United States v. Truong Dinh Hung, United States of America v. Ronald Louis Humphrey

ure, came to the United in 1965. At States WINTER, HALL, Before RUSSELL and least since his arrival the United Judges. Circuit Truong pursued scholarly an active and political interest in Vietnam and rela- WINTER, Judge: Circuit tionship between Vietnam and the United Truong Dinh Hung, familiarly Krall, more Dung States. In Truong met known Truong, Vietnamese-American, as David and Ronald Hum- the wife of the an phrey espionage, conspir- Officer, were convicted of American Naval who had extensive acy to commit espionage and several espio- contacts among community the Vietnamese nage-related transmitting offenses for clas- in Paris. Truong persuaded carry Krall to sified United informa- packages States for him to Vietnamese in Paris. representatives tion to of the government recipients representatives were of the Republic Socialist Vietnam. Republic Socialist of Vietnam at the time of appeals, they these seek reversal of their negotiations Paris between that convictions because of warrantless surveil- country pack- and the United States. searches, lance alleged inapplicabili- and ages copies diplomatic contained cables ty of the espionage statutes and the theft- and papers other classified of the United of-government-property statute to the facts government dealing with Southeast of this alleged several Jencks Act vio- Truong procured copies Asia. from lations, alleged an compulsory denial of Humphrey, employee Ronald an 794(a) violation of 18 and Agency, who U.S.C. and §§ Information cop- (c). surreptitiously, They conspiracy

obtained the documents were convicted of also them, mark- ied removed their classification documents convert classified ings copies Truong. conversion, and furnished the exceeding and in value $100 arrest, given his Hum- 641; In statement after act- of 18 371 and violation U.S.C. §§ improve his was to phrey said that motive foreign ing agents of a between the North Vietnamese relations Secretary prior without notification government and United States so that and of 18 violation U.S.C. §§ State he reunited with a woman' whom could be 2; na- delivery of material related to the he was a of the North prisoner loved who persons tional defense to unauthorized government. Vietnamese 2; 793(e) violation of 18 and U.S.C. and §§ 783(b) conspiracy to violate 50 and U.S.C. § Truong, Krall was a confi- Unknown (c), penalize government employees employed by dential informant CIA transmit, who agents who kept agencies fully these FBI. Krall receive, thereby classified information. Truong’s activities and present- informed of given ed the had her to packages inspection, copying approv- FBI for II.

al Par- before she carried the documents to Foreign Intelligence Exception A. permitted operation is. The FBI Requirement the Warrant continue, monitoring closely, while it approximately September, until Janu- chal- The defendants raise substantial ary lenge urging to their convictions vio- the surveillance conducted the FBI agencies When intelligence the first lated the Fourth Amendment and that all Truong transmitting learned that was clas- through the evidence uncovered that sur- Paris, they sified documents to were under- consequently suppressed. veillance must standably extremely anxious to locate stated, As has been the did not for Truong’s source his data. Toward that eavesdropping seek a warrant for end, a conducted massive Truong’s phone bug- conversations or Truong. Truong’s phone surveillance of apartment. Instead, ging of his it relied was his tapped apartment bugged and was upon “foreign intelligence” exception a January, from May, 1977 1978.1 The require- the Fourth Amendment’s warrant telephone interception continued for 268 foreign intelligence, ment. In area of conversation, days every with possibly and contends, the President exception, virtually one was and monitored seeking may authorize surveillance without all taped. eavesdropping were device judicial a warrant because his constitu- days was for operative approximately 255 foreign prerogatives tional area of and it No continuously. ran court autho- basis, sought and affairs. On FBI sought rization was ever or obtained for the approval from received surveillance installation and maintenance of the tele- delegate, Attorney the President’s Gen- phone tap bug. alone, approval according eral. This Humphrey thus pro- ascertained that was government, constitutionally is sufficient viding copies Truong of secret foreign intelligence authorize surveillance documents. This leak of sensitive informa- such as the of Truong. tion of course when and surveillance Truong ceased were arrested on Humphrey January accepted govern- The district court argument foreign ment’s there exists trial, re- protracted intelligence exception After a warrant however, court, Humphrey espio- quirement. were convicted of The district both nage pro- conspiracy espionage to commit also the executive could decided that days, eighty-five September, 1. For June to his Infor- tivities in office at the United States video-taped Humphrey’s Agency. the FBI also ac- mation long reasons, ceed without a warrant so as the For several the needs of the ex- investigation “primarily” foreign ecutive are so compelling in the area of telligence investigation. The district court foreign intelligence, unlike the area of do- decided that the FBI investigation had be- security, mestic that a uniform warrant re- primarily come investigation by criminal quirement would, following Keith, “unduly July and excluded all evidence frustrate” the President in carrying out his through secured warrantless surveillance foreign responsibilities. affairs all, First of after Conversely, that date. all evidence attempts to foreign counter threats July secured before 20 was not suppressed national security require stealth, the utmost court, the district because it determined speed, secrecy. A requirement warrant during period investigation would procedural add a hurdle that would primarily foreign intelligence. concerned reduce the flexibility of foreign executive agree We with the district court initiatives, intelligence in some delay cases that the Executive Branch need not always executive response to foreign intelligence obtain a warrant for foreign intelligence threats, and increase the chance of leaks Although surveillance. the Supreme Court regarding has never decided the issue sensitive operations.2 which is executive us, presented to it formulated the analytical Mitchell, See Zweibon v. approach we employ here in an anal (D.C.Cir.1975) J., (Wilkey, concurring and ogous United States v. United States dissenting). (Keith), District Court More importantly, the possesses executive Keith, L.Ed.2d 752 unparalleled expertise to make the decision executive had conducted warrantless do whether to foreign intelligence conduct sur- security mestic surveillance. The Court veillance, judiciary whereas the largely is posited inquiries two guide the Fourth inexperienced Amendment determination of making whether a the delicate and required: warrant complex decisions lie behind If the legitimate need of Government to intelligence surveillance. See New York safeguard domestic security requires the Times Co. v. surveillance, use of electronic ques- 727-30, 2140, 2148-2150, 29 L.Ed.2d tion is whether the of needs citizens for (1971) (Stewart, J., 822 concurring); United privacy expression and free may not be Belmont, 324, 330, States v. 301 U.S. 57 protected better by requiring a warrant 760, 758, (1937). S.Ct. 81 L.Ed. 1134 before such surveillance is undertaken. branch, executive containing the State De- We must also ask whether a warrant partment, intelligence agencies, and the would unduly frustrate the efforts of military, is constantly aware of the nation’s protect Government to itself from acts of security magnitude needs and the of exter- subversion and overthrow directed nal posed by threats panoply foreign a of against, it. organizations. nations and On the other 315, 407 at U.S. 92 at 2135. Balancing S.Ct. hand, while possess the courts expertise in individual privacy government needs, making probable cause determination Supreme Court concluded that the exec- utive in must seek a warrant involved surveillance suspected before it of under- crimi- takes domestic security nals, surveillance. the courts are diplomacy unschooled in practical obtaining 2. The difficulties of any a war- case when it disclaimed intent to “limit the foreign intelligence rant for power surveillance were constitutional of the President to take particularly acute at the time this necessary surveillance such measures as he deems . conducted, protect security because Title III of the against Omni- national information bus Crime foreign intelligence Control and Safe Streets Act of activities.” 18 U.S.C. 1968, 20, specifies 2511(3). 18 U.S.C. 2510 repealed by §§ That disclaimer was procedures, procedures warrant Foreign Intelligence 1978, contained no Surveillance Act of foreign intelligence 4, infra, tailored to surveillance. In note see which established a mecha- fact, Congress explicitly in III govern Title chose not to nism to the issuance of warrants for address the sort foreign intelligence of surveillance involved in this surveillance.

