United States v. Drake, Criminal No. RDB 10–181.

• Decision Date: 13 April 2011
• Docket Number: Criminal No. RDB 10–181.
• Citation: 818 F.Supp.2d 909
• Parties: UNITED STATES of America, Plaintiff, v. Thomas Andrews DRAKE, Defendant.
• Court: U.S. District Court — District of Massachusetts

818 F.Supp.2d 909

UNITED STATES of America, Plaintiff,

v.Thomas Andrews DRAKE, Defendant.

Criminal No. RDB 10–181.

United States District Court, D. Maryland.

April 13, 2011.

John Park Pearson, United States Department of Justice, Washington, DC, William Michael Welch, II, United States Department of Justice, Springfield, MA, for Plaintiff.

James Wyda, Deborah L. Boardman, Office of the Federal Public Defender, Baltimore, MD, for Defendant.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

The Defendant, Thomas A. Drake (“Mr. Drake” or “Defendant”), has filed the pending motions challenging (1) the constitutionality of Sections 5 & 6 of the Classified Information Procedures Act (“CIPA”), 18 U.S.C.App. III, and (2) Counts 1 through 5 of the Indictment as unconstitutionally vague. The issues have been fully briefed and a hearing was held on Thursday, March 31, 2011. For the reasons indicated on the record and those set forth below, Defendant's Motion for a Declaration that Sections 5 & 6 of CIPA are Unconstitutional (ECF No. 51) and Defendant's Motion to Dismiss Counts 1 through 5 of the Indictment (ECF No. 52) are DENIED.

BACKGROUND

In August 2001, Mr. Drake joined the National Security Agency (“NSA”) as the Chief of the Change Leadership and Communications Office in the Signals Intelligence Directorate. At the NSA, his duties were comprised of changing process and improving efficiency. In January 2003, investigators from the Department of Defense Inspector General's (“DOD IG”) Office contacted Mr. Drake and asked him to serve as a witness for an investigation into a complaint of fraud, waste and abuse at the NSA regarding the development of a program entitled TRAILBLAZER and the choice not to develop a program entitled THINTHREAD that was more viable and cost-effective. Mr. Drake agreed, and during the course of this investigation, he cooperated extensively with the DOD IG's Office. Mr. Drake had “hundreds of email exchanges” with the investigators, met with investigators in person on “numerous occasions” and “frequently ... hand-delivered documents to the investigators.” Mot. Dismiss at 4–5 (ECF No. 52–1.).

In 2004, the Inspector General issued an audit finding regarding its investigation, which concluded that the NSA had been inefficiently using its resources in developing the TRAILBLAZER program. Several newspaper articles written by Reporter A discussed these findings. The Government alleges, among other things, that Mr. Drake was one of the sources of information for these newspaper articles. See Indictment ¶¶ 9–14.

On April 14, 2010, Mr. Drake was charged, in a ten count indictment, with retention of classified information (Counts 1–5), obstruction of justice (Count 6) and making a false statement to a Government agent (Counts 7–10). See 18 U.S.C. §§ 793(e), 1519, and 1001(a)(2). First, this Court will address Defendant's procedural arguments in its Motion for a Declaration that Sections 5 & 6 of CIPA are Unconstitutional (ECF No. 51). Second, this Court will address Defendant's substantive arguments in its Motion to Dismiss Counts 1 through 5 of the Indictment (ECF No. 52) because 18 U.S.C. § 793(e) is unconstitutionally vague as applied and overly broad under the First Amendment. Counts 1 through 5 specify five classified documents that were found in Defendant's home, and allege that Mr. Drake willfully retained these documents for the purpose of sharing them with Reporter A.

ANALYSIS

I. Defendant's Motion for a Declaration that Sections 5 & 6 of CIPA are Unconstitutional (ECF No. 51)

Mr. Drake contends that CIPA Sections 5 & 6 are unconstitutional as applied in this case. Section 5 requires a defendant to provide notice to the United States and this Court if he “reasonably expects to disclose or cause the disclosure of classified information.” Section 6 provides for a pre-trial hearing on the classified evidence during which determinations will be made regarding the use, relevance or admissibility of the classified information that would otherwise be made during the trial or pretrial proceedings. Mr. Drake contends that these provisions: (A) violate his Fifth Amendment right not to be penalized for his pretrial silence and Fifth and Sixth Amendment rights to testify in his own defense; (B) violate his Sixth Amendment right to confront and cross-examine witnesses against him; and (C) violate his Fifth Amendment right to due process of law.

