U.S. v. Sanders

• Decision Date: 01 August 1999
• Docket Number: Docket Nos. 99-1430,99-1431
• Citation: 211 F.3d 711
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. ELIZABETH SANDERS; JAMES SANDERS, Defendants-Appellants
• Court: U.S. Court of Appeals — Second Circuit

Page 711

211 F.3d 711 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. ELIZABETH SANDERS; JAMES SANDERS, Defendants-Appellants.

Docket Nos. 99-1430, 99-1431

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: February 9, 2000

Decided: May 04, 2000

Appeal from a judgment entered by the United States District Court for the Eastern District of New York, Seybert, J., on a verdict convicting appellants of conspiring to remove, without authority, parts or property from a civil aircraft involved in an accident and of aiding and abetting the same.

Affirmed.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] J. BRUCE MAFFEO, New York City, for Appellant James Sanders.

JEREMY GUTMAN, New York City, for Appellant Elizabeth Sanders.

DAVID PITOFSKY, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY (Loretta E. Lynch, United States Attorney, Emily Berger, Assistant United States Attorney, Eastern District of New York, Brooklyn, NY, of counsel), for Appellee.

Before: MESKILL and SOTOMAYOR, Circuit Judges, and KEENAN,^*. District Judge.

MESKILL, Circuit Judge:

Defendants-appellants James and Elizabeth Sanders were convicted by a jury in the United States District Court for the Eastern District of New York, Seybert, J., of conspiring to remove, without authority, parts or property from a civil aircraft that has been involved in an accident and of aiding and abetting the same. On appeal, they present five arguments: (1)the prosecution was vindictive, (2)the prosecution impermissibly burdened a First Amendment right to protect the confidentiality of a news source, (3)the material removed was de minimis, (4)the evidence was insufficient to support the verdict against Elizabeth Sanders, especially viewed strictissimi juris, and (5)the jury should have been instructed to acquit absent a finding of "wrongful intent." Finding no merit to these arguments, we affirm.

BACKGROUND

On July 17, 1996 TWA Flight 800 exploded over the Atlantic Ocean shortly after takeoff, killing all 230 persons on board. The government undertook a massive salvage effort to recover as much of the wreckage as possible, in an attempt to determine the cause of the disaster. The wreckage was transported to a secured facility in Calverton, NY, where it was identified, if possible, catalogued and stored. Numerous government agencies were involved in the investigation, including the Federal Bureau of Investigation (FBI) and the National Transportation Safety Board (NTSB).

While the official investigation was proceeding, there was considerable speculation in the media and the public as to the cause of the disaster. Numerous explanations were put forward, including a theory that the plane had been struck by a missile. See, e.g., Asra Q. Nomani, et al., "Airlines: After the Crash, More Questions Than Answers," Wall St. J., July 19, 1996, at B1. James Sanders, an investigative journalist, decided to investigate the incident. Through his wife Elizabeth, a senior TWA flight attendant, he made contact with Capt. Terrell Stacey, TWA's senior 747 pilot and a participant in the official investigation.

According to Capt. Stacey's testimony at trial, he received a phone call from Mrs. Sanders sometime in the fall of 1996. She suggested that he meet with Mr. Sanders, who might be able to help "find out exactly what happened to Flight 800 and get it before the American public." After some initial reluctance, Capt. Stacey agreed to meet in confidence with Mr. Sanders. Capt. Stacey and Mr. Sanders met four times between November 1996 and February 1997. They spoke regularly by telephone.

During one of their phone conversations, Capt. Stacey described a reddish residue that had been found on some of the seats recovered from the wreckage. Mr. Sanders stated that "if it came out positive for explosive residue, then it would [be a] 'slam dunk' as far as being absolute proof that some outside force affected the airplane." Mr. Sanders asked Capt. Stacey to obtain a sample of the residue for testing by a private laboratory. Capt. Stacey demurred. He explained that "we had been warned many times to maintain [the] confidentiality of the investigation and we knew we weren't supposed to take anything out of the [Calverton facility]." Over the next few weeks Mr. Sanders made a number of attempts to contact Capt. Stacey, who had not yet decided whether or not to take the sample. At one point, Mrs. Sanders called Capt. Stacey, urging him to take the sample. Capt. Stacey ultimately did so, removing several strips of styrofoam, measuring approximately 1" x 3", from the back of two seats. The parties disagree as to whether Capt. Stacey removed the samples before or after receiving Mrs. Sanders' call.

