U.S. v. Boyce

• Decision Date: 26 March 1979
• Docket Number: No. 77-3336,77-3336
• Citation: 594 F.2d 1246
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher John BOYCE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1246

594 F.2d 1246

UNITED STATES of America, Plaintiff-Appellee, v. Christopher John BOYCE, Defendant-Appellant.

No. 77-3336.

United States Court of Appeals, Ninth Circuit.

March 26, 1979.

Rehearing Denied May 2, 1979.

George L. Chelius (argued), Irvine, Cal., William A. Dougherty (argued), Tustin, Cal., for defendant-appellant.

David R. Homer, Dept. of Justice (argued), Washington, D. C., Richard A. Stilz, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before ELY and HUFSTEDLER, Circuit Judges, and MUECKE, ^* District Judge.

HUFSTEDLER, Circuit Judge:

Boyce appeals from his conviction for multiple offenses growing out of a conspiracy to sell to the Union of Soviet Socialist Republics information classified as top secret by the United States Central Intelligence Agency ("CIA"). Boyce contends that (1) his confession and evidence found during a search of his home should have been suppressed because both were the fruit of an invalid arrest warrant, (2) his confession should have been excluded because it was obtained in violation of his Miranda rights, (3) the evidence was insufficient to sustain his conviction for violating 18 U.S.C. § 798 because the information that he transmitted to the Russians was improperly classified, (4) the evidence was insufficient to convict him for violating 18 U.S.C. § 641 because the statute is inapplicable to misappropriation of the Government's intangible interests in the documents that were photographed, (5) the filmstrips were improperly admitted because the Government failed to establish a proper chain of custody, (6) the district court improperly denied him discovery, and (7) the district court erred in refusing to sentence him under the Federal Youth Corrections Act.

In 1974, Boyce was employed by TRW, Inc. in its classified communications center. Upon receiving his security clearance, he was assigned to operate an encrypted teletype system for communication with the CIA in Langley, Virginia. Boyce and his long-time friend and co-defendant, Andrew Daulton Lee, conspired to sell to the Russians classified information to which Boyce could gain access through his employment. During 1975 and 1976, Lee sold the Russians thousands of documents or photographs of documents provided by Boyce. The U.S.S.R. paid them $70,000, of which $15,000 went to Boyce.

On January 6, 1977, Lee was arrested by Mexican police in front of the Soviet Embassy in Mexico City. In his possession were filmstrips containing photographs of the "Pyramider" documents, a TRW study of a worldwide communication satellite system to be used by American agents in "denied areas" of the world. The study was commissioned by the CIA and was classified top secret. Lee confessed his espionage role and implicated Boyce. Although Lee's confession was not introduced at the trial, his confession together with the documents found in his possession were the basis for an affidavit of an FBI agent that was used to obtain a warrant for Boyce's arrest. Boyce was arrested on the warrant, and he confessed his part in the scheme.

Boyce and Lee were charged with conspiring to transmit national defense information to a foreign nation, with aiding and abetting an attempt to transmit national defense information, with conspiring to gather and actually gathering national defense information intending, or having reason to believe, that the information would be used to the advantage of a foreign nation, with unauthorized possession of national defense information and transmitting such information to non-authorized persons, with disclosure of classified information, with acting as an agent of a foreign government without prior notification to the Secretary of State, and with theft of government property valued in excess of $100, in violation of 18 U.S.C. §§ 641, 793, 794, 798, and 951. Boyce was found guilty on all counts and was sentenced to two 40-year terms and six 10-year terms, all to run concurrently.

I

Boyce contends that the affidavit in support of the arrest warrant failed to meet the tests of Aguilar v. Texas (1964) 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States (1969) 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. He argues that the foundation for the affidavit used to obtain the warrant was information derived from Lee, who was not shown to be a reliable informant, and from hearsay that was inadequately supported. Contrary to Boyce's contentions, the affidavit fully meets the Aguilar-Spinelli Tests. Lee was not an untested paid informant or a volunteer police informant. Lee's statements inculpated both himself and Boyce in the commission of a federal crime. His statements were admissions against Lee's penal interests and they are deemed reliable. (Louie v. United States (9th Cir. 1970) 426 F.2d 1398; United States v. Ashley (5th Cir. 1978) 569 F.2d 975; Wooten v. United States (5th Cir. 1967) 380 F.2d 230. See Fed.R.Evid. 804(b)(3).) Lee's inculpatory information was corroborated by further facts recited in the affidavit, including photographic negatives of top secret documents found in Lee's possession when he was arrested and information that Boyce had been employed by TRW in the area where the Pyramider documents were kept. The affidavit was more than adequate to support the issuance of the warrant. (Draper v. United States (1959) 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; United States v. Garrett (9th Cir. 1977) 565 F.2d 1065; United States v. Graham (8th Cir. 1977) 548 F.2d 1302; United States v. Canieso (2d Cir. 1972) 470 F.2d 1224.)

II

Boyce's primary attack upon the admission of his confession is that the confession was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. He contends that his right to silence was not respected because FBI agents continued to interrogate him after he asserted his right to remain silent (1) when he initially refused to sign a written waiver of his Miranda rights, and (2) when he later expressly asked to discontinue interrogation. He also claims that the written waiver that he thereafter signed is invalid because it was obtained by psychological coercion, and that apart from Miranda, his confession was involuntary because he yielded to psychological pressure.

Boyce's arguments rest upon his Fifth Amendment privilege against self-incrimination rather than his Sixth Amendment right to counsel because he at no time requested a lawyer. Upon Boyce's showing that he asserted his wish to remain silent, after Miranda warnings had been given, the Government had the burden of proving that Boyce's request was " 'scrupulously honored' " (Michigan v. Mosley (1975) 423 U.S. 96, 103-04, 96 S.Ct. 321, 46 L.Ed.2d 313) and that questioning was not resumed before Boyce made a knowing and intelligent waiver of his continued right to silence. (Ibid.) The district court decided these issues against Boyce, and the question before us is whether the evidence sustained the district court.

The testimony about the events that preceded Boyce's confession was sharply conflicting. The following facts appear from evidence that was credited by the district court:

Boyce was arrested by FBI agents early in the afternoon of January 16, 1977. He was promptly informed of his Miranda rights. Thereafter, he gave written consent to search his car and his home, although he was told that he did not have to do so. He at first declined to sign a form containing the Miranda warnings and a waiver of rights. However, despite his refusal to sign the waiver form, Boyce freely talked about his personal background and other matters from the time of his arrest until late afternoon. During the one and one-half hour drive from Riverside, California, to Los Angeles, where Boyce was booked, the agents did not question him directly about the crime and he did not discuss it with them. When Boyce and the agents reached the FBI office in Los Angeles, Boyce asked to talk with someone in the CIA. The agents told him that some FBI agents with high security clearances were present, and he could talk to them. He refused. Boyce then asked to be alone to collect his thoughts. He was given a room to himself, and one of the agents brought him coffee. Boyce later asked one of the agents if anyone else had been arrested, and the agent told him that he did not know. Still later, as agents were preparing to take Boyce to the county jail, another agent told Boyce that Lee had also been charged and that he was in custody in Mexico. Boyce thereupon said, "Let's talk." Thereafter, he signed the waiver of rights form that he had previously declined to sign, and he also signed a statement that his decision to talk was voluntary and that any delay at the FBI office before taking him to the county jail was at his own request. About 7:00 p. m. that evening, Boyce confessed.

Boyce first argues that the "Let's talk" episode was not a waiver of his right to silence because his consent to speak was the product of an earlier assertion of his right to silence that was not honored. His theory is that he first asserted his wish to remain silent when he declined to sign the waiver forms initially presented to him. Under some circumstances, declining to sign a Miranda waiver form will be an assertion of the right to silence, but that is not this case. Boyce's conduct both preceding and following his refusal to sign the waiver forms was inconsistent with an assertion of his right to silence. He talked freely to the agents about all kinds of matters that were not related to the Pyramider scheme, and when he did not want to answer a particular question, he did not do so. On this record, the district court did not err in refusing to find an assertion of Boyce's right to silence when he first declined to sign the waiver forms.

After he reached the FBI office, Boyce explicitly told the agents...