914 affairs, (1936). Just military mastery separation pow- a of which 255 as the of in Keith forced passing upon recog-

would be essential an exec- ers the executive request judicial utive role con- foreign branch that a intelli- nize a when the President Few, surveillance, gence wiretap be if 407 any, security authorized. ducts domestic 316-18, 2136-2137, truly competent courts 92 district would be at at so the U.S. S.Ct. judge importance powers particular separation requires informa- of us to ac- security knowledge principal responsibility tion to the United States or “probable cause” to demonstrate the President for affairs and con- foreign surveil- comitantly foreign intelligence in fact needs recover for particular information from one lance. source.3 sum, because of the need of the execu

Perhaps most crucially, the executive tive branch for ex flexibility, practical its superior expertise branch perience, competence, in and its constitutional intelligence, the area of it is foreign also the courts require should not the executive constitutionally designated pre-emi- as the to secure warrant each time it conducts Accord, affairs. See First authority nent foreign foreign intelligence surveillance. Cuba, Bank v. Butenko, National Banco Nacional de v. United (3 States 593 759, 765-68, nom., 1808, cert. denied sub Cir.), 406 U.S. Ivanov v. Unit 92 S.Ct. 1812- (1972); Oetjen v. 1814, Cen- 147, 32 L.Ed.2d ed 881, 466 419 U.S. 95 S.Ct. 42 Co., tral Leather 297, 302, (1974); 246 U.S. 38 S.Ct. 121 United States v. L.Ed.2d Brown, 62 L.Ed. 1973), The President cert. (5 Cir. denied, deputies and his charged by 960, 1490, are the consti- 415 U.S. tution with the Clay, foreign poli- (1974); conduct of the United States L.Ed.2d 575 cy (5 of war rev’d on other 1970), times 430 F.2d 165 Curtiss-Wright See United peace. grounds, 2068, 91 S.Ct. Corp., (1971).4 Contra, 81 L.Ed. Zweibon v. L.Ed.2d 810 believing sought infra, that the information neous 3. See note for a discussion of the foreign intelligence the desired Foreign Intelligence is information Surveillance Act of reasonably and that cannot be which authorizes information Justice to Chief choose judges pass seven on similar obtained normal methods. 50 U.S.C. issues. That statute, however, authority 1804(a)(7)(E). Finally, limits the § empowers the statute judge by prescribing “clearly over such designate issues the Chief Justice to seven erroneous" judges requests standard of review. The foreign statute to hear the intelli- encourage development foreign will special gence warrants and thus creates telligence expertise among judges these seven judges develop expertise group will who by empowering them to hear all intelli- area. this arcane U.S.C. gence requests. warrant possible for suggests Act that it While the in this was conducted the surveillance 4. Since least some at branch to conduct the executive types Foreign Intelli- Congress has enacted foreign intelligence while surveillance 1978, 50 U.S.C. gence Surveillance Act requirement, the subject being to a warrant requires seq. that exec- et That statute suggests the complexity that the also statute approval prior judicial for seek utive officials beyond requirement, imposition aof warrant foreign intelligence The Act surveillance. some in this minimum described constitutional the opinion, not, however, transport traditional the does intricate balanc- be left to the should requirement unal- Amendment warrant Fourth legislative the ing performed in the course intelligence foreign field. The into the tered by Congress President. process the and warrant re- a blanket does not contain statute quirement; demonstrates statute structure of the elaborate catego- rather, exempts certain it flexibility great political need branches that the foreign intelligence surveillance. ries of compromises the formulate and reach the require to the the statute 1802. Nor does U.S.C. foreign govern intelli- which will standards satisfy for the usual standards to the executive Thus, gence the Act teaches warrant; surveillance. need dem- executive of a the issuance inexpert judiciary, unwise for the target be it would foreign only probable is that the cause onstrate intelligence, attempt and, an to enunciate to foreign agent power the foreign or a foreign in- equally structure for core elaborate resident and citizens United States case aliens, guise of a con- clearly telligence the surveillance under government erro- is not the Mitchell, (D.C.Cir.1975) (dic- 516 F.2d 594 namese Association in Paris. According to Krall, plurality opinion involving tum in case Truong gave carry her documents to organization of domestic hav- Dong, surveillance back to who handed the documents ing foreign acting an effect on representatives relations but the Vietnamese addition, agent neither the of nor in government. collaboration Krall testified foreign power). with a the Vietnamese ambassador to the told her that Truong Nations had However, privacy because individual in- volunteered to obtain documents for the any are time severely compromised terests Moreover, government. Vietnamese Krall government conducts surveillance with- Truong gave stated that her documents to judicial prior approval, foreign out this Nam, deliver to Phan Thanh head of the telligence exception Amend- Fourth Paris, Vietnamese mission in who in turn requirement ment warrant must careful- gave Truong. her a for letter Obviously, ly limited those situations in which the ample there was evidence that tended to interests of the executive paramount. are show collaboration with Vietnam on the First, should be relieved of part of Truong. object a warrant seeking only when the foreign or the surveillance search is a Second, ruled, as the district court power, agent its Zwei- collaborators. Cf. securing executive be excused should Mitchell, (D.C. bon v. 516 F.2d 613 n.42 when warrant is surveillance Cir.1975). cases, In such “primarily” for foreign conducted intelli- stealth, greatest need and speed, for gence reasons. We think that the district and the surveillance in cases is secrecy, such test, adopted proper court because once likely to play most call into difficult and primarily surveillance becomes a criminal judgments subtle about mili- foreign and investigation, entirely compe- the courts are foreign When con- tary affairs. there is no probable tent the usual make cause de- nection, the executive’s needs less become termination, because, importantly, and indi- compelling; and the surveillance more vidual interests privacy come to the fore closely resembles the surveillance of sus- government foreign policy concerns re- criminals, pected which must be authorized cede when the is primarily at- Thus, by warrant. if the government tempting to form basis for a criminal wiretap phone govern- wishes of a prosecution. reject govern- We thus employee ment who is sensitive stealing that, ment’s assertion if surveillance is to personal reading documents for his or to gathering at any degree foreign directed newspaper, instance, leak ato for the ab- may ignore executive intelligence, a foreign sence of connection the im- requirement warrant of the Fourth Amend- portance individual con- privacy concerns ment. within lead tained the Fourth Amendment urge that “primarily” The defendants secure requirement that the executive enough protect test far go pri- does not judicial approval advance for surveillance. vacy They argue interests. Mitchell, 703- See Zweibon be able to should avoid the (D.C.Cir.1975) J., (Wilkey, concurring requirement only warrant when the surveil- dissenting). “solely” foreign poli- lance is conducted clearly cy proposed “solely”

The surveillance in this case reasons. The test however, upon unacceptable, satisfied limitation because almost all intelligence exception foreign investigations re are in intelligence warrant Krall, agent, Although quirement. government part investigations. criminal es- rare, Truong pionage prosecutions a letter of are there is received introduction to al- through Dong, president ways possibility targets Viet- that the working experience attempt gain be would branches an Such decision.

stitutional foreign intelligence requirement be not it would warrant because particularly ill-advised area. political adjustment subject easily to by underscoring should conclude the limited investigation prosecuted will for criminal be Thus, if the “sole- foreign intelligence exception violations.5 defendants’ nature of this ly” adopted, test were the executive would we rec- requirement to the warrant ev- required to obtain a warrant almost exception ognize in the instant case. ery foreign intelligence time it undertakes agents, applies only foreign powers, to their above, surveillance, and, as indicated such a Moreover, their collaborators. even requirement give adequate would fail to protection of these actors receive the responsibil- consideration to the needs requirement if the warrant foreign ities of the executive in the intelli- together a primarily attempting put gence area. Thus, prosecution. criminal the executive if it is proceed only can without a warrant case, In this the district court concluded attempting foreign in- primarily obtain July investigation that on telligence foreign powers or their as- primarily had a criminal become unique sistants. We think role of investigation. Divi- Although the Criminal affairs and the executive Department sion of the Justice had been separation powers permit will not this investigation incep- aware of the from its court to allow the executive less on the tion, until summer the Criminal Division case, facts of this but we also are convinced had not taken a central role in the investi- per- Amendment will however, the Fourth gation. July July On 19 and grant mit us to the executive branch more. several memoranda circulated between the Department Justice and the various intelli- gence security agencies national indi- B. Reasonableness of Surveillance cating begun that the had required, Even if a warrant is not prosecution. assemble a criminal On the requires the Fourth Amendment that the facts of this finding district court’s surveillance be “reasonable.” The reasona July 20 was the critical date when the bleness of the surveillance is determined investigation primarily became a criminal examining particu the circumstances of the

investigation clearly was correct. lar case. Scott United Therefore, because there was more than 56 L.Ed.2d 168 enough evidence to that Truong indicate seventy days prior July For had collaborated with the Vietnamese agents intercepted FBI Truong’s all of government and because the district court calls; and, phone long peri for almost as did not err in choosing July 20 as the date od, agents listened to Truong’s conver when the investigation primarily became apartment.6 sations with visitors in his As criminal investigation, we do not disturb observed, the district court the surveillance the decision of the district court to exclude reasonable, agree. was nonetheless and we all evidence through obtained the surveil- lance July after permit but purpose of the surveillance was to government to introduce evidence secured Truong’s determine source or sources through the July surveillance before Thus, government documents. it was nec- calls,

