629 F.

2d 908
6 Fed. R. Evid. Serv. 449

UNITED STATES of America, Appellee,

v.
TRUONG DINH HUNG, Appellant.
UNITED STATES of America, Appellee,
v.
Ronald Louis HUMPHREY, Appellant.
Nos. 78-5176, 78-5177.

United States Court of Appeals,

Fourth Circuit.
Argued Dec. 6, 1979.
Decided July 17, 1980.

Michael E. Tigar, Washington, D. C. (John Mage, John J. Privitera,

Washington, D. C., Marvin D. Miller, Alexandria, Va., on brief), for
appellant Truong Dinh Hung.
Mark Foster, Washington, D. C. (Moore & Foster, Roger E. Zuckerman,
Zuckerman, Spaeder & Taylor, Warren L. Miller, Stein, Halpert & Miller,
Washington, D. C., on brief), for appellant Ronald Louis Humphrey.
Jerome M. Feit, Dept. of Justice, Washington, D. C. (William G. Otis,
Robert J. Erickson, Paul J. Brysh, Elliott Schulder, David R. Homer, Ann
T. Wallace, Dept. of Justice, Washington, D. C., William B. Cummings,
U. S. Atty., Justin Williams, Asst. U. S. Atty., Alexandria, Va., on brief),
and Kenneth C. Bass, III, Reston, Va., for appellee.
Marshall Perlin, New York City, on brief, for amicus curiae National
Alliance Against Racist and Political Repression.
Before WINTER, RUSSELL and HALL, Circuit Judges.
WINTER, Circuit Judge:

Truong Dinh Hung, more familiarly known as David Truong, and Ronald
Humphrey were convicted of espionage, conspiracy to commit espionage and
several espionage-related offenses for transmitting classified United States
government information to representatives of the government of the Socialist
Republic of Vietnam. In these appeals, they seek reversal of their convictions
because of warrantless surveillance and searches, the alleged inapplicability of
the espionage statutes and the theft-of-government-property statute to the facts
of this case, several alleged Jencks Act violations, an alleged denial of
compulsory process, and claimed error in a number of the district court's
evidentiary rulings.

We hold that the warrantless searches and surveillance did not violate the
Fourth Amendment, that the espionage statutes were properly and
constitutionally applied to this case, that the defendants were not denied
compulsory process, and that the district court did not err in any of its
evidentiary rulings. Relying on the concurrent sentence doctrine, the majority
holds that we should not rule on defendants' claim that the theft-ofgovernment-property statute does not apply to this case. However, for myself, I
would conclude that the issue concerning the theft-of-government-property
statute should be addressed and that the statute does not encompass the actions
of the defendants. I would therefore reverse their convictions under that statute.
We are unanimous, however, in remanding the case to the district court for
further proceedings to determine whether documents produced by the
government near the end of trial contain Jencks Act material that should have
been supplied to the defense.

I.
3

David Truong, a Vietnamese citizen and son of a prominent Vietnamese

political figure, came to the United States in 1965. At least since his arrival in
the United States, Truong has pursued an active scholarly and political interest
in Vietnam and the relationship between Vietnam and the United States. In
1976, Truong met Dung Krall, a Vietnamese-American, the wife of the an
American Naval Officer, who had extensive contacts among the Vietnamese
community in Paris. Truong persuaded Krall to carry packages for him to
Vietnamese in Paris. The recipients were representatives of the Socialist
Republic of Vietnam at the time of the 1977 Paris negotiations between that
country and the United States. The packages contained copies of diplomatic
cables and other classified papers of the United States government dealing with
Southeast Asia. Truong procured the copies from Ronald Humphrey, an
employee of the United States Information Agency, who obtained the
documents surreptitiously, copied them, removed their classification markings

and furnished the copies to Truong. In a statement given after his arrest,
Humphrey said that his motive was to improve relations between the North
Vietnamese government and the United States so that he could be reunited with
a woman whom he loved who was a prisoner of the North Vietnamese
government.
4

Unknown to Truong, Krall was a confidential informant employed by the CIA

and the FBI. Krall kept these agencies fully informed of Truong's activities and
presented the packages Truong had given her to the FBI for inspection, copying
and approval before she carried the documents to Paris. The FBI permitted this
operation to continue, while monitoring it closely, from approximately
September, 1976, until January 31, 1978.

When the intelligence agencies first learned that Truong was transmitting
classified documents to Paris, they were understandably extremely anxious to
locate Truong's source for his data. Toward that end, the government conducted
a massive surveillance of Truong. Truong's phone was tapped and his
apartment was bugged from May, 1977 to January, 1978.1 The telephone
interception continued for 268 days and every conversation, with possibly one
exception, was monitored and virtually all were taped. The eavesdropping
device was operative for approximately 255 days and it ran continuously. No
court authorization was ever sought or obtained for the installation and
maintenance of the telephone tap or the bug. The government thus ascertained
that Humphrey was providing Truong with the copies of secret documents. This
leak of sensitive information of course ceased when Truong and Humphrey
were arrested on January 31, 1978.

After a protracted trial, Truong and Humphrey were both convicted of

espionage and conspiracy to commit espionage in violation of 18 U.S.C. 371
and 794(a) and (c). They were also convicted of conspiracy to convert classified
government documents exceeding $100 in value and conversion, in violation of
18 U.S.C. 371 and 641; acting as agents of a foreign government without
prior notification to the Secretary of State in violation of 18 U.S.C. 951 and
2; delivery of material related to the national defense to unauthorized persons in
violation of 18 U.S.C. 793(e) and 2; and conspiracy to violate 50 U.S.C.
783(b) and (c), which penalize government employees who transmit, and
foreign agents who thereby receive, classified information.

II.
7

A. Foreign Intelligence Exception to the Warrant Requirement

The defendants raise a substantial challenge to their convictions by urging that

the surveillance conducted by the FBI violated the Fourth Amendment and that
all the evidence uncovered through that surveillance must consequently be
suppressed. As has been stated, the government did not seek a warrant for the
eavesdropping on Truong's phone conversations or the bugging of his
apartment. Instead, it relied upon a "foreign intelligence" exception to the
Fourth Amendment's warrant requirement. In the area of foreign intelligence,
the government contends, the President may authorize surveillance without
seeking a judicial warrant because of his constitutional prerogatives in the area
of foreign affairs. On this basis, the FBI sought and received approval for the
surveillance from the President's delegate, the Attorney General. This approval
alone, according to the government, is constitutionally sufficient to authorize
foreign intelligence surveillance such as the surveillance of Truong.

The district court accepted the government's argument that there exists a foreign
intelligence exception to the warrant requirement. The district court, however,
also decided that the executive could proceed without a warrant only so long as
the investigation was "primarily" a foreign intelligence investigation. The
district court decided that the FBI investigation had become primarily a
criminal investigation by July 20, 1977, and excluded all evidence secured
through warrantless surveillance after that date. Conversely, all evidence
secured before July 20 was not suppressed by the district court, because it
determined that during that period the investigation primarily concerned
foreign intelligence.

10

We agree with the district court that the Executive Branch need not always
obtain a warrant for foreign intelligence surveillance. Although the Supreme
Court has never decided the issue which is presented to us, it formulated the
analytical approach which we employ here in an analogous case, United States
v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d
752 (1972). In Keith, the executive had conducted warrantless domestic
security surveillance. The Court posited two inquiries to guide the Fourth
Amendment determination of whether a warrant is required:

11the legitimate need of Government to safeguard domestic security requires the use
If
of electronic surveillance, the question is whether the needs of citizens for privacy
and free expression may not be better protected by requiring a warrant before such
surveillance is undertaken. We must also ask whether a warrant would unduly
frustrate the efforts of Government to protect itself from acts of subversion and
overthrow directed against it.
12

407 U.S. at 315, 92 S.Ct. at 2135. Balancing individual privacy and

government needs, the Supreme Court concluded that the executive must seek a
warrant before it undertakes domestic security surveillance.
13

For several reasons, the needs of the executive are so compelling in the area of
foreign intelligence, unlike the area of domestic security, that a uniform
warrant requirement would, following Keith, "unduly frustrate" the President in
carrying out his foreign affairs responsibilities. First of all, attempts to counter
foreign threats to the national security require the utmost stealth, speed, and
secrecy. A warrant requirement would add a procedural hurdle that would
reduce the flexibility of executive foreign intelligence initiatives, in some cases
delay executive response to foreign intelligence threats, and increase the chance
of leaks regarding sensitive executive operations.2 See Zweibon v. Mitchell,
516 F.2d 594, 704 (D.C.Cir.1975) (Wilkey, J., concurring and dissenting).

