United States v. Smith, Crim. No. 84-00092-A.

• Court: U.S. District Court — Eastern District of Virginia
• Writing for the Court: William B. Cummings, Alexandria, Va., A. Brent Carruth, Van Nuys, Cal., for defendant
• Citation: 592 F. Supp. 424
• Parties: UNITED STATES of America, v. Richard Craig SMITH.
• Decision Date: 01 August 1984
• Docket Number: Crim. No. 84-00092-A.

592 F. Supp. 424

UNITED STATES of America,
v.
Richard Craig SMITH.

Crim. No. 84-00092-A.

United States District Court, E.D. of Virginia, Alexandria Division.

August 1, 1984.

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COPYRIGHT MATERIAL OMITTED

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Joseph Aronica, Kenneth E. Melson, Asst. U.S. Attys., Roberta L. Elkins, Trial Attorney Dept. of Justice, Alexandria, Va., for U.S

William B. Cummings, Alexandria, Va., A. Brent Carruth, Van Nuys, Cal., for defendant.

MEMORANDUM OPINION & ORDER

RICHARD L. WILLIAMS, District Judge.

This matter comes before the Court pursuant to § 6(a) of the Classified Information Procedures Act (CIPA) for a determination "concerning the use, relevance, or admissibility of classified information" sought to be used at trial. 18 U.S.C.App. § 6(a). For reasons developed below, the Court holds as follows:

(1) Defendant Smith's version of events, if believed, constitutes a legally valid defense to the charges against him;

(2) Federal rules of evidence, CIPA, and the Federal Constitution require that Smith be permitted both to testify to his version of the facts and to present other competent evidence, including classified information, in support of his defense;

(3) In accordance with CIPA and federal rules of evidence, Smith may introduce the specific items of classified information enumerated in Parts III, IV & V of this opinion.

I. THE INDICTMENT AND THE DEFENSE

The government alleges that Richard Craig Smith unlawfully disclosed classified information to an agent of the Soviet Union. According to the indictment, Smith met with Victor I. Okunev, a Soviet agent, at the Soviet Commercial Compound in Tokyo, Japan twice in November of 1982 and once in February of 1983. Smith, who was employed by the Army Intelligence Security Command (INSCOM) between 1973 and 1980, allegedly gave Okunev classified details concerning five INSCOM double agent operations in exchange for $11,000. All in all, the indictment charges Smith with five counts of violating the Espionage Act. 18 U.S.C. §§ 793(d); 794(a) & (c).

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Smith's version of the facts differs dramatically from that set forth in the indictment. He claims that in disclosing secret information to Okunev he believed he was acting at the behest of the CIA. According to Smith, he was contacted in Japan by two men, Ken White and Danny Ishida, who held themselves out as CIA agents. Although he did not ask to see identification papers, he claims that their familiarity with the details of secret INSCOM operations convinced him that they were in fact CIA agents. White and Ishida, Smith asserts, sought to enlist him in a double agent project directed at the Soviets in Japan. They assertedly told him that, in order to gain the confidence of the Soviets, he had authority to disclose the details of eight INSCOM double agent operations, including all of those mentioned in the indictment. The information, they allegedly told him, was of no value to the Soviets because the pertinent operations had been discontinued.

II. THE ADMISSIBILITY OF CLASSIFIED INFORMATION

The government, relying on essentially two arguments, takes the extreme position that Smith may not present any classified information in support of his factual defense. It first insists that Smith's factual allegations, even if believed, are insufficient, as a matter of law, to exculpate him. Its second argument goes to the believability, as distinguished from the legal sufficiency, of Smith's factual assertions. The government, in essence, urges the Court to exclude all classified information based on a judicial determination that Smith's version of events is a "total fabrication." The Court rejects both arguments.

A. Legal Sufficiency of Smith's Alleged Facts

The Court undoubtedly has authority to exclude evidence offered by the defense which, if believed, fails to establish a legally cognizable defense. U.S. v. Bailey, 444 U.S. 394, 414-16 & n. 11, 100 S.Ct. 624, 636-37 & n. 11, 62 L.Ed.2d 575 (1980); U.S. v. Bifield, 702 F.2d 342 (2d Cir.1983).¹ The government argues that the facts Smith alleges, if credited by a jury, do not establish a legally valid defense under the Espionage Act. It is not sufficient, the government contends, that Smith believed that (1) White and Ishida were CIA agents and, (2) acting on behalf of the CIA, they authorized him to disclose the details of INSCOM operations to the Soviets. To establish a valid defense, the argument runs, Smith must be prepared to prove that White and Ishida actually were CIA agents who actually had authority to permit Smith to