Because the essary intercept Fourth Amendment all his because the warrant requirement is a critical pro- agents constitutional could never be sure tection of privacy, individual particular discussion whether a caller would reveal Attorney 5. As Bell 6. The FBI General testified at the hear- surveillance continued for over 260 ing days. suppress suppressed on the motion to the fruits of the Because the district court all every say surveillance: “Let me one of evidence obtained from the surveillance after counterintelligence July investigations seventy-day period preceding these volved, seen, nearly all I of them that have that date is relevant. The district court also way. July involves crime an incidental You nev- ruled that the blanket surveillance after unreasonable, you might up er know when turn with some- because the had thing you might prosecute.” identifying Humphrey want to succeeded in as the sole source of the documents that date. Moreover, Truong knew flimsily that he was a source of the documents this during his with wrapped sometime conversation would package cross at least two well, when the Truong. As national to way boundaries on its Paris. groups like this eavesdrops on clandestine inspection This risk of Krall left the when one, investigators necessary often find it entered United States and when she France possible intercept all order to record calls any of against expectation privacy militates oblique language code references by v. Truong. Ramsey, United See States illegal v. Clerk scheme. See 606, 1972, 97 S.Ct. L.Ed.2d 617 (4 Cir.1977), ley, 556 F.2d 709 cert. denied Therefore, package because the was sub nom. London United U.S. poorly wrapped and because it destined was 2830, (1978) 56 L.Ed.2d 775 foreign delivery, not Truong for have could (approving of blanket surveillance numbers expectation harbored a reasonable that the partici the operation in order determine package contents of the un- would remain case, Thus, pants). on the of this the facts disclosed; consequently neither a by surveillance conducted warrant nor search executive authorization agents was reasonable.7 necessary was search.8 C. Package Search III. The FBI and the one CIA searched The of defendants were convicted several Truong sent to Paris packages by espionage violations of statutes and re- either Krall without the authorization of provisions. Truong Humphrey lated Attorney or a General search warrant. challenges raise a number these con- government agents Because the did not re victions. authorization, ceive the foreign executive exception intelligence to the warrant re Espionage A. Statutes quirement not legitimate does this search. jury found that the defendants had Nevertheless, did Truong because not have espionage provisions, violated three legitimate expectation privacy 794(a), 794(c), 793(e). U.S.C. Two package, Rabinowitz, see United principal objections by are made the de- 65-66, fendants to their convictions these under (1950), L.Ed. 653 did district court statutes, will and we consider them in or- err in permitting pack the contents der: age to be admitted into evidence. package documents was contained (1) Defense National envelope.

within an manila unsealed Inside prerequisite A common for a convic was envelope transparent bookbag, tion under each of the is that loosely Although tied with twine. the docu- statutes “relating information partially ments were shielded from defendant transmit view opaque pieces of paper, parts some the national defense.” The defendants ar through gue phrase documents could be seen the book- that this limits the reach of the Thus, bag. diligent military had not made a statutes to matters and assert that effort to conceal documents view. none the materials transmitted ing necessary Humphrey Truong, 7. In was addition to surveillance of determine how tape cam- at-work. installed secret video handled documents while Humphrey’s era in office at the United States brief, Agency. Humphrey Information In his package A were searched letter and another length, per- does not discuss this intrusion at autho- without a warrant but with executive haps because the evidence obtained from the both took rization. Because of those searches tape play important video did not an role at place July before accordance our any ruling trial. we affirm intelligence resolution of the issue of a video-taping district court reason- exception, neither of warrant we conclude that up July steps able because the took FBI the Fourth these warrantless searches violated tap- to minimize intrusion and because Amendment. addition, government. the Vietnamese the “na- Humphrey related to Truong and of national the broader definition thus defined. under tional defense” defense, great packages the contained argument, the defendants’ Contrary to information, in deal of national defense espionage stat legislative history of sources States form of names of United intended Congress that utes demonstrates govern- the Vietnamese intelligence about encompass a broad “national defense” case, there can the facts of this ment. On rejected attempts range information transmit- information no doubt that the be statutory lan the reach of the to narrow the nation- “relating to was information ted Schmidt, Espio guage. Edgar and See al defense.”9 of Defense nage and Publication Statutes Information, 972-74 73 Colum.L.Rev. (1973). reading on a similar Resting (2) Intent Supreme Court Congress, intent of their second The defendants base 19, 28, v. Gorin United objection their claim that upon principal (1941), under 85 L.Ed. 488 S.Ct. espio conviction under constitutional defense” as the breadth of “national

scored finding of evil must include a nage statutes “National espionage statutes: used intent, e., injure the United i. intent maintains, Defense, ‘is a the Government They foreign aid a nation. or to connotations, re concept of broad generic under that convictions contend their military and naval establish ferring to the 794(c) 794(a) are invalid because and § national the related activities of ments and jury instruct the that judge trial failed to We that the words preparedness.’ agree and that finding of evil intent was essential Espionage Act ‘national defense’ in the 793(e) invalid under are their convictions Thus, the defend carry meaning.” that 793(e) not contain evil itself does because § attempt ants’ to constrict the ambit of “na for a convic necessary as an element intent matters strictly military tional defense” to tion. cannot succeed. See (9 Cir.1979), ,§ 794(c), Boyce, 794(a) prosecu- 594 F.2d 1246 cert. de Under 855, 100 nied, 62 L.Ed.2d S.Ct. acted prove tion must that the defendant “with or reason to believe” intent injure will transmission of the information urged either the strict definition Under foreign or aid a nation. the United States the broad definition by the defendants or requirement critically is im- This scienter Gorin, Supreme Court endorsed Supreme relied portant, because the Court information the defendants transmitted Gorin, 26-27, 61 upon it in 312 U.S. at defense. The which related to the national (1941), to rebut a claim that at 433-434 to Paris included information materials sent unconstitutionally were espionage statutes directly which related to the United States The defendants insist that overbroad. about Viet- including information military, this, case di- judge’s district instructions Thailand, American designs namese important requirement luted the scienter Indochina, military and American POW’s the defendant could be con- suggesting fallen into the hands of materiel which had perti- challenge nature of the documents would be to the official raises another 9. The defense upon in- espionage their transmission would the district nent to whether convictions based jure nation. of docu- the United States or aid a court’s instruction on classification Finally, jury told that the defendants re- ments. An examination of the instruction veals, however, guilty transmitting entirely proper. national would not it was First, jury judge information if the information were that it defense the district informed Thus, public testimony dis- might available in the domain. the docu- “consider place great emphasis Certainly an trict court did not too the classifi- ments were classified.” of the documents or their on the classification was relevant cation of the documents specifically they nature and instructed the question official to the “nation- of whether related publicly Dedeyan, jury available that transmission See United States al defense.” statutory pro- Second, (4 Cir.1978). not fall within the formation did the dis- jury correctly judge that the hibitions. trict instructed convict, fore it for mere This conten- could and defined bad negligence. victed faith “design tion insubstantial. as a to mislead deceive another. is, prompted That honest by an mistake jury judge The district instructed the duties, by as to one’s but prompted some to convict defendants it must find that that personal or underhanded motive.” This in- or they “willfully acted and with an intent any possible struction more than cured to believe” that reason information 793(e).10 of overbreadth See Gorin v. § injure be used to the United would States 19, 27-28, 312 United 61 S.Ct. power. to aid a The was jury or 429, 433-434, (1941); 85 L.Ed. 488 United told that to believe” meant also “reason (4 Dedeyan, 1978); 584 36 Cir. F.2d a defendant be shown have that must Schmidt, Edgar 1020.11 supra, & at from which he known facts concluded reasonably should have concluded that B. Espionage-Related Statutes prohibited

information be used for the could mean, The did not how- purposes. latter addition their convictions under the ever, merely could jury convict statutes, and espionage Truong Humphrey “neg- upon finding a that a defendant acted guilty violating were found of two related Rather, jury was instructed ligently.” statutes, 951 criminal and 50 § U.S.C. act which “willfully” that a defendant must 783(b) (c). and U.S.C. § jury was and “voluntarily told meant specific intentionally and with intent (1) Foreign Agent something do the law forbids.” jury Truong found that 793(e) not same Section does contain the Humphrey had acted in the United States 794(a). strong language scienter Rath- § unregistered agents as of the Socialist Re er, requires it only that the defendant have Vietnam, public of violation 18 U.S.C. de- “reason to believe” that the national 951. The defendants make two chal § fense information could used to harm First, lenges their they convictions. ar aid a foreign United States or to nation. gue their privilege that the statute violated The defendants that this strin- contend less against because they self-incrimination gent language the statute renders unconsti- partici would been confess have forced to tutionally generally Edgar See overbroad. pation illegal they had espionage regis in if Schmidt, supra, & at 998-1020. registration provision tered. A violates the 793(e) however, though Amendment, Even does not include only Fifth if it is § language scienter to the language identical at a class of who aré inher persons directed 794(a), require it does that the accused ently suspect illegal § activities. A neutral “willfully” Evi- requirement, transmit information. registration such this one dently relying trial upon language, representatives of foreign directed at na judge jury tions, instructed the it must find does Fifth offend the Amend acted in Walden, defendants bad faith be- ment. United See another, 793(e) possible Virginia. though gave Humphrey 10. Section contains am- Even biguity. punishes only Columbia, It those “un- who have the documents the District possession” authorized of national Alexandria, defense Truong passed them to Krall judge adequate provided formation. The trial Virginia. Since Krall was the means which jury phrase advising for this content the documents were carried to Vietnamese person posses- would have authorized Paris, act, proscribed the act of transmis- appropriate security if sion he had an clearance sion, place in took See Alexandria. gained if he access to the document be- Walden, (4 Cir.), States v. 464 F.2d 1015 cert. necessary performance it cause was denied, 409 U.S. L.Ed.2d his official duties. (1972). Finally, the district court included all the ele- objections 11. Defendants two other make espionage charge ments of offenses its espionage which with- convictions we find and did not include two elements as the Contrary out merit. to the defendant’s conten- tion, insist. 794(a) 793(e) charges defendants venue for properly was laid in Eastern District of denied, Group A. The Final of Documents (4 Cir.), cert. L.Ed.2d 230 Hall Krall’s case officer. Robert was CIA reports He made of his conversations also contend that defendants trial, prosecu- Krall. Near the end of vague and overbroad. impermissibly 951 is judge with a presented tion the district objection to the word principal Their reports and cables large number of Hall’s context, “agent.” “Agent” as used in this concerning his conversations with Krall. however, readily is a understandable term the ma- government produced Because the provides adequate notice of the con there was a terial at a late date and because proscribed by duct the statute. documents, large the district number

