U.S. v. Collins, 83-5446

Citation720 F.2d 1195
Decision Date15 November 1983
Docket NumberNo. 83-5446,83-5446
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Richard COLLINS, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Stanley Marcus, U.S. Atty., Miami, Fla., Deborah L. Branscomb, U.S. Dept. of Justice, Crim. Div., Fraud Sec., John DePue, U.S. Dept. of Justice Crim.Div., App. Sec. Washington, D.C., for plaintiff-appellant.

Paul Morris, Stephen J. Bronis, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, ANDERSON and CLARK, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This appeal presents for interpretation and application a relatively new law, the Classified Information Procedures Act, 18 U.S.C. app. Secs. 1-16 (1976 & Supp. V 1981), hereinafter sometimes referred to as CIPA. 1

A proper interpretation is derived primarily from the act itself. We have consulted, also, its legislative history, S.Rep. No. 823, 96th Cong., 2d Sess. 4 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4294, learning from these sources something of its purpose, and the problem and the solution to that problem deemed appropriate by the Congress.

"Greymail"

Whenever the executive decides to prosecute a defendant in court, it incurs certain costs. These include, not exhaustively, the salaried time of government lawyers and personnel required for further investigation, the expenses attendant upon obtaining the presence of witnesses and documents, and the use of limited judicial resources. Within reason, these can be anticipated and taken into account in deciding whether to prosecute.

There have been, however, some cases possibly involving a cost which, prior to CIPA, was impossible to calculate. These are cases in which it is suggested that, at trial, the defendant will find it necessary to reveal information which is classified and protected against disclosure for reasons of national security. Prior to CIPA, there was no way to evaluate the cost, by way of damage to the national security and the nation's foreign relations, should the prosecution be initiated or pursued. The defendant's protection might require that he or she testify to or otherwise reveal highly sensitive matters. On the other hand, such evidence might not be material. To evaluate the situation, it was necessary to find out what classified information the defendant claimed to be material and, of that, what would actually be required for fair trial, but there was no way to learn this until public trial, when its tender or proof would exact the cost without a decision having first been made as to the reasonableness of it.

The looming, but unevaluated, threat that the nation's security might be damaged by a prosecution has been termed "greymail" practiced upon the government. S.Rep. No. 823, 96th Cong., 2d Sess. 4 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4294, 4296-98. Sensitive regard for national security was seen as having resulted in foregoing prosecutions for serious crimes, even in cases where the chances were great that, properly handled prior to trial, a defendant could well have been accorded due process without any cost in public revelation of classified information.

CIPA

In 1980, the Congress enacted CIPA. Its purpose appears to be straightforward and clear. It is to provide procedures under which the government may be made aware, prior to trial, of the classified information, if any, which will be compromised by the prosecution. To that end, the defendant who reasonably expects that his or her defense will result in the disclosure of classified information is required, to assure admissibility of such information at trial, to give the court and the government prior notice of the classified information deemed involved. In the terms we have adopted, this may be thought of as the "price" the defendant asserts the government will have to pay if the prosecution continues. The government is given an opportunity, then, to try to minimize the cost. It may seek a ruling that some or all of the proffered classified information is not material. 18 U.S.C. app. Sec. 6(a) (1976 & Supp. V 1981). It may move that a non-sensitive summary of the classified information be substituted for it, or it may admit a fact or facts sought to be proved by classified information, thus obviating the need for it. 18 U.S.C. app. Sec. 6(c). Part or all of these pretrial proceedings are held in camera at the government's request. When the real cost to national security has been ascertained (or eliminated) by the CIPA procedure, the government can realistically weigh the nation's interest in prosecuting against that cost and make an informed decision. The Attorney General can, even so, prevent the disclosure of classified information held necessary to defendant's rights, but this may result in dismissal of the indictment or one or more of its counts, a finding against the government on some issues, or the barring of the testimony of a witness. 18 U.S.C. app. Sec. 6(e).

To insure fairness in the prior determination of the issues, the government is required to reveal details of its case to the defendant, 18 U.S.C. app. Sec. 6(b)(2), including the evidence the government will use to rebut the defendant's revealed classified information evidence, 18 U.S.C. app. Sec. 6(f). Critical rulings of the district court on these preliminary matters may be reviewed by interlocutory appeal, 18 U.S.C. app. Sec. 7, which brings our task to us.

The Case at Issue

Appellee, a retired Air Force General officer, was indicted on six counts for violations of 18 U.S.C. 641, alleging misuse of money belonging to the United States and its Air Force. The charges involve funds of which appellee was custodian during his active duty service.

