U.S. v. Lee
| Decision Date | 02 January 1979 |
| Docket Number | No. 77-3031,77-3031 |
| Citation | 589 F.2d 980 |
| Parties | 4 Fed. R. Evid. Serv. 326 UNITED STATES of America, Plaintiff-Appellee, v. Andrew Daulton LEE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kenneth I. Kahn, Los Angeles, Cal., for defendant-appellant.
David R. Homer, Department of Justice, Washington, D. C., Andrea S. Ordin, U. S. Atty., argued, Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before HUFSTEDLER and ANDERSON, Circuit Judges, and WALSH, * District Judge.
Appellant Andrew Daulton Lee was indicted under a multitude of espionage charges relating to the obtaining of defense secrets and the sale of these secrets to Russian agents. While he raises several errors on appeal, we find that none require reversal. We affirm his conviction.
On January 26, 1977, a twelve-count indictment was returned against appellant, Andrew Daulton Lee, and his codefendant, Christopher John Boyce. 1 Lee was charged in eight of the twelve counts as follows:
Count One charged Lee and Boyce with conspiring to transmit national defense information 2 to a foreign nation, to wit: the Union of Soviet Socialist Republics (U.S.S.R.), in violation of 18 U.S.C. § 794(a) and (c). 3 Count Two charged defendant Lee substantively with attempting to transmit national defense information to the U.S.S.R., in violation of 18 U.S.C. § 794(a).
Count Three charged Lee and Boyce with conspiring to gather national defense information in violation of 18 U.S.C. § 793(g). 4
Count Four charged Lee substantively, along with Boyce, with actually gathering national defense information (the Pyramider documents), intending, or having reason to believe, that such information would be used to the advantage of the U.S.S.R., all in violation of 18 U.S.C. § 793(b) and (g).
Count Five charged Lee with receiving national defense information (the Pyramider documents) from Boyce, knowing, or having reason to believe, that such information had been obtained illegally by Boyce, all in violation of 18 U.S.C. § 793(c). Count Seven charged Lee with having unauthorized Count Ten charged Lee with acting as an agent of a foreign government (i. e., the U.S.S.R.) without prior notification to the Secretary of State. Finally, Count Twelve charged Lee with receiving stolen government property (the Pyramider documents) valued in excess of $100, in violation of 18 U.S.C. § 641. 5
possession of national defense information (the Pyramider documents) and attempting to transmit such information to unauthorized persons, to wit: representatives, officers, and agents of the U.S.S.R., in violation of 18 U.S.C. § 793(e).
Lee was found guilty on all counts. Sentences for various terms, including a life sentence on Count Two, were ordered to commence and run concurrently.
When we view the voluminous evidence of this case (some 20 volumes of Reporter's Transcript) in the light most favorable to the verdict, as we must, we find that it is amply substantial to support Lee's conviction. Indeed, at page 1 of his reply brief Lee concedes that he transferred documents bearing a "Top Secret" stamp to officials of the Soviet Embassy in Mexico. Due to this large volume of the evidence, the following is a summary of the pertinent facts of this case.
On January 6, 1977, Lee was arrested by Mexican authorities in front of the Russian Embassy in Mexico City, Mexico, when he stuck his head through the Embassy fence and discarded some "trash" from his pockets. Lee was taken to Mexican police headquarters for questioning. When asked to empty his pockets, Lee removed a white four-inch by eight-inch business envelope which contained ten to fifteen strips of photographic film negatives. Pictures made from these negatives were of documents marked "Pyramider" and "Top Secret."
The trial evidence showed that Lee and his codefendant Boyce worked closely together in selling the Pyramider defense secrets to Russian agents and that they split the profits from these sales.
Boyce was an employee for a corporation called TRW, Inc., which performed special studies of secret projects for elements of the United States intelligence community. One such project for the C.I.A. on which TRW worked was the Pyramider project. While Boyce was given a "Top Secret" security clearance by the C.I.A. for other work with TRW, he was never authorized access or clearance to the Pyramider project documents. Evidence was introduced at trial which showed that twenty-five fingerprints of Boyce's were found on Pyramider documents and that one fingerprint of Lee's had been found on a piece of equipment in the communications vault at TRW. The assistant director of security at TRW testified that neither Boyce nor Lee ever had any authorization to handle the files or that piece of equipment.
Evidence was introduced to show that Lee and Boyce were seen numerous times together during the time of Boyce's employment with TRW and that they had made many trips to Mexico City. Lee himself made several trips to Mexico City travelling under an alias. He returned from these trips with "stacks" and "bundles" of money. Upon return, he often went directly to On another occasion, Lee showed one Sabel Shields a Minox camera which he owned and told her that "he was a Russian spy and that this was his espionage camera and that this is what he used to film top secret documents." (R.T. 6:53)
Boyce's residence to split the proceeds. At one point in the sequence one Cameron Adams traveled to Mexico City with Lee. While in Mexico City, Lee took some tape and placed an "X" on certain poles. When Adams asked about this, Lee told him that he was just "involved with a spy thing here" and that the "X" on the poles was "to inform his people (that) he was in town." (R.T. 6:67)
Testimony at trial showed that this type of a Minox camera is used for photographing book pages and documents.
This Minox camera, which had been seen in Lee's possession several times, was seized during a search of Lee's and Boyce's residence. An F.B.I. Special Agent and photographic expert testified that the film negatives of the Pyramider project taken from Lee in Mexico City were produced by Lee's Minox camera.
Lee's defense was that he was an employee of the United States Government (the C.I.A.) and that he was working For the government by selling misinformation to the Russian agents. Evidence of this theory was very thin. The defense case on this point consisted of the testimony of two F.B.I. agents and the defendant's grandmother.
One F.B.I. agent testified on direct examination that he had interviewed defendant Lee on January 14, 1977, in Mexico City and that Lee had told him that he was connected with the C.I.A. and that he was employed as a subcontractor by the C.I.A. On recross-examination, however, the agent testified that a check made by F.B.I. headquarters had disclosed that Lee was not working for the C.I.A. Another agent also testified that Lee had said he was working for the C.I.A. This agent also stated that Lee's story had been found to be inaccurate.
Myrle Clarke, Lee's grandmother, testified that in the summer of 1976 Lee had told her concerning a trip to Mexico that he was working for the government, but on cross-examination, she stated he had not said for which government he was working.
On appeal Lee alleges: (1) that the trial court did not adequately instruct the jury on his theory of defense; (2) that the admission into evidence of three affidavits prepared by C.I.A. officials denied him his right to confrontation and were inadmissible hearsay; (3) that denial of his discovery motions was prejudicial to the preparation of his defense; (4) that the trial court improperly limited his expert's testimony; and (5) that the trial court should have held an evidentiary hearing regarding a possible conflict of interest among attorneys.
Lee contends that the trial court erred when it refused to give a requested jury instruction regarding his employment with the government. The rejected instruction No. 26 reads:
Lee relies on United States v. Tashman, 478 F.2d 129 (5th Cir. 1973), as support for his instruction.
In deciding whether it was error for the trial judge to refuse Lee's proposed Instruction No. 26, we are guided by this court's prior decision in United States v. Kaplan, 554 F.2d 958 (9th Cir. 1977), Cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315, where we said:
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