judge stating was candid in that he adequately. He unable examine them (c) 783(b) and D. 50 U.S.C. § through cursory “I a said: have been it in Truong Humphrey were convicted of manner, enough to there is determine that 783(b) conspiracy to violate 50 U.S.C. ., reading nothing very cursory . . (c). 783(b) makes it unlawful for a Section any is different than Act [that] [Jencks employee know- United States supplied to already material the defense].” ingly to communicate classified information judge The his irritation with the revealed agent foreign government. to an of a Con- prosecution producing the documents versely, 783(c) illegal makes it for an tardily thereby preventing him from agent knowingly fully responsibilities: “Pre- foreign government carrying of a out his [evidently the Fourth suming the Court Cir- to receive classified information from the Government contrary, finds to the government employee. The cuit] United States going just because some- is to lose this case defendants contest their convictions under body being in the CIA was cute.” grounds. statute on several As these statements of the dis Most of their contentions were reflect, judge finding, trict there is no clear adequately answered v. United Scarbeck record, last existing on the of whether the States, (D.C.Cir.1962), 317 F.2d 546 cert. group of documents contained statements denied, 1897, 83 S.Ct. U.S. produced which should been under the have (1963). Truong argues L.Ed.2d 1077 that he They given Jencks Act. were not the care by sys cannot be bound the classification nec scrutiny ful the district court felt was tem because he was em How essary to make a confident decision. ployee. But he cannot hide behind his civil ever, judge’s we decline the district invita encouraged govern ian he status when ourselves, inspect tion to the documents ment docu employee copy classified and, instead, remand the case so that Second, contrary Truong’s argu ments. carefully can screen the docu district court ment, the fact that the President did not ments. We leave this task to the district personally classify courts, the documents does not judge not the because district place scope courts, them outside the of the statute. appellate with the are entrusted Finally, we find no unconstitutional ambi for Jencks duty examining documents material, guity phrase Campbell “of a kind which shall Act v. United “agent have been 83 S.Ct. repre classified” or (1963) (Campbell II). L.Ed.2d 501 In addi foreign government.” sentative of a tion, judge intimately since the district is familiar with the other Jencks Act material IY. trial, than produced equipped at he is better objections at Defendants made several Act state any we to decide whether Jencks regarding applica- trial the district court’s within the documents are ments included tion of the Jencks Act and assert them on that the failure to merely cumulative so appeal. objections Two of merit ex- produce prejudicial those them at trial was not tended discussion. the defendants.

The need for a remand in this is Krall’s courtroom description case of the Paris underscored the fact the govern- prosecution incidents. The was unable to however, brief produce ment has conceded in its before us Krall’s reports, because according Hall perhaps destroyed documents contain three had them to rou- procedures tine Jencks Act statements Krall.- CIA before any The criminal prosecution government’s contemplated. was description one of de- these argue fendants suggests statements that one of con- district court Krall’s imposed upon should have versations Hall have sanctions may differed prosecution for the from her destruction of the re- testimony at trial. Krall testified ports by the CIA. Nam, that Phan Thanh the head of mission, Vietnamese Paris told her that The destruction of Jencks Act among people “our in Wash- may material at spirit violate least the ington.” states in its brief Act, even if the material destroyed report Hall’s recounts Krall’s conversa- following without bad faith proce a routine tion with mentioning Nam without a refer- Missler, dure. See United Truong. ence to This document could thus (4 1969), 1304-05 cert. de contain a Jencks Act statement which nied, 25 L.Ed.2d might impeach have been used to Krall’s (1970); Johnson, testimony. (4 1964), aff’d, 201-02 383 pass however, We do judgment, 749,15 not 86 (1966). U.S. S.Ct. L.Ed.2d 681 the significance of the government’s failure Whatever the Jencks Act consequences of produce possible Jencks Act state- the destruction of “statements” criminal ment. We “good leave that decision to the investigators, Act Jencks was not vio experience sense and case, district judge”, lated in this reports because the were States, 343, 353, Palermo v. United 360 U.S. destroyed outside the context of criminal (1959). S.Ct. 3 L.Ed.2d 1287 investigation. If the district court decides that the docu- Krall acted as both an FBI agent and a material, ments do not contain Jencks Act agent. operative, provid- CIA As a CIA she if the district court finds Jencks Act variety ed a regarding of information prosecution’s material but decides that government, not Vietnamese limited error,12 produce failure to- it was harmless flow of documents from Paris. judg- the district court should enter a new Hall, officer, reports Her her CIA case If, however, of ment conviction. the dis- were of part intelligence-gathering her court trict finds Jencks Act material and for reports function the CIA. The were concludes that denial of it was not harmless Hall, destroyed by acting as a CIA intelli- error, judgments it vacate of should gence functionary, in with CIA accordance conviction in may order that the defendants practice designed preserve secrecy of Goldberg obtain a new trial. See United sensitive re- operations. Krall’s States, 94, 111-12, ports destroyed were thus in prepared and 1348-1349, (1976). 47 L.Ed.2d 603 conjunction intelligence with role her as an agent, aspect not as an of her role as an Reports

