Scarbeck v. United States

• Decision Date: 31 December 1962
• Docket Number: No. 16739,16952.,16739
• Citation: 317 F.2d 546
• Parties: Irvin C. SCARBECK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

317 F.2d 546 (1962)

Irvin C. SCARBECK, Appellant, v. UNITED STATES of America, Appellee.

Nos. 16739, 16952.

United States Court of Appeals District of Columbia Circuit.

Argued June 7, 1962.

Decided December 31, 1962.

Petition for Rehearing Denied February 28, 1963.

As Amended March 12, 1963.

Certiorari Denied June 17, 1963.

COPYRIGHT MATERIAL OMITTED

Mr. Samuel C. Klein, Washington, D. C., for appellant.

Mr. Kevin T. Maroney, Attorney, Department of Justice, with whom Mr. Robert S. Brady, Attorney, Department of Justice, was on the brief, for appellee.

Before BAZELON, Chief Judge, and WASHINGTON and WRIGHT, Circuit Judges.

Petition for Rehearing En Banc Denied En Banc February 28, 1963.

Certiorari Denied June 17, 1963. See 83 S.Ct. 1897.

WASHINGTON, Circuit Judge.

Appellant Irvin C. Scarbeck was tried in the District Court on an indictment which charged him in three counts with communicating classified information to representatives of the Polish Government, in violation of 50 U.S.C. § 783(b), and in a fourth count with removing a document on file at the United States Embassy in Warsaw, Poland, in violation of 18 U.S.C. § 2071. After a jury trial, Scarbeck was found guilty on the first three counts, and not guilty on the fourth. He was sentenced to ten years imprisonment on each of the first three counts, to be served consecutively. Appeal was taken from the judgment of conviction. During its pendency, a motion for a new trial was made in the District Court. This was denied, and an appeal was taken from the denial. The two appeals were consolidated by order of this court.

The Government's evidence, in substance, was that appellant Scarbeck was employed in the United States Embassy in Warsaw from December 1958 until June 1961, serving as Second Secretary and General Services Officer. In September 1959 he met and thereafter became involved with Miss Urszula Maria Discher, a Polish national. He maintained an apartment for her, and visited her there almost nightly when he was in Warsaw. On the night of December 22-23, 1960, when appellant and Miss Discher were undressed and in bed together, the door was opened and several men entered — one in the uniform of the Polish militia. One of the men had a camera and took compromising pictures. Miss Discher was then taken to the police station, where she was interrogated by Polish security police (known as the "U.B.") and threatened with expulsion from Warsaw, imprisonment for black market dealings, and forced service as a prostitute.

The facts following are derived largely (but not wholly) from appellant's statements to a security officer of the State Department and to agents of the Federal Bureau of Investigation, which were received in evidence over appellant's objection.

The appellant remained in the apartment and conversed with two other men who arrived to interview him. He was told that Miss Discher would be imprisoned, that his activities with her would have to be reported to the United States Embassy, and that his career would be finished. The men suggested, however, that if appellant furnished information and documents from the Embassy to them, they might be able to quash the report to the Embassy concerning his activities and to procure the release of Miss Discher. Appellant disclaimed having any knowledge of classified matters and stated that he would not under any circumstances give them any information which would endanger the security of the United States. He agreed, however, to meet with them again. Miss Discher was then returned to her apartment from the police station.

Appellant thereafter met with the men, whom he believed to be Polish security policemen, once a week or once in two weeks until about April 11, 1961. He first gave them unclassified documents and information obtained from unclassified material, but the men became insistent that he provide them with more important documents and information. According to appellant's statements, about five or six weeks after his first meeting with them he took to them Despatch No. 344, a document prepared by the Ambassador of the United States and classified and marked as "Secret." The men photographed and returned this document to him in about fifteen minutes. He also provided them on other occasions with information contained in Despatch No. 518 classified and marked "Secret," and in Despatch No. 444 classified and marked "Confidential."

