United States v. Kiriakou

• Decision Date: 16 October 2012
• Docket Number: No. 1:12cr127 (LMB),1:12cr127 (LMB)
• Citation: 898 F.Supp.2d 921
• Parties: UNITED STATES of America v. John KIRIAKOU, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

898 F.Supp.2d 921

UNITED STATES of America

v.John KIRIAKOU, Defendant.

No. 1:12cr127 (LMB)

United States District Court,

E.D. Virginia,

Alexandria Division.

Oct. 16, 2012.

Iris Lan, James L. Trump, Lisa Owings, Mark Schneider, Ryan Fayhee, William N. Hammerstrom, Jr., U.S. Attorney's Office, Alexandria, VA, for united States of America.

Robert Powel Trout, Jesse Isaac Winograd, John Francis Hundley, Plato Cacheris, Trout Cacheris PLLC, Washington, DC, for John Kiriakou.

MEMORANDUM OPINION

LEONIE M. BRINKEMA, District Judge.

The issue of scienter has arisen in the defendant's Motion to Compel Production of Documents, specifically in categories (1) and (3) of the defendant's requests for production, which requests have been denied. See Def.'s Mot. to Compel Produc. of Docs. and Mem. in Supp. of Mot. [Dkt. No. 66 (original), Dkt. No. 99 (redacted) ] (“Def.'s Mot. to Compel”) at 2–3; Order of October 1, 2012 [Dkt. No. 80] (granting in part and denying in part defendant's Motion to Compel Production of Documents). The information covered by these requests relates to the defense theory that Kiriakou acted with a good faith motive and did not intend to injure the United States or to give an advantage to a foreign nation. This Memorandum Opinion explains why the scienter elements in 18 U.S.C. § 793(d) do not support the defendant's argument that he may raise a good faith defense to the charges brought under that statute.

DISCUSSION ¹

In Counts II, III, and IV of the Indictment, Kiriakou is charged with violating the Espionage Act, specifically 18 U.S.C. § 793(d), by respectively disclosing national defense information (“NDI”) to Journalist A about Covert Officer A, disclosing NDI to Journalist B that confirmed Officer B's involvement in the Abu Zubaydah operation and the Rendition, Detention, and Interrogation Program (“RDI Program”), and disclosing NDI to Journalist A that revealed and confirmed Officer B's involvement with the RDI Program. See Indictment [Dkt. No. 22], at 11–15.

The text of § 793(d) provides:

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 under this title or imprisoned not more than ten years, or both.

18 U.S.C. § 793(d).² Importantly, § 793(d) differentiates between “tangible” NDI, described in the “documents” clause (“any document, ... or note relating to the national defense”), and “intangible” NDI, described in the “information” clause (“information relating to the national defense”). Although disclosure of either form of NDI is criminal only if the disclosure acts “willfully,” the statute imposes an additional scienter requirement when intangible NDI is at issue. See Mem. Op. [Dkt. No. 62], at 14 n.4 (“[T]he ‘reason to believe could’ cause injury language applies to intangible communication only, not to documents or other tangibles. This language heightens the scienter requirement with respect to conduct such as that alleged here.”). The parties contest what that heightened scienter requirement entails, because the indictment specifically charges Kiriakou with violating the information clause, not the documents clause. See Indictment at 11, 13, 15.

