discussion of
islative
in
Hayes,
Branzburg v.
408 U.S.
meaning
phrase
of the
was related
S.Ct.
“is to answer it involves in Thus right Marchetti retains the speak the contention very statement and write opera- about CIA and its freedom of the is the freedom to tions, and to criticize other wrong impunity implies do may, citizen he may not disclose clas- right to frustrate and defeat sified information obtained him dur- discharge governmental those ing the employment course of his upon performance duties of which already is not domain. all, including the freedom of *12 in Subsequently Snepp States, v. United press, the depends.... suffices to 507, 508, 444 U.S. 763, 764, 100 S.Ct. 62 that, right say complete is however the (1980), which, L.Ed.2d 704 another case public things to state and though directly not on point, is them, relevant right, that every discuss as other Supreme here. There the right enjoyed society, in human is Court sub reviewed ject separate right the restraints which of the United States to enforce an right wrong-doing.” from Toledo agreement by a former employee, CIA that States, Newspaper v.Co. United 247 he “publish would not ... information 402, 419-20 [38 relating or material Agency, to the its ac- (1918) L.Ed. 1186 ].18 specific prior tivities ... without approval Marchetti, v. United States 466 F.2d Agency.” The defendant had violat- (4th Cir., denied, cert. agreement by ed the publishing a book (1972), L.Ed.2d 516 relating with some material to the inCIA it though directly point not as on as Branz- securing prior without CIA approval for burg, regard. is instructive In that publication. Supreme such Court as- case, sought injunc United States an propriety sumed the on restraint prevent tion to a former Central Intelli publication agreement. in this gence Agency employee, who had [CIA] Marchetti, If Branzburg, and Snepp are signed confidentiality agreement a followed, beyond to be it seems controver- divulge naval classified information sy intelligence that a recreant department publishing which he had from access classi employee had who abstracted from the fied CIA information after left he the CIA. files secret infor- The employee contended a such restraint wilfully giv- mation and had transmitted or rights. violated his First Amendment We en toit one “not entitled to it” receive as granting affirmed of the restraint. In case, did the defendant in this enti- so doing, the Court made this statement response tled to employee’s First invoke First Amendment as a Amend ment claim: of thievery. shield immunize his act To (4th Cir.1986). opinion, say his Justice White in did that F.2d a footnote gathering U.S., "news ment if faith, is not without its First page (Branzenburg, Amend- 92 S.Ct. on grand protections, jury investigations and 2671), page expressed dis- Justice Powell his good or instituted conducted other than in agreement dissenting opinion’s ruling pose wholly for would different issues it, which, court under viewed trial First resolution under the U.S. Amendment.” 408 permitted protect would be "to newsmen from And, 92 S.Ct.at 2670. his concur- improper prejudicial questioning" de- or and ring opinion, emphasize Justice Powell wrote to ruling, heavily applied, if clared ruling be what he conceived to He of the Court. in the subordinate "the essential societal interest right said newsmen had a constitutional detection and a of crime” and "defeat protected to be down a from harassment and he laid balancing” fair interest. procedure steps in three for determin- here, None these comments is relevant since ing requiring expose whether newsman right informer, clearly it is the an who had his source constituted harassment. Under the law, a news- violated valid criminal not a test, right journalist require expose precisely in issue. is in here is man What issue his source is one ing determined consider- quoted in the lan- what Justice White declared guage, "(1) relevant, (2) whether the information Amendment, ¿a, in the that the First whether the information can be obtained otherwise, securing means, (3) news or does not interest alternative whether there is reporter compelling "confer license either the interest the information." See Co.,Inc., Broadcasting criminal Larouche National news source to violate valid laws.”
permit
though
the thief thus to misuse the Amend-
Even
the statutes are not to be
prostitute
salutary
strictly
ment
spying
would be
confined
to “classic”
purposes
though they
of the First Amendment. Sec-
implicit
even
contain no
excep-
793(d)
(e) unquestionably crimi-
tions
tion in favor of transmittal of secret de-
by delinquent govern-
press,
nalize such conduct
fense material to the
the defendant
and,
applied
employee
argues
mental
when
to a
themselves,
the statutes
are
position
constitutionally
defendant
of the defendant
infirm
vagueness
here,
right
prosecutions
there is no First Amendment
overbreadth and the
implicated.
necessary
We,
And
therefore,
it is not
to read
them should
stricken.