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disclose INSCOM information. The Court disagrees

Smith is charged with violating two sections of the Espionage Act. 18 U.S.C. §§ 793(d), 794(a) & (c). Both sections, which define unlawful disclosure of information relating to the national defense, contain express state-of-mind requirements. Section 794 prohibits a person from transmitting such information to an agent of a foreign government "with intent or reason to believe that it is to be used to the injury of the United States or the advantage of a foreign nation ...." (emphasis added). Section 793(d) similarly proscribes disclosure of national defense information by a person who "has reason to believe" such information could be used to injure this country or aid a foreign government. (emphasis added). As the language of these provisions and the cases interpreting them conclusively demonstrate, the government must prove beyond a reasonable doubt that the accused had the requisite intent to injure this country or aid a foreign government. In the words of the Supreme Court:

The statute requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established.

Gorin v. U.S., 312 U.S. 19, 28, 61 S.Ct. 429, 434, 85 L.Ed. 488 (1941). See also U.S. v. Rosenberg, 195 F.2d 583, 592 (2d Cir.1952); U.S. v. Love, 472 F.2d 490, 508 (D.N.J. 1978).

The government reads the state-of-mind requirements out of the statute, seeking, in effect, to transform § 794 and § 793 into strict liability offenses. Smith obviously did not intend to, or have reason to believe that he would, injure this country if he thought that in disclosing INSCOM information he was furthering a CIA-authorized double agent program. In the government's view, however, Smith's state-of-mind — whether he believed, reasonably or otherwise,² that the CIA agents had authorized disclosure — is irrelevant. Even though Smith might have reasonably believed that White and Ishida were CIA agents, the government interprets the statute to require that Smith actually have had authority to release INSCOM information to the Soviets.³ This view of the statute

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misdirects attention from the subjective issue of Smith's intent to the objective issue of whether release of INSCOM information actually, or reasonably might have, harmed this country. By ignoring the crucial issue of Smith's state-of-mind, the government treats the applicable provisions of the Espionage Act as strict liability offenses. If the government's interpretation were correct, a person who, based on facts then known to him, mistakenly but reasonably believed that a CIA official had authorized disclosure would nevertheless be in violation of the Act, even though he fully intended to help this country. This is not the law. The Congress that enacted § 794 provided that violations may be punished by death.⁴ The Court finds it difficult to believe that the government can be serious in its contention that Congress intended to provide capital punishment for what it interprets as a strict liability offense. The government's interpretation of § 794(a) & (c) thus defies express statutory language, Supreme Court precedent, and plain common-sense

The government, characterizing Smith's alleged belief that CIA agents had authorized him to reveal secret information as a mistake of law,⁵ couches its argument in the vernacular of the mistake of law doctrine. It is true that, as a general matter, a mistake of law is no defense. Nevertheless, this case is quite unlike the classic mistake of law situation where the accused claims innocence because he was ignorant of the underlying offense. It is no defense to murder, for example, to say that the accused did not know that murder is a crime. Nor is it a defense to a charge of espionage to claim that the accused was unaware of the Espionage Act. In both of these examples, the accused, while ignorant of the charged offenses, had an intent that the law proscribes. See U.S. v. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971) (ignorance of the charged offense is no defense); U.S. v. Rosenfeld, 469 F.2d 598 (2d Cir.1972) (same). In contrast, Smith's alleged mistake, whether labeled a mistake of law or of fact, negates the very intent that the Espionage Act requires. To

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reiterate, Smith did not intend to, or have reason to believe he would, injure this country if, based on White and Ishida's putative status as CIA agents, he believed that CIA agents had authorized disclosure of the INSCOM information. If his version of the facts is accepted, he, in fact, intended to help this country by acting as a double agent. No amount of legal legerdemain can obscure this basic conclusion.⁶ It is settled law that a mistake of law is a defense where it negates the intent required by the charged offense. See U.S. v. Behenna, 552 F.2d 573, 575-77 (4th Cir. 1977); U.S. v. Painter, 314 F.2d 939 (4th Cir.1963); U.S. v. Fierros, 692 F.2d 1291 (9th Cir.1982); U.S. v. Currier, 621 F.2d 7, 9 n. 1 (1st Cir.1980); U.S. v. Petersen, 513 F.2d 1133, 1135 (9th Cir.1975); U.S. v. Squires, 440 F.2d 859, 862-65 (2d Cir.1971); Kratz v. Kratz, 477 F.Supp. 463, 480 (E.D. Pa.1979); Model Penal Code § 2.04(1)(a) (Tent. Draft No. 4 1955). Because Smith's alleged mistake negates the intent...