14

More importantly, the executive possesses unparalleled expertise to make the

decision whether to conduct foreign intelligence surveillance, whereas the
judiciary is largely inexperienced in making the delicate and complex decisions
that lie behind foreign intelligence surveillance. See New York Times Co. v.
United States, 403 U.S. 713, 727-30, 91 S.Ct. 2140, 2148-2150, 29 L.Ed.2d 822
(1971) (Stewart, J., concurring); United States v. Belmont, 301 U.S. 324, 330,
57 S.Ct. 758, 760, 81 L.Ed. 1134 (1937). The executive branch, containing the
State Department, the intelligence agencies, and the military, is constantly
aware of the nation's security needs and the magnitude of external threats posed
by a panoply of foreign nations and organizations. On the other hand, while the
courts possess expertise in making the probable cause determination involved
in surveillance of suspected criminals, the courts are unschooled in diplomacy
and military affairs, a mastery of which would be essential to passing upon an
executive branch request that a foreign intelligence wiretap be authorized. Few,
if any, district courts would be truly competent to judge the importance of
particular information to the security of the United States or the "probable
cause" to demonstrate that the government in fact needs to recover that
information from one particular source.3

15

Perhaps most crucially, the executive branch not only has superior expertise in
the area of foreign intelligence, it is also constitutionally designated as the preeminent authority in foreign affairs. See First National Bank v. Banco Nacional
de Cuba, 406 U.S. 759, 765-68, 92 S.Ct. 1808, 1812-1814, 32 L.Ed.2d 466
(1972); Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62
L.Ed. 726 (1918). The President and his deputies are charged by the
constitution with the conduct of the foreign policy of the United States in times
of war and peace. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 57
S.Ct. 216, 81 L.Ed. 255 (1936). Just as the separation of powers in Keith forced

the executive to recognize a judicial role when the President conducts domestic
security surveillance, 407 U.S. at 316-18, 92 S.Ct. at 2136-2137, so the
separation of powers requires us to acknowledge the principal responsibility of
the President for foreign affairs and concomitantly for foreign intelligence
surveillance.
16

In sum, because of the need of the executive branch for flexibility, its practical
experience, and its constitutional competence, the courts should not require the
executive to secure a warrant each time it conducts foreign intelligence
surveillance. Accord, United States v. Butenko, 494 F.2d 593 (3 Cir.), cert.
denied sub nom., Ivanov v. United States, 419 U.S. 881, 95 S.Ct. 147, 42
L.Ed.2d 121 (1974); United States v. Brown, 484 F.2d 418 (5 Cir. 1973), cert.
denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974); United States v.
Clay, 430 F.2d 165 (5 Cir. 1970), rev'd on other grounds, 403 U.S. 698, 91
S.Ct. 2068, 29 L.Ed.2d 810 (1971).4 Contra, Zweibon v. Mitchell, 516 F.2d
594 (D.C.Cir.1975) (dictum in plurality opinion in case involving surveillance
of domestic organization having an effect on foreign relations but acting neither
as the agent of nor in collaboration with a foreign power).

17

However, because individual privacy interests are severely compromised any

time the government conducts surveillance without prior judicial approval, this
foreign intelligence exception to the Fourth Amendment warrant requirement
must be carefully limited to those situations in which the interests of the
executive are paramount. First, the government should be relieved of seeking a
warrant only when the object of the search or the surveillance is a foreign
power, its agent or collaborators. Cf. Zweibon v. Mitchell, 516 F.2d 594, 613
n.42 (D.C.Cir.1975). In such cases, the government has the greatest need for
speed, stealth, and secrecy, and the surveillance in such cases is most likely to
call into play difficult and subtle judgments about foreign and military affairs.
When there is no foreign connection, the executive's needs become less
compelling; and the surveillance more closely resembles the surveillance of
suspected criminals, which must be authorized by warrant. Thus, if the
government wishes to wiretap the phone of a government employee who is
stealing sensitive documents for his personal reading or to leak to a newspaper,
for instance, the absence of a foreign connection and the importance of
individual privacy concerns contained within the Fourth Amendment lead to a
requirement that the executive secure advance judicial approval for
surveillance. See Zweibon v. Mitchell, 516 F.2d 594, 703-04 (D.C.Cir.1975)
(Wilkey, J., concurring and dissenting).

18

The surveillance in this case clearly satisfied this limitation upon the foreign
intelligence exception to the warrant requirement. Krall, the government agent,

received a letter of introduction to Truong through Dong, the president of the

Vietnamese Association in Paris. According to Krall, Truong gave her
documents to carry back to Dong, who handed the documents to representatives
of the Vietnamese government. In addition, Krall testified that the Vietnamese
ambassador to the United Nations told her that Truong had volunteered to
obtain documents for the Vietnamese government. Moreover, Krall stated that
Truong gave her documents to deliver to Phan Thanh Nam, head of the
Vietnamese mission in Paris, who in turn gave her a letter for Truong.
Obviously, there was ample evidence that tended to show collaboration with
Vietnam on the part of Truong.
19

Second, as the district court ruled, the executive should be excused from
securing a warrant only when the surveillance is conducted "primarily" for
foreign intelligence reasons. We think that the district court adopted the proper
test, because once surveillance becomes primarily a criminal investigation, the
courts are entirely competent to make the usual probable cause determination,
and because, importantly, individual privacy interests come to the fore and
government foreign policy concerns recede when the government is primarily
attempting to form the basis for a criminal prosecution. We thus reject the
government's assertion that, if surveillance is to any degree directed at
gathering foreign intelligence, the executive may ignore the warrant
requirement of the Fourth Amendment.

20

The defendants urge that the "primarily" test does not go far enough to protect
privacy interests. They argue that the government should be able to avoid the
warrant requirement only when the surveillance is conducted "solely" for
foreign policy reasons. The proposed "solely" test is unacceptable, however,
because almost all foreign intelligence investigations are in part criminal
investigations. Although espionage prosecutions are rare, there is always the
possibility that the targets of the investigation will be prosecuted for criminal
violations.5 Thus, if the defendants' "solely" test were adopted, the executive
would be required to obtain a warrant almost every time it undertakes foreign
intelligence surveillance, and, as indicated above, such a requirement would fail
to give adequate consideration to the needs and responsibilities of the executive
in the foreign intelligence area.

21

In this case, the district court concluded that on July 20, 1977, the investigation
of Truong had become primarily a criminal investigation. Although the
Criminal Division of the Justice Department had been aware of the
investigation from its inception, until summer the Criminal Division had not
taken a central role in the investigation. On July 19 and July 20, however,
several memoranda circulated between the Justice Department and the various

intelligence and national security agencies indicating that the government had
begun to assemble a criminal prosecution. On the facts of this case, the district
court's finding that July 20 was the critical date when the investigation became
primarily a criminal investigation was clearly correct.
22

Therefore, because there was more than enough evidence to indicate that
Truong had collaborated with the Vietnamese government and because the
district court did not err in choosing July 20 as the date when the investigation
became primarily a criminal investigation, we do not disturb the decision of the
district court to exclude all evidence obtained through the surveillance after
July 20 but to permit the government to introduce evidence secured through the
surveillance before July 20.

23

Because the Fourth Amendment warrant requirement is a critical constitutional

protection of individual privacy, this discussion should conclude by
underscoring the limited nature of this foreign intelligence exception to the
warrant requirement which we recognize in the instant case. The exception
applies only to foreign powers, their agents, and their collaborators. Moreover,
even these actors receive the protection of the warrant requirement if the
government is primarily attempting to put together a criminal prosecution.
Thus, the executive can proceed without a warrant only if it is attempting
primarily to obtain foreign intelligence from foreign powers or their assistants.
We think that the unique role of the executive in foreign affairs and the
separation of powers will not permit this court to allow the executive less on
the facts of this case, but we also are convinced that the Fourth Amendment
will not permit us to grant the executive branch more.
B. Reasonableness of the Surveillance

24

Even if a warrant is not required, the Fourth Amendment requires that the
surveillance be "reasonable." The reasonableness of the surveillance is
determined by examining the circumstances of the particular case. Scott v.
United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978).

25

For seventy days prior to July 20, FBI agents intercepted all of Truong's phone
calls; and, for almost as long a period, the agents listened to Truong's
conversations with visitors in his apartment.6 As the district court observed, the
surveillance was nonetheless reasonable, and we agree.

26

The purpose of the surveillance was to determine Truong's source or sources

for government documents. Thus, it was necessary to intercept all his calls,

because the government agents could never be sure whether a particular caller
would reveal that he was a source of the documents sometime during his
conversation with Truong. As well, when the government eavesdrops on
clandestine groups like this one, investigators often find it necessary to
intercept all calls in order to record possible code language or oblique
references to the illegal scheme. See United States v. Clerkley, 556 F.2d 709 (4
Cir.1977), cert. denied sub nom. London v. United States, 436 U.S. 930, 98
S.Ct. 2830, 56 L.Ed.2d 775 (1978) (approving blanket surveillance of numbers
operation in order to determine the participants). Thus, on the facts of this case,
the surveillance conducted by the government agents was reasonable.7
C. Package Search
27

The FBI and the CIA searched one of the packages Truong sent to Paris by
Krall without either the authorization of the Attorney General or a search
warrant. Because the government agents did not receive executive
authorization, the foreign intelligence exception to the warrant requirement
does not legitimate this search. Nevertheless, because Truong did not have a
legitimate expectation of privacy in the package, see United States v.
Rabinowitz, 339 U.S. 56, 65-66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950), the
district court did not err in permitting the contents of the package to be admitted
into evidence.

28

The package of documents was contained within an unsealed manila envelope.

