U.S. v. Pitts

• Decision Date: 04 May 1999
• Docket Number: No. 97-4616,97-4616
• Citation: 176 F.3d 239
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Earl Edwin PITTS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 239

176 F.3d 239

UNITED STATES of America, Plaintiff-Appellee, v. Earl Edwin PITTS, Defendant-Appellant.

No. 97-4616.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 28, 1999.

Decided May 4, 1999.

ARGUED: Nina Jean Ginsberg, Dimuro, Ginsberg & Lieberman, P.C., Alexandria, Virginia, for Appellant. Randy I. Bellows, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Kathleen M. Kahoe, Assistant United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, Chief Judge, TRAXLER, Circuit Judge, and GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Judge GOODWIN wrote the opinion, in which chief Judge WILKINSON and Judge TRAXLER joined.

OPINION

GOODWIN, District Judge:

Former FBI agent Earl Edwin Pitts pled guilty on February 28, 1997 to one count of conspiracy to commit espionage and one count of attempted espionage in violation of 18 U.S.C. § 794. Pitts now challenges his sentence. He argues that the convictions for the two offenses should have been grouped under the United States Sentencing Guidelines (Guidelines). Next, Pitts argues that the district court erred in departing upward for an extraordinary abuse of trust. Finally, Pitts urges that his post-arrest cooperation with the government warranted a downward departure from the Guidelines range. ¹ We affirm.

I.

On September 18, 1983, Earl Edwin Pitts, a citizen of the United States, joined the FBI as a special agent. He took the solemn oath of office and signed an employment agreement, promising--as all of this nation's trusted FBI agents do--"to support and defend the Constitution of the United States" and to protect secret information accessed during his tenure at the bureau. Less than four years later, a dejected and angry Pitts entered into a conspiracy with agents of the Union of Soviet Socialist Republics (Soviet Union) to betray his country. In 1997, he would plead guilty to that conspiracy and to an attempt to commit espionage. He was sentenced to 324 months imprisonment.

Pitts was originally assigned to the FBI Field Office in Alexandria, Virginia, where he investigated white collar and narcotics crimes. After a brief stint in Fredericksburg, Virginia, Pitts was assigned to work as a member of a foreign counterintelligence (FCI) squad in New York City.

As an FCI agent, Pitts was responsible for investigating officers of the Committee for State Security, Komitet Gosudarstvennoy Bezopasnosty (KGB), the former intelligence service for the Soviet Union. He was trusted with access to very sensitive and highly classified materials related to counterintelligence operations, surveillance of Soviet officials assigned to the United Nations, and the true identities of American agents and Soviet defectors. For example, Pitts had access to the "Soviet Administrative List," a computerized listing of the names, postings, and known or suspected intelligence affiliation of each Soviet official assigned to the United States.

A law school graduate and retired Army Captain, Pitts, according to his "psychiatric consultant," had dreamed of working for the FBI as a means of escaping his small town Missouri roots. His assignment to New York City to investigate agents of the "Evil Empire" would reasonably have been expected to fulfill that dream. However, Pitts's transition to New York City went badly. The consultant reported that

[Pitts] blamed the FBI for his reduced prospects and circumstances. A seeming inspiration arrived like a bolt of lightning: If he were to self-recruit to work for the KGB, he could solve two problems at one stroke: dig out of his money morass, and get back at the FBI. He did so.

(J.A. at 784.)

On July 15, 1987, Pitts contacted a Soviet citizen whom he had been surveilling. Pitts divulged surveillance information to the Soviet that he previously had reported to the FBI in a memorandum classified as "Secret." The Soviet set up a meeting with a high-ranking KGB officer, Alexandr Vasilyevich Karpov, whose duties included the penetration of the intelligence and security services of the United States. Karpov and Pitts met in the New York Public Library.

From October 1987 to October 1992, Pitts spied for the KGB and its successor organization, the Sluzhba Vneshney Rasvedi Rossii (SVRR). In direct violation of the trust placed in him by his country, Pitts delivered classified materials--including the important "Soviet Administration List"--to the Soviet Union and later to Russia in return for at least $124,000 in cash payments and another $100,000 held in escrow. Pitts also passed FBI surveillance information concerning Soviet diplomats and information concerning at least one FBI human asset who had been reporting covertly on Russian intelligence matters. The full extent of Pitts's treason may never be known.

