U.S. v. Snepp

• Decision Date: 20 March 1979
• Docket Number: No. 78-1651,78-1651
• Citation: 595 F.2d 926
• Parties: 4 Media L. Rep. 2313 UNITED STATES of America, Appellee, v. Frank W. SNEPP, III, Appellant. The Authors League of America, Inc., Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 926

595 F.2d 926

4 Media L. Rep. 2313

UNITED STATES of America, Appellee, v. Frank W. SNEPP, III, Appellant.

The Authors League of America, Inc., Amicus Curiae.

No. 78-1651.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 15, 1978.

Decided March 20, 1979.

Mark H. Lynch, Washington, D. C. (John H. F. Shattuck, American Civil Liberties Union Foundation, Washington, D. C., Stephen Bricker, American Civil Liberties Union of Virginia, Richmond, Va., John Cary Sims, Washington, D. C., Alan Dershowitz, Cambridge, Mass., Geoffrey J. Vitt, Alexandria, Va., on brief), for appellant.

Robert E. Kopp, App. Litigation Counsel, Dept. of Justice, Washington, D. C. (Anthony A. Lapham, Gen. Counsel, Ernest Mayerfeld, Associate Gen. Counsel, Christian F. Winkle, IV, Atty., Central Intelligence Agency, Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., William B. Cummings, U. S. Atty., Alexandria, Va., Thomas S. Martin, Deputy Asst. Atty. Gen., David J. Anderson, Director, Elizabeth Gere Whitaker, Asst. Director, Thomas G. Wilson and Brook Hedge, Attys., Civ. Div., Dept. of Justice, Washington, D. C., on brief), for appellee.

Irwin Karp, New York City, on brief, for amicus curiae The Authors League of America, Inc.

Jack C. Landau, Gordon F. Barrington, Jeffrey Tobias, Law Student Researcher, National Law Center, George Washington University, and Jack Gillman, Law Student Researcher, Stanford University Law School, on brief, for amicus curiae The Reporters Committee for Freedom of the Press.

Henry R. Kaufman, Ira M. Millstein, R. Bruce Rich, Weil, Gotshal & Manges, New York City, on brief, for amici curiae Association of American Publishers, Inc.

Before WINTER and PHILLIPS, Circuit Judges, and HOFFMAN, ^* Senior District Judge.

WINTER, Circuit Judge:

The United States sued a former employee of the Central Intelligence Agency (CIA) alleging that defendant breached a secrecy agreement with the CIA by publishing a book about the activities of the CIA in South Vietnam and elsewhere without the prior permission and approval of the CIA. The CIA does not assert, however, that the book disclosed classified information or information that defendant had no right to publish. Although defendant prayed a jury trial, the district court heard the case without a jury and granted judgment for plaintiff, ruling that there were no factual issues to be tried by a jury, that the defendant was in breach of his agreement, that he should be enjoined from further publications except in strict compliance with his undertaking to submit proposed publications to the CIA for its prior approval, and that, for breach of his fiduciary obligation not to publish without CIA approval, a constructive trust for the benefit of the government should be imposed on all of the monies which defendant had earned and will earn from publication of his book. Defendant appeals, asserting numerous errors in the trial proceedings and the district court's judgment.

We conclude that defendant was under a valid contractual obligation to submit proposed publications to the CIA for its prior approval, that he breached this agreement, and that the entry of an injunction against further breaches was fully justified and not an abuse of discretion. But we think that it was not shown on this record that defendant breached a fiduciary obligation, and it was therefore improper for the district court to impose a constructive trust on the monies earned from publication of the book. We think that the government is entitled at least to nominal damages for breach of contract and it may be entitled to compensatory and punitive damages also. But if compensatory and punitive damages are sought to be recovered, the issues relating thereto must be submitted to a jury. We therefore affirm in part and reverse in part, remanding the case for further proceedings.

I.

Defendant was first employed by the CIA on September 16, 1968. At the time that he was employed he executed a secrecy agreement, the pertinent provisions of which are set forth in the margin, in which he undertook "not to publish . . . any information or material relating to the Agency . . . either during or after the term of my employment . . . without specific prior approval by the Agency." ¹ In due course, he was assigned to two tours of duty in Vietnam where he served for four and one-half years. His service in Vietnam included the time that the United States withdrew from participation in the war and the CIA and the military liquidated their operations in that locale. By reason of his employment, defendant was granted frequent access to classified information, including information regarding intelligence sources and methods.