Inside the envelope was a transparent bookbag, loosely tied with twine.
Although the documents were partially shielded from view by opaque pieces of
paper, some parts of the documents could be seen through the bookbag. Thus,
Truong had not made a diligent effort to conceal the documents from view.
Moreover, Truong knew that this flimsily wrapped package would cross at least
two national boundaries on its way to Paris. This risk of inspection when Krall
left the United States and when she entered France militates against any
expectation of privacy by Truong. See United States v. Ramsey, 431 U.S. 606,
97 S.Ct. 1972, 52 L.Ed.2d 617 (1977). Therefore, because the package was
poorly wrapped and because it was destined for foreign delivery, Truong could
not have harbored a reasonable expectation that the contents of the package
would remain undisclosed; and consequently neither a search warrant nor
executive authorization was necessary for this search.8

III.
29

The defendants were convicted of several violations of the espionage statutes

and related provisions. Truong and Humphrey raise a number of challenges to

these convictions.
A. Espionage Statutes
30

The jury found that the defendants had violated three espionage provisions, 18
U.S.C. 794(a), 794(c), and 793(e). Two principal objections are made by
the defendants to their convictions under these statutes, and we will consider
them in order:

31

(1) National Defense

32

A common prerequisite for a conviction under each of the statutes is that the
defendant transmit information "relating to the national defense." The
defendants argue that this phrase limits the reach of the statutes to military
matters and assert that none of the materials transmitted by Truong and
Humphrey related to the "national defense" thus defined.

33

Contrary to the defendants' argument, the legislative history of the espionage

statutes demonstrates that Congress intended "national defense" to encompass a
broad range of information and rejected attempts to narrow the reach of the
statutory language. See Edgar and Schmidt, The Espionage Statutes and
Publication of Defense Information, 73 Colum.L.Rev. 929, 972-74 (1973).
Resting on a similar reading of the intent of Congress, the Supreme Court in
Gorin v. United States, 312 U.S. 19, 28, 61 S.Ct. 429, 434, 85 L.Ed. 488
(1941), underscored the breadth of "national defense" as used in the espionage
statutes: "National Defense, the Government maintains, 'is a generic concept of
broad connotations, referring to the military and naval establishments and the
related activities of national preparedness.' We agree that the words 'national
defense' in the Espionage Act carry that meaning." Thus, the defendants'
attempt to constrict the ambit of "national defense" to strictly military matters
cannot succeed. See United States v. Boyce, 594 F.2d 1246 (9 Cir.1979), cert.
denied, 444 U.S. 855, 100 S.Ct. 112, 62 L.Ed.2d 73 (1980).

34

Under either the strict definition urged by the defendants or the broad definition
endorsed by the Supreme Court in Gorin, the defendants transmitted
information which related to the national defense. The materials sent to Paris
included information which related directly to the United States military,
including information about Vietnamese designs on Thailand, American POW's
in Indochina, and American military materiel which had fallen into the hands of
the Vietnamese government. In addition, under the broader definition of
national defense, the packages contained a great deal of national defense

information, in the form of names of United States sources for intelligence

about the Vietnamese government. On the facts of this case, there can be no
doubt that the information transmitted was information "relating to the national
defense."9
35

(2) Intent

36

The defendants base their second principal objection upon their claim that a
constitutional conviction under the espionage statutes must include a finding of
evil intent, i. e., intent to injure the United States or to aid a foreign nation.
They contend that their convictions under 794(a) and 794(c) are invalid
because the trial judge failed to instruct the jury that a finding of evil intent was
essential and that their convictions under 793(e) are invalid because 793(e)
itself does not contain evil intent as an element necessary for a conviction.

37

Under 794(a) and 794(c), the prosecution must prove that the defendant
acted "with intent or reason to believe" that transmission of the information will
injure the United States or aid a foreign nation. This scienter requirement is
critically important, because the Supreme Court relied upon it in Gorin, 312
U.S. at 26-27, 61 S.Ct. at 433-434 (1941), to rebut a claim that the espionage
statutes were unconstitutionally overbroad. The defendants insist that the
district judge's instructions in this case diluted the important scienter
requirement by suggesting that the defendant could be convicted for mere
negligence. This contention is insubstantial.

38

The district judge instructed the jury that to convict defendants it must find that
they acted "willfully and with an intent or reason to believe" that the
information would be used to injure the United States or to aid a foreign power.
The jury was also told that "reason to believe" meant that a defendant must be
shown to have known facts from which he concluded or reasonably should have
concluded that the information could be used for the prohibited purposes. The
latter did not mean, however, that the jury could convict merely upon a finding
that a defendant acted "negligently." Rather, the jury was instructed that a
defendant must act "willfully" which the jury was told meant "voluntarily and
intentionally and with a specific intent to do something the law forbids."

39

Section 793(e) does not contain the same strong scienter language of 794(a).
Rather, it requires only that the defendant have "reason to believe" that the
national defense information could be used to harm the United States or to aid a
foreign nation. The defendants contend that this less stringent language renders
the statute unconstitutionally overbroad. See generally Edgar & Schmidt, supra,

at 998-1020.
40

Even though 793(e) does not include scienter language identical to the
language of 794(a), it does require that the accused "willfully" transmit the
information. Evidently relying upon this language, the trial judge instructed the
jury that it must find that the defendants acted in bad faith before it could
convict, and defined bad faith 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." This instruction more than cured any
possible overbreadth of 793(e).10 See Gorin v. United States, 312 U.S. 19, 2728, 61 S.Ct. 429, 433-434, 85 L.Ed. 488 (1941); United States v. Dedeyan, 584
F.2d 36 (4 Cir. 1978); Edgar & Schmidt, supra, at 1020. 11
B. Espionage-Related Statutes

41

In addition to their convictions under the espionage statutes, Truong and

Humphrey were found guilty of violating two related criminal statutes, 18
U.S.C. 951 and 50 U.S.C. 783(b) and (c).

42

(1) Foreign Agent

43

The jury found that Truong and Humphrey had acted in the United States as
unregistered agents of the Socialist Republic of Vietnam, a violation of 18
U.S.C. 951. The defendants make two challenges to their convictions. First,
they argue that the statute violated their privilege against self-incrimination
because they would have been forced to confess participation in illegal
espionage if they had registered. A registration provision violates the Fifth
Amendment, however, only if it is directed at a class of persons who are
inherently suspect of illegal activities. A neutral registration requirement, such
as this one directed at representatives of foreign nations, does not offend the
Fifth Amendment. See United States v. Walden, 411 F.2d 1109 (4 Cir.), cert.
denied, 396 U.S. 931, 90 S.Ct. 271, 24 L.Ed.2d 230 (1969).

44

The defendants also contend that 951 is impermissibly vague and overbroad.
Their principal objection is to the word "agent." "Agent" as used in this context,
however, is a readily understandable term which provides adequate notice of
the conduct proscribed by the statute.
D. 50 U.S.C. 783(b) and (c)

45

Truong and Humphrey were convicted of conspiracy to violate 50 U.S.C.

45

Truong and Humphrey were convicted of conspiracy to violate 50 U.S.C.

783(b) and (c). Section 783(b) makes it unlawful for a United States
government employee knowingly to communicate classified information to an
agent of a foreign government. Conversely, 783(c) makes it illegal for an
agent of a foreign government knowingly to receive classified information from
a United States government employee. The defendants contest their convictions
under this statute on several grounds.

46

Most of their contentions were answered adequately in Scarbeck v. United

States, 317 F.2d 546 (D.C.Cir.1962), cert. denied, 374 U.S. 856, 83 S.Ct. 1897,
10 L.Ed.2d 1077 (1963). Truong argues that he cannot be bound by the
classification system because he was not a government employee. But he
cannot hide behind his civilian status when he encouraged a government
employee to copy classified documents. Second, contrary to Truong's argument,
the fact that the President did not personally classify the documents does not
place them outside the scope of the statute. Finally, we find no unconstitutional
ambiguity in the phrase "of a kind which shall have been classified" or in "agent
or representative of a foreign government."

IV.
47

Defendants made several objections at trial regarding the district court's

application of the Jencks Act and assert them on appeal. Two of those
objections merit extended discussion.
A. The Final Group of Documents

48

Robert Hall was Krall's CIA case officer. He made reports of his conversations
with Krall. Near the end of trial, the prosecution presented the district judge
with a large number of Hall's reports and cables concerning his conversations
with Krall. Because the government produced the material at a late date and
because there was a large number of documents, the district judge was candid
in stating that he was unable to examine them adequately. He said: "I have been
through it in a cursory manner, enough to determine that there is nothing . . ., in
very cursory reading (that) is any different than (Jencks Act material already
supplied to the defense)." The judge revealed his irritation with the prosecution
for producing the documents tardily and thereby preventing him from fully
carrying out his responsibilities: "Presuming the Court (evidently the Fourth
Circuit) finds to the contrary, the Government is going to lose this case just
because somebody in the CIA was being cute."

49

As these statements of the district judge reflect, there is no clear finding, on the

existing record, of whether the last group of documents contained statements

which should have been produced under the Jencks Act. They were not given
the careful scrutiny the district court felt was necessary to make a confident
decision. However, we decline the district judge's invitation to inspect the
documents ourselves, and, instead, remand the case so that the district court can
carefully screen the documents. We leave this task to the district judge because
the district courts, not the appellate courts, are entrusted with the duty of
examining documents for Jencks Act material, Campbell v. United States, 373
U.S. 487, 493, 83 S.Ct. 1356, 1360, 10 L.Ed.2d 501 (1963) (Campbell II ). In
addition, since the district judge is intimately familiar with the other Jencks Act
material produced at trial, he is better equipped than we to decide whether any
Jencks Act statements included within the documents are merely cumulative so
that the failure to produce them at trial was not prejudicial to the defendants.
50

The need for a remand in this case is underscored by the fact that the
government has conceded in its brief before us that the documents contain
perhaps three Jencks Act statements by Krall. The government's description of
one of these statements suggests that one of Krall's conversations with Hall may
have differed from her testimony at trial. Krall testified that Phan Thanh Nam,
the head of the Vietnamese Paris mission, told her that Truong was among "our
people in Washington." The government states in its brief that Hall's report
recounts Krall's conversation with Nam without mentioning a reference to
Truong. This document could thus contain a Jencks Act statement which might
have been used to impeach Krall's testimony.