While spying for the Soviets and Russians, Pitts requested a series of job transfers that provided him with access to varying types of operational and classified information. In 1989, Pitts was promoted to Supervisory Special Agent and assigned to the Records Management Division of the Document Classification Unit at FBI Headquarters in Washington, D.C. There, he worked on classification appeals. In January 1991, he was transferred to the Security Programs Unit at FBI Headquarters, where he worked on security issues related to Freedom of Information Act requests. In September 1992, Pitts was assigned to the DNA Legal Assistance Unit of the FBI's Legal Counsel Division. Finally, in February 1994, Pitts was assigned to the Behavioral Science Unit at Quantico, Virginia, where he served as an instructor until his arrest. After his transfer to Washington, Pitts made nine trips to New York to deliver classified and other materials to his Soviet and Russian handlers. Pitts's active espionage continued uninterrupted until finally ending in October 1992 when Pitts failed to attend a scheduled meeting with his contact.

For almost three years following his missed meeting, Pitts had no contact with his foreign co-conspirators. In August 1995, he unexpectedly received a letter at his home from the Soviet citizen whom he had first contacted in 1987. Pitts did not respond. Two weeks later,the former citizen--now covertly working for the FBI in a sting operation code-named "False Flag"--visited Pitts at his residence. He told Pitts that a "guest from Moscow" wished to meet with him. Pitts agreed and later met with the "guest," who was an FBI undercover agent. At the meeting, the "guest" asked for Pitts's assistance in further espionage and Pitts pledged to "do what I can."

Thereafter, from August 1995 until his arrest in December 1996, Pitts attempted to engage in extensive espionage activities. He passed classified and other materials to individuals whom he believed were officers of the SVRR, but were, in fact, FBI agents, undercover officers, and FBI informants. During the course of False Flag, Pitts attempted to provide or made preparations to provide his undercover FBI handlers with computer diskettes containing information classified as "Secret;" confidential FBI internal information; personal, medical, and familial information concerning a number of fellow FBI agents; his personal identification badge for entry to the FBI Academy grounds and buildings; a key to a secure FBI Academy building; an FBI National Academy briefcase; and other information designed to facilitate access to the FBI Academy facilities. Further, Pitts attempted to deliver a telecommunications device used to transmit classified information. He accepted $65,000 for twenty-three drops of FBI information and documents, nine telephone conversations, and two face-to-face meetings with his undercover FBI handlers.

In December 1996, the FBI finally closed the False Flag sting operation. Agents arrested Pitts and halted his attempted espionage activities. Pitts was charged in a twelve-count indictment with conspiracy to commit espionage in violation of 18 U.S.C. §§ 794(a), (c);attempted espionage in violation of 18 U.S.C. § 794(a); communication of classified information without authority in violation of 50 U.S.C. §§ 783(a), (c); bribery in violation of 18 U.S.C. § 201(b)(2)(C); and conveyance without authority of property of the United States in violation of 18 U.S.C. § 641. On February 28, 1997, Pitts pled guilty to one count of conspiracy to commit espionage and to one count of attempted espionage. The remaining counts were dismissed upon motion of the government.

On June 23, 1997, the district court sentenced Pitts to concurrent terms of 324 months imprisonment to be followed by a five-year period of supervised release and imposed a $200 special assessment. United States v. Pitts, 973 F.Supp. 576, 584 (E.D.Va.1997). In calculating the appropriate guideline range, the district court began with a base offense level of thirty-seven. The court enhanced the offense level by two due to Pitts's abuse of trust, applied the grouping rules to increase the offense level by two more levels, reduced that total by three for acceptance of responsibility, and then departed upward by one level after finding that the abuse of trust enhancement did not fully reflect Pitts's abuse of trust. The Court found the total offense level to be thirty-nine.

II.

Pitts first contends that the district court erred when it determined that his counts of conviction for attempted espionage and conspiracy to commit espionage should not be grouped for sentencing purposes. We review questions involving the legal interpretation of the Guidelines de novo. United States v. Wessells, 936 F.2d 165, 168 (4th Cir.1991); United States v. Toler, 901 F.2d 399, 401 (4th Cir.1990). The district court's findings of facts, however, are reviewed for clear error. United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.1989).

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