U.S. v. Caso
| Decision Date | 17 July 1991 |
| Docket Number | Nos. 90-5830,90-5831,s. 90-5830 |
| Citation | 935 F.2d 1288 |
| Parties | Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Frank J. CASO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John R. KIELY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Chief District Judge. (CR-90-98-A)
Marcus S. Topel, Daniel F. Cook, Topel & Goodman, San Francisco, Cal., (argued), for appellant Caso; William M. Goodman, Deborah A. Trevino, Topel & Goodman, San Francisco, Cal., on brief.
Joseph Covington, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D.C., (argued) for appellant Kiely; Brenda Gruss, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D.C., on brief.
Randy I. Bellows, Assistant United States Attorney, Alexandria, Va., (argued) for appellee; Henry E. Hudson, United States Attorney, Alexandria, Va., on brief.
Before ERVIN, Chief Judge, PHILLIPS, Circuit Judge, and BRITT, United States District Judge for the Eastern District of North Carolina, sitting by designation.
Frank J. Caso and John R. Kiely were convicted under 18 U.S.C. Sec. 371 of conspiracy to defraud the government by unlawfully impeding, impairing, and interfering with the Department of Defense's ("DOD") effort to maintain control and security of its classified documents, and with conspiracy to convey without authority property of the United States (classified documents), in violation of 18 U.S.C. Sec. 641. They appeal and assign error to a number of the district court's pre-trial and trial rulings. Finding no error, we affirm their conviction.
Caso and Kiely worked as market researchers for two large defense contractors. Caso worked for Hughes Aircraft, and Kiely was employed by Raytheon Corp. They both had "secret" security clearances, because their jobs included receiving and handling classified documents given to them by government officials.
The documents that are the focus of this prosecution were internal budgeting and planning documents that the DOD used to reach decisions on its funding priorities. Some of the documents involved flowed directly from the Secretary of Defense and his Deputy to the secretaries of the military departments, and described the goals to be achieved by DOD. Other documents came from the military departments and were created in response to the Secretary's directive; these documents outlined how each department would allocate its resources. Some documents reflected the debate going on within the Pentagon on budget priorities, while still other documents indicated the final decisions on budgets and program funding. As a consequence, these documents taken together afforded the reader a valuable look into the thought processes of the DOD on critical funding decisions.
Caso and Kiely were indicted for being part of a conspiracy to conduct an "underground market" in this sensitive information. At trial, the government established that the documents acquired or traded by Caso and Kiely were classified and that Caso and Kiely were not entitled to their possession. In addition, the parties stipulated that each document contained in substantial proportion pages marked "secret."
The government also introduced evidence that Caso and Kiely had ample notice that acquisition and transfer of the documents named in the indictment were internal DOD documents which were not released without authorization to defense contractors. Indeed, the documents themselves carried a number of warnings, such as "NOT RELEASABLE TO CONTRACTORS/CONSULTANTS" or "REPRODUCTION OF THIS DOCUMENT IN WHOLE OR IN PART IS PROHIBITED EXCEPT WITH THE PERMISSION OF THE ISSUING OFFICE" printed on the face of the document. In addition, through the ongoing security clearance process Caso and Kiely were frequently made aware of the unlawfulness of failing to follow government procedures on handling and distributing classified documents.
In their defense, Caso and Kiely largely acknowledged receiving these kinds of warnings. But they contend that they thought these warnings were inapplicable to them because they believed in good faith that the documents were lawfully provided to them as part of an "informal DOD policy" to put important budgeting documents in the hands of defense contractors. Against this claim the government offered substantial evidence at trial showing that Caso and Kiely and other members of the conspiracy knew they should not have the documents and that they took extraordinary steps to avoid detection. 1
Defendants do not challenge the sufficiency of the evidence. Instead, they assign error to the district court's pretrial decision not to dismiss or strike a portion of the indictment; to the court's refusal to grant defendant Kiely discovery of a Navy budget document; and to the court's admitting evidence that rebutted Kiely's claim of withdrawal, as well as the jury instructions the court gave, or did not give, on a good faith defense. We take these assignments of error in turn.
Caso and Kiely contend that the indictment on its fact was fatally flawed and should have been dismissed because it failed to state an offense or that it should have been dismissed for vagueness and lack of fair notice. They also contend alternatively that a portion of the indictment should have been stricken because it charged acts that were either the "result of" the conspiracy or were acts of concealment, but were not in furtherance of the conspiracy. The trial court denied these motions. We find no error in their denial.
In assessing whether an indictment should be dismissed for vagueness, the indictment is read in the light most favorable to the government, and the well-established test is whether it was sufficiently detailed in the facts alleged and offense charged necessary to give defendants notice so as to meet double jeopardy concerns. Hamling v. United States, 418 U.S. 87 (1974). Read in this light and guided by "practical, not technical, considerations," United States v. Morano, 697 F.2d 923, 927 (11th Cir.1983), the indictment at issue passes muster.
We start with the offense as defined by statute. Section 371 makes it a crime
[i]f two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy....
18 U.S.C. Sec. 371. The "defraud" portion of Sec. 371 extends to any conspiracy to obstruct a lawful government function. Dennis v. United States, 384 U.S. 855, 861 (1966); see also McNally v. United States, 483 U.S. 350, 358 n. 8 (1987) (). Consequently, an indictment charging conspiracy to defraud under Sec. 371 is not overly vague if it avers an agreement to obstruct a legitimate government function and knowing and willful participation in the conspiracy, and lists overt acts committed in furtherance of the conspiracy. United States v. Gordon, 780 F.2d 1165, 1170 (5th Cir.1986); see also United States v. Rosengarten, 857 F.2d 76, 78-79 (2d Cir.1988) (). An indictment charging conspiracy to commit an offense against the United States, in this case a violation of 18 U.S.C. Sec. 641, must state that the defendant conspired knowingly and willfully to convey or convert government property without authority, and that one of the conspirators took an overt act in furtherance of the conspiracy.
In this case, the 64-page indictment recounts in great detail the particulars of the fraudulent scheme. Maintaining a system of classified documents obviously is a legitimate function of government. See United States v. Zettl, 889 F.2d 51, 53 (4th Cir.1989); cf. United States v. Walker, 796 F.2d 43 (4th Cir.1986) (). The overt acts enumerated in the indictment were sufficient to apprise defendants of facts upon which the conspiracy charge was based. See United States v. Lane, 765 F.2d 1376, 1380 (9th Cir.1985). In addition, such assertions, if believed, could support a finding that the defendants conspired to acquire and convey classified documents. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (). The indictment also detailed how the alleged conspiracy substantially impaired and impeded the DOD's system of maintaining classified documents. Finally, the indictment included a lengthy list of overt acts indicating that defendants acted with fraud and deceit in carrying out their activities. These allegations, if proven, could support a finding that the defendants acted willfully in violation of Sec. 371. Accordingly, we find the indictment not overly vague.
Defendants also challenge the indictment on the grounds that they did not have "fair notice" that their conduct was proscribed by law. It is of course basic that a person cannot be prosecuted for conduct which he could not reasonably understand to be proscribed, Bouie v....
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Kiely v. Raytheon Co., Civil Action No. 95-10529.
...that Kiely was subsequently convicted of the crime of conspiracy, and his conviction was affirmed on appeal. United States v. Caso, 935 F.2d 1288 (4th Cir.1991). 1. The Tort Claims No extended discussion is required to sustain the motion to dismiss the three counts of the Amended Complaint ......