51

We do not pass judgment, however, on the significance of the government's

failure to produce this possible Jencks Act statement. We leave that decision to
the "good sense and experience of the district judge", Palermo v. United States,
360 U.S. 343, 353, 79 S.Ct. 1217, 1225, 3 L.Ed.2d 1287 (1959). If the district
court decides that the documents do not contain Jencks Act material, or if the
district court finds Jencks Act material but decides that the prosecution's failure
to produce it was harmless error,12 the district court should enter a new
judgment of conviction. If, however, the district court finds Jencks Act material
and concludes that denial of it was not harmless error, it should vacate the
judgments of conviction in order that the defendants may obtain a new trial.
See Goldberg v. United States, 425 U.S. 94, 111-12, 96 S.Ct. 1338, 1348-1349,
47 L.Ed.2d 603 (1976).
B. Destruction of Krall's Reports

52

Krall made some written reports to Hall detailing her activities while in Paris.
These reports included descriptions of her actions relating to Truong. At trial,

defendants attempted to obtain these reports, under 18 U.S.C. 3500(e)(1), in

order to test Krall's courtroom description of the Paris incidents. The
prosecution was unable to produce Krall's reports, however, because Hall had
destroyed them according to routine CIA procedures before any criminal
prosecution was contemplated. The defendants argue that the district court
should have imposed sanctions upon the prosecution for the destruction of the
reports by the CIA.
53

The destruction of Jencks Act material may violate at least the spirit of the Act,
even if the material is destroyed without bad faith following a routine
procedure. See United States v. Missler, 414 F.2d 1293, 1304-05 (4 Cir. 1969),
cert. denied, 397 U.S. 913, 90 S.Ct. 912, 25 L.Ed.2d 93 (1970); United States v.
Johnson, 337 F.2d 180, 201-02 (4 Cir. 1964), aff'd, 383 U.S. 169, 86 S.Ct. 749,
15 L.Ed.2d 681 (1966). Whatever the Jencks Act consequences of the
destruction of "statements" by criminal investigators, the Jencks Act was not
violated in this case, because the reports were destroyed outside the context of a
criminal investigation.

54

Krall acted as both an FBI agent and a CIA agent. As a CIA operative, she
provided a variety of information regarding the Vietnamese government, not
limited to the flow of documents from Truong to Paris. Her reports to Hall, her
CIA case officer, were part of her intelligence-gathering function for the CIA.
The reports were destroyed by Hall, acting as a CIA intelligence functionary, in
accordance with CIA practice designed to preserve the secrecy of sensitive
foreign operations. Krall's reports were thus prepared and destroyed in
conjunction with her role as an intelligence agent, not as an aspect of her role as
an informer in a criminal investigation. Therefore, even under the decisions of
those courts which have imposed sanctions for routine destruction of Jencks
Act statements by criminal investigators, see, e. g., United States v. Carrasco,
537 F.2d 372 (9 Cir. 1976), the prosecution would not be subject to sanctions
for the destruction of Krall's reports. In this case, the district court did not err
when it refused to impose sanctions on the prosecution for the destruction of
this possible Jencks Act material.13

V.
55

The defendants were also convicted of violating 18 U.S.C. 641. That statute
renders criminally liable any person who "converts to his use or the use of
another, or without authority, sells, conveys or disposes of any . . . thing of
value of the United States." The defendants were convicted under this statute
on the theory that they converted government property in the form of classified
information when they surreptitiously secured copies of secret documents in the

possession of the United States Information Agency.

56

The defendants argue that their convictions must be reversed because the theft
of classified information falls outside the confines of this statute. They contend
that information cannot be "converted" because the common law tort of
conversion requires that the legitimate owner be deprived of possession, see
Pearson v. Dodd, 410 F.2d 701 (D.C.Cir.), cert. denied, 395 U.S. 947, 89 S.Ct.
2021, 23 L.Ed.2d 465 (1969). In this case, the defendants did not "convert" the
classified information by copying the documents, their theory goes, since the
United States Information Agency was not denied access to its information in
the process. Furthermore, the defendants assert, information is an intangible not
encompassed by 641, which speaks of tangible "things" of value.14 Therefore,
the defendants conclude that, because they obtained an intangible incapable of
conversion, their acts were not prohibited by the limited terms of 641.

57

For reasons set forth in the separate opinion of Judge Russell in which Judge
Hall concurs, the majority has concluded that, under the concurrent sentence
rule, this contention of the defendants should not be considered. I think
otherwise, and I will state first my reasons why I think the concurrent sentence
doctrine should not be invoked to bar review and next my views with respect to
the merits of defendants' contention.

58

Whatever the continuing vitality of the concurrent sentence doctrine in other

circuits, I thought that it was decently interred in this circuit by the decision in
Close v. United States, 450 F.2d 152, 155 (4 Cir. 1971), cert. denied, 405 U.S.
1068, 92 S.Ct. 1513, 31 L.Ed.2d 799 (1972), where we said "there is no legal
reason why a concurrent sentence, attached to a longer, valid sentence, and
already served, and based on what must fairly be deemed constitutionally
impermissible evidence, should be left standing and we direct that it be
vacated." If this was true when the litigation was a collateral attack on a
conviction, the sentence for which had been fully served, I think it much more
true here where the validity of the conviction is before us on direct appeal and
the sentence is as yet unserved. That the defect in the conviction in Close was
constitutional while here the claimed defect is statutory is, to me, a distinction
without a difference. And I am not alone in my reading of Close. It has been so
read as conclusively rejecting the concurrent sentence doctrine in United States
v. Vargas, 615 F.2d 952, 957 (2 Cir. 1980), and in Note, The Concurrent
Sentence Doctrine After Benton v. Maryland, 7 U.C.L.A. Alaska L.Rev. 282,
294, 306 (1978). Indeed, what was decided in Close is so clear that I am led to
question the authority of the majority of this panel to overrule the decision of a
previous panel of this court. Heretofore such a change of direction, absent a
supervening superseding decision of the Supreme Court, has been restricted to

an in banc court.
59

But even if the doctrine has continuing utility as a means of avoiding the
expenditure of judicial resources on the unnecessary decision of an issue, I
think that it is improper to invoke it here for at least two reasons. First, as the
government has sought to apply 641, there is in issue not merely the
defendants' guilt or innocence, but, as I later demonstrate, substantial first
amendment considerations. In my view, proper concern for the protection of
these important considerations should make us more hesitant to invoke the
concurrent sentence doctrine here than in the run-of-the-mill criminal case.

60

Second, this is not a case in which defendants' other convictions are

unqualifiedly affirmed. To the contrary, we are unanimous in remanding the
case to the district court for consideration of whether Jencks Act material was
improperly denied the defendants with the direction that, if such a denial is
found and determined to be prejudicial, defendants must be tried anew.
Defendants' guilt of the other offenses, then, has not been finally settled. Should
there be a new trial, manifestly that trial should be limited to the counts of the
indictment not based on 641 if there is merit in defendants' contention as to
the limited scope of 641. We should avoid the risk of any error in the 641
aspect of the case which might have a prejudicial effect on the validity of other
possible convictions. While I am generally in agreement with the dissenting
view in United States v. Boyce, 594 F.2d 1246, 1252 (9 Cir. 1979), cert. denied,
444 U.S. 855, 100 S.Ct. 112, 62 L.Ed.2d 73 (1980) rather than that of the
majority in that case, the instant case is even a stronger one in which to reject
application of the concurrent sentence doctrine. Here, the validity of the
convictions under 641 is a real issue and not an academic exercise having no
practical effect as the majority tries to demonstrate.

61

When brought to the merits of defendants' contention, my views are as follows:

62

The legislative history of 641 does not mention the application of the statute
to the theft of government information. Section 641 is a venerable criminal
provision; its predecessors were first enacted in 1875. The statute was codified
in its present form in 1948 when the criminal code was revised. As might be
expected, the 19th century legislative history of the predecessor statutes does
not address the application of the statute to government information, almost
certainly because a Congress of that era would not foresee this issue. See
United States v. Lambert, 446 F.Supp. 890, 893 (D.Conn.1978), aff'd sub nom.
United States v. Girard, 601 F.2d 69 (2 Cir. 1979). And, because the 1948
revision was merely a consolidation of several provisions of the 1940 code,
Congress did not discuss the substantive reach of 641 when the statute was

enacted in its current form. In short, the legislative history reveals that Congress
has never directly considered the application of 641 to government
information. In enacting 641 and its predecessors, Congress did not express
an intent that the unauthorized disclosure of government information be either
included within or excluded from the criminal prohibitions of 641.
63

While the legislative history of the statute is inconclusive, the language of the
statute and the leading Supreme Court decision dealing with 641 establish
that the statute should not be construed as narrowly as the defendants would
like. The language of 641 itself is all-inclusive. By appending "thing of
value" onto the list of "any record, voucher, (or) money," Congress certainly
did not evince an intent to restrict the reach of 641. Nor did Congress
manifest a desire that 641 not include some wrongful appropriations of
government property when it chose the phrase "embezzles, purloins, or
knowingly converts . . . , or without authority, sells, conveys or disposes."