(e)
exception
proceed
into sections
to address these attacks on the
given
defense
constitutionality
secret materials
of the statutes.
press, in order to sustain the constitutional-
vagueness
admittedly
While
and over-
clear,
ity of such statutes.
It is
as we have
breadth are
concepts,
related constitutional
said,
Congress
any-
did not indicate
separate
doctrines,
and distinct
legislative
history
where
that it in-
subject
application to different standards
*13
exempt
coverage
from
tended
and
pur-
intended to achieve different
793(d)
who,
(e)
section
one
after steal-
poses.19
vagueness
doctrine is rooted
material,
ing
defense
secret
“wil-
process principles
in due
basically
and is
fully”
representative
delivered it to a
clarity
directed at lack of sufficient
press.
statute;20
precision
overbreadth,
in the
hand,
the other
would invalidate a statute
summary,
we conclude that there
“infringe[s]
expression
when
to a de-
legislative
is no
in the
basis
record for
gree greater
justified by
legit-
than
finding
Congress
that
intended to limit the
governmental
imate
need” which is the val-
793(d)
applicability
(e)
of sections
purpose
id
of the statute.21 Because of the
spying”
exempt
“classic
or to
transmittal
concepts,
differences in the two
we discuss
by governmental employee,
a
who entrust
separately
disposing
them
of the defend-
material,
ed with secret national defense
argument, beginning
ant’s
with the defend-
had in violation of the rules of his intelli
vagueness
ant’s claim of
in sections
unit,
gence
press.
leaked to the
Nor do we
(e)
applied
as
to him.
any authority
proposition
find
for the
that
Congress
validly prohibit
could not
It
repeatedly
has been
stated that a stat-
government employee having possession
requires
ute which “either forbids or
military intelligence
doing
vague
secret
material from
of an act in
so
terms
that men
transmitting
necessarily
that material to “one not enti
of common
must
it,”
tled
recipient
guess
meaning
to receive
whether that
at its
and differ as to its
not,
infringing
application,
was the
without
violates the first essential of
employee’s rights
process
Connolly
the First
due
of law.”
v. General
Co.,
391,
Branzburg
definitely
supra,
Amendment.
is
269
Construction
U.S.
contrary.
127;
Goquen,
46
S.Ct.
Smith v.
415 U.S.
"chilling
protected speech
19.The difference in the two doctrines was stat-
risks of
effect” to
ed
Flipside,
Justice
invalidity.
Marshall in
Estates v.
produces rulings
of facial
But
Hoffman
489,
Estates,
497,
455 U.S.
102
quite specific i.e.,
a statute can be
not
Hoffman
—
1186, 1192,
(1982):
S.Ct.
[they] damag- ... have not been issue as general public.23 not available to ing” and it would not seem that the defend- may complain ant because the now district instructions, Combining the one on the two judge adopted qualifying phrase defining and the one wilfulness developing defense, used his counsel judge gave in this case the district vagueness on this record for precisely the instruction submission issue to the approved Moreover, said, that we States v. jury. issue United as we have this ex- Truong Hung, supra, Dinh 629 F.2d at language ap- act in this same context was 919.24 defendant, proved by Dedeyan. us in however, however, would dismiss this fact would, argue
The defendant
Dedeyan
espionage
comment that
was an
judge’s jury
district
instructions
any possibility of
find removed
case and that instructions
which we
application
of the stat-
vagueness
permissible
espionage
in an
case “are not
utes,
vagueness
actually imparted
into the
sufficient
a leak case where First
national defense” and
phrases “related to
weighed
Amendment
interests must be
argument
His
on the term
“wilfulness.”
supports
argument
the balance.” He
defense” is directed at
“related to national
with a citation to a law review article in 9
that, in
judge’s instruction
or-
the district
Pub.Order,
(1982),
Yale J.World
at 87
“prove
photo-
that the documents or
der
which he contends states that “no First
graphs” herein involved “related to nation-
espi-
Amendment values are at stake” in an
defense,”
prove
must
al
however,
onage
argument,
case. This
photographs
“the disclosure of the
overlooks the fact that the
to the United
potentially damaging
the defendant was not under section 794 of
might
enemy
be useful to the
States
793(f)(2),
the Act
but was under section
the United States.” He attacks
use of
very
section
related
sections
damaging,”
phrase “potentially
itali-
charged.
which the defendant in this
case
indefinite;
cized as above as too
he con-
and,
We find no error in the instruction
tends the word “actual” should have been
particularly
“poten-
in its use of the word
used,
“potentially.”
phrase “po-
tially” in the district court’s instruction.
tentially damaging”
was used
Justice
goes
point
The second
of the defendant
opinion in
concurring
in his
White
*15
“wilfully”
in
to the definition of
as included
Times, supra,
v.
