932 F.2d 306 (4th Cir. 1991), 90-5607, United States v. Fowler

Docket Nº:90-5607.
Citation:932 F.2d 306
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee FOWLER, Defendant-Appellant.
Case Date:April 29, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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932 F.2d 306 (4th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard Lee FOWLER, Defendant-Appellant.

No. 90-5607.

United States Court of Appeals, Fourth Circuit

April 29, 1991

Argued October 4, 1990.

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[Copyrighted Material Omitted]

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Joseph M. Jones, argued Schwalb, Donnenfeld, Bray & Silbert, P.C. (John M. Bray, Cary M. Feldman, James S. Cohen, Schwalb, Donnenfeld, Bray & Silbert, P.C., on brief), Washington, D.C., for defendant-appellant.

Maury S. Epner, argued, Sp. Asst. U.S. Atty. (Henry E. Hudson, U.S. Atty., Randy I. Bellow, Asst. U.S. Atty., on brief), Alexandria, Va., for plaintiff-appellee.

Before ERVIN, Chief Judge, BUTZNER, Senior Circuit Judge, and NICKERSON, U.S. District Judge for the District of Maryland, sitting by designation.

BUTZNER, Senior Circuit Judge:

Richard L. Fowler appeals from his convictions for conversion and unauthorized conveyance of classified documents in violation of 18 U.S.C. Sec. 641, mail fraud in violation of 18 U.S.C. Sec. 1341, and conspiracy to violate Secs. 641 and 1341. Fowler argues the district court erred in three broad areas: its decision on the applicability of Sec. 641, its rulings on numerous evidentiary matters, and its jury instructions. Finding no reversible error, we affirm.

I

The Department of Defense employed Fowler in a civilian capacity for 26 years. When he retired, Boeing Aerospace Co. hired him as a senior marketing analyst. While working for the government and for Boeing, Fowler had a "secret" security clearance from the government. As required by both the Department and Boeing for security clearance, Fowler signed statements acknowledging that he understood the pertinent requirements for handling

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classified information as set out in the Department's Industrial Security Manual.

Fowler obtained secret documents from the Department of Defense and the National Security Council and delivered them to Boeing either personally or by mail. He also furnished copies of some of the documents to other defense contractors' employees, whom the government identified as unindicted coconspirators. Fowler converted some of the documents by extracting secret information and incorporating it into his unclassified activity reports to Boeing. Neither Fowler, nor Boeing, nor anyone to whom Fowler supplied copies was authorized to receive them.

The Department's documents dealt with its Program, Planning, and Budget System. They included papers disclosing strategy and the kinds of weapons that should be procured to implement that strategy. They also included a five-year projection of the budget and programming decisions. The National Security Council documents pertained to the Strategic Defense Initiative. Each of these documents was classified secret and cost more than $100 to prepare.

When an investigator questioned Fowler about his unclassified activity reports containing classified information excerpted from secret documents, Fowler denied that the information was classified. Later he acknowledged that the document was classified, but he said the information he copied from the document was not classified. Confronted by a comparison of the documents with his reports, Fowler also said the information was overclassified, classified for political reasons, and not classified for national security purposes. Fowler, however, did not have authority to possess, declassify, or copy these secret documents. Additionally, an assistant secretary of defense testified that the documents were not misclassified and that disclosure of the material could have an impact on national security. The jurors could draw their own conclusions about the conflict between Fowler's statement and the witness's testimony, because they saw pertinent parts of the secret documents and Fowler's reports.

It was an unspoken rule among Fowler's coconspirators not to ask each other to identify sources of secret documents. Fowler did not testify, but during the investigation he initially claimed he could not remember who gave him the documents. Later he admitted he remembered, but he refused to name his source.

II

Section 641 provides that whoever "knowingly converts to his own use or the use of another, or without authority ... conveys ... any record ... or thing of value of the United States" is guilty of a felony if the value of the property exceeds $100.