Before turning to Defendant's specific arguments, a brief summary of the Classified Information Procedures Act (“CIPA”) is necessary. As the United States District Court of the Southern District of New York explained in United States v. Hashmi, 621 F.Supp.2d 76, 80 (S.D.N.Y.2008):

CIPA was a legislative response to the problem of “graymail,” whereby a defendant “threatens to reveal classified information during the course of his trial in the hope of forcing the government to drop the criminal charge against him.” United States v. Anderson, 872 F.2d 1508, 1514 (11th Cir.1989); United States v. Pappas, 94 F.3d 795, 798, 799 (2d Cir.1996). CIPA was designed “to reconcile, on the one hand, a criminal defendant's right to obtain prior to trial classified information and introduce such material at trial, with, on the other hand, the government's duty to protect from disclosure sensitive information that could compromise national security.” United States v. Libby, 467 F.Supp.2d 20, 35, 37 (D.D.C.2006). The statute is a procedural tool allowing a court to make rulings on admissibility and relevance before the commencement of trial. Id.

As Hashmi also noted, “the constitutionality of the statute has been tested repeatedly and uniformly upheld.” Id. (citing United States v. Wilson, 750 F.2d 7, 9 (2d Cir.1984) (“We see no constitutional infirmity in the pretrial notification requirements of Section 5.”)). The United States Court of Appeals for the Fourth Circuit has specifically upheld the constitutionality of these CIPA sections, holding that the provisions do not violate a defendant's confrontation rights or privilege against self incrimination. United States v. Wilson, 721 F.2d 967, 976 (4th Cir.1983); see also United States v. Yunis, 924 F.2d 1086, 1094–95 (D.C.Cir.1991) (affirming denial of motion to dismiss on claim that CIPA discovery provisions infringed defendant's Fifth and Sixth amendment rights); United States v. Lee, 90 F.Supp.2d 1324, 1326–27 (D.N.M.2000) (upholding constitutionality of Section 5); United States v. Ivy, No. Crim. A. 91–00602–04, 1993 WL 316215, at *3 (E.D.Pa. Aug. 12, 1993) (upholding constitutionality of the CIPA discovery provisions and Section 5). With this background, nationwide and Fourth Circuit precedent in mind, this Court turns to Defendant's specific arguments.¹

A. Right to Silence/Testify

Mr. Drake argues that Sections 5 & 6 violate his Fifth Amendment right not to be penalized for his pretrial silence and his Fifth and Sixth Amendment rights to testify in his own defense by compelling him to notify the prosecution prior to trial of all the classified information he reasonably expects to disclose, including his own testimony, and explain the use, relevance and admissibility of that information to this Court and the Government. Section 5(a) requires Mr. Drake to give notice if he “reasonably expects to disclose or cause the disclosure of classified information” so that this Court can rule on the admissibility of the potential evidence prior to trial. Correspondingly, Section 5(b) states that this Court may preclude “any classified information” for which notice has not been given in the event that the defendant does not comply.

The requirement that Mr. Drake disclose certain classified information or risk the possibility that this Court may preclude it at trial does not amount to a violation of his constitutional right to remain silent or testify in his own defense. Defendants in criminal cases are frequently required to disclose elements of their defense prior to trial, and such requirements have consistently been upheld as constitutional. See, e.g., Fed.R.Crim.P. 12.1 (alibi defense); Fed.R.Crim.P. 12.2 (insanity defense); Fed.R.Crim.P. 12.3 (public authority defense); Fed.R.Crim.P. 16 (medical and scientific tests, tangible objects, and certain documents). As best summarized in United States v. Poindexter, 725 F.Supp. 13, 34 (D.D.C.1989), “The leap from the [CIPA] requirement of disclosure—similar to the disclosure of an alibi or insanity defense—to a violation of a defendant's right to testify or not to testify is too wide to be justified.”

Mr. Drake's argument under Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) that the possibility that this Court might preclude certain disclosures amounts to a “penalty” for exercising his right to remain silent is unavailing. Though the Fifth Amendment guarantees that no person “shall be compelled in any criminal case to be a witness against himself” (emphasis added), there is no compulsion at issue here. Under CIPA, Mr. Drake does not have to reveal whether he will testify, and if he fails to comply with the Section 5(a) notice requirement the only result is the potentiality that certain undisclosed classified information may be precluded. This does not compel him to testify nor does it bar him from testifying. Though Mr. Drake may perceive that this is iniquitous, “this potentiality, when compared to the Government's interest in protecting classified information, is a legitimate regulatory interest like others the law recognizes.” Hashmi, 621 F.Supp.2d at 81. Accordingly, Sections 5 & 6 of CIPA do not violate Mr. Drake's right to remain silent or testify in his own defense under the Fifth and Sixth Amendments.

B. Right to Confront and Cross–Examine Witnesses

Mr. Drake also argues that Sections 5 & 6 violate his Sixth Amendment right to confront and cross-examine witnesses against him by requiring him to notify the prosecution prior to trial and...