64

In Morissette v. United States, 342 U.S. 246, 271, 72 S.Ct. 240, 254, 96 L.Ed.
288 (1952), the Supreme Court confirmed that Congress intended the language
of 641 to sweep broadly:

65 has concerned codifiers of the larceny type offense is that gaps or crevices
What
have separated particular crimes of this general class and guilty men have escaped
through the breaches. The books contain a surfeit of cases drawing fine distinctions
between slightly different circumstances under which one may obtain wrongful
advantages from another's property. The codifiers wanted to reach all such
instances.15
66

Likewise, in an earlier footnote, the Court explained: "The history of 641

demonstrates that it was to apply to acts which constituted larceny or
embezzlement at common law and also acts which shade into those crimes but
which, most strictly considered might not be found to fit their fixed definitions."
342 U.S. at 266 n.28, 72 S.Ct. at 253 n.28. Thus, the legislative design as
revealed by the language of the statute and by Morissette belies the defendants'
attempt to narrow the statute to the taking of certain categories of property and
to engraft upon 641 the technical definition of the tort of conversion. See
United States v. Girard, 601 F.2d 69 (2 Cir. 1979), aff'd United States v.
Lambert, 446 F.Supp. 890 (D.Conn.1978).16

67

While I would thus conclude that in some circumstances 641 may encompass
the unauthorized disclosure of government information, 641 must be applied
to the theft of government information with extreme care. Two particularly
acute problems arise when the statute is used to punish defendants who have

stolen government information.

68

First, because the statute was not drawn with the unauthorized disclosure of
government information in mind, 641 is not carefully crafted to specify
exactly when disclosure of government information is illegal. The crucial
language is "without authority." The precise contours of that phrase are not selfevident. This ambiguity is particularly disturbing because government
information forms the basis of much of the discussion of public issues and, as a
result, the unclear language of the statute threatens to impinge upon rights
protected by the first amendment. Under 641 as it is written, no precise
standard controls the exercise of discretion by upper level government
employees when they decide whether to forbid or permit the disclosure of
government information. See Nimmer, National Security Secrets v. Free
Speech: The Issues Left Undecided in the Ellsberg Case, 26 Stan.L.Rev. 311,
322 (1974). Consequently, upper level government employees might use their
discretion in an arbitrary fashion to prevent the disclosure of government
information; and government employees, newspapers, and others could not be
confident in many circumstances that the disclosure of a particular piece of
government information was "authorized" within the meaning of 641. Thus,
the vagueness of the "without authority" standard could pose a serious threat to
public debate of national issues, thereby bringing the constitutional validity of
641 into question because of its chilling effect on the exercise of first
amendment rights. See Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13
L.Ed.2d 471 (1965).17

69

The government responds to this first amendment concern by insisting that

"without authority" has very specific content when 641 is applied to the
disclosure of classified information. When a defendant is charged with stealing
classified information, the government submits, "without authority" means that
the defendant failed to comply with the regulations governing disclosure of
classified information. Because those regulations are highly detailed and
specific, the government concludes, "without authority" is not a vague standard
in the context of classified information.

70

The Second Circuit has recently adopted the approach advocated by the
government when it ruled on the application of 641 to another category of
government information. In United States v. Girard, 601 F.2d 69 (2 Cir. 1979),
aff'g United States v. Lambert, 446 F.Supp. 890 (D.Conn.1978), the defendants
were charged with selling information obtained from the computers of the Drug
Enforcement Administration including the identities of informants and the
status of government drug investigations. The court determined that 641
encompassed the unauthorized disclosure of government information. The court

also confronted the vagueness and the resulting first amendment difficulties
contained within the statute. The court corrected these defects by reading
"without authority" to embody the pertinent Justice Department regulations and
the Agents Manual of the Drug Enforcement Administration, which
specifically forbade the disclosure of the government information at issue in
that case. By thus reasonably looking to the concrete definition of "without
authority" that governed the disclosure of a particular category of government
information, the court eliminated the vagueness of 641 as applied to the
defendants in that case.
71

This solution for the vagueness of 641 raises the second of the problems
which is caused by the application of 641 to the theft of government
information: the potential for conflict between 641 and other statutes
specifically addressed to the disclosure of government information. Section 641
has not been traditionally employed to punish those who make unauthorized
disclosures of government information. In fact, the decision of the Second
Circuit in Girard, handed down in 1979, was the first circuit decision to face the
issue squarely and apply the statute to the theft of government information.
Earlier, without much discussion, the Ninth Circuit had permitted a defendant
to be convicted under 641 for disclosing grand jury information. United
States v. Friedman, 445 F.2d 1076 (9 Cir.), cert. denied, 404 U.S. 958, 92 S.Ct.
326, 30 L.Ed.2d 275 (1971). Because Congress was never consciously aware
that 641 would punish the unauthorized disclosure of government information
and because this use of 641 is a relatively recent innovation, courts must be
cautious in interpreting 641 so that it is applied in a manner consistent with
the congressional design, if any, expressly governing the disclosure of a
particular type of government information.

72

When the statutes addressed to the disclosure of classified information are

examined, it becomes apparent that 641 cannot, consistent with the
congressional framework of criminal statutes explicitly directed at classified
information, be applied to punish these defendants for the unauthorized
disclosure of classified information.

73

Congress has legislated frequently and with precision with regard to the
unauthorized disclosure of classified information, and it has chosen to punish
only certain categories of disclosures and defendants. National defense
information is protected from disclosure by the espionage statutes, particularly
793(a), (b), (c) and 794. But those statutes only penalize a defendant who
acts "with intent or reason to believe that (the information will be used) to the
injury of the United States or to the advantage of (a) foreign nation."18
Classified information is also guarded from unauthorized disclosure by 18

U.S.C. 798. Section 798 does not contain the strict intent requirement of the
espionage statutes; it punishes anyone who acts "knowingly and willfully". But,
798 makes criminal the disclosure of only one class of classified information,
classified information concerning cryptography and communications. By
contrast, 50 U.S.C. 783(b) makes it unlawful to disclose any classified
information. That statute, however, places this strict prohibition only upon
government employees,19 and subjects even government employees to criminal
penalties only when the information is communicated to an agent of a foreign
government or a member of a Communist organization.20
74

If 641 were extended to penalize the unauthorized disclosure of classified

information, it would greatly alter this meticulously woven fabric of criminal
sanctions. Unlike the espionage statutes, 641 does not contain a stringent
intent requirement; it penalizes whomever "embezzles, steals, purloins, or
knowingly converts." And, unlike 798, 641 would not penalize the
disclosure of only a limited category of classified information. Rather, 641
would outlaw the unauthorized disclosure of any "thing of value", that is, any
classified information. Finally, in contrast to 50 U.S.C. 783(b), the penalties
of 641 would not be placed only on government employees who communicate
classified information to foreign agents or Communist operatives. Instead,
641 would punish all persons; "whoever" disclosed classified information
without authority would be subject to criminal penalties.

75

Thus, if 641 were extended to the unauthorized disclosure of classified

information, it would sweep aside many of the limitations Congress has placed
upon the imposition of criminal sanctions for the disclosure of classified
information. Section 798 and 50 U.S.C. 783(b) would be effectively
subsumed under the broad language of 641.21 In addition, any person who
willfully disclosed any classified information without authority would be
subject to criminal penalties, contrary to the evident intent of Congress
expressed in the strict intent requirement inserted into the espionage statutes. It
is axiomatic that statutes dealing with the same topic should be read in pari
materia in order to further the overall legislative intent expressed in a series of
statutes, see 2A Sutherland, Statutory Construction 57.06 (4th ed. 1973), and
that axiom is even more forceful in the sensitive area of classified information
which has been the subject of frequent congressional concern. Because 641
would disturb the structure of criminal prohibitions Congress has erected to
prevent some, and only some, disclosures of classified information, the general
anti-theft statute should not be stretched to penalize the unauthorized disclosure
of classified information.22

76

My conclusion is reinforced by the fact that Congress has repeatedly refused to

enact a statute which would make criminal the mere unauthorized disclosure of
classified information. The present espionage statutes were enacted largely in
their present form in 1917 at the request of President Wilson. Although
Congress agreed to statutes aimed at espionage, it specifically rejected the
request of the President that it enact a criminal statute to punish the publication
of defense information in violation of presidential regulations. Concern for
public debate of defense issues and distrust of a war-time president's powers
converged to defeat the proposal to criminalize the publication of classified
information. Edgar & Schmidt, supra, at 940-41. Similar attempts were
unsuccessful immediately after World War II, in the late 1950's, in the mid
1960's, and in the 1970's.23 See Subcomm. on Secrecy and Disclosure of the
Senate Select Comm. on Intelligence, 95th Cong., 2d. Sess., National Security
Secrets and the Administration of Justice 17-19, 22 (Comm. Print 1978). Thus,
in the area of national security information, Congress has consciously refrained
from making it a crime merely to disclose classified information without
authority.
77