Appellee undertook to provide the notice, contemplated by Section 5(a) of CIPA of his intention to disclose classified information in his defense. While we paraphrase and indulge in some deletions, appellee essentially described the classified information as follows:

Said classified information concerns activities of the U.S. Government with respect to joint Intelligence/Military operations and the utilization of secret overseas bank accounts to finance said operations.

Moreover, said classified information includes the developing of secret government bank accounts and the transfer of funds surreptitiously into the United States Treasury. In addition the defendant intends to disclose or cause the disclosure of all matters coming within the defendant's administration as Director of (his job description) for the United States Air Force, and, as such, his operation of a unit of said department called "(named)" which coordinated many operations in Southeast Asia and elsewhere.

The government reacted to this notice in two ways. It moved the court to require defendant to make his notice more specific, asserting that the notice did not adequately describe the specific information the defendant expected to disclose. Further, after concluding that the notice, as given, would embrace classified information, it sought a hearing under Section 6(a) of CIPA concerning the use, relevance, and admissibility of classified information.

The district court ordered defendant to make a "good faith effort" to supplement the notice, but no new or supplemental notice was filed or required. The court ordered the government to furnish defendant with information to assist defendant in identifying and describing classified information, and the government furnished various documents.

A hearing was then held, and it ranged broadly over the various CIPA provisions. Government counsel stated that the prosecution intended to offer no classified information in the presentation of the case. Counsel then outlined, in some detail, the government's case and the witnesses and documents it would call and produce. The government protested the inadequacy of the Section 5(a) notice furnished by the defendant.

Defense counsel responded, largely by advocating his client's need to reveal classified information in order to defend against the charges. In doing so, counsel, from time to time, spoke to such information more specifically than did the Section 5(a) notice, but did not limit the notice or his remarks to these specific illustrations. He did state defendant's intention to disclose an additional item of classified information, being a document which had been produced by the government shortly before the hearing.

Counsel for the government protested an inability to address the materiality of the classified information embraced in defendant's notice (Section 6(a)) or alternative procedures to mitigate harmful disclosure (Section 6(c)) absent more specific notice.

Shortly after the end of the hearing, the district judge entered an order, listing seven "types of information" as being admissible in the defense of the case. Except for the one document, not mentioned in the Section 5(a) notice but referred to during the hearing, the listing of "types of information" contains nothing that this court apprehends to be classified information. 2 The district judge reasoned that the government did not need more specific notice, because the specifics "can be found in its own records and the defendant is not required to research the government's case."

After denial of its motion to reconsider, the government filed this appeal. 18 U.S.C. app. Sec. 7. After briefing, under appropriate security arrangements, the court heard oral argument at Atlanta, Georgia, again under appropriate security arrangements, on November 3, 1983.

Judgment

We conclude that defendant's Section 5(a) notice was insufficient under CIPA. In our opinion, a sufficient notice is essential to put into motion the other CIPA procedures. The insufficiency of the notice fatally permeated those procedures which followed so that the district court's order upon them must be vacated and the...

To continue reading

Request your trial
25 cases
  • United States v. Smith, Crim. No. 84-00092-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • August 1, 1984
    ...for determining relevance and admissibility"). See also U.S. v. Wilson, 586 F.Supp. 1011 at 1013 (S.D.N.Y. 1983); U.S. v. Collins, 720 F.2d 1195, 1199 (11th Cir.1983). Once the court makes a determination under § 6(a) that classified information is admissible, the prosecution may seek to av......
  • U.S. v. Anderson, 85-5869
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 23, 1989
    ...105 S.Ct. 609, 83 L.Ed.2d 718 (1984). Accordingly, no new substantive law was created by the enactment of CIPA. United States v. Collins, 720 F.2d 1195, 1199 (11th Cir.1983). In conformity with the Act, the district court conducted an in camera hearing prescribed by Section 6(a) of CIPA in ......
  • U.S. v. Abdi, 2:04-CR-88.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • July 26, 2007
    ...United States v. Wilson, 750 F.2d 7, 9 (2d Cir.1984); United States v. Wilson, 721 F.2d 967, 976 (4th Cir.1983); United States v. Collins, 720 F.2d 1195, 1200 (11th Cir.1983). The Government, however, is required to share the information and documents filed pursuant to CIPA with defense cou......
  • US v. Poindexter
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 24, 1989
    ...States v. Wilson, 750 F.2d 7, 9-10 (2d Cir. 1984); United States v. Wilson, 721 F.2d 967, 976 (4th Cir.1983); United States v. Collins, 720 F.2d 1195, 1200 (11th Cir. 1983); United States v. Jolliff, 548 F.Supp. 229, 231 (D.Md.1981); U.S. v. North, 708 F.Supp. 399 To be sure, defendant corr......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT