United States v. Hitselberger, Criminal Action No.: 12–cr–231 (RC)

• Decision Date: 06 November 2013
• Docket Number: Criminal Action No.: 12–cr–231 (RC)
• Citation: 991 F.Supp.2d 91
• Parties: United States of America v. James F. Hitselberger, Defendant.
• Court: U.S. District Court — District of Columbia

991 F.Supp.2d 91

United States of America

v.James F. Hitselberger, Defendant.

Criminal Action No.: 12–cr–231 (RC)

United States District Court, District of Columbia.

November 6, 2013

Jay I. Bratt, U.S. Attorney'S Office, Mona N. Sahaf, United States Attorney's Office For The District Of Col, Deborah A. Curtis, U.S. Department Of Justice NSD Counterespionage Section, Thomas A. Bednar, U.S. Attorney's Office For The District Of Columbia National Security Section, Washington, DC, for United States of America.

Mary Manning Petras, Rosanna Margaret Taormina, Federal Public Defender for D.C., Washington, DC, for Defendant.

Re Document No.: 36

MEMORANDUM OPINION

Denying Defendant's Motion For Declaration That Sections 5 And 6 of the Classified Information Procedures Act Are Unconstitutional

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Defendant, Mr. Hitselberger, has been charged by the United States of America on three counts of violating 18 U.S.C. Section 793(e), for knowingly removing and retaining classified information from a secure location. He has also been charged on three counts of violating 18 U.S.C. 3238, for unlawfully removing public documents from their secured location. Prior to trial, Mr. Hitselberger is required, under the Classified Information Procedures Act (“CIPA”) 18 U.S.C.App. III Section 5, to notify and briefly describe to the Government and the court any classified information that the defense is likely to disclose during the trial. Furthermore, Mr. Hitselberger may be obligated, under Section 6 of the same provision, to explain the use and relevance of previously disclosed classified information in a hearing before this Court. If Mr. Hitselberger fails to comply with these provisions, disclosure of the classified information may be precluded. Mr. Hitselberger now challenges Sections 5 and 6 of CIPA as violating (A) 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) his Sixth Amendment right to confront and cross-examine witnesses against him; and (C) his Fifth Amendment right to due process of law.

II. FACTUAL BACKGROUND

James Hitselberger is a 56–year–old linguist. He is fluent in Arabic, Farsi, and Russian. In June 2011, he was hired by Global Linguist Solutions, which assigned him to work for the United States Navy at a base in Bahrain. Mr. Hitselberger regularly worked with classified information. The Government alleges that on April 11, 2012, two supervisors observed Mr. Hitselberger checking his email in a Restricted Access Area and then printing multiple pages clearly marked as SECRET from a SECRET printer. Compl. ¶¶12–13, Aug. 6, 2012, ECF No. 1. This information contained sensitive troop information and intelligence analysis. Compl. ¶12 . The Government contends that Mr. Hitselberger was then observed taking the classified documents from the printer and placing them into an Arabic–English Dictionary and attempted to leave the building with the SECRET documents. Id. Mr. Hitselberger was stopped by a supervisor and his commanding officer after exiting the building. Id. On April 11, 2012, NCIS Special Agents conducted a Command Authorized Search and Seizure of Mr. Hitselberger's living quarters in Bahrain. Compl. ¶13. Inside, Special Agents found documents classified as SECRET with the SECRET warning label cut off the top and bottom of the pages. Compl. ¶ 14. After investigation, it was determined that Mr. Hitselberger received the documents as an e-mail attachment sent to several persons on a distribution list. Id. The Government now brings an action against Mr. Hitselberger for three counts of unlawfully removing and retaining classified information from a secure location, in violation of 18 U.S.C. Section 793(e), and three counts of unlawfully removing public documents from their secured location, in violation of 18 U.S.C. Section 3238.

III. ANALYSIS

Mr. Hitselberger contends that CIPA Sections 5 and 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 or she “reasonably expects to disclose or cause the disclosure of classified information.” 18 U.S.C.App. III Section 5(a). Section 6 provides for a pre-trial hearing, upon the request of the United States, to determine the use, relevance or admissibility of the classified information that would otherwise be disclosed during the criminal trial. 18 U.S.C.App. III Section 6(a). Mr. Hitselberger 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.

Congress enacted CI PA in 1980 in order to respond to the “graymail” problem arising in national security prosecutions involving classified information. As Judge Greene explains in United States v. Poindexter, 725 F.Supp. 13, 31–32 (D.D.C.1989):

[T]he so-called “graymail” problem—the problem of defendants in criminal cases threatening to introduce classified information at trial ... confront[ed] the government with the choice between permitting highly sensitive national security information to become publicly known, on the one hand, and capitulating to the graymail by dismissing the charges, on the other.

