United States v. Schulte

• Decision Date: 28 January 2020
• Docket Number: S2 17 Cr. 548 (PAC)
• Parties: UNITED STATES of America, v. Joshua Adam SCHULTE, Defendant.
• Court: U.S. District Court — Southern District of New York

436 F.Supp.3d 747

UNITED STATES of America,

v.Joshua Adam SCHULTE, Defendant.

S2 17 Cr. 548 (PAC)

United States District Court, S.D. New York.

Signed January 28, 2020

Matthew Joseph Laroche, Assistant U.S. Attorney, David William Denton, Jr., Sidhardha Kamaraju, United States Attorney's Office Southern District of New York, New York, NY, Scott Kurtis McCulloch, U.S. Department of Justice, Washington, DC, for Plaintiff.

Sabrina P. Shroff, Law Offices of Sabrina P. Shroff, Sean Michael Maher, The Law Offices of Sean M. Maher, PPLC, Edward S. Zas, Matthew B. Larsen, Federal Defenders of New York Inc., James Matthew Branden, Law Office of James M. Branden, Lauren Martine Dolecki, Debevoise & Plimpton LLP, New York, NY, Allegra Glashausser, Federal Defenders of New York, Inc., Brooklyn, NY, for Defendant.

ORDER

HONORABLE PAUL A. CROTTY, United States District Judge:

Defendant Joshua Schulte ("Defendant" or "Schulte") moves to dismiss Counts 1, 2, 3, 4, and 6 of the Second Superseding Indictment arguing the Espionage Act, 18 U.S.C. § 793, and Federal Larceny Act, 18 U.S.C. § 641, are unconstitutionally overbroad and vague ("Def. Mot."), Dkt. 174. The motion is denied.

BACKGROUND

Defendant, a former Central Intelligence Agency ("CIA") employee, has been indicted for stealing national defense information and transmitting it to Wikileaks. At the CIA, Schulte worked within the Center for Cyber Intelligence ("CCI"), Engineering Development Group ("EDG"). Schulte held a security clearance and he participated in training on the different types of classified information and the proper handling of such materials. While employed by the CIA, Schulte signed a non-disclosure agreement in connection with his access to classified information.

The Government alleges that in the spring of 2016, Schulte while working for CIA accessed certain CIA systems without permission and stole repositories of CIA cyber tools and source code, which he later transmitted to Wikileaks. The Second Superseding Indictment charges Schulte with, inter alia , four counts of violating 18 U.S.C. § 793 and one count of violating 18 U.S.C. § 641. See Second Superseding Indictment ¶¶ 1-4, 6.

Counts One through Three charge Schulte with stealing information and transmitting it to Wikileaks in violation of 18 U.S.C. § 793(b)¹ ; 793(d)² ; and 793(e).³ Count Four also charges Schulte under 18 U.S.C. § 793(e)⁴ for retaining portions of classified information and other national defense information maintained by the CIA and disclosing it, or attempting to disclose it, to third parties not entitled to receive it. Count Six charges Schulte with theft of government property, in violation of 18 U.S.C. § 641.⁵

Defendant now moves to dismiss Counts One through Four and Count Six arguing 18 U.S.C. § 793 and § 641 are unconstitutionally overbroad and vague.

DISCUSSION

I. Defendant's Overbreadth Challenge to Section 793

Schulte contends that Section 793 is unconstitutionally overbroad.⁶ He argues that Section 793 amounts to a content-based restriction on the right to free speech that cannot survive strict scrutiny. He brings a facial challenge to Section 793.⁷

A. Legal Standard

A law is unconstitutionally overbroad if it "punishes a substantial amount of protected free speech, judged in relation to [its] plainly legitimate sweep." Virginia v. Hicks , 539 U.S. 113, 118–19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (internal quotation marks omitted). Because finding a statute overbroad invalidates all enforcement of a challenged law, courts employ it with hesitation, and then "only as a last resort." Id. at 119, 123 S.Ct. 2191 ; New York v. Ferber , 458 U.S. 747, 769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). "Mindful that such relief is ‘strong medicine,’ the law rigorously enforces the burden on the challenging party to demonstrate ‘substantial ’ infringement of speech." United States v. Farhane , 634 F.3d 127, 136–37 (2d Cir. 2011).

