U.S. v. Whitworth

• Citation: 856 F.2d 1268
• Decision Date: 01 September 1988
• Docket Number: No. 86-1256,86-1256
• Parties: 26 Fed. R. Evid. Serv. 929 UNITED STATES of America, Plaintiff-Appellee, v. Jerry Alfred WHITWORTH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1268

856 F.2d 1268

26 Fed. R. Evid. Serv. 929

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Alfred WHITWORTH, Defendant-Appellant.

No. 86-1256.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 13, 1987.

Decided Sept. 1, 1988.

Alan M. Caplan, Bushnell, Caplan & Fielding, San Francisco, Cal., for defendant-appellant.

Sanford Svetcov, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before POOLE, BOOCHEVER and THOMPSON, Circuit Judges.

BOOCHEVER, Circuit Judge:

Jerry A. Whitworth, alleged participant in the infamous "Walker Family Spy Ring," appeals his conviction for espionage and tax evasion. Whitworth was accused of selling classified Navy communications and cryptographic material to the Soviet Union through coconspirator John A. Walker, Jr., between 1975 and 1984. Whitworth was found guilty on twelve counts of a thirteen-count indictment in July 1986 following a four-month jury trial. United States District Court Judge John P. Vukasin, Jr., sentenced him to 365 years in prison, without the possibility of parole for sixty years, and fined him $410,000.

Whitworth challenges his conviction on numerous grounds. He contends that (1) the government failed to comply with his discovery requests; (2) his espionage and tax evasion counts should not have been joined for trial; (3) his Miranda rights were violated; (4) he did not voluntarily consent to a search of his residence; (5) subsequent search warrants were overbroad and issued without probable cause; (6) certain letters signed "RUS" were not properly authenticated before being admitted into evidence; (7) erroneous evidentiary rulings were made during trial; (8) the evidence was insufficient to convict him for espionage; (9) certain tax fines were unauthorized; and (10) his prison sentence was excessive and in violation of his eighth amendment rights.

Although we conclude that a statement by Walker was improperly admitted at trial, the government's evidence against Whitworth was overwhelming and the error was harmless. Whitworth's conviction, his prison sentence, and three of his five tax fines therefore are affirmed. The fines imposed for filing false tax returns for 1979 and 1980 exceeded the statutory limit, however, and we reverse that portion of the judgment and remand to the district court for redetermination. Because our discussion of many of the issues is dependent on the facts, we shall relate them in some detail.

I.

Whitworth worked as a radioman on board the U.S.S. Arlington, a communications ship, and the U.S.S. Ranger, an aircraft carrier, between 1968 and 1970. Radiomen operate the communication centers aboard ships. The Navy uses cryptography in an attempt to conceal the content of the numerous directives, operation orders, and other messages sent and received at sea. Through this computerized process, the text of a communication is put in a form that in intelligible only to its intended recipients.

Modern cryptographic systems consist of "logic," a mathematical coding formula, and "keying material," computer input in the form of cards, tapes, or printed material that alters the settings within the cryptographic logic. The keying material is changed each day and is subject to rigid custodial standards to provide maximum security. Whitworth, who was trained as a technical controller and held a top-secret security clearance, was privy to classified communications and cryptographic material.

Whitworth attended radioman instructor school in San Diego in 1970 following his tour of duty aboard the U.S.S. Ranger. There, Whitworth first met Walker, who at the time was the school's chief instructor. The men soon became best friends. In February 1973, Whitworth was granted a transfer to Diego Garcia Island, a new communications center in the Indian Ocean. He served as a radioman at Diego Garcia until opting to be discharged from the Navy in June 1974. Whitworth then returned to San Diego and worked part-time as a commercial pilot.

By 1974, Walker had been selling cryptographic material and other Navy secrets to the Soviet Union for six years. He "began to contemplate [Whitworth] as a possible recruit to help me in the spying business." Walker testified that he finally made his "sales pitch" to Whitworth in September 1974 in a San Diego restaurant:

We went to a secluded portion of the bar ... and I told him I was interested in using him on an illegal activity, and that even discussing it was illegal....

He was excited and was interested in hearing what I had to say.... So I told him I'd been involved in selling classified material for a number of years, and it was profitable, and I could build him into the--into the sale....