York
403 U.S.
States New
jury
the district court’s
instructions. The
740,
2154,
Dedeyan
91
and in
S.Ct.
court, in
defendant asserts that the district
judge
in his
the district
used the term
regard,
in this
had said that
instructions
instructions,
expressly
an instruction we
motives,
“[p]roof
or
of the most laudable
this,
approved
appeal.25 Beyond
when
on
all,
any motive at
is irrelevant under
both the
and defense counsel
brief,
gives
statute.”
In his
three
examining
on the issue
were
witnesses
support
in
of his contention
record citations
photographs
in
whether the
and documents
point.
Two of these citations are
on
“damaging
issue in this case were
to the
opinion
extracted from the district court’s
States,” they
“po-
phrase
United
used the
Thus,
on the defendant’s motion to dismiss the
damaging.”
tentially
as demonstrat-
argument
his
indictment herein.
In the
way
they presented
ed
which
defendant,
counsel,
motion,
through
question
jury,
to the
the defendant’s coun-
did, saying
pp.
finding
a
J.A. at
that it
that "there is
‘rea-
23.
1123-24.
danger’
informa-
sonable
that revelation of the
51,
Mitchell,
Ellsberg
24. See also
v.
709 F.2d
59
sophis-
question
tion in
would either enable a-
denied,
1038,
(D.C.Cir.1983) cert.
465 U.S.
104
analyst
gain insights
nation’s
ticated
into the
1316,
(1984),
S.Ct.
1073
urged
adopt
defini
language
the district court to
Supreme
Court in
Hartzel v. Hartzel
“wilfully”
tion of
as used
States,
680,
686,
summary,
we find no
basis
this case
1236,
1238,
That
88 L.Ed.
for the invalidation of the statutes for ei-
“pure speech”
a
case
one
and not
vagueness
ther
or
or
overbreadth
for void-
was “in
shadow of
First Amend
ing the
793(d)
defendant’s conviction under
ment”
here. The defendant in that
as
case
(e).
published
had written and
a scurrilous
Moreover, the defendant in this case
pamphlet attacking our allies in World War
dealing
knew that he was
with national
peace
II
favoring
Germany
with
“foreign
defense material which a
govern
order to
eliminate war “between whites.”
in possession
ment
of ... would be in a
Espionage
He was indicted under the
Act
position
itself,
use
either for
in follow
“wilfully” attempting
for
to “cause insub
ing the
agents
movements of the
reported
ordination, disloyalty, mutiny or refusal of
upon, or
upon
as
country’s
check
duty,
military
in the
or naval
forces
efficiency
ferreting
foreign
out
espio
Supreme
United States....”
Court
States,
Gorin v. United
nage.”
found the statute under which the defend
L.Ed.2d
ant
required
specific
was indicted
“a
intent
(1941). He
experienced
was an
purpose”
evil
violate
statute.
officer.
hadHe
been instructed on all the
said: “That
[wilfully],
word
when viewed in
regulations concerning
security
of se
penal
highly
context of a
statute re
cret national defense materials. See Unit
stricting
of expression,
freedom
must be
ed
Jolliff,
States v.
F.Supp.
deliberately
taken
to mean
Wilson,
(D.Md.1981);
United States
purpose
specific
proscribed
to do the acts
F.Supp.
(S.D.N.Y.1983).
1426-27
by Congress.”
purpose to do
proscribed.”
that which was
security”
the national
was not unconstitu
That
the manner in which Hart-
precisely
tionally vague
applied
to this defendant
zel said the instruction should
given
true,
especially
and this is
the trial
since
precise
was the
instruction that was
proper instructions,
judge, under
left
given in this case.
have,
jury,
as he should
the determina
fact,
As a matter of
the instruction as
tion whether the materials involved met the
given
language,
does not include the
“no
test
defense material or information
showing of
purpose
required
evil
did. Gorin v.
jury
found
*16
States,
statute,”
language, “proof
this
the
or
of
United
supra,
32,
312
61
U.S. at
motives,
436,
429,
(“The
the most
or
question
laudable
motive at S.Ct.
determined
determined”);
undisputed
tially,
facts is
may
this Order information
(9th
F.2d
1251
Boyce,
v.
