Appeal of U.S. by Atty. Gen., 89-5804

• Decision Date: 29 September 1989
• Docket Number: No. 89-5804,89-5804
• Citation: 887 F.2d 465
• Parties: Appeal of UNITED STATES of America (By the ATTORNEY GENERAL). UNITED STATES of America (By the OFFICE OF INDEPENDENT COUNSEL), Plaintiff-Appellee, v. Joseph F. FERNANDEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 465

887 F.2d 465

58 USLW 2260

Appeal of UNITED STATES of America (By the ATTORNEY GENERAL) UNITED STATES of America (By the OFFICE OF INDEPENDENT COUNSEL), Plaintiff-Appellee, v. Joseph F. FERNANDEZ, Defendant-Appellee.

No. 89-5804.

United States Court of Appeals Fourth Circuit.

Argued Aug. 23, 1989.

Decided Sept. 29, 1989.

Edward S.G. Dennis, Jr., Asst. Atty. Gen., Philadelphia, Pa., John F. De Pue, Washington, D.C. (Ronald K. Noble, Deputy Asst. Atty. Gen., James S. Reynolds, William C. Brown, Attys., Criminal Div., U.S. Dept. of Justice, Washington, D.C., on brief), for appellant.

Gerard E. Lynch, New York City (Lawrence E. Walsh, Independent Counsel; Laurence Shtasel, Geoffrey S. Stewart, Geoffrey S. Berman; John Q. Barrett, Associate Counsel, Office of Independent Counsel, Washington, D.C. on brief), for plaintiff-appellee U.S.

Thomas E. Wilson (Mary Beth Sullivan, Susan C. Benner, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D.C. on brief), for defendant-appellee Fernandez.

Before CHAPMAN, WILKINSON, and WILKINS, Circuit Judges.

WILKINSON, Circuit Judge:

In this case we must reconcile two statutes that make no reference to one another: The Classified Information Procedures Act ("CIPA"), 18 U.S.C.App. Sec. 1 et seq. (1982), and the independent counsel provisions of the Ethics in Government Act, 28 U.S.C.A. Sec. 591 et seq. (1989 Supp.). The Attorney General contests certain orders of the district court which authorized the disclosure of classified information in a criminal case being prosecuted by an independent counsel appointed pursuant to the Ethics in Government Act. Rather than file an affidavit under CIPA which would absolutely prohibit the disclosure of the information in question, the Attorney General seeks to take an interlocutory appeal under the statute from the district court's rejection of substituted versions of the classified materials. Independent counsel opposes this appeal. He argues that in cases within his prosecutorial jurisdiction, the Ethics in Government Act grants him the sole authority to exercise the right to appeal under section 7 of CIPA the rulings rejecting the substitution proposals. We agree with independent counsel and direct that this appeal be dismissed.

I.

A.

Congress enacted the Classified Information Procedures Act in 1980 to confront the problem of a criminal defendant who "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." United States v. Smith, 780 F.2d 1102, 1105 (4th Cir.1985). CIPA addresses this problem by establishing procedures for making decisions about the use of such information. Section 5(a) of the Act requires a criminal defendant to notify the court and the prosecutor about any classified material he expects to disclose at trial. Once the defendant gives notice, 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(a). The court must hold this hearing in camera if the Attorney General certifies that a public proceeding may disclose classified information. Id.

If the court authorizes disclosure of classified information, the United States may move that the court instead accept either a substitute admission of relevant facts or a substitute summary of the information. 18 U.S.C.App. Sec. 6(c)(1). ¹ The court must grant the motion if the government's substitutions provide the defendant with "substantially the same ability to make his defense" as would complete disclosure. Id. If the court denies the section 6(c)(1) motion, the Attorney General can prepare an affidavit barring the defendant from disclosing the classified information. 18 U.S.C.App. Sec. 6(e)(1). ² The court then must fashion an appropriate remedy, ranging from dismissal of the entire indictment to preclusion of certain testimony. 18 U.S.C.App. Sec. 6(e)(2). Section 7(a) authorizes the United States to take an interlocutory appeal, before or during trial, from an adverse district court order concerning disclosure of classified information. ³

B.