Defendant expressed dissatisfaction with the manner in which the CIA had conducted its affairs in Vietnam and the manner in which it withdrew, and he concluded to write a book on the subject. Defendant claims that he was motivated primarily by altruism and the desire to have the world and the American public know the truth as to what happened, but the government claims that his motive was one primarily of money. In any event, before resigning from the CIA, effective January 26, 1976, defendant negotiated an arrangement with a publisher whose identity he was assiduous in concealing, and he obtained a publication advance. Thereafter, he resigned from the CIA, and in connection with that resignation he executed the so-called "Termination Secrecy Agreement," the pertinent provisions of which are set forth in the margin, in which he agreed not to "publish . . . any classified information, or any information concerning intelligence or CIA that has not been made public by CIA . . . without the express written consent of the Director of Central Intelligence or his representative." ² Defendant was told that his responsibilities under this agreement were the same as those under the agreement that he signed when he was employed.

Although defendant did not conceal from his CIA colleagues and former CIA colleagues the fact that he was writing a book, he represented on a number of occasions that he intended to submit the manuscript to the CIA for prior approval before submitting it to his publisher. But this he failed to do, so he claims, because the CIA failed to act favorably, in accordance with its established procedures, on his several demands that it conduct a study and prepare a report concerning the deficiencies in its withdrawal from Vietnam. Apparently the CIA gave thought to the possibility of seeking an injunction against defendant to restrain him from publication of his book prior to submission of his manuscript to the CIA for its approval and the matter was considered by the Department of Justice. There was evidence that the CIA did not press the Department of Justice to take such action because it relied upon defendant's representations that he intended to honor his contracts.

In any event, defendant's book entitled Decent Interval was published in November 1977. It is a highly critical account of the United States' withdrawal from Vietnam at the close of the war and it also contains allegations that the CIA's intelligence reporting from Vietnam was fabricated and distorted, that the CIA manipulated press reporting from Vietnam by providing false information to reporters, that CIA officials in Vietnam engaged in corrupt practices, and that the CIA mishandled the evacuation from Vietnam by failing to evacuate its indigenous agents and employees.

The government sued on February 15, 1978, alleging that plaintiff had breached his contractual and fiduciary obligations to the CIA by failing to submit the manuscript of his book to the CIA for prepublication review pursuant to the original secrecy agreement. It sought a declaration that defendant had breached his contractual and fiduciary duties, damages for breach of contract, an injunction against further breaches, and an accounting and the imposition of a constructive trust over all past and future revenues from the sale of the book. Defendant, in answering, prayed a jury trial. There was extensive pretrial discovery during which the government responded to an interrogatory asserting that it did not contend that Decent Interval contains classified information or any information concerning intelligence or CIA that has not been made public by CIA. When the case came on for trial, the district court ruled that there were no factual issues on the merits for the jury to determine.

On the merits, the district court ruled that defendant had breached his contractual and fiduciary duty to submit his manuscript for prepublication review. Finding that the defendant's breach caused the government irreparable harm, the district court enjoined defendant from future violations and imposed a constructive trust on all revenues derived from Decent Interval for the benefit of the government. In so doing, it rejected, Inter alia, defendant's defenses based upon the first amendment and his claim of illegal selective enforcement. These defenses and the facts which relate to them will be discussed more fully hereafter.

II.

We consider first defendant's contentions relating to his rights under the first amendment and to his contractual obligations. Defendant argues that the 1968 secrecy agreement is in violation of the first amendment and that, to the extent that it applies to classified data, the CIA lacked congressional or presidential authority to require its execution. Defendant also argues that he had no contractual obligation to submit his manuscript for prepublication review. This argument is based upon his assertion that the 1976 termination secrecy agreement superseded the 1968 secrecy agreement, executed when he was first employed, that the 1976 agreement only requires permission for publication of information that is classified or that has not been made public by CIA, while the latter requires prepublication submission of "all"...