Gorin v. United States Salich v. United States
| Decision Date | 13 January 1941 |
| Docket Number | 88,Nos. 87,s. 87 |
| Citation | 61 S.Ct. 429,312 U.S. 19,85 L.Ed. 488 |
| Parties | GORIN v. UNITED STATES. SALICH v. UNITED STATES |
| Court | U.S. Supreme Court |
See 312 U.S. 713, 61 S.Ct. 617, 618, 85 L.Ed. —-.
Mr. Donald R. Richberg, of Washington, D.C., for petitioners.
Mr. Warner W. Gardner, of Washington, D.C., for respondent.
This certiorari brings here a judgment of the Circuit Court of Appeals affirming the sentences of the two petitioners who were convicted of violation of the Espionage Act of June 15, 1917, 50 U.S.C.A. § 31 et seq., 9 Cir., 111 F.2d 712. As the affirmance turned upon a determination of the scope of the Act and its constitutionality as construed, the petition was allowed because of the questions, important in enforcing this criminal statute.
The joint indictment in three counts charged in the first count violation of section 1(b) by allegations in the words of the statute of obtaining documents 'connected with the national defense'; in the second count violation of section 2(a) in delivering and inducing the delivery of these documents to the petitioner, Gorin, the agent of a foreign nation; and in the third count of section 4 by conspiracy to deliver them to a foreign government and its agent, just named. The pertinent statutory provisions appear below.1 A third party, the wife of Gorin, was joined in and acquitted on all three counts. The petitioners were found guilty on each count and sentenced to various terms of imprisonment to run concurrently and fines of $10,000 each. The longest term of Gorin is six years and of Salich four years.
The proof indicated that Gorin, a citizen of the Union of Soviet Socialist Republics, acted as its agent in gathering information. He sought and obtained from Salich for substantial pay the contents of over fifty reports relating chiefly to Japanese activities in the United States. These reports were in the files of the Naval Intelligence branch office at San Pedro, California. Salich a naturalized, Russian-born citizen, had free access to the records as he was a civilian investigator for that office. Speaking broadly the reports detailed the coming and going on the west coast of Japanese military and civil officials as well as private citizens whose actions were deemed of possible interest to the Intelligence Office. Some statements appear as to the movements of fishing boats, suspected of espionage and as to the taking of photographs of American war vessels.
Petitioners object to the convictions principally on the grounds (1) that the prohibitions of the act are limited to obtaining and delivering information concerning the specifically described places and things set out in the act, such as a vessel, aircraft, fort, signal station, code or signal book; and (2) that an interpretation which put within the statute the furnishing of any other information connected with or relating to the national defense than that concerning these specifically described places and things would make the act unconstitutional as violative of due process because of indefiniteness.
The philosophy behind the insistence that the prohibitions of sections 1(b) and 2(a), upon which the indictment is based, are limited to the places and things which are specifically set out in section 1(a) relies upon the traditional freedom of discussion of matters connected with national defense which is permitted in this country. It would require, urge petitioners, the clearest sort of declaration by the Congress to bring under the statute the obtaining and delivering to a foreign government for its advantage of reports generally published and available which deal with food production, the advances of civil aeronautics, reserves of raw materials or other similar matters not directly connected with and yet of the greatest importance to national defense. The possibility of such an interpretation of the terms 'connected with' or 'relating to' national defense is to be avoided by construing the act so as 'to make it a crime only to obtain information as to places and things specifically listed in section 1 as connected with or related to the national defense.' Petitioners argue that the statute should not be construed so as to leave to a jury to determine whether an innocuous report on a crop yield is 'connected' with the national defense.
Petitioners rely upon the legislative history to support this position.2 The passage of the Espionage Act3 during the World War year of 1917 attracted the close scrutiny of Congress and resulted in different bills in the two Houses which were reconciled only after a second conference report. Nothing more definite appears in this history as to the Congressional intention in regard to limiting the act's prohibitions upon which this indictment depends to the places and things in section 1(a), than that a House definition of 'national defense' which gave it a broad meaning was stricken out4 and the conference report stated as to the final form of the present act: 'Section 1 sets out the places connected with the national defense to which the prohibitions of the section apply.' Neither change seems significant on this inquiry. The House bill had not specified the places under surveillance. The Conference change made them definite. The fact that the clause 'or other place connected with the national defense' is also included in section 1(a) is not an unusual manner of protecting enactments against inadvertent omissions. With this specific designation of prohibited places, the broad definition of section 1202 of the House was stricken as no longer apt and, as stated in Conference Report No. 69, section 6 of the act was therefore adopted. Obviously the purpose was to give flexibility to the designated places.5 We see nothing in this legislative history to affect our conclusion which is drawn from the meaning of the entire act.6
An examination of the words of the statute satisfies us that the meaning of national defense in sections 1(b) and 2(a) cannot be limited to the places and things specified in section 1(a). Certainly there is no such express limitation in the later sections. Section 1(a) lays down the test of purpose and intent and then defines the crime as going upon or otherwise obtaining information as to named things and places connected with the national defense. Section 1(b) adopts the same purpose and intent of 1(a) and then defines the crime as copying, taking or picturing certain articles such as models, appliances, documents, and so forth of anything connected with the national defense. None of the articles specified in 1(b) are the same as the things specified in 1(a). Apparently the draftsmen of the act first set out the places to be protected, and included in that connotation ships and planes and then in 1(b) covered much of the contents of such places in the nature of plans and documents. Section 2(a), it will be observed, covers in much the same way the delivery of these movable articles or information to a foreign nation or its agent. If a govern- ment model of a new weapon were obtained or delivered there seems to be little logic in making its transfer a crime only when it is connected in some undefined way with the places catalogued under 1(a). It is our view that it is a crime to obtain or deliver, in violation of the intent and purposes specified, the things described in sections 1(b) and 2(a) without regard to their connection with the places and things of 1(a).
In each of these sections the document or other thing protected is required also to be 'connected with' or 'relating to' the national defense. The sections are not simple prohibitions against obtaining or delivering to foreign powers information which a jury may consider relating to national defense. If this were the language, it would need to be tested by the inquiry as to whether it had double meaning7 or forced anyone, at his peril, to speculate as to whether certain actions violated the statute.8 This Court has frequently held criminal laws deemed to violate these tests invalid. United States v. Cohen Grocery Company,9 urged as a precedent by petitioners, points out that the statute there under consideration forbade no specific act,10 that it really punished acts 'detrimental to the public interest when unjust and unreasonable' in a jury's view. In Lanzetta v. New Jersey11 the statute was equally vague. 'Any person not engaged in any lawful occupation, known to be a member of any gang * * *, who has been convicted at least three times of being a disorderly person or who has been convicted of any crime in this or in any other State, is declared to be a gangster * * *.' We there said that the statute 'condemns no act or omission'; that the vagueness is such as to violate due process.12
But we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law.13 The obvious delimiting words in the statute are those requiring 'intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established.14 Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government. Finally, we are of the view that the use of the words 'national defense' has given them, as here employed, a well understood connotation. They were used in the Defense Secrets Act of 1911.15 The traditional concept of war as a struggle between nations is not changed by the intensity of support given to the armed forces by civilians or the extension of...
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