594
States
reasonably
be classified if “its disclosure
Cir.1979); Note,
Constitutionality
expected
damage
could be
to cause
to the
Espionage Act and Its
Section
security_[and]
national
harms to na-
Leaks,
Application
Wayne
to Press
security”
impairment
tional
include
of de-
(1986). Further,
205, 214-17
L.Rev.
capabilities,
fense
disclosure of intelli-
alleged
in the
materials involved here
gence gathering techniques
capabili-
proved at trial to be
indictment and were
ties,
disruption
diplomatic
rela-
plainly
marked
and that classifica-
“Secret”
tions with other countries.
is said in the
Order to be
Classification
Tamanaha, A Critical Review the Clas-
information,
properly “applied to
the unau-
Act, Procedures
sified Information
AmJ.Crim. Law
thorized disclosure of which could reason-
(1986).
284-85
damage
ably
expected
to cause serious
Order,
Under this Executive
the classifi-
security.”27 That definition
to the national
“Secret,”
given
cation
which was the one
may
in re-
of the material
be considered
prosecu-
all the information involved
viewing
constitutionality
the statute un-
tion,
information,
knowledge
applied
der which a defendant with the
was
“be
security
classification that the defendant
unauthorized disclosure of which reason-
Walker,
charged.
had is
United States v.
ably
expected to
could be
cause serious
Cir.1986).
(4th
796 F.2d
We are thus
damage
security.”
Exec.
language
statutory
convinced that the
“re-
12,356,
(1982),
Order No.
3 C.F.R. 166
re-
defense,”
lating
applied
to the national
printed in 50 U.S.C.
401 note
§
defendant,
constitutionally
is not
to the
Regulations
Those
were well known to the
prior
reviewing
vague under our
decisions
agreed writing
defendant
he had
section 793.
by
The defendant
abide
them.
worked
where,
vaulted area
as the district court
The defendant would also indict the
observed,
employees
“even other
of NISC
phrase
vague.
to receive” as
“entitled
enter,”
were not allowed to
much less to
phrase vague
finds this
because
defendant
read or transmit
materials be-
exactly
spell
it does not
out
who
“re
However,
ing
Certainly
phrase
any omis
reviewed therein.
ceive” such material.
supplied
sion in the statute is clarified and
it”
“not authorized
receive
was well
government’s
system
him,
classification
understood
the defendant. As to
provided
App. 1
under 18 U.S.C.
for the
vague in
the statute was not
its reference
protection
security
of the national
“one not
to receive it.”
entitled
judge so ruled.28 And courts have
district
Girard,
classification
No.
3
[Exec.Order
(1982)
court,
reasoning
lies at the
promulgated by
C.F.R.
ard
which
also
166]
1,
Act,
12,356,
(1982),
U.S.C.App.
see
Procedures
18
27. Exec. Order No.
3 C.F.R. 166
mation
(1982).
Note,
reprinted
Security
50 U.S.C. 401 note
Civil
§
Interest and
The National
1130, 1198,
Liberties,
seq.
et
85 Harv.L.Rev.
statutory
28. For a discussion of the
and consti-
(1972).
authority
system
for the
tutional
classification
prior to the enactment of the Classified Infor-
1075
in
Casey,
v.
when limiting
heart of the decision McGehee
construction could save the
(D.C.Cir.1983),
1137
and was
rule
defects,”
718 F.2d
from
citing
constitutional
(629
adopted by
Truong
Pfister,
us
F.2d at 919
479, 491,
Dombrowski v.
380 U.S.
10)
already
1116, 1123,
n.
85
as we
observed.
S.Ct.
14
(1965),
22
L.Ed.2d
Casey,
dealing
v.
court was
v.
Hampshire,
569,
McGehee
Cox New
312 U.S.
762,
vagueness
phrase
with a
61
(1941).
claim
S.Ct.
first two
appealed
also
The defendant has
met;
“circumstanc-
sor Redish are
under 18 U.S.C.
641. That
conviction
§
es,”
these statutes could be
under which
case,
statute,
imposes
as it relates to this
overbreadth, would be that the
voided
anyone
penalties
criminal
who “embez
governmental interest reflected
substantial
steals,
zles,
purloins
knowingly
or
converts
by
could
achieved means
in the statutes
another,
the use of
or without
to his use or
speech
of free
interests.”
“less invasive
sells, conveys
disposes
any
authority,
or
court, by nar-
record, voucher, money,
thing
It has
said that the
been
or
of value
statute, may
rowing
of a
constructions
any department
or of
of the United States
conformity with
bring the statute within
agency
or
thereof....”