B. of Destruction Krall’s investigation. in informer criminal reports Therefore, Krall some made written to Hall of those even under decisions detailing in imposed her activities while Paris. which courts have sanctions descriptions These reports included of her of Act state- routine destruction Jencks trial, see, g., relating Truong. investigators, actions At de- e. ments criminal Carrasco, (9 attempted fendants to obtain these reports, United States 3500(e)(1), 1976), under 18 not prosecution U.S.C. order to test Cir. would be will, course, Goldberg 12. The court of v. United district strict n.21, n.21, application any its of harmless error doctrine to 47 L.Ed.2d 603 nonproduction of Act See Jencks material. by copying information the docu- classified subject to sanctions for the destruction of ments, theory goes, their since the United reports. In this the district Krall’s not Agency Information denied impose not err when it refused to court did process. access to its information prosecution on the for the de- sanctions assert, Furthermore, the defendants infor- possible struction of this Jencks Act materi- encompassed by intangible mation is an not al.13 speaks tangible “things” Therefore, the defendants con- value.14 V. that, they because obtained an intan- clude The defendants were also convicted conversion, incapable gible their acts violating 641. That statute U.S.C. § prohibited by were the limited terms criminally any person renders liable who another, “converts to his use or the use of sells, authority, conveys separate or without or dis For reasons set forth poses Judge any thing opinion Judge . . . of value of Russell in which concurs, majority The defendants were Hall has concluded States.” that, rule, theory convicted under this statute on the under the concurrent sentence they government property converted in this contention of the defendants should not otherwise, the form of classified information when I think and I will be considered. they surreptitiously copies secured of secret I the con- my why state first reasons think possession documents of the United current sentence doctrine should not be Agency. States Information my voked to bar review and next views respect to the merits of defendants’ argue defendants their convic contention. tions must be reversed because the theft of continuing classified information falls outside the con vitality Whatever the They fines of this statute. contend that concurrent sentence doctrine in other cir cuits, thought information cannot be “converted” because I decently it was in the common law tort of in requires by conversion terred this circuit the in decision dose States, legitimate 152, owner deprived (4 be of v. United F.2d 450 155 Cir. possession, Dodd, 1971), denied, 1068, see Pearson v. 410 F.2d cert. 405 92 U.S. S.Ct. (D.C.Cir.), denied, 947, 701 1513, cert. 395 (1972), U.S. 31 L.Ed.2d 799 where we said 2021, (1969). S.Ct. 23 L.Ed.2d 465 In this legal why “there is no reason a concurrent case, sentence, the defendants did not “convert” the longer, attached to a valid sen- Second, reject argue 13. We two other Jencks Act claims the defendants that the district by First, judge raised the defendants. the defendants withheld Jencks Act material from them judge Although contend that the district should have held because it was classified. the district States, hearing Campbell judge under v. United commented that there was “a little more (1961). U.S. 5 L.Ed.2d 428 burden” in this Act case than usual Jencks I), (Campbell classified, to determine whether documents case because the documents were he prepared by employ deny Hall contained Jencks Act state- did not a standard that would Camp- they ments of Krall. in Unlike the situation defendants information to which were en- I, Rather, bell in this case there was no need for a titled under the Jencks Act. he indi- hearing gather applied extrinsic evidence in order to cated his comments that he reports determine strictly whether Hall’s contained in Jencks Act this instance more than fact, ordinary “statements.” Because Hall used sometimes he would in the case. quotation reports, judge marks in his the defense district admitted that he had “turned suggested reports things arguably though repeti- that Hall’s amounted to a over useful “substantially verbatim recital” of Krall’s com- tious.” 3500(e)(2). By ments to him. 18 U.S.C. § tangibles. reading reports 14. One case has limited 641 to examining § the context Chappell (9 used, v. United 270 F.2d 274 quotation in which the marks were 1959). That case that an Air Force officer judge held district could determine on his own by appropriating did not violate quotation § 641 the labor whether marks enclosed Krall’s duty, of an airman while on because air- quotation exact words or whether marks intangible man’s labor was an outside the merely literary were used Hall as devices. scope Here, then, hearing necessary. § no tence, served, already and based on defendants must be tried anew. Defend fairly what must be deemed constitutionally offenses, guilt then, ants’ of the other has evidence, impermissible should be left finally not been there settled. Should be a we standing and direct that it be vacated.” trial, new manifestly that trial should be litigation If this was true when the was a limited to the counts of the indictment not conviction, collateral attack on a the sen- based on 641 if there is § merit defend served, tence for which fully had been I ants’ contention as to scope the limited think it much more true here where the 641. We should avoid the risk of any § validity conviction is before us on aspect error in the the case which appeal and the yet direct sentence is as might prejudicial have a effect the valid That unserved. the defect in the conviction ity of other possible convictions. While I in Close was while here the constitutional generally agreement am with the dis is, me, statutory claimed defect is a dis- senting view in United v. Boyce, tinction without a difference. And I am (9 1979), denied, 1252 Cir. cert. my not alone in reading of Close. It has 62 L.Ed.2d 73 been so read as conclusively rejecting the (1980) rather than that of majority concurrent sentence doctrine in United the instant case is even a strong Vargas, (2 States v. 957 Cir. er in which reject application one 1980), Note, and in The Concurrent Sen- Here, concurrent sentence doctrine. the va Maryland, tence Doctrine After Benton v. 7 lidity of the convictions under 641 is a U.C.L.A.—Alaska L.Rev. real issue and an academic exercise Indeed, what was decided dose having practical no effect as the majority is so clear that I am question led to tries to demonstrate. authority of the majority panel of this When brought to the merits of defend- previous overrule the decision panel contention, ants’ my views are as follows: this court. change Heretofore such a direction, supervening absent a superseding legislative history of 641 does not Court, Supreme decision of the has been mention application of the statute to restricted an in banc court. the theft of information. Sec- tion 641 is a provision; venerable criminal

But even if continuing the doctrine has predecessors its were first enacted in 1875. utility as a means of avoiding expendi- present The statute was codified in its form judicial ture of resources on the unneces- in 1948 when issue, the criminal code was revised. sary decision of an I think that it is improper might expected, to invoke As the 19th century it here for at least two First, legislative history reasons. predecessor stat- sought apply application there is in issue not utes does not address of § the innocence, merely guilt information, defendants’ or government statute to almost but, demonstrate, as I later substantial first certainly Congress because a of that era view, amendment my considerations. In would not foresee this issue. See United proper protection concern for the of these Lambert, F.Supp. v. 446 893 important considerations should make us (D.Conn.1978), aff’d sub nom. United States more hesitant to invoke the concurrent sen- Girard, (2 1979). And, 601 F.2d 69 Cir. tence doctrine here in than the run-of-the- because the merely 1948 revision was mill criminal case. provisions consolidation of several of the code, Congress 1940 did not discuss sub-

Second, this is not a case in which defend- stantive of reach 641 when the statute § ants’ other unqualifiedly convictions are af- short, was enacted in its current form. In contrary, firmed. To the we are unanimous legislative history Congress reveals that the case remanding to the district court applica- directly never considered the consideration of whether Jencks Act government tion of information. improperly material was denied the 641 to § defend- that, enacting predecessors, ants with the if 641 its direction such denial Con- § is found prejudicial, gress and determined to be express did not an intent that

924 wrongful advantages disclosure of in- tain

unauthorized another’s either or ex- formation be included within property. The codifiers wanted to reach prohibitions cluded from criminal of such all instances.15 641. § Likewise, footnote, an earlier Court legislative While the of the stat- history “The of 641 explained: history demon- § inconclusive, ute is language of the stat- apply to acts which strates that it was to ute leading Supreme and the decision Court constituted embezzlement at larceny or dealing with 641 establish the statute § common law and also acts shade into should not narrowly be construed as as the which, strictly crimes most those but con- language defendants would like. The of might sidered not to fit their fixed be found is appending 641 itself all-inclusive. By § n.28, definitions.” 342 at 266 72 “thing “any of value” onto the list of rec- Thus, legislative design at n.28. 253 ord, voucher, money,” certain- Congress [or] language revealed the statute and ly did not an evince intent to restrict by Morissette defendants’ at- belies the reach of Congress 641. Nor did manifest § tempt taking narrow the statute a desire that 641 wrong- not include some § categories of certain property and to ful appropriations government property engraft upon technical definition § “embezzles, when phrase pur- it chose the tort of conversion. See United loins, , knowingly or . . or converts . Girard, (2 1979), 601 F.2d 69 Cir. sells, authority, dispos- without conveys Lambert, United 446 F.Supp. aff’d States v. es.” (D.Conn.1978).16 States, In Morissette v. United 342 U.S. IWhile would thus that in conclude some 246, 271, 72 S.Ct. 96L.Ed. 288 encompass circumstances the un- may § (1952), Supreme Court confirmed that authorized disclosure of infor- Congress language intended the 641 to § mation, applied 641 must be § theft sweep broadly: of government with information extreme concerned What has codifiers of the larce- problems care. Two acute particularly ny type gaps offense is that or crevices arise when the punish statute used to particular have separated crimes of this defendants who have stolen general and guilty class men have es- formation. caped through the breaches. books First, contain a surfeit because the was not drawing of cases fine statute drawn between slightly distinctions different with govern- unauthorized disclosure of may mind, under which one ob- ment information in 641 is not circumstances passage conveys thoughts: range 15. wrongful takings, beyond Another similar broad purpose law, “The which we here attribute to Con- confines the common which were com- gress . . . demonstrates the serious mitted criminal intent. problem drafting such a statute is to avoid gaps loopholes Friedman, between offenses.” also See United States v. U.S. at 272 72 S.Ct. at 254. (9 Cir.), cert. denied sub nom. Jacobs v. part opinion, In the first the Court held Congress did not intend to omit criminal L.Ed.2d 275 district court has One con proscribed intent as an element of the crime cluded does include the unau by failing explicit to include an mention copying thorized documents. of criminal intent. The Court concluded that Hubbard, 64, F.Supp. States 474 United v. 79- Congress must have been the aware that crimi- (D.D.C.1979) (dicta). 80 nal acts listed in § 641 had law at common interpreted which Courts have other criminal always included criminal an intent as essential containing phrases “thing statutes similar to of element and that therefore the would not Court statutory have value” decided that lan Congress infer that had deleted criminal intent guage tangible intangible included both and 263, as an element of the crimes. 342 U.S. at See, property. g., Zouras, e. United holding Congress 72 S.Ct. at 249. This (7 1974); 497 1115 States v. meant to include the critical element of crimi- Bottone, (2 Cir.), denied, 365 F.2d 389 cert. 385 nal it intent when codified law these common U.S. 87 17 L.Ed.2d 437 S.Ct. separate crimes does not undercut the Court’s holding Congress intended criminalize vague is not a standard in authority” out exactly when specify crafted carefully is il- of classified information. government information the context disclosure of au- is “without language The crucial legal. recently adopted The has Second Circuit of that contours thority.” precise by government approach advocated ambiguity This not self-evident. phrase are 641 to application it ruled on the of § when disturbing govern- because particularly is informa- category government of another of much forms the basis information ment Girard, 601 F.2d tion. In United States v. and, as a issues public discussion of of the (2 1979), aff’g United v. Lam- 69 Cir. the statute result, language of the unclear bert, (D.Conn.1978), F.Supp. protected impinge upon rights threatens to selling infor- charged defendants were 641 as it first amendment. Under by § computers mation obtained from the written, controls the precise is no standard Administration include Drug Enforcement upper govern- level by exercise of discretion n ing the identities informants and the of whether they when decide employees ment investigations. government drug status of govern- of the disclosure permit to forbid The court determined encom- § Nimmer, National ment information. See the unauthorized disclosure of passed The Issues Security Speech: v. Free Secrets The court information. also government Case, 26 Ellsberg Left Undecided resulting and the vagueness confronted the (1974). Consequently, Stan.L.Rev. contained first amendment difficulties might government employees upper level within the statute. The court corrected arbitrary an fashion their discretion in use by reading “without authori- these defects government the disclosure of prevent Depart- ty” embody pertinent Justice information; government employees, regulations Agents ment and the Manual of newspapers, and others could not be confi- Administration, Drug Enforcement many dent in the disclo- circumstances that specifically forbade the disclosure of particular piece government sure of a of government information at issue in that information was within the “authorized” By reasonably looking case. thus Thus, meaning vagueness 641. § concrete definition authority” of “without pose could authority” the “without standard governed particular the disclosure of a threat of national public a serious debate information, government category issues, thereby bringing the constitutional 641 as vagueness court eliminated § validity question of 641 into because of its § applied to the defendants in that case. chilling effect on the exercise of first Louisiana, rights. amendment See Cox vagueness This solution for the § 13 L.Ed.2d 471 problems raises the second of the which is (1965).17 641 to the application caused § government po- theft of information: responds to this first government for conflict between 641 and other tential by insisting amendment concern that “with- specifically statutes addressed to the disclo- authority” very specific out content government sure of information. Section applied when 641 is to the disclosure traditionally employed 641 has not been classified a defendant information. When punish those who make unauthorized disclo- stealing is informa- charged with classified fact, government sures of information. tion, submits, au- “without Girard, the decision of failed to the Second Circuit thority” means that the defendant handed down in was the first circuit regulations governing dis- comply with the squarely apply Because decision to face the issue closure of classified information. the statute to the theft of regulations highly those are detailed concludes, Earlier, “with- without much specific, formation. discus- course, opinion vagueness express whether when it I no raised statute Of applied applied 641 as to classified information would to the theft of informa- amendment, merely I fact violate the first tion. apparent first amendment difficulties note the 926

