844 F.2d 1057 (4th Cir. 1988), 86-5008, United States v. Morison

Docket Nº:86-5008.
Citation:844 F.2d 1057
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Samuel Loring MORISON, Defendant-Appellant, the Washington Post; CBS, Inc., et al., Amici Curiae.
Case Date:April 01, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 1057

844 F.2d 1057 (4th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Samuel Loring MORISON, Defendant-Appellant,

the Washington Post; CBS, Inc., et al., Amici Curiae.

No. 86-5008.

United States Court of Appeals, Fourth Circuit

April 1, 1988

Argued Oct. 8, 1987.

Rehearing and Rehearing In Banc Denied April 29, 1988.

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[Copyrighted Material Omitted]

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Mark H. Lynch (Charles F.C. Ruff, Neil K. Roman, Steven F. Reich, Covington & Burling, Jacob A. Stein, Robert F. Muse, Stein, Mitchell & Mezines, Washington, D.C., on brief), for defendant-appellant.

Breckinridge Long Willcox, U.S. Atty., Baltimore, Md., for plaintiff-appellee.

(Daniel J. Popeo, Utica, N.Y., Paul D. Kamenar, Washington, D.C., Michael P. McDonald, Marianne M. Hall on brief), for amici curiae Washington Legal Foundation.

(Patti A. Goldman, Alan B. Morrison on brief), for amicus curiae Public Citizen.

(Kevin T. Baine, David E. Kendall, Victoria L. Radd, Williams & Connolly, Washington, D.C., on brief), for amici curiae The Washington Post, et al.

Before RUSSELL, PHILLIPS, and WILKINSON, Circuit Judges.

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DONALD RUSSELL, Circuit Judge:

The defendant is appealing his conviction under four counts of an indictment for violation of 18 U.S.C. Sec. 641, and of two provisions of the Espionage Act, 18 U.S.C. Sec. 793(d) and (e). The violations of the Espionage Act involved the unauthorized transmittal of certain satellite secured photographs of Soviet naval preparations to "one not entitled to receive them" (count 1) and the obtaining of unauthorized possession of secret intelligence reports and the retaining of them without delivering them to "one entitled to receive" them (count 3). Counts 2 and 4 of the indictment charged violation of the theft provisions of 18 U.S.C. Sec. 641. His defense was essentially that the statutes did not encompass the conduct charged against him and, if they did, the statutes were unconstitutional. At trial, he also found error in certain evidentiary rulings by the district judge. We find the claims of error unfounded and affirm the conviction.

I.

Summary of the Facts

The defendant was employed at the Naval Intelligence Support Center (NISC) at Suitland, Maryland from 1974 until October, 1984. At the time of the incidents involved in this prosecution, he was assigned as an amphibious and hospital ship and mine warfare analyst in the NISC and as such had been given a security clearance of "Top Secret-Sensitive Compartmented Information." His work place was in what was described as a "vaulted area," closed to all persons without a Top Secret Clearance. 1 In connection with his security clearance, he had signed a Non-Disclosure Agreement. In his Non-Disclosure Agreement, the defendant acknowledged that he had received "a security indoctrination concerning the nature and protection of Sensitive Compartmented Information, including the procedure to be followed in ascertaining whether other persons to whom I contemplate disclosing this information have been approved for access to it and I understand these procedures.... [that he had been] advised that direct or indirect unauthorized disclosure, unauthorized retention, or negligent handling of Sensitive Compartmented Information by me could cause irreparable injury to the United States or be used to advantage by a foreign nation.... [that he understood he was] obligated by law and regulation not to disclose any classified information in an unauthorized fashion.... [that he had been] advised that any unauthorized disclosure of Sensitive Compartmented Information by me may constitute violations of United States criminal laws, including the provisions of Section 793, 794, 798 and 952, Title 18, United States Code...."