Count Two
requiring
applied
it be
the rule
charged
indictment herein
the defendant
speech inter-
invasive of free
means “less
“knowingly
wilfully embezzl[ing],
with
find a
The defendant would
viola-
ests.”
convertpng]
stealing], purloinpng], and
in the fail-
tion of the overbreadth doctrine
another,” and did
his use and the use of
judicial
rul-
the statute or
ure of either
“thing[s]
knowingly sell
of value
limiting
ings construing and
the statute
photographs, each
...
three
United States
employ “a
less invasive of free
method
‘Secret,’
photographs being
classified
said
speech
represented
interests” than is
Sup
Intelligence
Naval
property
defense” and “one not enti-
terms “national
greater
having
a value
port Center
tled to
far as
overbreadth
receive.” So
similarly
In Count Four he was
than $100.
defense”
con-
the term “national
selling “portions
charged
stealing and
cerned,
reasonably
it was
narrowed
Intelligence Support Center
of Two Naval
to confine
district court
its instructions
Wires,”
Weekly
classified “Secret”
national defense to matters under the stat-
Intelligence Support
of the Naval
property
“directly may reasonably
ute which
or
supporting
cite as
Both counts
Center.
defense of the United
connected with the
ample
authority 18
641. At trial
U.S.C. §
States,” the
of which “would be
disclosure
sustaining the
was established
evidence
potentially damaging to the United States
charges.
enemy of the
might
be useful to an
section
noted at the outset that
It will be
“closely
United States” and which had been
indict-
these counts of the
on which
“not
government
held”
and was
rest,
is not a disclosure statute
ment
public.” This nar-
general
available to
(e); it is a criminal
as section
de-
rowing
the definition of “national
covering the theft of
statute
removed
fense” information or material
terms with
It is written in broad
property.
objection to the
any legitimate overbreadth
sweep broadly clear intent to
phrase
“to one not entitled
term.
recognized in
Morissette
Supreme Court
legislative
in the
his-
receive” was defined
States,
“not autho-
tory of the statute to mean one
(1952):
L.Ed. 288
receive,”
already
rized to
as we have
ob-
of the lar-
has concerned codifiers
What
served,
“not authorized to receive” was
gaps
or crevices
Act,
ceny type offense is
by the
clearly covered
Classification
particular crimes of this
separated
referred,
already
because of
we have
es-
guilty men have
general class and
national de-
its classification as “Secret”
*19
1077
caped through
give
The books but in
breaches.
order to
it to
for
drawing fine public
a surfeit of cases
contain
dissemination and information. He
slightly different
distinctions between
claims
criminalize his conduct under
may
one
circumstances
which
ob-
section 641 would be to invade his first
wrongful advantages from another’s
tain
rights.
amendment
The mere fact that one
reach
property. The codifiers wanted to
has stolen a document in order
may
that he
all such instances.
it
press,
deliver
money
whether for
personal gain,
or for other
not
will
immun-
the Court Morissette said
as
Manifestly,
responsibility
ize him from
for his criminal
simply
the statute was not intended
to cov-
act. To use the first amendment for such a
“larceny”
er
and “embezzlement” as those
purpose would be to convert
the first
terms were understood at common
law
a
amendment
into warrant
for
apply
thievery.
was also to
“acts which shade into
Supreme
As the
which,
Court
strictly
those crimes but
con-
made clear in
most
665,
Branzburg, 408 U.S.
sidered,
2646,
might
not be found to fit their
S.Ct.
269,
28,
may
First
fixed definitions.” 342
n.
Amendment
not
U.S. at
be used for such
253,
Following
purpose,
28.
sordid
analy-
gov-
72 S.Ct. at
n.
either
enable the
sis, Judge
Truong
employee
ernmental
Winter
wrote that
to excuse his act of
him,
not
or
Snepp
section 641 was
to be confined
theft
to excuse
as
Marchetti,
application
to “the technical
of
definition
from his
obligation.
contractual
tort
of conversion.”
tion of the statute his theft because he says objec- that he Finally, did steal the “for the defendant’s material we review private, illegal enterprises” rulings covert use in dis- evidentiary tions to the Washington Amicus, 31. Brief of al. at Post, et. passing exceptions judge on such judge. contractors. The district prop-
trict acted apprais in mind that “the erly denying borne must be the introduction of such *20 prejudicial and value of probative al the of evidence. 403 is the Rule entrusted to
evidence under
judge
The district
also ruled that
judge;
of the trial
absent
discretion
sound
foreign
evidence
the
of
countries
circumstances,
the Courts of
extraordinary
exchanged
whom the Government
intelli
not intervene
its resolution.”