"[O]verbreadth challenges present an exception to the general rule against third-party standing." Farrell v. Burke , 449 F.3d 470, 498 (2d Cir. 2006). Accordingly, a defendant challenging overbreadth "claims that[,] although a statute did not violate his or her [own] First Amendment rights, it would violate the First Amendment rights of hypothetical third parties if applied to them." Id. at 498. "All overbreadth challenges are therefore facial challenges." United States v. Thompson , 896 F.3d 155, 162–63 (2d Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 2715, 204 L. Ed. 2d 1113 (2019).

The Supreme Court has made clear that not all categories of speech are protected by the First Amendment. See United States v. Stevens , 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). "[S]peech integral to criminal conduct" is an area in which the First Amendment has "permitted restrictions upon the content of speech." Id. ; see Giboney v. Empire Storage & Ice Co. , 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949) ("It rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute. We reject the contention now."). See, e.g., Haig v. Agee , 453 U.S. 280, 308–09, 101 S.Ct. 2766, 69 L.Ed.2d 640 (1981) (holding that defendant's "repeated disclosures of intelligence operations and names of intelligence personnel" are "clearly not protected by the Constitution"); United States v. Morison , 844 F.2d 1057, 1069 (4th Cir. 1988) (rejecting defendant's First Amendment challenge, and stating that "it seems beyond controversy that a recreant intelligence department employee who had abstracted from the government files secret intelligence information and had willfully transmitted or given it to one ‘not entitled to receive it’ as did the defendant in this case, is not entitled to invoke the First Amendment as a shield to immunize his act of thievery."); United States v. Kim , 808 F. Supp. 2d 44, 56 (D.D.C. 2011) (same).

B. Application to Section 793

Conceding that Section 793 does not affect his constitutional rights, Schulte invokes the overbreadth challenge. The thrust of Defendant's argument is that the statutory phrases "relating to national defense" and "reason to believe that information could be used to injure the United States or to the advantage of a foreign nation" are so expansive that if applied literally could allow the Government to prosecute members of the media for obtaining and publishing truthful information about U.S. foreign policy.

The first step in an overbreadth analysis is to "construe the challenged statutes." U.S. v. Williams , 553 U.S. 285, 293, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) ("[I]t is impossible to determine whether a statute reaches too far without first knowing what the statute covers."). Section 793's legitimate sweep is apparent: it criminalizes (1) theft and disclosure of national defense information, by those who act willfully or with the requisite purpose and intent or reason to believe the information could be used to injure the United States or advantage a foreign nation. There is no doubt the Government's interest in national security is compelling, Haig , 453 U.S. at 307, 101 S.Ct. 2766, and that "[m]easures to protect the secrecy of the Government's foreign intelligence operations plainly serve these interests." Id. ; see Snepp v. United States , 444 U.S. 507, 509 n. 3, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980) (holding "[t]he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service,").

In furtherance of those legitimate interests the statute focuses on illicit activity that injures the United States, and which a defendant takes with the requisite culpable mental states. Defendant's overbreadth challenge is defeated by the mens rea requirements within Section 793. Section 793(b) prohibits copying, taking, making, or obtaining materials "connected with the national defense," and only when the defendant did so with "the purpose of obtaining information respecting the national defense with intent or reason to believe that information is to be used to injure the United States, or to the advantage a foreign nation." 18 U.S.C. § 793(b). Section 793(d) and (e) punish only those people who transmit information related to the national defense, in tangible or intangible form, to one not entitled to receive it. Importantly, the statute requires the Government to prove a defendant "willfully" retained the information or disclosed it to an unauthorized recipient of national defense information. See United States v. Rosen , 445 F. Supp. 2d 602, 643 (E.D. Va. 2006), aff'd , 557 F.3d 192 (4th Cir. 2009). Additionally, where the alleged violation is unauthorized disclosure of intangible information—rather than documents—the Government must further prove that the defendant acted with "reason to believe [the information] could be used to the injury of the United States [or] to the advantage of a foreign nation." 18 U.S.C §§ 793(d), (e).

Absent from the record is evidence showing a substantial number of prosecutions of the media for obtaining and publishing truthful information about U.S. foreign policy, as proposed under Defendant's reading of the statute. Defendant's hypothetical examples under his reading of the statute fail to persuade. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent , 466 U.S. 789, 800, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984) (The "mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge."). And nothing in the First Amendment confers on a government official permission to violate the law in the name of disseminating "news." "By virtue of his security clearance, Defendant was entrusted with access to...