In sum, because a criminal prohibition against the unauthorized disclosure of

classified information would be inconsistent with the existing pattern of
criminal statutes governing the disclosure of classified information and because
Congress has always refused to enact a statute like 641 applicable to the
disclosure of classified information, I would hold that 641 cannot be
interpreted to punish the unauthorized disclosure of classified information. Like
the district court in Lambert, 446 F.Supp. at 899, I would conclude that the
application of 641 to thefts of government information should be decided
upon a case-by-case basis. Here, where the unauthorized disclosure of classified
information has been the focus of legislation and constitutional and political
debate within Congress, it would be unwise to extend 641 through judicial
interpretation to include this category of information. Whatever the content of
"thing of value" in the context of other types of government information, this
phrase may not be read to include classified information within 641. 24

VI.
78

The Vietnamese ambassador to the United Nations was named in the

indictment of Truong and Humphrey as an unindicted coconspirator.
Subsequent to the publication of the indictment, the State Department
designated the ambassador persona non grata and asked his government to
recall him. The defendants advised the district court that they wished to speak
with the ambassador and might call him as a witness. The government then
agreed to a court order enjoining it for a period of ten days from taking action
to expel the ambassador from the United States. Interpreting the order closely,

the State Department, while it did not press its earlier request for recall, also did
not rescind it. Soon thereafter, the ambassador left the United States pursuant to
his government's instructions. The defendants claim that they were thus denied
compulsory process. See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18
L.Ed.2d 1019 (1967).

79

Some courts have dismissed indictments when the government has deported
illegal aliens who were potential witnesses in the prosecution of a defendant.
See, e. g., United States v. Calzada, 579 F.2d 1358 (7 Cir. 1978); United States
v. Mendez-Rodriguez, 450 F.2d 1 (9 Cir. 1971). Those courts have ruled that
the government violated the defendant's right to compulsory process by placing
potential witnesses beyond his reach and beyond the jurisdiction of the court.
But we do not think these authorities applicable.

80

There are two critical distinctions between the deportation cases and this
diplomatic recall case. First, in the case of a diplomatic recall, the State
Department's interest in holding foreign diplomats to acceptable standards of
conduct is much more compelling than the government's interest in deporting
illegal aliens. When a foreign diplomat becomes engaged in outrageous and
perhaps sinister conduct, such as participation in an illegal conspiracy, the
United States government cannot decline to act. Thus, while the government's
interest in deporting illegal aliens may be outweighed by the defendant's right
to compulsory process, the balance does not tip so clearly in the defendant's
favor when the national government requests the recall of an errant
representative of another nation.

81

Second, when a diplomat is the potential witness, he may well not testify even
if he remains in the United States. Because of diplomatic immunity, the witness
is not amenable to judicial process. The diplomat may testify only if his
government waives his immunity. Therefore, even if the United States
government forces a foreign representative to leave, the government may not
have prejudiced the defendant, because the foreign nation might have refused to
permit its representative to testify in a United States criminal prosecution if he
had stayed. As a consequence, the defendant's claim of a denial of compulsory
process is very attenuated when a foreign diplomat is the unavailable witness.

82

Because of the bar of diplomatic immunity and because of the national interest
in taking action against diplomats who misbehave, we conclude that, in order to
demonstrate a denial of compulsory process, the defendant must go further than
to point to a missing diplomat/witness and government involvement in the
diplomat's recall. Accord, United States v. Butenko, 384 F.2d 554, 567 (3 Cir.
1967) vacated and remanded on other grounds, 394 U.S. 165, 89 S.Ct. 961, 22

L.Ed.2d 176 (1969).

83

We therefore hold that in a case such as this one a defendant must show
prejudice by demonstrating that the foreign government would have waived the
diplomatic immunity of its representative.25 Without such a showing, there is no
reason to believe that the defendant was harmed by the potential witness'
absence and there is likewise no reason to penalize the United States
government for taking appropriate action against an errant diplomat. In this
case, the defendants have failed to supply the necessary proof, and therefore
there is no basis on which to conclude that the defendants were denied
compulsory process.26

VII.
84

The defendants make a variety of other objections to their convictions. None of

these do we find meritorious.
A. Statements of a Coconspirator

85

Krall testified that in April she delivered a package from Truong to Dong,
president of the Vietnamese Association in Paris. Two persons arrived at
Dong's headquarters; Dong told Krall that they were Vietnamese officials. Krall
testified that the two unidentified officials told Dong, "I hope you get a package
from America," and after Dong handed them the package, "What a perfect time
for these government arrivals." The defendants object that these statements
were inadmissible hearsay.

86

These statements, however, were made by coconspirators and thus fall within
the coconspirator exception to the hearsay rule, Fed.R.Evid. 801(d)(2)(E). The
defendants rely on United States v. Stroupe, 538 F.2d 1063 (4 Cir. 1976), in
support of their claim that the evidence was inadmissible. But in Stroupe, the
out-of-court statement was ruled inadmissible because the only real evidence of
conspiracy was provided by the hearsay statement itself. Here, Krall's
testimony, not merely the statements of the out-of-court declarant, provided
evidence of the conspiracy. Therefore, under Fed.R.Evid. 801(d)(2)(E), the
statements were admissible. See United States v. Jones, 542 F.2d 186, 203 (4
Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 375 (1976).
B. Admission of Truong's Library

87

Several items removed from Truong's apartment were admitted in evidence at

trial. Truong had contended that his interest in the cables obtained from
Humphrey was a benign scholarly preoccupation with Vietnam and
Vietnamese-American relations. Found among Truong's books and papers were
a State Department Telecommunications Handbook which included
classification codes, parts of the State Department Biographical Register which
were annotated by hand to indicate which of the employees were "spooks,"
pictures of Truong in the company of the Vietnamese ambassador who was an
unindicted coconspirator, and handwritten notes on espionage and counterespionage. These materials were undoubtedly relevant to determining the nature
of Truong's interest in the materials Humphrey gave him, an issue put before
the court by Truong himself. The district judge decided that the probative value
of this evidence outweighed its possible prejudicial effect, Fed.R.Evid. 403, and
we find no error in his determination.27VIII.
88

We affirm the defendants' convictions, subject to further proceedings on

remand. Upon remand, the district court will examine the final group of
documents produced by the prosecution for Jencks Act material and take such
steps as are consistent with this opinion.

89

AFFIRMED.

90

DONALD RUSSELL, Circuit Judge, concurring and dissenting:

91

I wholeheartedly concur in Judge Winter's scholarly opinion herein in which he

has carefully and perceptively canvassed the troublesome law of criminal
espionage, except for its ruling on the count charging a violation of 641, 18
U.S.C., as set forth in Part V of the opinion.

92

In the district court the defendants were convicted under the espionage counts
in the indictment and each received a sentence of fifteen years. They also were
convicted under three other counts, including the count under 641. They
received sentences of five years under each of these counts. All sentences were
to run concurrently. The opinion of Judge Winter sustains all these convictions
save that under 641. His opinion would reverse the conviction under this
count. It was, however, the position of the Government, as stated in its brief,
and reiterated in oral argument, that "if this Court affirms appellants'
convictions on any of those counts (that is, the counts other than that under
641), there is no occasion for it to consider appellants' contentions regarding
their Section 641 convictions." In short, it declares that under the concurrent
sentence rule, it is unnecessary in this case to review the conviction of the
defendants under 641. I agree.

93

The concurrent sentence rule provides that where a defendant receives

concurrent sentences on plural counts of an indictment and where the
conviction on one count is found to be good, a reviewing court need not pass on
the validity of the defendant's conviction on another count. This familiar rule
has been repeatedly approved by both the Supreme Court1 and by this court.2 In
recent decisions particularly because of the decision in Benton v. Maryland
(1969) 395 U.S. 784, 791-92, 89 S.Ct. 2056, 2060-2061, 23 L.Ed.2d 707 the
application of the rule has, though, been restricted to situations where there is
no substantial possibility that the unreviewed conviction will adversely affect
the defendant's right to parole or expose him to a substantial risk of adverse
collateral consequences. See United States v. Vasquez-Vasquez (5th Cir. 1980)
609 F.2d 234, 235; United States v. Rubin (5th Cir. 1979) 591 F.2d 278, 280,
cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87; United States ex rel.
Weems v. Follette (2d Cir. 1969) 414 F.2d 417, 419, cert. denied, 397 U.S. 950,
90 S.Ct. 973, 25 L.Ed.2d 131 (1970). We recognized this limitation upon the
rule in Close v. United States (4th Cir. 1971) 450 F.2d 152, 155, cert. denied,
405 U.S. 1068, 92 S.Ct. 1513, 31 L.Ed.2d 799 (1972).