Appeal will
224, gence
MacDonald,
pos
information and also
v.
688 F.2d
evidence of
United States
Cir.1982),
(4th
denied,
sible
cert.
countermeasures the Soviets
227-28
had tak
726,
photographs lease, they were not authorized anything he knew Soviets did not already release, I have to conclude that then know”37 and that such materials did not interest of the acting the best he’s not anything intelligence about “reveal our col- States. capabilities lection not otherwise [was] include, known [which all this testimo- court struck The district Moreover, of course the Soviet Union]”.38 damaging testimony including very ny, expert the defendant offered three witness- conduct as that the defendant’s of Jackson Inslow, Pike and Richelson—on the conclusively proved in the case was it was es— “analysis information con- interests of the United “against the best cerning military Soviet matters.” Even testimony striking all this States.” accepted expert, had Anderson been as an opinion incor- court filed a written district testimony on the matters for which he ruling, opinion pub- porating his proffered by the defendant as an ex- F.Supp. 1009. We are satis- lished in 622 reasoning pert clearly the district court’s witness would have been fied with that, may add point. simply We far decision on cumulative. So conten- court retained the record qualified had the district tion that Anderson as witness *22 including point, on this all the evidence monetary on the value of the information the conduct of opinion Jackson’s final on disclosed, important isit to note two facts: tried, being he the defendant for which was first, the proffered defendant was never as clearly far more the result have been would value; and, second, on witness the de- help- defense than harmful to defendant’s showing any qualifica- fendant made no of circumstances, those it could ful. Under testify expert tion of Anderson to as an striking that the of such testi- not be said accordingly the value of the material. We mony affected the verdict “could have rulings find no reversible error the of particular jury” the this case. reached regard. the district court in this Davis, supra. See United States complains in Finally, the defendant Conclusion says he was the district his brief of what Having all of the defendant’s reviewed qualify the witness court’s refusal claims of error herein and found them with- give expert, Anderson as an entitled to merit, judgment affirm of con- out we opinions Weekly that and the Wires viction of the defendant herein. photographs potentially damag were AFFIRMED. ing, Weekly that the were not worth Wires more than and would have contradict $100 way testimony ed in of some the rebuttal WILKINSON, Judge, Circuit not, This
Hazzard and Kerr.35 was how concurring: ever, ground the defendant at on which Judge opinion. I I concur Russell’s proffered expert trial as an wit Anderson analysis his of the relevant stat- believe time, ness., said that he was At utes, instructions, evidentiary rulings and offering expert on Anderson as an “the use is both careful and correct. analysis of information challenge spe- Morison’s constitutional is matters,” concerning military Soviet notice, cifically phrased in terms of statu- ruling response the district court’s tory vagueness, and overbreadth. Yet proffer was that Anderson would be argument in much of the this case has been “accepted relating as a facts witness Amici, per these cast broader terms. The Wash- matters.”36 And Anderson was Post, al., this case testify opinion ington mitted to et warn affect, background experience perhaps dramatically with his al- that the “will App. 35. Brief at 48-49. 37. at 966. Appendix Appendix
36. 38. at 969.
