780 F.2d 1102 (4th Cir. 1985), 84-5240, United States v. Smith

Docket Nº:84-5240.
Citation:780 F.2d 1102
Party Name:UNITED STATES of America, Appellant, v. Richard Craig SMITH, Appellee.
Case Date:December 04, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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780 F.2d 1102 (4th Cir. 1985)

UNITED STATES of America, Appellant,


Richard Craig SMITH, Appellee.

No. 84-5240.

United States Court of Appeals, Fourth Circuit

December 4, 1985

Argued June 3, 1985.

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Samuel Rosenthal, Crim. Div., Dept. of Justice, Washington, D.C. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., Roberta Elkins, Dept. of Justice, Washington, D.C., Joseph J. Aronica, Asst. U.S. Atty., Alexandria, Va., on brief), for appellant.

David T. Williams, William B. Cummings, Alexandria, Va., Brent Carruth, Carruth and Goodwin, Van Nuys, Cal., on brief, for appellee.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN, CHAPMAN, WILKINSON, and SNEEDEN, Circuit Judges and BUTZNER, Senior Circuit Judge, sitting en banc.

WIDENER, Circuit Judge:

Richard Craig Smith has been indicted on five counts of espionage under 18 U.S.C. Secs. 793(a), 794(a) and (c). Prior to trial, Smith gave notice to the government and to the court pursuant to 18 U.S.C.App. Sec. 5 that he intended to disclose classified information as part of his defense. Following the procedures set out in the Classified Information Procedures Act, 18 U.S.C.App. Sec. 1, et seq. (CIPA), [*] the district court conducted a closed hearing to determine the use, relevance, or admissibility of the classified information the defendant proffered. 18 U.S.C.App. Sec. 6(a). At the conclusion of the hearing, the court ruled that part of the classified information Smith sought to introduce would be admissible at trial. United States v. Smith, 592 F.Supp.

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424 (E.D.Va.1984). The government invoked CIPA's provision allowing interlocutory appeals and sought a reversal of the district court's ruling allowing introduction of the classified information. 18 U.S.C.App. Sec. 7. A panel of this court upheld the district court's finding that the classified information in question could be introduced at trial. United States v. Smith, 750 F.2d 1215 (4th Cir.1984). We vacated the panel decision and granted en banc review. We conclude that the district court applied an incorrect legal standard in ruling upon the introduction of the classified information, and accordingly vacate the order of the district court and remand.

Smith was employed by the Army Intelligence Security Command (INSCOM) between 1973 and 1980. He is here charged with unlawfully selling in 1982 and 1983 certain classified information to Victor I. Okunev, an agent of the Soviet Union. The indictment charges that Smith met with Okunev at the Soviet Commercial Compound in Tokyo, Japan, twice in November 1982 and once in February 1983. Smith allegedly gave Okunev classified information regarding five INSCOM double agent operations, for which he received $11,000 from Okunev. 1

In his defense, on account of the facts he relates just below, Smith argues that he believed he was working for the Central Intelligence Agency (CIA) when he turned over the information to Okunev. He claims that he was sought out by two men who claimed to be CIA agents, Ken White and Danny Ishida. White and Ishida sought Smith's help in setting up a double agent project directed toward the Russians in Japan. Smith was to gain the confidence of the Soviets by supplying them with the details of eight INSCOM double agent operations. White and Ishida told Smith that this information would be of no real value to the Russians because those eight operations had been discontinued. Smith became convinced that White and Ishida were indeed working for the CIA and agreed to help them by supplying the specified information to the Russians.

Smith seeks to introduce at trial several pieces of classified information to support his defense that he thought he was working for the CIA when he sold the information to the Russians. Such proof may negate an essential element of the crimes charged, intent or reason to believe the information sold would be used to injure the United States or to the advantage of a foreign country. 2 After a lengthy hearing, the district court ruled that Smith could introduce part of the classified information he relied upon in his defense. 3 It found that certain classified information was relevant to Smith's defense under the principles of Fed.R.Evid. 401 4 and therefore was admissible at trial. For example, in a ruling not appealed from, the court found that details of the INSCOM operations White and Ishida allegedly gave to Smith to pass on to the Soviets were admissible because such information made the existence of White and Ishida more probable than otherwise would be the case. Smith, supra, 592 F.Supp. at 445.

