U.S. v. Truong Dinh Hung

• Decision Date: 17 July 1980
• Docket Number: 78-5177,Nos. 78-5176,s. 78-5176
• Citation: 629 F.2d 908
• Parties: 6 Fed. R. Evid. Serv. 449 UNITED STATES of America, Appellee, v. TRUONG DINH HUNG, Appellant. UNITED STATES of America, Appellee, v. Ronald Louis HUMPHREY, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 908

629 F.2d 908

6 Fed. R. Evid. Serv. 449

UNITED STATES of America, Appellee, v. TRUONG DINH HUNG, Appellant.

UNITED STATES of America, Appellee, v. Ronald Louis HUMPHREY, Appellant.

Nos. 78-5176, 78-5177.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 6, 1979.

Decided July 17, 1980.

Michael E. Tigar, Washington, D. C. (John Mage, John J. Privitera, Washington, D. C., Marvin D. Miller, Alexandria, Va., on brief), for appellant Truong Dinh Hung.

Mark Foster, Washington, D. C. (Moore & Foster, Roger E. Zuckerman, Zuckerman, Spaeder & Taylor, Warren L. Miller, Stein, Halpert & Miller, Washington, D. C., on brief), for appellant Ronald Louis Humphrey.

Jerome M. Feit, Dept. of Justice, Washington, D. C. (William G. Otis, Robert J. Erickson, Paul J. Brysh, Elliott Schulder, David R. Homer, Ann T. Wallace, Dept. of Justice, Washington, D. C., William B. Cummings, U. S. Atty., Justin Williams, Asst. U. S. Atty., Alexandria, Va., on brief), and Kenneth C. Bass, III, Reston, Va., for appellee.

Marshall Perlin, New York City, on brief, for amicus curiae National Alliance Against Racist and Political Repression.

Before WINTER, RUSSELL and HALL, Circuit Judges.

WINTER, Circuit Judge:

Truong Dinh Hung, more familiarly known as David Truong, and Ronald Humphrey were convicted of espionage, conspiracy to commit espionage and several espionage-related offenses for transmitting classified United States government information to representatives of the government of the Socialist Republic of Vietnam. In these appeals, they seek reversal of their convictions because of warrantless surveillance and searches, the alleged inapplicability of the espionage statutes and the theft-of-government-property statute to the facts of this case, several alleged Jencks Act violations, an alleged denial of compulsory process, and claimed error in a number of the district court's evidentiary rulings.

We hold that the warrantless searches and surveillance did not violate the Fourth Amendment, that the espionage statutes were properly and constitutionally applied to this case, that the defendants were not denied compulsory process, and that the district court did not err in any of its evidentiary rulings. Relying on the concurrent sentence doctrine, the majority holds that we should not rule on defendants' claim that the theft-of- government-property statute does not apply to this case. However, for myself, I would conclude that the issue concerning the theft-of-government-property statute should be addressed and that the statute does not encompass the actions of the defendants. I would therefore reverse their convictions under that statute. We are unanimous, however, in remanding the case to the district court for further proceedings to determine whether documents produced by the government near the end of trial contain Jencks Act material that should have been supplied to the defense.

I.

David Truong, a Vietnamese citizen and son of a prominent Vietnamese political figure, came to the United States in 1965. At least since his arrival in the United States, Truong has pursued an active scholarly and political interest in Vietnam and the relationship between Vietnam and the United States. In 1976, Truong met Dung Krall, a Vietnamese-American, the wife of the an American Naval Officer, who had extensive contacts among the Vietnamese community in Paris. Truong persuaded Krall to carry packages for him to Vietnamese in Paris. The recipients were representatives of the Socialist Republic of Vietnam at the time of the 1977 Paris negotiations between that country and the United States. The packages contained copies of diplomatic cables and other classified papers of the United States government dealing with Southeast Asia. Truong procured the copies from Ronald Humphrey, an employee of the United States Information Agency, who obtained the documents surreptitiously, copied them, removed their classification markings and furnished the copies to Truong. In a statement given after his arrest, Humphrey said that his motive was to improve relations between the North Vietnamese government and the United States so that he could be reunited with a woman whom he loved who was a prisoner of the North Vietnamese government.

Unknown to Truong, Krall was a confidential informant employed by the CIA and the FBI. Krall kept these agencies fully informed of Truong's activities and presented the packages Truong had given her to the FBI for inspection, copying and approval before she carried the documents to Paris. The FBI permitted this operation to continue, while monitoring it closely, from approximately September, 1976, until January 31, 1978.

When the intelligence agencies first learned that Truong was transmitting classified documents to Paris, they were understandably extremely anxious to locate Truong's source for his data. Toward that end, the government conducted a massive surveillance of Truong. Truong's phone was tapped and his apartment was bugged from May, 1977 to January, 1978. ¹ The telephone interception continued for 268 days and every conversation, with possibly one exception, was monitored and virtually all were taped. The eavesdropping device was operative for approximately 255 days and it ran continuously. No court authorization was ever sought or obtained for the installation and maintenance of the telephone tap or the bug. The government thus ascertained that Humphrey was providing Truong with the copies of secret documents. This leak of sensitive information of course ceased when Truong and Humphrey were arrested on January 31, 1978.

After a protracted trial, Truong and Humphrey were both convicted of espionage and conspiracy to commit espionage in violation of 18 U.S.C. §§ 371 and 794(a) and (c). They were also convicted of conspiracy to convert classified government documents exceeding $100 in value and conversion, in violation of 18 U.S.C. §§ 371 and 641; acting as agents of a foreign government without prior notification to the Secretary of State in violation of 18 U.S.C. §§ 951 and 2; delivery of material related to the national defense to unauthorized persons in violation of 18 U.S.C. §§ 793(e) and 2; and conspiracy to violate 50 U.S.C. § 783(b) and (c), which penalize government employees who transmit, and foreign agents who thereby receive, classified information.

II.

A. Foreign Intelligence Exception to the Warrant Requirement

The defendants raise a substantial challenge to their convictions by urging that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment. Instead, it relied upon a "foreign intelligence" exception to the Fourth Amendment's warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs. On this basis, the FBI sought and received approval for the surveillance from the President's delegate, the Attorney General. This approval alone, according to the government, is constitutionally sufficient to authorize foreign intelligence surveillance such as the surveillance of Truong.

The district court accepted the government's argument that there exists a foreign intelligence exception to the warrant requirement. The district court, however, also decided that the executive could proceed without a warrant only so long as the investigation was "primarily" a foreign intelligence investigation. The district court decided that the FBI investigation had become primarily a criminal investigation by July 20, 1977, and excluded all evidence secured through warrantless surveillance after that date. Conversely, all evidence secured before July 20 was not suppressed by the district court, because it determined that during that period the investigation primarily concerned foreign intelligence.

We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance. Although the Supreme Court has never decided the issue which is presented to us, it formulated the analytical approach which we employ here in an analogous case, United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). In Keith, the executive had conducted warrantless domestic security surveillance. The Court posited two inquiries to guide the Fourth Amendment determination of whether a warrant is required:

If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.

407 U.S. at 315, 92 S.Ct. at 2135. Balancing individual privacy and government needs, the Supreme Court concluded that the executive must seek a warrant before it undertakes domestic security surveillance.

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, "unduly frustrate" the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed, and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to...