X081 ter, way government officials participate which fewer still in making it. For way reason, press, deal with the which the press provides the “means news, press gathers reports people receive that free flow way public in which learns about its information and ideas essential to effec- government.” organizations self-government.” tive The news Washing- Saxbe v. Co., raising amici, ton necessarily Post their concerns 2811, 2821, 41 parties. press (1974) (Powell, not as No member of L.Ed.2d 514 J., dissenting). searched, excluded, being subpoenaed, or right as in a typical of access case. Mori- The First Amendment interest in in- son newsgathering as a source raise would formed popular simply debate does not van- rights on press organizations behalf of ish at the invocation of the words “national being, be, are not and probably could not security.” National security public se- prosecuted , espionage under the statute. curity, government security in- from formed criticism. No Perhaps decisions press rights because these are more touching serious than those personal Morison, peace access are not we war; none are more certain every have to affect import weighty thus been asked society. member Elections turn on assortment First Amendment into values foreign conduct of notice, affairs and strategies of vagueness, Morison’s and over- defense, dangers Although breadth claims. this is more secre- tive freight Supreme been well document- lately than the Court has ed. Morison claims he released allowed these I satellite carry, doctrines to photographs revealing construction of purposes assume for this discussion that first Soviet nuclear carrier in order to alert Morison is entitled to raise the serious to the dimensions urged Indeed, of a claims I Soviet amici. buildup. naval Although open this claim is fully express my cannot *23 own view this question, to serious addressing claims, case undeniable effect without these of the public disclosure was to unspoken enhance aspects vagueness aof knowledge projection and interest in the analysis, of overbreadth on directly but power sea Soviet such as that in their revealed own terms. photos. satellite I. way photographs which those released, however, were public threatens a I do not think the First Amendment in- important interest that is no less se-—the insignificant. terests here are Criminal re- of curity government operations. sensitive straints on the disclosure of information world, governments In an ideal would not ability press threaten of the to scruti- keep need to secrets people, from their own report government activity. nize and hinges this world much on events tendency, There exists the in a even consti- place that take outside of view. In- democracy, government tutional telligence gathering is critical to the forma- reports withhold disquieting develop- of policy, tion of sound so and becomes more manage ments and to news a fashion every year with the refinement of technolo- debate, most favorable to itself. Public gy growing of and the threat terrorism. however, is diminished without access prevents Electronic surprise surveillance unfiltered As put facts. James Madison by attacks hostile forces and facilitates in- popular Government, in 1822: “A without ternational peacekeeping and arms control information, popular or a of means ac- diplomatic exchanges efforts. Confidential it, quiring Prologue is but a to a Farce or a are the essence of relations. international or, Tragedy; perhaps 9 Writings both.” of (G. 1910). go James Madison 103 ed. Hunt We None of these activities can forward placed knowledge, have our faith in secrecy. without When the identities ignorance, most, known, agents and for this means re- our are press. may liance Few Americans are be killed. When surveil- our electronic acquainted policy, revealed, with capabilities those who make lance are countermea- “aggres- cases the courts have taken an circumvent them. taken to can be sures role, balancing directly comparing the sive” that confidences fear
When other nations
served
restraints on the
interest
bargaining table will
exchanged at the
newsgath-
the interest
unhindered
with
press, our
in the
become embarrassments
ering.
terror-
helpless. When
are left
diplomats
intelligence, they
of our
ists are advised
Although aggressive balancing may have
escape retribu-
apprehension
can avoid
judicial
con-
characterized the
role
other
Note, 71 Ya.L.Rev.
generally
tion. See
texts,
persuaded
I am not
that it should do
(1985) (citing numerous leaks
field,
801-03
security
In the national
so here.
major
covert sal-
compromised
have
judiciary
performed
has
its traditional bal-
development
exposed the
vage operation,
ancing role
deference to the decisions
with
aircraft,
stymied
political
government.
Stealth
secret
branches
treaty).
Amendment,
international
Presented
First
Fourth
progress on
may Amendment,
Morison
leaked
and other
constitutional
type
information
claims,
hampering
damage by
the Court has held that
widespread
cause
imper-
restrictions that would otherwise be
expensive surveillance
the effectiveness
may be sustained where national
expect- missible
otherwise be
systems which
foreign policy
implicated.
security and
years of reliable information
provide
ed to
States,
See,
e.g., Snepp v. United
U.S.
means.
by any other
not obtainable
100 S.Ct.
62 L.Ed.2d
compromised
security can thus be
Public
terminology associated with a bal-
In the
by attempts to choke off the
ways:
in two
ancing analysis, “the Government has a
democracy to func-
needed for
information
protecting
...
compelling interest
tion,
imperil
leaks that
the environ-
secrecy
important
information
to our
security
a function-
physical
ment of
security.” Haig Agee,
ing democracy requires. The tension be-
69 L.Ed.2d
going
interests is not
tween these two
(1981)
Snepp, 444
at 509
(quoting
abate,
respon-
question
is how a
3). Recognition
n.
3,n.
The must thus disclosure, accord ultimate arbiter even the con- Congress latitude to control to na- access well-meaning science of the employee. security tional secrets statute and the through executive some so latitude do III.