Many of the cases cited by the parties do not directly address the proper interpretation of the heightened scienter requirement for disclosure of intangible NDI. For example, the defense cites Gorin v. United States, 312 U.S. 19, 61 S.Ct. 429, 85 L.Ed. 488 (1941), which imposed a bad faith requirement on sections of the predecessor statute that textually required “intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.” Id. at 27–28, 61 S.Ct. 429 (quoting the Espionage Act of 1917 § 1(a), 40 Stat. 217 (codified as amended at 18 U.S.C. § 793(a))). Two frequently cited cases interpret the statutory term “willfully,” which applies to disclosures of both forms of NDI, not the “reason to believe” clause, which applies only to disclosures of intangible NDI. See United States v. Morison, 844 F.2d 1057, 1071–73 (4th Cir.1988) (interpreting “wil[l]fully” for prosecution under the documents clause of § 793(d)); United States v. Truong, 629 F.2d 908, 919 (4th Cir.1980) (upholding § 793(e) against an overbreadth challenge because the district court “rel[ied] upon” the “willful [ness]” requirement and gave jury instructions that “more than cured any possible overbreadth” by requiring “bad faith,” defined as a “design to mislead or deceive another. That is, not prompted by an honest mistake as to one's duties, but prompted by some personal or underhanded motive.”). Under these cases, “[a]n act is done wil[l]fully if it is done voluntarily and intentionally and with the specific intent to do something that the law forbids,” that is, “with a bad purpose either to disobey or to disregard the law.” Morison, 844 F.2d at 1071 (emphases omitted). Further, in prosecutions under both the documents and the information clauses, the government must show that the disclosed NDI “relate[s] to the national defense,” meaning that it is “closely held” and that its disclosure “would be potentially damaging to the United States or might be useful to an enemy of the United States.” Id. at 1071–72.

The only case cited by the parties that directly addresses the appropriate interpretation of the heightened scienter requirement for intangible NDI is United States v. Rosen, 445 F.Supp.2d 602, 643 (E.D.Va.2006). ³ In Rosen, two employees of the American Israel Public Affairs Committee were indicted under 18 U.S.C. § 793(g) for conspiracy to “transmit information relating to the national defense to those not entitled to receive it”; that is, conspiracy to violate § 793(e). Id. at 607. The indictment alleged that a Department of Defense employee orally communicated classified information to the defendants, and in one instance faxed one defendant a document that the government employee had created based on a classified document. Id. at 609. The indictment went on to allege that the defendants then communicated this classified information to foreign officials and journalists. Id. at 609–10. Focusing on the phrases “information relating to the national defense” and “entitled to receive,” the defendants argued that 18 U.S.C. § 793(e) was unconstitutionally vague as applied to them, emphasizing that they received the information orally, making it difficult for them to know whether the information was classified, and therefore depriving them of constitutionally adequate notice. See id. at 623–24. They also argued that they did not have a “constitutionally sufficient basis for determining who is ‘entitled to receive’ the information” because “they were not government employees familiar with the executive branch's classification regulations” and those classification regulations were not incorporated into the statute. Id. at 624.

In rejecting the defendants' arguments, the Rosen court found that “the statute's ‘willfulness' requirement obligates the government to prove that the defendants knew that disclosing the NDI could threaten the nation's security, and that disclosure was illegal, but it leaves open the possibility that defendants could be convicted for these acts despite some salutary motive.” Id. at 626. The Rosen court went on to find that the “reason to believe” language, on the other hand, required the government to “demonstrate the likelihood of defendant's bad faith purpose to either harm the United States or to aid a foreign government.” Id. The two scienter requirements were therefore “not duplicative” because the first “concerns only the quality of the information,” whereas the second “relates to the intended (or recklessly disregarded) effect of the disclosure.” Id.; see also id. at 641 n. 56 (“As noted, the additional scienter requirement contained in the ‘reason to believe’ clause that applies to the transmission of intangible information, is not superfluous because it relates not to the nature of the information, but to the subjective understanding of the defendant as to the possible effect of the disclosure.” (emphasis in original)). In a later opinion, the Rosen court reiterated this interpretation. See United States v. Rosen, 520 F.Supp.2d 786, 793 (E.D.Va.2007) (“These are glosses on the statutory willfulness requirement that also require the government to prove, in cases involving oral disclosures rather than document disclosures, that the defendant had a bad faith purpose to harm the United States or to aid a foreign government.”).⁴

The government argues that the reasoning in Rosen is inapplicable to its case against Kiriakou because “Kiriakou had a recognized obligation not to divulge classified, national defense information to those not entitled to receive it.” Gov.'s Resp. at 10. The government's argument is well taken. Specifically, Kiriakou was a government employee trained in the classification system who could appreciate the significance of the information he allegedly disclosed. Accordingly, there can be no question that Kiriakou was on clear notice of the illegality of his alleged communications. The facts thus clearly differentiate his...