During his talks with the U.B. men, appellant had asked their assistance in obtaining a Polish passport for Miss Discher. Early in April 1961 Miss Discher obtained the passport and used it immediately to go to Germany. Appellant had previously arranged for the issuance of a West German visa to her, permitting her entry, and had arranged accommodations for her in Frankfurt. He paid her transportation to Germany. Before she left Warsaw, appellant mentioned to the two U.B. men his worries about her lack of funds and accepted 1600 German marks (then about $400) which they offered him. Appellant stated to them that it was a loan which he would repay. He had refused previous offers of money made by these men.

Appellant joined Miss Discher in Frankfurt about the middle of April and remained until the first week of May, when he returned to Warsaw. He was then under suspicion by his superiors, and was ordered to report on June 5, 1961, to the United States Embassy in Bonn, Germany, to attend a conference. Later that day (June 5) he was interviewed by a security official of the Department of State and signed an inculpatory statement detailing some of the facts outlined above. He returned to the United States where he was questioned by agents of the F.B.I., and where he signed three more inculpatory statements. He was arrested, indicted and tried, resulting in the conviction now under review.

I.

Appellant's initial contention raises the question of the proper interpretation of the statute under which he was convicted, 50 U.S.C. § 783(b) (1958), incorporating Section 4(b) of the Internal Security Act of 1950, 64 Stat. 991. This section provides, in pertinent part:

"It shall be unlawful for any officer or employee of the United States or of any department or agency thereof, or of any corporation the stock of which is owned in whole or in major part by the United States or any department or agency thereof, to communicate in any manner or by any means, to any other person whom such officer or employee knows or has reason to believe to be an agent or representative of any foreign government * * * any information of a kind which shall have been classified by the President (or by the head of any such department, agency, or corporation with the approval of the President) as affecting the security of the United States, knowing or having reason to know that such information has been so classified, unless such officer or employee shall have been specifically authorized by the President, or by the head of the department, agency, or corporation by which this officer or employee is employed, to make such disclosure of such information." (Emphasis supplied.)

As we have seen, appellant Scarbeck was an employee of the State Department, stationed in Warsaw, Poland, from December 1958 until June 1961. He was found guilty of having communicated to Polish government agents Foreign Service Despatches numbered 344, 518 and 444 (or information contained in them); the first two Despatches had been classified and certified "Secret," and the last Despatch had been classified and certified "Confidential," by the United States Ambassador to Poland. The Ambassador testified that these classifications were security classifications applied to information which should be protected in the interest of the national defense of the United States; and that his authority for the classifications was the President's Executive Order 10501, as amended by Executive Order 10901, and the Foreign Service Regulations based on the Executive Order.

Appellant's contention is that his conviction under Section 783(b) cannot stand because there was no showing that he had communicated the contents of any document which had been classified personally by the President as "affecting the security of the United States," or one that had been so classified personally by the Secretary of State with the approval of the President.¹

At the outset, we note that the construction of the statute urged by appellant would largely reduce it to a dead letter. With the pressures of more urgent business, the President and the Secretary of State of necessity could personally classify very few documents or items of information. In the normal course of events a subordinate Government employee or official labels his own materials with whatever classification he deems appropriate, within the scope of his authority, and his superiors reviewing those materials later re-classify or de-classify as they may judge necessary or desirable. But in this process the great mass of documents in the State Department never will reach the Secretary of State or the President. Executive Order 10501 of November 5, 1953, 18 Fed.Reg. 7049, as amended by Executive Order 10901 of January 9, 1961, 26 Fed.Reg. 217, fully recognizes this; after defining classification categories, it provides that the authority to classify under the order may be exercised, as to the Department of State, by the head (Secretary) "or by such responsible officers or employees as he, or his representative, may designate for that purpose."

We note further that security and defense information has long been "classified" against disclosure and that the term classified by, or with the approval of, the President or a department head, had a well understood connotation on September 23, 1950, when Section 783(b) was enacted by Congress.² For example, Executive Order 8381 of March 22, 1940, 5 Fed.Reg. 1147, defines "vital military and naval installations or equipment * * * requiring protection...