U.S. v. Zettl, 88-5577
| Decision Date | 16 January 1990 |
| Docket Number | No. 88-5577,88-5577 |
| Citation | 889 F.2d 51 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. Bernie E. ZETTL, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Michael Crockett Olmstead, Theodore Stewart Greenberg (Peter B. Clark, Washington, D.C., Harriet Halper, Henry E. Hudson, U.S. Atty., U.S. Dept. of Justice, Alexandria, Va., on brief) for plaintiff-appellant.
Richard Anthony Hibey (Gordon A. Coffee, Anderson, Hibey, Nauheim & Blair Washington, D.C., on brief) for defendant-appellee.
Before ERVIN, Chief Judge, and WIDENER and PHILLIPS, Circuit Judges.
The United States appeals from a pretrial order authorizing the disclosure of classified information. 18 U.S.C.App. IV Sec. 7(a) authorizes this interlocutory appeal. The district court held that conversion was a necessary element of a violation of 18 U.S.C. Sec. 641 which it decided made several documents it had mentioned with particularity relevant to the defendant's case; that six of the government's statement substitutions pursuant to the Classified Information Procedures Act (CIPA) were inadequate; and that the government could not have additional time to correct the substitutions. The government argues that the classified documents are not relevant because the element of conversion is not a necessary part of the unauthorized conveyance portion of Sec. 641; that the proposed substitutions satisfy the requirements of CIPA; and that the district court abused its discretion in not granting additional time. We are of the opinion that the documents in question are not relevant to Zettl's defense, and we vacate the order appealed from and remand for further proceedings. 1
On September 10, 1985, Bernie E. Zettl, Walter R. Edgington, and Robert E. Carter were charged with violating 18 U.S.C. Sec. 371, 18 U.S.C. Sec. 641 and 18 U.S.C. Sec. 793. Zettl and Edgington were also charged with conversion and espionage. After the first round of CIPA hearings was held, the district court found that many of the classified documents were relevant and rejected the government's substitutions. See United States v. Zettl, 835 F.2d 1059, 1062-63 (4th Cir.1987) (Zettl I ). The government appealed and we affirmed the district court's relevancy findings but remanded for the district court to consider any claim of privilege of state secret or informer that the government might want to assert. Zettl I, 835 F.2d at 1065-66. Following remand and upon the government's motion, the district court dismissed counts 1, 3, 4, and 5 of the indictment, leaving only the Sec. 641 violation against Zettl regarding the Navy's 1984 Program Element Descriptions (PEDs). In addition, the government has stated that it will proceed against Zettl only upon the portion of Sec. 641 that prohibits conveying government property without authority. 2
After the post-remand CIPA hearings, the district court decided that the requirement of Sec. 641 that the defendant "without authority ... convey[ ]" still required proof of "substantial interference with the government's ownership rights" since "any violations of 641 must involve a conversion." The district court ruled that the documents it had mentioned were relevant as to conversion. As an alternative ruling, the district court found the documents relevant to the issues of "need to know," "closely held," "intent," "value," and "substantial interference" with the government's ownership rights. The government appeals, arguing that the proof of conversion is not necessary to convict under Sec. 641.
We first address the district court's relevancy determination. The district court found that the classified documents at issue were relevant because it believed that any charge under Sec. 641 must involve a conversion and that the documents were relevant to elements of conversion. The district court relied on dictum in United States v. Thordarson, 646 F.2d 1323, 1335 n. 23 (9th Cir.), cert. denied, 454 U.S. 1055, 102 S.Ct. 601, 70 L.Ed.2d 591 (1981). The court in Thordarson believed that Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1951), taught that any violation of Sec. 641 must involve a conversion. We think Thordarson does not correctly construe Morissette. Morissette held that on indictment under Sec. 641 for "steal[ing] and convert[ing]" property of the United States, the question of intent must be submitted to the jury. It does not, however, even by implication, require the elements of conversion to be proven in each Sec. 641 violation. The relevant portion of Sec. 641 ascribes punishment to whoever "embezzles, steals, purloins, or knowingly converts ... or without authority, sells, conveys or disposes of any record, voucher, money or thing of value of the United States" (emphasis added). Section 641 prohibits two separate acts. The first is to embezzle, steal, or knowingly convert United States property and the second is to sell, convey, or dispose of United States property without authority. United States v. Scott, 789 F.2d 795, 798 (9th Cir.1986); United States v. Jeter, 775 F.2d 670, 681 (6th Cir.1985), cert. denied, 475 U.S. 1142, 106 S.Ct. 1796, 90 L.Ed.2d 341 (1986); Hawkins v. United States, 458 F.2d 1153, 1155 (5th Cir.1972). One need not prove the elements of conversion to convict under the clause of Sec. 641 which prosecutes one who "without authority sells, conveys or disposes" of property of the United States. "To write the elements of conversion into the crime of unauthorized sale would be to assume that Congress meant nothing at all by making them separate crimes, an assumption we refuse to make." United States v. Scott, 789 F.2d 795, 798 (9th Cir.1986).
We next consider the district court's alternative findings to support its relevancy decision. As an alternative finding the district court found the documents relevant to the issues of "need to know," "closely held," "intent," "value," and " 'substantial interference' with the government's property rights." We are reminded first that all counts have been dismissed except the count charging Zettl with an unauthorized sale, conveyance, or disposal of United States property. Especially with the conversion issue removed from the case, there simply is no issue of "need to know" or "closely held" or " 'substantial interference' with the government's property rights." Since these issues are no longer in the case, the district court's holding that the documents in question are relevant to their proof is erroneous. The reason for this part of our decision is apparent. The government is responsible for the accountability of classified information. It is responsible for the...
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