94

There is, though, no substantial likelihood of adverse effect on defendants'

possible parole rights or of other adverse collateral consequences arising out of
the failure to review the convictions under 641 in this case. See United States
v. Smith (8th Cir. 1979) 601 F.2d 972, 974-75, cert. denied, 444 U.S. 879, 100
S.Ct. 166, 62 L.Ed.2d 108. The conviction under the espionage charges
resulted in a sentence of fifteen years. Under 4205(a), 18 U.S.C., the
defendants must serve at least five years under this sentence before they will
become eligible for parole. The defendants, therefore, cannot be eligible for
parole until they have served five years of their concurrent sentences. When,
however, they have served that five years, they would have completed their
concurrent sentences under the 641 count. Neither is there any possible
adverse effect on the defendants' place or conditions of confinement by reason
of the application of the concurrent sentence rule in this case. See United States
v. Holder (8th Cir. 1977) 560 F.2d 953, 956, n.4. Moreover, there could be no
adverse effect under the Parole Commission's "salient factor score," since the
guidelines for such "score" provide that multiple offenses arising out of a single
set of circumstances (which is the situation here) will be treated as a single
offense thereunder. See United States v. Smith, 601 F.2d at 975. Accordingly,
allowing defendants' convictions under the 641 count will not increase the
time defendants will have to serve nor cause them any adverse collateral
consequences. I, therefore, would apply the concurrent sentence doctrine in
these cases, and decline to review the merits of the defendants' convictions
under 641. I find support for this view in the action taken by the court in
United States v. Boyce (9th Cir. 1979) 594 F.2d 1246, 1252, also an espionage

case, in which there was, as here, a concurrent sentence under a 641 count
which the court declined to review for the same reasons assigned by me for
declining to review like convictions in these cases.
95

K. K. HALL, Circuit Judge, concurs in this opinion.

For eighty-five days, from June to September, 1977, the FBI also video-taped
Humphrey's activities in his office at the United States Information Agency

The practical difficulties of obtaining a warrant for foreign intelligence

surveillance were particularly acute at the time this surveillance was conducted,
because Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
18 U.S.C. 2510-20, which specifies warrant procedures, contained no
procedures tailored to foreign intelligence surveillance. In fact, in Title III
Congress explicitly chose not to address the sort of surveillance involved in this
case when it disclaimed any intent to "limit the constitutional power of the
President to take such measures as he deems necessary . . . to protect national
security information against foreign intelligence activities." 18 U.S.C.
2511(3). That disclaimer was repealed by the Foreign Intelligence Surveillance
Act of 1978, see note 4, infra, which established a mechanism to govern the
issuance of warrants for foreign intelligence surveillance

See note 4, infra, for a discussion of the Foreign Intelligence Surveillance Act
of 1978, which authorizes the Chief Justice to choose seven judges to pass on
similar issues. That statute, however, limits the authority of the judge over such
issues by prescribing a "clearly erroneous" standard of review. The statute will
encourage the development of foreign intelligence expertise among these seven
judges by empowering them to hear all foreign intelligence warrant requests

Since the surveillance was conducted in this case, Congress has enacted the
Foreign Intelligence Surveillance Act of 1978, 50 U.S.C. 1801 et seq. That
statute requires that executive officials seek prior judicial approval for some
foreign intelligence surveillance. The Act does not, however, transport the
traditional Fourth Amendment warrant requirement unaltered into the foreign
intelligence field. The statute does not contain a blanket warrant requirement;
rather, it exempts certain categories of foreign intelligence surveillance. 50
U.S.C. 1802. Nor does the statute require the executive to satisfy the usual
standards for the issuance of a warrant; the executive need demonstrate only
probable cause that the target is a foreign power or a foreign agent and, in the
case of United States citizens and resident aliens, that the government is not
clearly erroneous in believing that the information sought is the desired foreign

intelligence information and that the information cannot be reasonably obtained

by normal methods. 50 U.S.C. 1805, 1804(a)(7)(E). Finally, the statute
empowers the Chief Justice to designate seven judges to hear the requests for
foreign intelligence warrants and thus creates a special group of judges who
will develop expertise in this arcane area. 50 U.S.C. 1803
While the Act suggests that it is possible for the executive branch to conduct at
least some types of foreign intelligence surveillance while being subject to a
warrant requirement, the complexity of the statute also suggests that the
imposition of a warrant requirement, beyond the constitutional minimum
described in this opinion, should be left to the intricate balancing performed in
the course of the legislative process by Congress and the President. The
elaborate structure of the statute demonstrates that the political branches need
great flexibility to reach the compromises and formulate the standards which
will govern foreign intelligence surveillance. Thus, the Act teaches that it
would be unwise for the judiciary, inexpert in foreign intelligence, to attempt to
enunciate an equally elaborate structure for core foreign intelligence
surveillance under the guise of a constitutional decision. Such an attempt would
be particularly ill-advised because it would not be easily subject to adjustment
as the political branches gain experience in working with a warrant requirement
in the foreign intelligence area.
5

As Attorney General Bell testified at the hearing on the motion to suppress the
fruits of the surveillance: "Let me say that every one of these
counterintelligence investigations involved, nearly all of them that I have seen,
involves crime in an incidental way. You never know when you might turn up
with something you might want to prosecute."

The FBI surveillance continued for over 260 days. Because the district court
suppressed all evidence obtained from the surveillance after July 20, only the
seventy-day period preceding that date is relevant. The district court also ruled
that the blanket surveillance after July 20 was unreasonable, because the
government had succeeded in identifying Humphrey as the sole source of the
documents by that date

In addition to the surveillance of Truong, the government installed a secret

video tape camera in Humphrey's office at the United States Information
Agency. In his brief, Humphrey does not discuss this intrusion at length,
perhaps because the evidence obtained from the video tape did not play an
important role at trial. In any case, we affirm the ruling of the district court that
the video-taping was reasonable up to July 20, because the FBI took steps to
minimize the intrusion and because the taping was necessary to determine how
Humphrey handled government documents while at work

A letter and another package were searched without a warrant but with
executive authorization. Because both of those searches took place before July
20, in accordance with our resolution of the issue of a foreign intelligence
warrant exception, we conclude that neither of these warrantless searches
violated the Fourth Amendment

The defense raises another challenge to the espionage convictions based upon
the district court's instruction on classification of documents. An examination of
the instruction reveals, however, that it was entirely proper. First, the district
judge informed the jury that it might "consider the testimony that the
documents were classified." Certainly the classification of the documents was
relevant to the question of whether they related to the "national defense." See
United States v. Dedeyan, 584 F.2d 36, 40-41 (4 Cir.1978). Second, the district
judge correctly instructed the jury that the official nature of the documents
would be pertinent to whether their transmission would injure the United States
or aid a foreign nation. Finally, the jury was told that the defendants would not
be guilty of transmitting national defense information if the information were
available in the public domain. Thus, the district court did not place too great an
emphasis on the classification of the documents or their official nature and
specifically instructed the jury that transmission of publicly available
information did not fall within the statutory prohibitions

10

Section 793(e) contains another possible ambiguity. It punishes only those who
have "unauthorized possession" of national defense information. The trial judge
provided adequate content for this phrase by advising the jury that a person
would have authorized possession if he had an appropriate security clearance
and if he gained access to the document because it was necessary to the
performance of his official duties

11

Defendants make two other objections to the espionage convictions which we

find without merit. Contrary to the defendant's contention, venue for 794(a)
and 793(e) charges was properly laid in the Eastern District of Virginia. Even
though Humphrey gave Truong the documents in the District of Columbia,
Truong passed them to Krall in Alexandria, Virginia. Since Krall was the
means by which the documents were carried to the Vietnamese in Paris, the
proscribed act, the act of transmission, took place in Alexandria. See United
States v. Walden, 464 F.2d 1015 (4 Cir.), cert. denied, 409 U.S. 867, 93 S.Ct.
165, 34 L.Ed.2d 116 (1972)
Finally, the district court included all the elements of the espionage offenses in
its charge and did not include only two elements as the defendants insist.

12

The district court will, of course, be strict in its application of harmless error

doctrine to any nonproduction of Jencks Act material. See Goldberg v. United

States, 425 U.S. 94, 111 n.21, 96 S.Ct. 1338, 1348 n.21, 47 L.Ed.2d 603 (1976)
13

We reject two other Jencks Act claims raised by the defendants. First, the
defendants contend that the district judge should have held a hearing under
Campbell v. United States, 365 U.S. 85, 81 S.Ct. 421, 5 L.Ed.2d 428 (1961)
(Campbell I ), to determine whether documents prepared by Hall contained
Jencks Act statements of Krall. Unlike the situation in Campbell I, in this case
there was no need for a hearing to gather extrinsic evidence in order to
determine whether Hall's reports contained "statements." Because Hall
sometimes used quotation marks in his reports, the defense suggested that Hall's
reports amounted to a "substantially verbatim recital" of Krall's comments to
him. 18 U.S.C. 3500(e)(2). By reading the reports and examining the context
in which the quotation marks were used, the district judge could determine on
his own whether the quotation marks enclosed Krall's exact words or whether
the quotation marks were used by Hall merely as literary devices. Here, then,
no hearing was necessary
Second, the defendants argue that the district judge withheld Jencks Act
material from them because it was classified. Although the district judge
commented that there was "a little more burden" in this case than the usual
Jencks Act case because the documents were classified, he did not employ a
standard that would deny the defendants information to which they were
entitled under the Jencks Act. Rather, he indicated by his comments only that
he applied the Jencks Act in this instance more strictly than he would in the
ordinary case. In fact, the district judge admitted that he had "turned over things
arguably useful though repetitious."