CIPA thus includes provisions, such as Sections 5 and 6, in order to provide the government with notice of the type and basic content of classified information which may be disclosed at trial. Still, Congress was careful to highlight the defendant's continued and important right to a fair trial, thus creating a statutory framework carefully balancing both the government's and the defendant's interests. Id. See also, H.R.Rep. No.96–831, Pt.1, 96^th Cong., 2d. Sess. (1980); S.Rep. No. 96–823, 96^th Cong., 2d Sess. (1980); United States v. Pappas, 94 F.3d 795, 799–803 (2d Cir.1996); United States v. Libby, 453 F.Supp.2d 35, 37 (D.D.C.2006) (CI PA 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.”)

Given CIPA's careful balancing, it is unsurprising that every court to consider the issue, including the D.C. Circuit, has rejected Fifth and Sixth Amendment challenges to CIPA's pretrial discovery rule. See United States v. Yunis, 924 F.2d 1086, 1094–95 (D.C.Cir.1991) (CI PA “ ‘creates no new rights of or limits on discovery’ of classified material, but only requires courts to consider secrecy concerns when applying general discovery rules.”). See also, United States v. Wilson, 750 F.2d 7 (2d Cir.1984); United States v. Wilson, 721 F.2d 967, 976 (4th Cir.1983); United States v. Drake, 818 F.Supp.2d 909 (D.Md.2011); United States v. Lee, 90 F.Supp.2d 1324, 1326–27 (D.N.M.2000); United States v. Ivy, No. Crim. A. 91–00602–04, 1993 WL 316215, at *3 (E.D.Pa. Aug. 12, 1993); United States v. Poindexter, 725 F.Supp. 13 (D.D.C.1989). The court keeps this in mind as it turns to Mr. Hitselberger's specific arguments.

A. CIPA does not violate Mr. Hitselberger's Fifth Amendment right against self-incrimination.

Mr. Hitselberger contends that the notice and hearing requirements of CIPA Sections 5 and 6 violate his Fifth Amendment privilege against self-incrimination because they force him to reveal classified aspects of his own potential trial testimony and would damage his ability to present an effective defense. This, defendant argues, infringes on his right to remain silent until and unless he decides to testify. Defendant's reasoning is flawed.

First, Sections 5 and 6 of CI PA do not require a defendant to specify what he will testify about or even whether he will testify. “The statute requires merely a general disclosure as to what classified information the defense expects to use at the trial, regardless of the witness or the document through which that information is to be revealed.” United States v. Poindexter, 725 F.Supp. 13, 33 (D.D.C.1989); See also United States v. Drake, 818 F.Supp.2d 909, 914 (D.Md.2011); United States v. Hashmi, 621 F.Supp.2d 76, 81 (S.D.N.Y.2008) (“The potential of precluding the disclosure [under CIPA] does not amount to a ‘penalty’ for the defendant's exercising of his right to remain silent.”); United States v. Lee, 90 F.Supp.2d 1324, 1327 (D.N.M.2000) (finding that CI PA does not require a defendant to specify whether or not he will testify and that the defendant maintains an option to remain silent regardless of CI PA disclosures); United States v. Ivy, 1993 WL 316215 at *4 (E.D.Pa.1993) (same). In essence, CIPA's disclosure requirements only govern pre-trial evidentiary disclosures, as opposed to testimonial disclosures. And mere evidentiary disclosures do not violate a defendant's Fifth Amendment right to remain silent. See United States v. Nobles, 422 U.S. 225, 233, n. 7, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975) (“the constitutional guarantee [against self-incrimination] protects only against forced individual disclosures of a ‘ testimonial or communicative nature.’ ”). Moreover, CIPA's disclosure requirements neither require the defendant to use the disclosed evidence at trial, nor take the stand and testify on his own behalf if he does not wish to do so.

Second, there are many other instances in which defendants have been required to disclose elements of their defense prior to trial. See Drake, 818 F.Supp.2d at 913; Hashmi, 621 F.Supp.2d at 81; Lee, 90 F.Supp.2d at 1327; Ivy, 1993 WL 316215 at * 3; Poindexter, 725 F.Supp. at 33. Examples include Fed.R.Crim.P. 12.1 (alibi defense); Fed.R.Crim.P. 12.2 (insanity defense); Fed.R.Crim.P. 12.3 (public...