The district court further found that CIPA was not intended to change the existing law of evidence regarding admissibility; and Congress did not intend to allow exclusion of evidence relevant to the defense simply because that evidence was classified.

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Because the evidence proffered was found to be relevant, it reasoned, it could be introduced at trial.

A panel of this court affirmed the district court's finding that the evidence in question was admissible. It concluded that the district court correctly applied the standards for judging relevance under Fed.R.Evid. 401 and 403. 5 It rejected the government's argument that governmental privilege required that a balancing test similar to the one set out in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), should be applied here. The Roviaro standard as we view it is one that calls for balancing the public interest in protecting the information against the individual's right to prepare his defense. See Roviaro, p. 62, 77 S.Ct. p. 628. Its application results in a more strict rule of admissibility, and we think that standard should have been applied here.

In order to properly understand the troubling issue before us, we should review CIPA and the legislative history surrounding it. CIPA was enacted by Congress in an effort to combat the growing problem of graymail, 6 a practice whereby a criminal defendant threatens to reveal classified information during the course of his trial in the hope of forcing the government to drop the criminal charge against him. Senate Rep. 96-823, 96th Cong., 2d Sess. 1-4 (1980), reprinted in 1980 U.S.Code Cong. & Adm.News 4294-4298. Prior to the enactment of CIPA, the government had no method of evaluating such disclosure claims before trial actually began. Oftentimes it would abandon prosecution rather than risk possible disclosure of classified information.

CIPA established a pretrial procedure for ruling upon the admissibility of classified information. 7 A criminal defendant must notify the United States and the court if he reasonably expects to disclose classified information during his trial or during any pretrial proceeding. A defendant is forbidden from disclosing any such information absent the giving of notice. 18 U.S.C.App. Sec. 5. The notice must specifically set out the classified information the defendant believes he will rely upon in his defense. A general statement of the areas the evidence will cover is insufficient. United States v. Collins, 720 F.2d 1195, 1199 (11th Cir.1983).

Once the defendant gives notice of his intention to introduce classified information, the United States may request a hearing at which the court shall determine the "use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding." 18 U.S.C.App. Sec. 6. Upon a determination by the court that the classified information is admissible, the United States may move to substitute either a statement admitting relevant facts that the classified information would tend to prove or a summary of the classified information instead of the classified information itself. 18 U.S.C.App. Sec. 6(c)(1). The court shall grant the government's motion if the substitution will give the defendant substantially the same ability to make his defense as would the disclosure of the classified information. If the court denies a motion for a substitution, the Attorney General can submit an affidavit objecting to the disclosure of the classified information at issue. 18 U.S.C.App. Sec. 6(e). Once such an affidavit is filed, the defendant is barred from disclosing the classified information. 18 U.S.C.App. Sec. 6(e). The court then can dismiss certain counts of the indictment, find against the United States on issues relating to the classified information, strike testimony,

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or as a last resort dismiss the indictment. 18 U.S.C.App. Sec. 6(e). The United States can take an interlocutory appeal from an adverse district court decision with respect to the disclosure of classified information. 18 U.S.C.App. Sec. 7.

This appeal concerns the construction and meaning of Sec. 6 of CIPA as it sets out the district court's role in deciding the use, relevance or admissibility of classified information as evidence. The legislative history is clear that Congress did not intend to alter the existing law governing the admissibility of evidence. Thus, the Conference Report provided "... the conferees agree that, as noted in the report to accompany S.1482 and H.R. 4736, nothing in the conference substitute is intended to change the existing standards for determining relevance and admissibility." House Conference Report No. 96-1436, 96th Cong.2d Sess. (1980), p. 12, reprinted in U.S.Code, Cong. & Adm.News, p. 4307, 4310. 8 The circuits that have considered the matter agree with the legislative history cited that ordinary rules of evidence determine admissibility under CIPA. United States v. Wilson, 750 F.2d 7 (2d Cir.1984); United States v. Wilson, 732 F.2d 404 (5th Cir.1984), cert. den. --- U.S. ----, 105 S.Ct. 609, 83 L.Ed.2d 718. No new substantive law was created by...

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