sion, strict permitted requirement a contain the intent the Ninth Circuit had statutes; to be convicted under 641 for defendant who espionage punishes anyone § it disclosing grand jury information. But, 798 “knowingly willfully”. § acts and Friedman, (9 Cir.), 1076 only the disclosure of one makes criminal denied, 326, 30 cert. information, in- class classified of classified Congress (1971). 275 L.Ed.2d Because concerning and cryptography formation 641 would consciously never aware that § contrast, By 50 U.S.C. communications. disclosure of the unauthorized punish any 783(b) makes it unlawful to disclose § because this information and statute, how- classified information. That innova relatively of 641 is a recent § use ever, only upon places prohibition this strict tion, interpreting courts must be cautious in government employees,19 subjects and even in a manner applied 641 so that it is § government employees penalties to criminal design, congressional with the if consistent only when the information is communicated any, expressly governing the disclosure of a agent foreign government to an of a or a particular type of information. organization.20 member a Communist of When the statutes addressed to the dis- penalize If were extended to § of are exam- closure classified information unauthorized disclosure of classified infor- ined, cannot, it apparent becomes that § mation, would alter this meticu- greatly it consistent with the frame- congressional lously woven fabric of criminal sanctions. of criminal explicitly work statutes directed statutes, espionage Unlike the does § information, pun- classified to applied at be stringent a requirement; contain intent ish these defendants for unauthorized steals, penalizes “embezzles, it whomever disclosure of classified information. And, purloins, knowingly or converts.” un- Congress legislated frequently and like penalize § would not § precision with regard to unauthor- of only disclosure a limited clas- category of information, ized disclosure of classified and Rather, sified information. 641 would § punish it has chosen to only catego- certain any outlaw the unauthorized of disclosure ries disclosures and defendants. Nation- value”, is, “thing any classified al defense protected information is from Finally, formation. in contrast to 50 U.S.C. statutes, disclosure the espionage partic- 783(b), penalties of 641 not be would § § 793(a), ularly (b), (c) and 794. But those § § placed who only employees only penalize statutes a who defendant acts communicate classified information to for- “with intent or reason to believe [the eign or agents operatives. Communist In- injury information will be used] stead, punish persons; would all the United advantage § States or to the of [a] foreign nation.”18 “whoever” disclosed classified information Classified information is guarded authority also from unauthorized disclosure would crim- subject without by 18 U.S.C. 798. 798 does not penalties. § Section inal appear espionage Two of statutes 18. sen to enact series of criminal direct- statutes further, and, reading, ly reach much on first seem aimed classified at information. penalize merely disclosure willful 793(d) most classified information. 18 U.S.C. § 783(c), counterpart See also U.S.C. § 19. (e). suggested Congress It has been 783(b), punishes agent which or did not intend these statutes have such a organization member of Communist re- who Schmidt, meaning. Edgar broad See & govern- ceives classified information from a Espionage Information, Statutes Publication Defense employee. ment 73 Colum.L.Rev. 1031-57 exactly I would not need to decide how 793(f), punishes See also U.S.C. § these far statutes I need extend. would anyone, “being having entrusted with lawful or that, precise scope hold whatever possession” documents, of national defense 793(d) (e), general terms of (1) permits destroyed through them who gross to be employed should not be to serve a broad (2) negligence report fails to their prohibition against the authorized disclosure of illegal proper custody. removal Congress classified information when has cho- see 2A Sutherland, utes, Statutory Thus, if 641 were extended to the unau- Con- § information, (4th 1973), struction 57.06 ed. and that of classified § thorized disclosure axiom is even more forceful sensitive the limita- sweep many would aside it of classified information which has area imposi- Congress placed upon tions subject congressional frequent been the sanctions for the disclosure tion of criminal concern. Because 641 would disturb the § 798 and information. Section of classified prohibitions Congress structure of criminal 783(b) effectively sub- would be U.S.C. § some, some, prevent only has erected to 641.21 language sumed under the broad § information, disclosures of classified addition, willfully any person In who dis- general anti-theft statute should not be information without any closed classified penalize stretched to dis- unauthorized subject pen- to criminal authority would be closure of classified information.22 alties, intent of contrary to the evident expressed in the strict intent re- Congress My by conclusion is reinforced the fact espionage quirement inserted into the stat- Congress has repeatedly refused to en- dealing utes. It is axiomatic that statutes act a statute which make criminal would topic pari with the same should be read in the mere unauthorized disclosure of classi- legis- present espionage materia in order to further the overall fied information. The in a of stat- expressed largely lative intent series statutes were enacted in their 21. other than the nage did not conceive that the limited nature of the criminal for classified communications information be- embodied which ized revelation of information of this kind can ment person making the revelation did so with an sponse cause under the information: ties for tion. intent to unauthorized disclosure of classified informa- Id. No. House statutes did not This bill makes tations of al information within the ods, by this bill in the course of their duties. making nected with the services and are not now prohibited coded way sons who can be most transmission During the recent war there were United States. Most of these individuals are no ^[1950] When it enacted § penalized only Report employees statutes were the Report protected techniques, and material used in the the free dissemination of information to this Report explained messages. disclosing fact, 81st U.S.Code injure sensational went on to note that former acquired personal the House Cong., described the 798: damaging predecessor security espionage the United States.” would not be They it provide classified information. The this Nation of if Cong.Serv., pp. making a crime to reveal classified communications It does not control in it can be some information covered 2d Sess. disclosures § gain 798, Congress certainly are threat 641 would only Report to the sufficient subject statutes, purview and of disclosures congressional criminal statutes (1950), subject § by emphasizing proved security 798, assumed enciphered publicity prevent longer prohibition “unauthor- of this act. many per- protection espionage the meth- reprinted H.R.Rep. that the govern- person- penal- espio- temp- 2298. that, con- any re- they “should concentrate cording would make it unlawful for certain proposed two have had authorized access to closure of classified information: the which has remained confined statutes, requirement, sional debate would be to a because thought would acted closed Id. disclose tion, those who have ing an addition to the criminal code which United States information. The merely tions.” 126 ary narrow names serve as a criminal classified information. “reasons 641 were Thus, which pher. I government urges present day, 8, 1980) also note prohibitions against the the names of covert 96th § greatly any of covert willful unauthorized disclosure of to the category of classified in 1950 another it had enacted in might which are constricted statute would relating 641 would classified Cong., applied criminal Cong.Rec. (remarks disrupt sponsor intelligence agencies. See be transmitted if the courts abused their Congress category agents. criminal § to constitutional considera- 2d Sess. currently Congress authors to classified information, in this largely unchanged punish anyone prohibition against of Sen. prohibitions Congress S. 1306 of the Senate punish which of classified felt network code of the bill felt that agents § great [their efforts] permitted unauthorized dis- trust” because of that, (daily Huddleston). information. by information, would contain protected the classified including the extent serving code or ci- their intent after it en- a network persons those who ed. Febru- espionage who dis- carefully is debat- informa- congres- bill, § 641 to moot, until this any one Ac- S. It If to a ways refused enact statute like request in 1917 at the of Pres- present § form Although Congress agreed to classified in- applicable ident Wilson. to the disclosure of espionage, it specifically aimed at formation, statutes I would hold that cannot § rejected of that it request the President unauthorized interpreted punish be punish publi- enact a criminal statute to information. disclosure of classified Like cation of defense information in violation of Lambert, F.Supp. the district court presidential pub- regulations. Concern for applica- at I would conclude that lic issues and distrust of a debate of defense government tion of thefts of infor- 641 to § president’s powers converged war-time upon case-by- mation should be decided a publi- defeat the to criminalize the proposal Here, case basis. where the unauthorized Edgar of classified information. & cation of classified information been disclosure Schmidt, supra, at 940-41. Similar at- legislation the focus of and constitutional tempts immediately were unsuccessful after political Congress, within it debate II, 1950’s, World War in the late in the mid through would be unwise to extend § 1960’s, and in the 1970’s.23 See Subcomm. judicial interpretation to include this cate- on Disclosure of the Secrecy and Senate gory of information. Whatever content Comm, Intelligence, Cong., 95th Select “thing of of value” in the context of other Sess., 2d. and the Security National Secrets information, types government of 17-19, (Comm. Administration of Justice phrase may not be read to include classified Thus, 1978). Print national area of information within 641.24 § information, security Congress has con- sciously making refrained from it a crime VI.

