U.S. v. Wallington

• Decision Date: 21 November 1989
• Docket Number: No. 88-6033,88-6033
• Citation: 889 F.2d 573
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wallace G. WALLINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 573

889 F.2d 573

UNITED STATES of America, Plaintiff-Appellee, v. Wallace G. WALLINGTON, Defendant-Appellant.

No. 88-6033.

United States Court of Appeals Fifth Circuit.

Nov. 21, 1989.

Don Lambright, Houston, Tex., for defendant-appellant.

Geoffrey R. Brigham, Dept. of Justice, Criminal Appellate, Washington, D.C., Paula C. Offenhauser, Kathlyn Giannaula, Asst. U.S. Attys., and Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, GARWOOD and DUHE, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Wallace G. Wallington (Wallington) appeals his conviction for divulging information obtained within the scope of his official duties as an employee with the United States Customs Service (Customs Service) in violation of 18 U.S.C. Sec. 1905. As the sole basis of his appeal, Wallington challenges the facial constitutionality of that statute. ¹ We determine that the statute is constitutional, and accordingly affirm.

Facts and Proceedings Below

Wallington became an employee of the Customs Service in 1974. In 1986, he was assigned to the Regional Intelligence Branch (RIB), which collects information for use by other Customs Service offices in their official functions. In particular, RIB maintains a sophisticated computer data base of confidential law enforcement files known as the Treasury Enforcement Communications Systems (TECS). By conducting computerized searches in the TECS data base, customs investigators can obtain a variety of federal and state law enforcement records. As a matter of Customs Service policy, information retrieved from the data base is available for official use only, and the necessity of security is stressed to all employees.

Sometime in July 1986, an old friend of Wallington's named Debra Sue Epps (Epps) asked him to run a check on several people she suspected of drug dealing. Epps--who was not an employee of (or in any other way affiliated with) any governmental or official body--believed that she was under investigation in connection with the murder of her husband, and she apparently wanted the information to assist in investigations she was making in her defense. On July 14, 1986, Wallington caused a check to be run in the TECS computer on the names and other identifying data Epps had provided. The record is equivocal as to exactly what information this search retrieved, but it at least yielded the arrest and conviction records of one or more of the persons thus checked as well as general information regarding the year, make, and ownership of the automobile registered to a license number that Epps had supplied. The government's evidence, including two pretrial statements by Wallington himself, indicates that Wallington then communicated this information to Epps.

On account of Wallington's furnishing this information to Epps, the United States Attorney issued an information charging Wallington with disclosing information in violation of 18 U.S.C. Sec. 1905 (Count I) and with embezzlement in violation of 18 U.S.C. Sec. 642 (Count II). Wallington was tried before a jury in the United States District Court for the Southern District of Texas. The jury acquitted Wallington on the second count, but convicted him on the first, and the court sentenced him to pay a $250 fine and serve two years of supervised probation. Wallington now appeals, claiming that 18 U.S.C. Sec. 1905 is facially invalid as contrary to the First and Fifth Amendments of the United States Constitution.

Discussion

The statute in question provides:

"Sec. 1905. Disclosure of Confidential Information Generally

"Whoever, being an officer or employee of the United States or of any department or agency thereof, or agent of the Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311-1314), publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment."

As noted, Wallington's sole challenge on appeal is to the constitutionality of section 1905 on its face. He contends, first, that the statute is an overbroad restriction of free expression protected by the First Amendment and, second, that the statute is impermissibly vague in violation of the due process clause of the Fifth Amendment. ² Each of these arguments is grounded in an extremely broad construction of the statute's scope.

Wallington in essence contends that section 1905 prohibits any communication by federal employees about their occupation that could be construed to concern or relate to the identity of any person (or any of the other categories of protected information enumerated in the statute) regardless of the government's interest in protecting the confidentiality of the information, unless Congress specifically authorizes the disclosure. This, he argues, is an unconstitutionally overbroad and impermissibly vague restraint on expression. We conclude that a more natural construction of the statute obviates these objections.

I. Overbreadth

The constitutional defect of an overbroad restraint on speech lies in the risk that the wide sweep of the restraint may chill protected expression. E.g., CISPES (Committee in Solidarity with the People of El Salvador) v. F.B.I., 770 F.2d 468, 472 (5th Cir.1985). Conversely, invalidation of a statute on overbreadth grounds brings about total judicial abrogation of even the legitimate regulation at the core of the overbroad statute. Id. To avoid this result, where there are a substantial number of situations to which a statute may validly be applied, we eschew reliance on the overbreadth doctrine. E.g., Howell v. State Bar of Texas, 843 F.2d 205, 208 (5th Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 531, 102 L.Ed.2d 563 (1988); see also Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973). As an important corollary to this principle, a federal statute should be construed narrowly to avoid overbreadth, if the statute is fairly subject to such a limiting construction. E.g., Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 1169, 99 L.Ed.2d 333 (1988); CISPES, 770 F.2d at 473; United States v. Reeves, 752 F.2d 995, 1001 (5th Cir.), cert. denied, 474 U.S. 834, 106 S.Ct. 107, 88 L.Ed.2d 87 (1985).

Wallington raises two major objections to section 1905. He complains first that it prohibits disclosure of almost any employment-related information, regardless of the government's interest in preventing its disclosure, and second that the statute prohibits even innocent disclosures. We are not convinced, however, that Congress intended this statute to apply to such harmless or innocent expression.

A. Does the statute prohibit disclosure of nonconfidential information?

Wallington contends that section 1905 prohibits disclosure of almost any employment-related information, regardless of the government's interest in secrecy. This argument is based on the omission of any express language in the text of the statute itself requiring that the information disclosed be "confidential." Wallington urges us to conclude that Congress intended to impose prison terms of up to one year upon federal employees who make even harmless statements regarding facts that are obviously not confidential, simply because the employee obtained the information in the course of his employment.

Admittedly, a literal reading of the text of section 1905 could support such a seemingly absurd construction. Taken out of context, the statutory language does purport to forbid all federal government employees from making known in any manner any information coming to them in the course of their employment, the only explicit qualification being that the information must concern or relate to one of the several categories listed in the statute. Even that is hardly a limitation, however, because the categories include such general terms as the "apparatus" or "processes" or even the "identity" of any person. Wallington urges us to embrace this superficial reading and conclude that section 1905 has the bizarre effect of criminalizing and imposing prison terms for almost every communication by government employees of information they obtain in the scope of their employment.

But "[w]here the literal reading of a [statute] would 'compel an odd result,' we must search for other evidence of congressional intent to lend the [statute] its proper scope." Public Citizen v. United States Dep't of Justice, --- U.S. ----, 109 S.Ct. 2558, 2566, 105 L.Ed.2d 377 (1989) (quoting Green v. Bock Laundry Mach. Co., --- U.S. ----, 109 S.Ct. 1981, 1984, 104 L.Ed.2d 557 (1989)). The Supreme Court instructs that

"[l]ooking beyond the naked text for guidance is perfectly proper when the result it apparently decrees is difficult to fathom or where it seems inconsistent with Congress' intention, since the plain-meaning rule is 'rather an axiom of experience than a rule of law, and does not preclude consideration of persuasive evidence if it exists.' " Id. (quoting Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 49 S.Ct. 52, 53, 73 L.Ed. 170 (1928) (Holmes,...