He responded affirmatively, that he would be interested.... [H]e was mostly curious as to who the buyers were. I told him it was--that I wasn't sure. I was working with people I had met, possibly could have been organized crime, Mafia, but that the buyers were allied countries, such as Israel, or private defense organizations, such as Jane's Fighting Ships.

Whitworth, who was a civilian at the time, agreed to rejoin the Navy and steal messages and cryptographic material for delivery to Walker. The classified information was to be passed on to the buyers by Walker and Whitworth was to be paid one-half of the cash proceeds. Whitworth was expected to receive $2,000 to $4,000 per month for spying. Despite numerous inquiries by Whitworth about the identity of the buyers, Walker said that he never told him that they were dealing with the Soviet Union.

Whitworth reenlisted in the Naval Reserve in October 1974 and rejoined the regular Navy one month later in order to attend an advanced satellite communications training school in New Jersey. In February 1975, shortly before graduating from satellite school and commencing a second tour of duty at the Diego Garcia communications station, Whitworth met with Walker in Norfolk, Virginia. Walker paid Whitworth a $4,000 "inducement" and instructed him "to try to photograph or assemble cryptographic material and anything else sensitive that came across his desk."

Whitworth used his position as supervisor of the Diego Garcia technical control facility to assemble and photograph classified messages and cryptographic material. In April 1976, Whitworth again met Walker in Norfolk and delivered the material he had stolen during his one-year assignment at the communications center. Walker paid Whitworth $18,000 for the delivery from cash Walker had received from his Soviet contact.

Between June 1976 and July 1978, Whitworth worked aboard the aircraft carrier U.S.S. Constellation and supervised the use of cryptographic equipment and material. Whitworth continued to copy classified information and, while on leave, personally delivered it to Walker in August 1976, January, April, August, and November 1977, and February and July 1978. Whitworth received a total of $76,000 while working on the Constellation. Walker, whose spy role was limited to that of go-between after retiring from the Navy in 1976, relayed the material to the Soviets semiannually through a series of package "drops" and face-to-face meetings. He received cash and instructions in exchange.

Whitworth next served on the U.S.S. Niagara Falls, a supply ship, in August 1978. During his one-year tour as chief radioman, Whitworth was the custodian of a large amount of cryptographic material used on a number of ships. He photographed classified information and delivered it to Walker in September and December 1978 and May and August 1979 in exchange for $24,000.

Whitworth requested shore duty and was assigned to the Alameda, California Naval Air Station in September 1979. He was in charge of the telecommunications center at Alameda for most of the next three years. ¹ Whitworth made deliveries to Walker in January, June, and November 1980, July 1981, and January and September 1982. Sporadic payments totaling $210,000 were made by the Soviets through Walker. This included a $100,000 payment in June 1980 covering deliveries made from the Niagara Falls and an additional $10,000 in July 1981 for a van Whitworth used to photograph cryptographic material in the parking lot of the Alameda Air Station.

Following shore duty, Whitworth worked on board the aircraft carrier U.S.S. Enterprise between October 1982 and his retirement in October 1983. He delivered classified messages and cryptographic material from the Enterprise in June 1983, but no money was exchanged. Whitworth met Walker in July 1983 and January 1984, but again was not paid. At a meeting in Vienna in February 1984, Walker told his Soviet contact that Whitworth, though retired from the Navy, was looking for a civil service job with classified information access so that he could continue spying. The contact informed Walker that the messages delivered the previous June were photographed out-of-focus and unusable.

Whitworth, who had retained copies of the classified messages he stole from the Enterprise, rephotographed the illegible ones. He gave them to Walker in Norfolk in April 1984, shortly before a scheduled drop with the Soviets near Washington, D.C. Walker included these messages in the drop, along with other classified Navy documents supplied by his son, Michael, whom Walker had recruited into the spy ring in 1983. Although Walker picked up money in the exchange, he was instructed that Whitworth was not to be paid. Whitworth was shocked by this news, and reminded Walker that he had not yet been paid for an entire year of messages from the Enterprise.

Three weeks later, the San Francisco FBI office received a typewritten letter dated May 7, 1984, which stated:

Dear Sir:

I have been involved in espionage for several years, specifically I've passed along Top Secret Cryptographic Keylists for military communications, Tech Manuals for...