Fowler moved to dismiss counts 2-24 of the indictment, arguing that Sec. 641 does not punish the acquisition or dissemination of classified information. Counts 2-19 charged that Fowler without authority conveyed to Boeing records and documents, in violation of Sec. 641. Counts 20-24 charged that Fowler converted to his own use and the use of another records of the United States by extracting information from each document and inserting it in his activity reports in violation of Sec. 641. Fowler emphasized that he did not acquire the original documents but only copies of them. He distinguishes between a document and the information contained in the document. It follows, he says, that because the government did not copyright the information, it cannot be a thing of value owned by the government within the meaning of Sec. 641. He urges us to adopt the separate view expressed by Judge Winter in United States v. Truong Dinh Hung, 629 F.2d 908, 923-28 (4th Cir.1980). He also relies on United States v. Tobias, 836 F.2d 449, 450-51 (9th Cir.1988). In Truong Dinh Hung, Judge Winter, without concurrence of other members of the court, wrote that Congress did not intend Sec. 641 to apply to the theft of government information. Tobias held that Sec. 641 did not apply to intangible property, including classified government information.

Fowler was not charged with conveying abstract information. He was charged

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with conveying and converting documents, which, although copies, were things of value and tangible property of the United States. True, the documents contain information, but this fact does not deprive them of their qualities as tangible property and things of value. Previously we held that Sec. 641 applies to the conversion of secret navy documents and photographs. United States v. Morison, 844 F.2d 1057, 1076-77 (4th Cir.1988). Morison provides sound precedent for affirming the district court's denial of Fowler's motion to dismiss the indictment.

Moreover, in Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), the intangible nature of a newspaper's confidential business information did not "make it any less 'property' protected by the mail and wire fraud statutes." 484 U.S. at 25, 108 S.Ct. at 320. For this reason, even if we were to accept Fowler's theory that the indictment essentially charged only the conveyance and conversion of information, Sec. 641 would apply because information is a species of property and a thing of value. We agree with the Second and Sixth Circuits that conversion and conveyance of governmental information can violate Sec. 641. United States v. Jeter, 775 F.2d 670, 680-82 (6th Cir.1985); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.1979).

III

Fowler's counsel, having received appropriate security clearance, inspected the classified documents specified in the indictment. Fowler then gave notice pursuant to the Classified Information Procedures Act (CIPA), 18 U.S.C.App. IV Sec. 5, for disclosure of the classified information in the documents. He contends that the contents of the documents were relevant to show lack of specific intent, explain his statements to investigators, provide for effective cross examination, show that the documents had a value of less than $100, establish his belief that Boeing had a need to know the information, prove that Boeing gained no competitive advantage, and show that these kinds of documents were available to other contractors.

The government opposed disclosing the contents of the documents on the ground that the contents were irrelevant. The prosecutor also explained that he would prove value by showing the cost of preparing the documents without relying on their intrinsic value.

United States v. Zettl, 889 F.2d 51 (4th Cir.1989), governs this aspect of the case. Zettl, an employee of a defense contractor, was charged with conveying classified navy budget documents without authority in violation of Sec. 641. We held that Zettl was not entitled to introduce into evidence the contents of the classified documents and that defenses similar to those pressed by Fowler were irrelevant.

After a pretrial hearing conducted pursuant to CIPA Sec. 6(a), the district court denied Fowler's request. The court held that Fowler did not need the contents of the documents to defend himself. The court subsequently modified one aspect of its ruling. It recognized that "substantial interference with government property rights" was an element of conversion. It permitted the introduction of the contents of the documents mentioned in the conversion counts and properly instructed the jury on this issue.

The district court did not err by denying disclosure of the contents of the secret documents mentioned in the conspiracy, conveyance, and mail fraud counts. The evidence disclosed the general nature of the secret documents, but their contents--the budget figures, budget projections, and details of proposed plans--were not relevant to Fowler's defense.

IV

Fowler assigns error to the district court's denial of discovery and his applications for subpoenas duces tecum, which he sought pursuant to Fed.R.Crim.P. 17(c). Fowler contends that because the court erred regarding the availability of a good faith defense, we must review denial of his motions de novo.

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The district court committed no error of law regarding a good faith defense--an issue we discuss in more detail in part VI infra. We therefore review the district court's denial of Fowler's requests...

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