835 F.2d 1067 (4th Cir. 1987), 86-5182, United States v. Pelton

Docket Nº:86-5182.
Citation:835 F.2d 1067
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Ronald William PELTON, Defendant-Appellant.
Case Date:December 18, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1067

835 F.2d 1067 (4th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

Ronald William PELTON, Defendant-Appellant.

No. 86-5182.

United States Court of Appeals, Fourth Circuit

December 18, 1987

        Argued Oct. 8, 1987.

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        Stephen Jon Cribari, Deputy Federal Public Defender (Fred Warren Bennett, Federal Public Defender, Baltimore, Md., on brief), for defendant-appellant.

        Robert Neal McDonald, Asst. U.S. Atty. (Breckenridge L. Willcox, U.S. Atty., Baltimore, Md., Juan Marrero, Trial Atty., Dept. of Justice, Mary C. Lawton, Counsel for Office of Intelligence Washington, D.C., and Sally Balch Hurme, Atty. Adrison, Office of Intelligence Policy and Review, Arlington, Va., on brief), for plaintiff-appellee.

        Before RUSSELL, PHILLIPS, and WILKINSON, Circuit Judges.

        WILKINSON, Circuit Judge:

        Ronald William Pelton challenges his convictions of conspiracy to commit espionage, 18 U.S.C. Sec. 794(c), espionage and attempted espionage, 18 U.S.C. Sec. 794(a), and unauthorized disclosure of classified information concerning communications intelligence, 18 U.S.C. Sec. 798(a), for which he was sentenced to three life terms plus ten years imprisonment.

        Pelton contends that incriminating statements he made to the FBI should have been excluded as involuntary, that there was insufficient evidence to support his attempt conviction, and that the district court erred in admitting evidence obtained under the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. Secs. 1801-1811. We reject these challenges, and affirm Pelton's convictions.

       I.

        Pelton was born in 1941. He holds a high school diploma, and has completed a one-year Russian language course. He served in the United States Air Force from 1960 to 1964. Thereafter, he was employed by the National Security Agency (NSA) from 1965 to 1979. Pelton worked in the area of communications intelligence and cryptology with highly classified information concerning the interception and interpretation of Soviet transmissions. His colleagues testified that he was aggressive and a good negotiator. Pelton left the NSA in 1979 after financial problems and bankruptcy, and has subsequently held a variety of jobs.

        In January, 1980, Pelton decided to sell classified information about NSA programs to the Soviet Union. In a series of telephone calls, Pelton contacted Soviet officials and arranged a meeting for this purpose. These calls were intercepted by a wiretap placed under the provisions of FISA, but Pelton's voice was not identified at that time. From 1980 through 1983 Pelton met with Soviet agents in their Washington embassy and in Vienna, Austria, and provided them with information that compromised several classified NSA

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operations. Pelton generally conveyed the information by responding to questions from his Soviet contacts. In return for the secrets, Pelton was paid more than $35,000.

        An abortive 1985 effort at further dealings with the Soviets was the basis for Pelton's attempt conviction. Soviet agents contacted Pelton, and he arranged to travel to Vienna, borrowing a friend's credit card to cover expenses. Pelton remained in Vienna for several days, attempting to make contact with the Soviets. He spent most of three days walking in the park that was the designated meeting place, but was never approached--possibly because Pelton had lost 75 pounds since his last meeting with his Soviet contacts. Pelton then gave up and flew home. A final trip to Vienna failed to materialize when Pelton ran out of gas on the way to pick up his instructions and expense money.

        Pelton's activities were discovered when a Soviet defector exposed him and NSA officials recognized Pelton's voice on the 1980 FISA tapes. During the resulting investigation, the FBI undertook electronic surveillance of Pelton pursuant to a FISA authorization. Pelton was then arrested after making incriminating statements in an interview with FBI agents. Because the Soviet defector who knew of Pelton's espionage had redefected, these admissions were crucial to proving the government's case at trial. Pelton's challenge to the voluntariness of these statements is likewise the heart of his appeal.

        Pelton made the admissions in an interview with FBI agents at the Annapolis Hilton. He agreed to meet there with the agents at 9:15 a.m. on Sunday, November 24, 1985, after they telephoned and said that they were investigating a national security matter. The agents had previously prepared a number of rooms to serve as an interrogation site. They were dressed casually and were not armed.

        In the room, the agents recounted to Pelton a "hypothetical" story about a former NSA official who sold secrets to the Soviets. The details of the story, including places, dates, and all names but Pelton's, reflected precisely Pelton's own activity. At the end of the presentation, Pelton denied that he was the individual in the story and stated "you have no case." He also said that the hypothetical individual would be "crazy" not to talk to a lawyer before making any statement that would "hang him." The agents told Pelton that his denials were pointless--the FBI had identified his voice through voiceprint analysis. They further told Pelton that he had the right to consult an attorney, but that if an outsider became involved in the discussions their "options would be reduced." They also stated that any attorney would need the proper security clearance to be involved in discussions of national security material. The agents finally told Pelton that they were prepared to conduct an open investigation, including interviews of Pelton's family and friends, if Pelton did not cooperate.

        At this point, Pelton and the agents began a series of exchanges in which Pelton stated that he wanted "guarantees" before making any further statements. The agents repeatedly stated that they did not have the authority to make guarantees, but that national security cases often are not prosecuted, and that they would report Pelton's cooperation to their superiors and testify as to his cooperation in any future prosecution. In response to Pelton's observation that John Walker had cooperated but nonetheless gotten a life sentence, the agents stated that they viewed his case very differently from Walker's. The agents continued, however, to emphasize that they could give no guarantees.

        During the course of questioning, Pelton began to answer the agents' questions in detail, revealing the payments, contact procedures, and meetings that he had arranged with the Soviets. Pelton told them that he was scheduled to contact the Soviets soon, and asked if he should make the contact. The agents told him not to make the contact, and that they could not authorize him to do so. Pelton told the agents to "stop the disclaimers."

        The agents told Pelton again that if he cooperated, there would be no overt investigation, but that they could not control investigation

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of any other criminal activity in which Pelton might be involved. At this point Pelton discussed his tax and drug abuse problems with the agents. Pelton continued to tell the agents about his contacts with the Soviets, but consistently refused to tell the agents the details of the classified information that he gave the Soviets without "guarantees." Pelton interrupted the interview twice to telephone his girlfriend, Ann Barry, and finally left at 1:30 p.m. to meet Barry for a brunch date after agreeing to continue discussions with the agents the following day.

        The FBI, under a FISA court order, monitored Pelton's telephone calls and conversations during the approximately nine hours that he spent with Barry. During this time, Pelton cooked himself an omelet, and joined Barry in a trip to 11th and 0 Streets, N.W., in Washington, D.C., to purchase illegally the drug "dilaudid," an opiate. In the monitored conversations,...

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