United States v. Kim

• Decision Date: 24 August 2011
• Docket Number: Criminal Action No. 10–225(CKK).
• Citation: 808 F.Supp.2d 44
• Parties: UNITED STATES of America v. Stephen Jin–Woo KIM, Defendant.
• Court: U.S. District Court — District of Columbia

808 F.Supp.2d 44

UNITED STATES of America

v.Stephen Jin–Woo KIM, Defendant.

Criminal Action No. 10–225(CKK).

United States District Court, District of Columbia.

Aug. 24, 2011.

Gordon Michael Harvey, Jonathan Martin Malis, Patrick T. Murphy, U.S. Attorney's Office, Washington, D.C., for Plaintiff.

Abbe David Lowell, James M. Commons, McDermott Will & Emery, LLP, Washington, D.C., for Defendant.

MEMORANDUM OPINION AND ORDER

COLLEEN KOLLAR–KOTELLY, District Judge.

Defendant Stephen Jin–Woo Kim (“Defendant” or “Kim”) has been charged by indictment with unlawfully disclosing national defense information to a person not entitled to receive it in violation of 18 U.S.C. § 793(d) and making a false statement to agents of the Federal Bureau of Investigation (“FBI”) in violation of 18 U.S.C. § 1001(a)(2). Presently pending before the Court are: Defendant's [23] Motion to Dismiss Count One of the Indictment Under the Treason Clause of the Constitution; Defendant's [24] Motion to Dismiss Count One of the Indictment on Due Process and First Amendment Grounds; and Defendant's [25] Motion to Dismiss Count Two of the Indictment and for an Evidentiary Hearing.¹ The Government has filed a consolidated opposition to these three motions, and Defendant has filed a consolidated reply. Accordingly, the motions are ripe for the Court's resolution. For the reasons explained below, the Court shall deny Defendant's motions.

I. BACKGROUND

Defendant was charged in a two-count indictment on August 19, 2010 and arraigned on August 27, 2010. Count One of the Indictment alleges that Kim had lawful possession of, access to, control over, or was entrusted with information relating to national defense-specifically, the contents of an intelligence report marked TOP SECRET/SENSITIVE COMPARTMENTED INFORMATION concerning intelligence sources and/or methods and intelligence about the military capabilities and preparedness of a particular foreign nation. The indictment charges that Kim had a reason to believe that this information could be used to the injury of the United States and to the advantage of a foreign nation and that Kim knowingly and willfully communicated, delivered or transmitted that information to a reporter for a national news organization, who was not entitled to receive that information. The indictment charges this conduct was a violation of 18 U.S.C. § 793(d), part of the Espionage Act of 1917, as amended. Section 793(d) reads as follows:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it ... [s]hall be fined ... or imprisoned not more than ten years, or both.

18 U.S.C. § 793(d).

Count Two of the indictment charges that on or about September 24, 2009, Kim denied to agents of the Federal Bureau of Investigation that he had had any contact with a named reporter for a national news organization since meeting the reporter in or about March 2009. The indictment alleges that Kim actually had repeated contact with the reporter in the months following the March 2009 meeting. The indictment charges that Kim knowingly and willfully made a materially false, fictitious, and fraudulent statement and representation to the FBI in violation of 18 U.S.C. § 1001(a)(2). Section 1001 provides that any person within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States who knowingly and willfully:

(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;

(2) makes any materially false, fictitious, or fraudulent statement or representation; or

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined ... imprisoned ... or both.

18 U.S.C. § 1001(a). Kim contends that when they asked him about whether he had met with the news reporter, the FBI agents already knew the answer to the question. Kim also contends that he provided truthful information about his meetings with the reporter before the investigators could have relied on any false denials.

II. DISCUSSION

A. Motion to Dismiss Count One Under the Treason Clause

Defendant's first motion to dismiss Count One of the indictment is based on his view that the Treason Clause, Article III, Section 3 of the United States Constitution, precludes Congress from imposing criminal liability for the conduct charged in Count One. Defendant argues that the Framers intended to limit the power of Congress to prosecute persons for “political” offenses against the United States, and they did so by enshrining in the Constitution a limited definition of treason with heightened evidentiary requirements. The Treason Clause provides in full:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.

U.S. Const., art. III, § 3. Defendant argues that the Framers intended treason to be the exclusive mechanism for prosecuting crimes against the United States, and therefore he contends that the Government cannot prosecute him under the Espionage Act for speech-based conduct against the United States. Defendant's argument, essentially, is that he must be charged with treason or nothing at all.

Defendant makes a compelling and eloquent argument based on the history of treason in England and America and the debate among the Framers regarding the Treason Clause. However, Defendant's interpretation of the Treason Clause has been rejected by the Supreme Court. In Cramer v. United States, 325 U.S. 1, 65 S.Ct. 918, 89 L.Ed. 1441 (1945), the Supreme Court reviewed a conviction for treason. In doing so, the Court rejected the government's argument that the Treason Clause should be interpreted broadly, noting that “the treason offense is not the only nor can it well serve as the principal legal weapon to vindicate our national cohesion and security.” Id. at 45, 65 S.Ct. 918. The Court elaborated:

Of course we do not intimate that Congress could dispense with the two-witness rule merely by giving the same offense another name. But the power of Congress is in no way limited to enact prohibitions of specified acts thought detrimental to our wartime safety. The loyal and the disloyal alike may be forbidden to do acts which place our security in peril, and the trial thereof may be focussed [sic] upon defendant's specific intent to do those particular acts thus eliminating the accusation of treachery and general intent to betray which have such passion-rousing potentialities. Congress repeatedly has enacted prohibitions of specific acts thought to endanger our security and the practice of foreign nations with defense problems more acute than our own affords examples of others.

Id. at 45–46, 65 S.Ct. 918 (footnote omitted). Following the word “security” in this passage, the Court included a footnote referencing the prior version of the Espionage Act provision with which Kim is charged in Count One. See id. at 45 n. 53, 65 S.Ct. 918. The Second Circuit has ruled, based on Cramer, that prosecutions for Espionage Act violations are not subject to the requirements of the Treason Clause and are properly prosecuted as separate offenses. See United States v. Rahman, 189 F.3d 88, 111–14 (2d Cir.1999); United States v. Drummond, 354 F.2d 132, 152 (2d Cir.1965). If Defendant's interpretation of the Treason Clause were correct, the prosecutions in these cases would have been declared unconstitutional.

In fact, in Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561 (1919)—a case not cited by the parties in their discussion of this issue—the Supreme Court essentially rejected Defendant's argument without discussion. Frohwerk involved review of convictions under the Espionage Act shortly after its passage in 1917. Writing for the majority, Justice Oliver Wendell Holmes wrote,

Some reference was made in the proceedings and in argument to the provision in the Constitution concerning treason, and it was suggested on the one hand that some of the matters dealt with in the Act of 1917 were treasonable and punishable as treason or not at all, and on the other that the acts complained of not being treason could not be punished. These suggestions seem to us to need no more than to be stated.

249 U.S. at 210, 39 S.Ct. 249. The Court upheld the indictment. Other courts have recognized this holding of Frohwerk and rejected similar arguments. For example, in Wimmer v. United States, 264 F. 11 (6th Cir.1920), a case involving the Espionage Act, the court noted:

Wimmer's first position is that the act is unconstitutional, because it punishes treasonable conduct, without proof of the overt act and without the two witnesses thereto required by the Constitution. As we understand the argument, it is, in substance, that adhering to and giving aid and comfort to the enemy is...