the classification I scheme. do come solely this conclusion because enumer- remaining then, question, is whether powers foreign ated for the conduct of application particular of this law to this lodged affairs the executive and particular place defendant took in accord- legislative branches. First Amend- requirements. ance constitutional For presupposes ment the enumerated carefully analyzed the reasons Judge so powers raising of no armies less than —the opinion, Russell’s I am persuaded that it raising revenue—will be executed process did. Neither Morison’s due claims an atmosphere I debate. also concerning vagueness notice nor his recognize that the democratic accountabili- argument First Amendment overbreadth ty legislature executive supports reversal of his convictions. wholly explanation satisfactory for defer- Morison’s claim that he was not on notice ence in security the area of national se- might prosecution conduct lead crets. may pass Years before basis unpersuasive. Morison was a trained portentous decisions becomes known. The Top officer with a Se- public cannot call officials to account signed security cret clearance. He a disclo- the basis of material whose existence agreement specifically stating sure more, content is unaware. What is mis- criminal could result from classification decisions well have been information, handling of and he secret line, made far bureaucrats down warnings clipped explicit classification public accountability may quite whose *25 photo- of from the borders the satellite indirect. sending them to graphs before Jane’s. Rather, judicial the role must be a defer- prosecu- use the fact that Morison cannot ential one because the alternative would be espionage under statute have not tions the grave. To reverse conviction Morison’s frequent from the been shield himself general ground the that it chills ac- provided by notice these facts and the clear judicial cess be would tantamount to a dec- language of the statute. government may laration that the never limiting given by The careful instructions penalties use criminal to secure the confi- any vague- the suffice to cure óf district court dentiality information. (e). in The district enhancing operation Rather of ness sections than the “relating to the nation- democracy, suggests, court’s definition Morison this- requirement course of the scienter every would install al defense” and worker our hold- with access to classified informa- in the statute are consistent with
ings
prospect.
v.
istic
Truong
potential
United States
Dinh
Because the
over-
(4th Cir.1980),
Hung,
But this “moles” cuts both Judge against of other countries. Wil- free do battle the service *27 opinion convincingly appropriately kinson’s demonstrates limiting one in application only that those statutes can constitu- be of these and related sections of Espio- tionally applied to press convict leakers nage statute. While applica- both those (acting purposes) by limiting for whatever spy” conduct, tions were to “classic jury sufficiently instructions which flesh precedential effect those decisions can- key out the “relating statutes’ element of disregarded. be which, to facially the national defense” Judge Wilkinson expresses the view that stated, view, my constitutionally is in both judicious case-by-case ap- because use of vague. Though point overbroad is propriate limiting available, instructions is one, I agree limiting to me a close that the espionage “the applicability statute has no required proof instruction which that the pose the multitude of that leaks no con- leaked “potentially information was either ceivable threat security, damaging might United States or be only threaten to embarrass one or another enemy” sufficiently useful to an remedied high government official.” On this basis the facial vice. Without such a limitation he concludes that prop- these statutes can reach, apparent on the statute’s leaks of erly applied press (whether be leakers which, though undoubtedly information venally or patriotically or however motivat- marginal way, “related to defense” some ed) threatening without the vital newsgath- threaten embarrassment to the official ering press. functions of supports He guardians government “defense” se- convincing discussion of the crets, could lead to criminal convictions. practical dynamics developed rela- Such necessary a limitation is therefore tionship government between of- very define the line at I which believe the ficials to bolster his estimate that this use precludes prose- first amendment criminal significantly of the statute will not inhibit cution, rightly because the interests rec- investigative reporting needed about the ognized Judge concurring Wilkinson’s workings in matters of na- means, opinion. This as I assume we reaf- security. tional defense and today, notwithstanding firm that informa- concurring By opinion, in his I accept may classified, govern- been have general estimate, I consider required ment prove must still that it judicial be the critical determination forced “potentially damaging ... or fact arguments the first amendment ad- useful,” i.e., fact of classification so, in this doing vanced case. But in I conclusive, merely probative, on that jury case-by- observe instructions on a issue, though it must be conclusive basis upon case are a reed slender which to question authority possess or receive rely application constitutional of these the information. This must be so to avoid statutes; critical instructions converting Espionage Act into the sim- necessary surely press we find here ple Government Secrets Act which Con- judiciary’s right obligation limit the gress has refused to enact. narrow, “reconstructing,” without statutes Here, writing slate, we were on a I clean constitutionality ques- whose is drawn in might grave have doubts about suffi- tion. ciency limiting instruction used in passage quoted by Judge In the Wilkin- requirement Morison’s trial. that in- son, Justice Stewart observed that “Con- relating formation to the national defense may provide gress through resolution ... merely “potential” damage carefully legislation.” surely drawn That sweeps extremely usefulness broadly. still provide long-term the better resolu- One wonder whether information tion here. shown to related somehow to national defense fail to could have at least some “potential.” But write we do not slate,
an absolutely clean for this instruc- approved
tion has been court in Dedeyan
both and Truong Hung as Dinh