For some time prior to the incidents with which this prosecution is concerned, the defendant had been doing certain off-duty work for Jane's Fighting Ships, an annual English publication which provided current information on naval operations internationally. Sometime before July, 1984, Jane's, which for many years had been publishing Jane's, had begun the publication of another periodical on a weekly basis. This new publication was called Jane's Defence Weekly and its editor-in-chief was Derek Wood, with an office in London. The defendant had been paid varying amounts for such services as rendered Jane's dependent on the value of the information he furnished. This arrangement with Jane's had been submitted to and approved by the Navy but subject to the defendant's agreement that he would not obtain and supply any classified information on the U.S. Navy or extract unclassified data on any subject and forward it to Jane's. The defendant's off-duty services with Jane's had become a subject of some controversy between him and the Navy. As a result, the defendant had become dissatisfied with his employment by the Navy and wished to secure full-time employment with Jane's. The defendant began a correspondence with Wood on the prospects for

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full-time employment with the periodical. He requested an opportunity to interview Wood when the latter was in Washington next.

Wood visited Washington in June, 1984, and, by arrangement, saw the defendant in connection with the latter's request for employment. At that time, Wood discussed with the defendant a report which had appeared in the American press with regard to an explosion that had recently occurred at the Severomorsk Soviet Naval base. Wood expressed the interest of his publication in securing additional details since such an explosion was "a very serious matter." The defendant told Wood that the explosion "was a much larger subject than even they had thought and there was a lot more behind it." The defendant also said he could "provide more material on it" if Jane's were interested. Wood responded that he was interested in receiving additional material on the explosion and, if the defendant were able to provide such, he could use for transmission of such material to Jane's "the facsimile machine for direct transmission in our [Jane's ] Washington editorial office." The defendant told Wood also that he could provide Wood with other material. While there was no direct statement about what compensation the defendant would receive if he sent material to Wood that was used the practice had been that when the defendant had in the past furnished material of interest Jane's had paid the defendant. When Wood returned to London a few days later, he received from the defendant "about three typed pages of material background on Severomorsk." A few days later, the defendant transmitted to Wood "two other items on further explosions that had occurred at the site on different dates and also a mention of one particular explosion in East Germany."

The activity of the defendant which led to this prosecution began on July 24, 1984, a few days after the interview of the defendant by Wood and after the defendant had sent Wood the material described in the preceding paragraph. At that time the defendant saw, on the desk of another employee in the vaulted area where he worked, certain glossy photographs depicting a Soviet aircraft carrier under construction in a Black Sea naval shipyard. The photographs, produced by a KH-11 reconnaissance satellite photographing machine, had been given this analyst so that he could analyze and determine the capabilities and capacities of the carrier under construction. The photographs were stamped "Secret" and also had a "Warning Notice: Intelligence Sources or Methods Involved" imprinted on the borders of the photographs. The defendant later in his confession said he had earlier sent an artist's sketch of a Soviet carrier under construction to Jane's and had been paid $200 for his services. When he saw the photographs, the defendant recognized them as satellite photographs of the Soviet ship, taken by a secret method utilized by the Navy in its intelligence operations. Unobserved, he picked the photographs up, secreted them, and, after cutting off the borders of the photographs which recorded the words "Top Secret" and the Warning Notice as well as any indication of their source, mailed them to Derek Wood personally. Jane's Defence Weekly published the photographs in its weekly edition a few days later and made the pictures available to other news agencies. 2 One of these photographs was published on August 8, 1984 in the Washington Post. When the Navy officers saw the photographs, they began a search and discovered that the photographs had been stolen. An investigation was immediately begun to ascertain the identity of the thief.

In the investigation of the theft, the defendant was interrogated. He denied ever seeing the photographs and professed to know nothing about the purloining of the photographs. 3 He persevered in this denial

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for some time, even going so far as to identify two fellow employees who he said should be questioned about the disappearance of the photographs. On August 22, 1984, the authorities seized the defendant's typewriter ribbon at work. An analysis of the ribbon revealed numerous letters to Jane's, including a summary of a secret report on the Severomorsk explosion. At about the same time, the Navy also was able to secure a return of the photographs from Jane's. A fingerprint was discovered on one of the photographs and the fingerprint was identified as that of the defendant. With this information, the FBI interviewed the defendant anew and the arrest of the defendant followed on October 1, 1984. 4

When arrested, the defendant repeated his many denials of any connection with the theft of the photographs, though the arresting officer told him they had discovered his fingerprints on the photographs, demonstrating that he was not truthful...

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