merely to disclose classified information authority. without The Vietnamese ambassador to the United Nations was named in the indict sum, prohibition because a criminal ment of Humphrey as an unin against the unauthorized disclosure of clas- coconspirator. dicted Subsequent sified information would be inconsistent indictment, publication of the existing pattern with the the State De of criminal stat- governing partment designated perso utes the disclosure of classified the ambassador information Congress grata and because has al- na non and asked his Congress adopted protect by [predecessor 23. When 798 to § tected field covered information, classified communications gress consciously Con- .... 798] enacting Here, then, long refrained from is another in a series of con- prohibition applicable criminal congressional to disclosures of scious decisions not to render categories other of classified information: criminal the mere unauthorized disclosure of categories all of classified information. attempt provide This bill is an legislation only category for a small of classi- government urges 24. The that the conviction be matter, category fied which is both vital upheld theory on the that the defendants stole unique degree. and vulnerable to an almost government property in the form Hum Under the bill as now drafted phrey’s xeroxing work time and facilities when penalty publishing there is no the con- Humphrey copied during the documents work tents of United States Government communi- ing hours at the United States Information course, (except, cations those which reveal Agency. The Third States v. Circuit United categories directly protect- information in the DiGilio, (1976), 538 F.2d 972 cert. denied sub itself). by ed the bill Even the texts coded Lupo nom. v. United messages published Government can be (1977), recently up 50 L.Ed.2d 749 penalty without cerned, as far as this bill is con- held a conviction under based on this publication whether released for such theory. case, however, In this by the defendants authority depart- due of a Government were indicted based on passed the conversion of the authority ment or against out without information, not the theft of personnel department. xerox orders of a resources, ing course, judge’s jury and the instructions In the latter the Government personnel likewise dealt with might subject pun- conversion of informa involved Therefore, not, tion. I think this rationale is una ishment noted, action administrative but it is pass vailable to affirm provisions the convictions and no under the of this bill. judgment upon validity bill, carefully avoiding of this while method liberties, proceeding fringement pro- under of civil extends the right compulsory defendant’s by the advised the dis- The defendants recall him. tip clearly so they speak process, wished to the balance does trict court him as a might call when the national in the defendant’s favor the ambassador agreed then to a an errant requests the recall of witness. ten period it for a enjoining court order nation. representative of another ambas- expel action to taking days Second, diplomat potential is the when Interpreting sador from the United States. witness, even if he testify well not may he Department, closely, the State the order Because of States. remains United request its earlier for press not while it did is not immunity, the witness diplomatic there- recall, rescind it. also did not Soon diplomat, judicial process. to amenable after, ambassador left the United the waives government may testify only if his government’s to his pursuant States Therefore, if the Unit- even immunity. his they claim that The defendants structions. government foreign rep- forces a ed States compulsory process. See were thus denied leave, government may the resentative to Texas, 14, v. U.S. Washington defendant, the because prejudiced not have (1967). 18 L.Ed.2d have refused to foreign might nation the indictments have dismissed Some courts in a testify to permit representative its deported illegal government when the if had prosecution he criminal United States the witnesses in potential were aliens who defendant’s consequence, the stayed. As a See, g., e. of a defendant. prosecution compulsory process is claim of a denial (7 Calzada, 579 F.2d 1358 v. United States foreign diplomat is when a very attenuated v. 1978); Mendez-Rodri- Cir. United States unavailable witness. the 1971). courts (91 Those guez, 450 F.2d immuni- diplomatic of the bar of Because violated government that the have ruled the interest in ty and because of national compulsory process right to the defendant’s against diplomats action who misbe- taking beyond witnesses his potential by placing that, have, we in order to demon- conclude beyond jurisdiction reach and compulsory process, the strate a denial of these authori- But we do not think court. go point than to defendant must further applicable. ties govern- missing diplomat/witness be- There are two critical distinctions diplomat’s recall. involvement in the ment diplo- cases and this deportation tween the Butenko, Accord, United States First, in the case of matic recall case. remanded (3 1967) vacated and 567 Cir. recall, Department’s diplomatic State 165, 89 S.Ct. grounds, on other to ac- foreign diplomats holding interest (1969). 22 L.Ed.2d of conduct is much more ceptable standards in a case such We therefore hold that interest government’s compelling than prejudice show this one a defendant must When a illegal aliens. deporting foreign govern- demonstrating by outrageous diplomat engaged becomes im- diplomatic waived the ment would have conduct, partic- such as perhaps sinister Without munity representative.25 of its conspiracy, the United ipation illegal in an is no reason to believe showing, such a there to act. cannot decline government po- the defendant was harmed Thus, interest government’s while the and there is like- outweighed tential witness’ absence may aliens deporting illegal Thus, require the order did not Importantly, States. evidence in this case there is no request, government nor to withdraw its recall government While in bad faith. acted require every to take other Department did it effort State did not make steps remain in leaving the ambassador prevent convince the ambassador from By failing States. to rescind its fully complied the United then, Department request, did the State recall issued terms of the court order with the limited faith. act in bad not judge. As the district court the district ruled, Moreover, proof instructed order State is no there taking merely request affirmative ac- Department to refrain from further made the recall expel deny from the United tion to the ambassador a favorable witness. the defense Here, hearsay statement penalize wise no reason to the United itself. Krall’s tes taking appropriate timony, merely the statements of against diplomat. action an errant In this declarant, provided out-of-court evidence of supply the defendants have failed to Therefore, under Fed.R. conspiracy. the necessary proof, and therefore there is 801(d)(2)(E), Evid. the statements were ad no basis on which to conclude that the de- Jones, See United States missible. process.26 compulsory fendants were denied denied, (4 Cir.), cert. 49 L.Ed.2d 375