In most cases involving CIPA issues, the Attorney General is in charge of the prosecution. The instant case, however, is being prosecuted by independent counsel appointed pursuant to the Ethics in Government Act. ⁴ The Ethics in Government Act provides for the appointment of independent counsel to investigate and prosecute high-ranking Executive Branch officials. In order to avoid the appearance of partiality that might result if the Department of Justice were prosecutor, the Act transfers to independent counsel "full power and independent authority to exercise all investigative and prosecutorial functions and powers" of the Department of Justice and the Attorney General. 28 U.S.C.A. Sec. 594(a). Here the prosecution is plainly one within the statutory authority of the special prosecutor. However, the Department of Justice has been working in concert both with national intelligence agencies and with independent counsel to ensure that national security secrets are safeguarded. Independent counsel has consulted the Attorney General concerning the use and potential disclosure of classified information in this case, and the Attorney General has participated in framing both the initial charges and the substitution proposals.

The events leading to this appeal began on April 24, 1989, when Joseph F. Fernandez, a former CIA service officer, was indicted on two counts of giving false official statements in violation of 18 U.S.C. Sec. 1001 and two counts of obstructing proceedings in violation of 18 U.S.C. Sec. 1505. The charges grew out of statements made by Fernandez to two investigative bodies examining the facts surrounding the "Iran-Contra" affair. Following his indictment, Fernandez gave notice under section 5(a) of CIPA that he intended to introduce classified information during trial. After a hearing, the district court found some of the classified items relevant to his defense. Independent counsel then filed several motions under section 6(c)(1) of CIPA proposing to substitute unclassified summaries for the classified information Fernandez intended to use. The district court rejected many of the substitution proposals and set trial for July 24, 1989.

Prior to trial, independent counsel asked the Department of Justice to file an affidavit under section 6(e)(1) of CIPA to block disclosure of some of the classified information. The Department of Justice refused, and instead urged independent counsel to file an interlocutory appeal under section 7(a) of the statute from the district court's adverse rulings on the substitution proposals. Independent counsel declined the invitation, choosing to delay appeal until after final action by the Attorney General and any subsequent sanctions by the district court.

On the morning of trial, the Department of Justice sought a stay of the trial and filed a notice of appeal under section 7(a) challenging the district court's rejection of the proposed substitutions. The district court denied the Attorney General's motion for a stay. The same afternoon, this court stayed the trial pending consideration of this appeal.

II.

We must address at the outset our jurisdiction to hear this appeal. Section 7(a) of CIPA vests the right to bring an interlocutory appeal from adverse CIPA orders in "the United States." The Attorney General claims that because the right to appeal under CIPA is an inextricable part of his duty to protect national security, he may bring this appeal even though he is not prosecuting the case. Independent counsel counters that the Attorney General lacks standing to appeal here because the Ethics in Government Act transfers to independent counsel all of the Attorney General's prosecutorial authority, including the right to bring an interlocutory appeal under section 7 of CIPA.

Resolution of this controversy requires us to construe both CIPA and the Ethics in Government Act, neither of which refers to the other. Several principles guide us in this endeavor. First, we must try to give full effect to both statutes. "The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." Morton v. Mancari, 417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d 290 (1974). In giving full effect to both statutes, we must construe them as harmoniously as possible. 2A C. Sands, Sutherland Statutory Construction Sec. 53.01, at 549-50 (4th Ed.1984 Revision). Finally, in harmonizing the two statutes, we must be sensitive to the plain meaning of the terms employed. See, e.g., Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979).

The charter of authority for independent counsel is an example of emphatic statutory draftsmanship. Its language is broad, unequivocal, and, in our view, dispositive:

Notwithstanding any other provision of law, an independent counsel appointed under this chapter shall have, with respect to all matters in such independent counsel's prosecutorial jurisdiction established under this chapter, full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice, the Attorney General, and any other officer or employee of the Department of Justice, except that the Attorney General shall exercise direction or control as to [the authorization of wiretaps].

28 U.S.C.A. Sec. 594(a). This passage effects a sweeping transfer of prosecutorial and investigative authority from the Attorney General to independent counsel. In "all" matters within his jurisdiction, the independent counsel has "full" power to exercise "all"...