On March 10, 1997, a front-page article in the Riverside, California Press-Enterprise reported on Mr. Sanders' investigation and his theory that Flight 800 had been struck by a United States Navy missile. The article identified Mr. Sanders as an "author and investigative reporter" and revealed that Mr. Sanders, through a confidential source, had obtained samples of residue from the wreckage that were consistent with the presence of solid rocket fuel. The article also disclosed that Mrs. Sanders was a TWA employee. Mr. Sanders' book, The Downing of TWA Flight 800, was published the following month.

Immediately after the publication of the Press-Enterprise article, the FBI attempted to question Mrs. Sanders. The United States Attorney for the Eastern District of New York also obtained a grand jury subpoena for Mr. Sanders' telephone records, without obtaining the authorization of the Attorney General or otherwise complying with Department of Justice policy in dealing with members of the media. See 28 C.F.R. §50.10 (1999).

Shortly thereafter, an attorney representing Mr. and Mrs. Sanders contacted Assistant United States Attorney Benton Campbell and offered to accept communications or service of process on their behalf. In response, Mr. Campbell offered to enter into a non-prosecution agreement with Mr. Sanders in exchange for the disclosure of his confidential source. Mr. Sanders declined, expressing his belief that he had not committed any crime and that he was entitled to preserve the confidentiality of his news source. At a subsequent face-to-face meeting, Mr. Campbell, together with then-Chief of the Criminal Division Valerie Caproni, warned Mr. Sanders that he risked indictment if he refused to disclose his source and that Mrs. Sanders was also a target of the investigation and could be indicted as well.

In June 1997, the government identified Capt. Stacey as Mr. Sanders' source and secured his cooperation against Mr. and Mrs. Sanders by allowing him to plead guilty to a misdemeanor. An arrest warrant for Mr. and Mrs. Sanders issued in December 1997, charging them with violating 49 U.S.C. §1155(b). Section 1155(b) prohibits the unauthorized removal, concealment, or withholding of "a part of a civil aircraft involved in an accident, or property on the aircraft at the time of the accident." The defendants moved to obtain discovery on claims of selective and vindictive prosecution. The district court denied the motions. United States v. Sanders, 17 F.Supp.2d 141 (E.D.N.Y. 1998). The defendants then moved to dismiss the indictment, contending that they were the victims of selective and vindictive prosecution and that the information sought by the government was protected by the First Amendment. The district court denied those motions as well. The defendants were subsequently convicted by a jury. Mr. Sanders was sentenced to three years probation, with a special condition that he perform 50 hours of community service. Mrs. Sanders was sentenced to one year of probation, with a special condition that she perform 25 hours of community service. A special assessment of $200 was imposed on both defendants. Both sentences were stayed pending this appeal.

DISCUSSION

I. Vindictive Prosecution

The defendants first contend that their convictions should be dismissed because they were the victims of vindictive prosecution. In particular, they claim that they were prosecuted (1)to punish them for challenging the government's explanation of the disaster, and (2)to retaliate for their refusal to disclose their informant. The defendants also argue, if dismissal is not warranted, that the district court erred in denying them discovery on the issue of vindictive prosecution. The Sanders do not pursue the selective prosecution claim on appeal.

As an initial proposition, "the decision as to whether to prosecute generally rests within the broad discretion of the prosecutor," United States v. White, 972 F.2d 16, 18 (2d Cir. 1992), and a prosecutor's pretrial charging decision is presumed legitimate, see id. at 19. However, "[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort," Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978), and a prosecution brought with vindictive motive, "'penalizing those who choose to exercise' constitutional rights, 'would be patently unconstitutional.'" North Carolina v. Pearce, 395 U.S. 711, 724 (1969) (quoting United States v. Jackson, 390 U.S. 570, 581 (1968)). "Accordingly, an indictment will be dismissed if there is a finding of 'actual' vindictiveness, or if there is a presumption of vindictiveness that has not been rebutted by objective evidence justifying the prosecutor's action." United States v. Johnson, 171 F.3d 139, 140 (2d Cir. 1999) (per curiam).

To establish an actual vindictive motive, a defendant must prove objectively that the prosecutor's charging decision was a "direct and unjustifiable penalty," United States v. Goodwin, 457 U.S. 368, 384 & n.19 (1982), that resulted "solely from the defendant's exercise of a protected legal right," id. at 380 n.11. See also Johnson, 171 F.3d at 140-41. Put another way, the...