VII. variety defendants make a of other Truong’s Library B. Admission of objections to their convictions. None of items removed from these do we find Several meritorious. Truong’s apartment were admitted in evi A. Coconspirator Statements of a Truong trial. dence at had contended that his interest in the cables obtained from Krall April testified that in she de Humphrey benign scholarly preoccu was a package Dong, livered a pation with Vietnam president and Vietnamese- of the Vietnamese Association in Paris. Two American relations. persons Dong’s among arrived at head Found quarters; Dong they told Krall that were Truong’s papers books and were a State Vietnamese officials. Krall testified that Department Telecommunications Handbook Dong, the two officials told “I codes, unidentified parts which included classification hope America,” you get package and Department the Biographical Regis State after Dong package, handed them the ter which were annotated hand to indi a perfect “What time for government these cate which employees “spooks,” of the were arrivals.” The object defendants that these pictures company statements were hearsay. inadmissible Vietnamese ambassador who was an unin coconspirator, dicted and handwritten notes statements, however, These were made espionage on counter-espionage. and These by eoconspirators and thus fall within the materials undoubtedly were de relevant to coconspirator exception rule, hearsay termining Truong’s the nature of interest in 801(d)(2)(E). Fed.R.Evid. The defendants him, rely Humphrey gave on materials Stroupe, United States v. an issue 538 F.2d (4 1976), put 1063 support before the by Truong their claim court himself. that the evidence was judge inadmissible. But in The district proba decided that Stroupe, the out-of-court statement was tive value of this outweighed evidence its ruled inadmissible only effect, because the real evi- possible prejudicial 403, Fed.R.Evid. dence of conspiracy provided by and we find no error in his determination.27 addition, In Humphrey petitioned permit we note that 26. the defendants the court to him argued have not that the failed to take a lie detector test and admit the results cooperate any with them in efforts into evidence. to secure Those circuits which have al presence unstipu lowed the admission Vietnamese ambassador of the results of at granted trial. After the lated lie detector tests have ambassador left the United district judge great deciding judge discretion in pledge whether district extracted a See, g., admit the test results. from the e. United States it would aid the Mayes, (6 Cir.), attempt 648 n.6 cert. defendants in an to convince the Viet- denied, L.Ed.2d namese to allow the ambassador pass We need appear not on the admissi party at trial. Neither has informed bility results, of such test because we find that the court of the result of the defendants’ en- admissible, they judge even if were the district government, any treaties to the Vietnamese if by excluding did not abuse his discretion them made, were and we infer from this silence that in this case. pledge. did not violate its rebuttal, During prosecutor argued his disclosures of secret information could harm 27. The defendants make several other chal- they put the national defense even if “wouldn’t lenges to their convictions which deserve Pennsylvania Russians on Although Avenue.” brief mention. may overblown, the comment have been it was regarding contentions their Section con-

VIII. short, In it declares that under victions.” convictions, defendants’ We affirm the rule, it is the concurrent sentence unneces- on remand. subject proceedings to further sary in this review the conviction of remand, court case to (cid:127)Upon the district will exam- group produced agree. ine the of documents I final the defendants under by the for Jencks Act material prosecution provides rule The concurrent sentence are steps as consistent take such receives that where defendant concurrent opinion. counts of an indictment plural sentences AFFIRMED. where on one count is the conviction reviewing to be court need good, found RUSSELL, Judge, con- DONALD Circuit pass validity on the defendant’s curring dissenting: This conviction on count. familiar another I concur in wholeheartedly Judge Win- approved by rule has been both repeatedly opinion ter’s herein in which he scholarly Supreme this court.2 Court1 and perceptively canvassed carefully and because of particularly recent decisions— espionage, law of criminal troublesome Maryland (1969) decision in Benton except ruling charging for its on the count 791-92, 2060- 641, U.S.C., forth a violation of set application 707—the L.Ed.2d opinion. in Part V of the has, rule restricted situa though, been In the district court defendants possibili where is no substantial tions there espionage were under the counts convicted ty that conviction will unreviewed ad and each received a sen indictment versely right pa affect the defendant’s They also con years. tence of fifteen were expose role or him to a substantial risk of counts, including victed three other under consequences. adverse collateral See Unit They received sen count under 641. § (5th Vasquez-Vasquez v. ed States Cir. years tences five under each of these 235; 234, 1980) 609 F.2d United States v. counts. were to run concur All sentences 278, 280, (5th 1979) F.2d Rubin Cir. 591 cert. rently. Judge opinion The Winter sus 0 133, denied, 864, 444 10 62 U.S. S.Ct. save tains all these convictions that under 87; rel. L.Ed.2d ex Weems v. United States 641. opinion His would reverse the con § 417, (2d 419, 1969) 414 F.2d Follette Cir. was, however, It viction under this count. denied, 950, 973, 90 25 cert. 397 U.S. S.Ct. Government, position in as stated (1970). recognized L.Ed.2d 131 We lim brief, argument, its reiterated in oral upon itation v. the rule in Close United appellants’ that affirms con “if this Court 152, (4th 155, 1971) 450 F.2d Cir. (that is, victions of those counts any cert, 1068, 1513, denied, 92 S.Ct. 31 405 U.S. 641), counts than that under there § other no it to consider L.Ed.2d 799 appellants’ occasion for reversal, (1973) 837, inflammatory require par- v. 1. Barnes United States 412 U.S.

not so as to 848, n.16, 2357, n.16, ticularly light equally argu- 37 rhetorical 93 2364 L.Ed.2d S.Ct. 380; light (1958) 355 U.S. ment of the defense and the fact that Lawn v. United States 339, 322, 321; 359, 311, play Union did not in this 78 2 L.Ed.2d Soviet role S.Ct. 53, 59, prosecutor (1957) case. The also made comments Roviaro v. 353 U.S. United States 639; n.6, 623, n.6, interpreted might his 77 1 L.Ed.2d Hira- rebuttal as shift- S.Ct. 627 81, 85, (1943) ing proof bayashi 320 U.S. in some v. the burden of areas United States 1375, 1378, judge interrupted district 63 1774. defense. S.Ct. 87 L.Ed. prosecutor’s any rebuttal and corrected misim- and, instructions, pressions through 1969) corrective (4th Cir. 2. United States v. Powell addition, judge’s 966, 582, 585, denied, the district final instruc- F.2d 395 U.S. cert. proof 2113, 753; burden di- tions included the usual States v. S.Ct. 23 L.Ed.2d United (4th 1968) rectives. Wechsler Cir. Finally, reject denied, we the defendants’ contentions cert. 1389; (4th the indictment insufficient and Jacobs L.Ed.2d United States v. Cir. inadequate. 1967) voir dire was 386 F.2d is, though, no substantial There likelihood possible

of adverse effect on defendants’ America, STATES of UNITED parole rights or of other adverse collateral Appellant, consequences arising out of the failure v. review the convictions under 641 in this case. (8th See United States v. Smith Cir. FAIRFAX, VIRGINIA; COUNTY OF 1979) 972, 974-75, denied, 601 F.2d cert. County Super Members of the Board of 879, 100 62 L.Ed.2d 108. visors, Herrity, F. Warren I. John Ci espionage charges conviction under the re kins, Magazine, Audrey Moore, Alan H. sulted in á years. sentence fifteen Un Pennino, Scott, Martha James S. John P. 4205(a), U.S.C., der the defendants Shacochis, Travesky, Joseph Marie B. must years serve at least five under this Alexander; Jail; Office of Sheriff and sentence before will they eligible become Swinson, Sheriff, County James D. defendants, therefore, for parole. The can Fairfax; Fairfax-Falls Church Commu eligible not be parole they until have Board; nity Moore, Services Gene years served five of their concurrent sen Chairman of the Fairfax-Falls Church When, however, they tences. have served Board; Watson, Services Jack M. Exec years, they five completed would have utive Director of Fairfax-Falls Church their concurrent sentences under the Board; County Services The Fairfax count. any possible Neither is there ad Authority; Holley, Park Estelle R. verse effect on the place defendants’ conditions of Chairman of the confinement reason of the Board Fairfax Coun application of ty the concurrent Authority; Joseph Downs, sentence rule Park P. in this case. See United Holder County Director of the Fairfax Park Au (8th 1977) n.4. More thority; Lambert, Acting J. Hamilton over, there could be no adverse effect under County County Executive of the of Fair- the Parole Commission’s “salient factor fax, Appellees. score,” since guidelines for such “score” provide that multiple offenses arising out of single set (which of circumstances is the America, Appellee, UNITED STATES of here)

situation will be treated as a single offense thereunder. See States v. Smith, 601 F.2d at 975. Accordingly, allow FAIRFAX, VIRGINIA; COUNTY OF ing defendants’ convictions under the Sheriff, County; Office of Fairfax count will not increase the time defendants Community Fairfax-Falls Church Serv will have to serve nor cause them any ad Board; County ices the Fairfax Park verse I, collateral consequences. therefore, Authority, Appellants, would apply the concurrent sentence doc cases, trine in these and decline to review

the merits of the defendants’ convictions under 641. I find support for this view in

the action taken the court in United v. Boyce (9th 1979) Members of County Supervi Board of sors, espionage also an Herrity, in which John F. Cikins, Warren I. was, here, there a concurrent sentence Magazine, Alan Audrey H. Moore, Mar under a 641 count which the court de Pennino, tha Scott, James S. John P. clined to review for the same reasons as Shacochis, Travesky, Marie B. Joseph signed by declining me for to review like Alexander; Swinson, Sheriff, James D. convictions in these cases. County Fairfax; Moore, Gene Chair man of the HALL, Judge,

K. K. concurs in Fairfax-Falls Circuit Church Serv Board; ices opinion. Watson, Jack M. Executive

Case Details

Case Name: United States v. Truong Dinh Hung, United States of America v. Ronald Louis Humphrey

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 17, 1980

Citation: 629 F.2d 908

Docket Number: 78-5176, 78-5177

Court Abbreviation: 4th Cir.