14

One case has limited 641 to tangibles. Chappell v. United States, 270 F.2d
274 (9 Cir. 1959). That case held that an Air Force officer did not violate 641
by appropriating the labor of an airman while on duty, because the airman's
labor was an intangible outside the scope of 641

15

Another passage conveys similar thoughts: "The purpose which we here

attribute to Congress . . . demonstrates that the serious problem in drafting such
a statute is to avoid gaps and loopholes between offenses." 342 U.S. at 272-73,
72 S.Ct. at 254
In the first part of the opinion, the Court held that Congress did not intend to
omit criminal intent as an element of the crime proscribed in 641 by failing to
include an explicit mention of criminal intent. The Court concluded that
Congress must have been aware that the criminal acts listed in 641 had at
common law always included criminal intent as an essential element and that

therefore the Court would not infer that Congress had deleted criminal intent as
an element of the crimes. 342 U.S. at 263, 72 S.Ct. at 249. This holding that
Congress meant to include the critical element of criminal intent when it
codified these common law crimes does not undercut the Court's separate
holding that Congress intended to criminalize a broad range of wrongful
takings, beyond the confines of the common law, which were committed with
criminal intent.
16

See also United States v. Friedman, 445 F.2d 1076 (9 Cir.), cert. denied sub
nom. Jacobs v. United States, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275
(1971). One district court has concluded that 641 does not include the
unauthorized copying of government documents. United States v. Hubbard, 474
F.Supp. 64, 79-80 (D.D.C.1979) (dicta)
Courts which have interpreted other criminal statutes containing phrases similar
to "thing of value" have decided that the statutory language included both
tangible and intangible property. See, e. g., United States v. Zouras, 497 F.2d
1115 (7 Cir. 1974); United States v. Bottone, 365 F.2d 389 (2 Cir.), cert.
denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966).

17

Of course, I express no opinion whether 641 as applied to classified

information would in fact violate the first amendment. I merely note the
apparent first amendment difficulties raised by the vagueness of the statute
when it is applied to the theft of government information

18

Two of the espionage statutes appear to reach much further, and, on first
reading, seem to penalize the merely willful disclosure of most classified
information. 18 U.S.C. 793(d) and (e). It has been suggested that Congress
did not intend these statutes to have such a broad meaning. See Edgar &
Schmidt, The Espionage Statutes and Publication of Defense Information, 73
Colum.L.Rev. 929, 1031-57 (1973). I would not need to decide exactly how far
these statutes extend. I would need only to hold that, whatever the precise scope
of 793(d) and (e), the general terms of 641 should not be employed to serve
as a broad prohibition against the authorized disclosure of classified
information when Congress has chosen to enact a series of criminal statutes
directly aimed at classified information

19

See also 50 U.S.C. 783(c), the counterpart of 783(b), which punishes a

foreign agent or member of a Communist organization who receives classified
information from a government employee

20

See also 18 U.S.C. 793(f), which punishes anyone, "being entrusted with or
having lawful possession" of national defense documents, who (1) permits
them to be destroyed through gross negligence or (2) fails to report their illegal

removal from proper custody

21

When it enacted 798, Congress certainly did not conceive that 641 would
prevent the unauthorized disclosure of classified information. In fact, the House
Report assumed that, other than the predecessor of 798, the espionage statutes
were the only criminal statutes which protected classified information. The
House Report explained that the espionage statutes did not provide sufficient
protection for classified communications information because under the
espionage statutes, "unauthorized revelation of information of this kind can be
penalized only if it can be proved that the person making the revelation did so
with an intent to injure the United States." H.R.Rep.No.1895, 81st Cong., 2d
Sess. (1950), reprinted in (1950) U.S.Code Cong.Serv., pp. 2297, 2298. The
Report went on to note that former government employees would not be subject
to penalties for disclosing classified communications information:
During the recent war there were many persons who acquired some
information covered by this bill in the course of their duties. Most of these
individuals are no longer connected with the services and are not now
prohibited from making disclosures which can be most damaging to the
security of the United States. They are subject to the temptations of personal
gain and of publicity in making sensational disclosures of the personal
information within the purview of this act.
Id.
The Report described the congressional response to this security threat by
emphasizing the limited nature of the criminal prohibition embodied in 798:
This bill makes it a crime to reveal the methods, techniques, and material used
in the transmission by this Nation of enciphered or coded messages. It does not
control in any way the free dissemination of information which might be
transmitted by code or cipher.
Id.
Thus, in 1950 Congress felt that, after it enacted 798, the criminal code would
contain two prohibitions against the unauthorized disclosure of classified
information: the espionage statutes, which are constricted by their intent
requirement, and 798, which protected one narrow category of classified
information. It would greatly disrupt the network of carefully confined criminal
prohibitions Congress thought it had enacted in 1950, a network which has
remained largely unchanged until the present day, if the courts permitted 641
to serve as a criminal prohibition against the merely willful unauthorized
disclosure of any classified information.

22

I also note that currently Congress is debating an addition to the criminal code
which would make it unlawful for certain persons to disclose another category
of classified information, the names of covert agents serving the United States
intelligence agencies. See S. 2284, 96th Cong., 2d Sess. 701 (1980).
According to the sponsor of the Senate bill, this proposed statute would punish
only those who have had authorized access to the classified information. The
authors of the bill felt that they "should concentrate (their efforts) on those who
have abused their trust" because of "reasons relating to constitutional
considerations." 126 Cong.Rec. S. 1306 (daily ed. February 8, 1980) (remarks
of Sen. Huddleston). If 641 were applied to classified information, as the
government urges in this case, this congressional debate would be to a great
extent moot, because 641 would punish anyone who disclosed any classified
information, including the names of covert agents

23

When Congress adopted 798 to protect classified communications

information, Congress consciously refrained from enacting a criminal
prohibition applicable to disclosures of other categories of classified
information:
This bill is an attempt to provide . . . legislation for only a small category of
classified matter, a category which is both vital and vulnerable to an almost
unique degree.
. . . Under the bill as now drafted there is no penalty for publishing the contents
of United States Government communications (except, of course, those which
reveal information in the categories directly protected by the bill itself). Even
the texts of coded Government messages can be published without penalty as
far as this bill is concerned, whether released for such publication by due
authority of a Government department or passed out without authority or
against orders by personnel of a department. In the latter case, of course, the
Government personnel involved might be subject to punishment by
administrative action but not, it is noted, under the provisions of this bill.
The bill, while carefully avoiding the infringement of civil liberties, extends the
protected field covered by the (predecessor of 798) . . . .
Here, then, is another in a long series of conscious congressional decisions not
to render criminal the mere unauthorized disclosure of all categories of
classified information.

24

The government urges that the conviction be upheld on the theory that the
defendants stole government property in the form of Humphrey's work time and
xeroxing facilities when Humphrey copied the documents during working
hours at the United States Information Agency. The Third Circuit in United

States v. DiGilio, 538 F.2d 972 (1976), cert. denied sub nom. Lupo v. United
States, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977), recently upheld a
conviction under 641 based on this theory. In this case, however, the
defendants were indicted based on the conversion of the information, not the
theft of government xeroxing resources, and the judge's jury instructions
likewise only dealt with conversion of information. Therefore, I think this
rationale is unavailable to affirm the convictions and pass no judgment upon
the validity of this method of proceeding under 641
25

Importantly, there is no evidence in this case that the government acted in bad
faith. While the State Department did not make every effort to prevent the
ambassador from leaving the United States, the government fully complied
with the limited terms of the court order issued by the district judge. As the
district court ruled, the order only instructed the government to refrain from
taking further affirmative action to expel the ambassador from the United
States. Thus, the order did not require the government to withdraw its recall
request, nor did it require the government to take other steps to convince the
ambassador to remain in the United States. By failing to rescind its recall
request, then, the State Department did not act in bad faith
Moreover, there is no proof that the State Department made the recall request
merely to deny the defense a favorable witness.

26

In addition, we note that the defendants have not argued that the government
failed to cooperate with them in any efforts to secure the presence of the
Vietnamese ambassador at trial. After the ambassador left the United States, the
district judge extracted a pledge from the government that it would aid the
defendants in an attempt to convince the Vietnamese government to allow the
ambassador to appear at trial. Neither party has informed the court of the result
of the defendants' entreaties to the Vietnamese government, if any were made,
and we infer from this silence that the government did not violate its pledge

27

The defendants make several other challenges to their convictions which

deserve only brief mention
Humphrey petitioned the court to permit him to take a lie detector test and
admit the results into evidence. Those circuits which have allowed the
admission of the results of unstipulated lie detector tests have granted the
district judge great discretion in deciding whether to admit the test results. See,
e. g., United States v. Mayes, 512 F.2d 637, 648 n.6 (6 Cir.), cert. denied, 422
U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975). We need not pass on the
admissibility of such test results, because we find that even if they were
admissible, the district judge did not abuse his discretion by excluding them in

this case.
During his rebuttal, the prosecutor argued that disclosures of secret information
could harm the national defense even if they "wouldn't put Russians on
Pennsylvania Avenue." Although the comment may have been overblown, it
was not so inflammatory as to require reversal, particularly in light of the
equally rhetorical argument of the defense and in light of the fact that the Soviet
Union did not play a role in this case. The prosecutor also made comments in
his rebuttal that might be interpreted as shifting the burden of proof in some
areas to the defense. The district judge interrupted the prosecutor's rebuttal and
corrected any misimpressions through corrective instructions, and, in addition,
the district judge's final instructions included the usual burden of proof
directives.
Finally, we reject the defendants' contentions that the indictment was
insufficient and that the voir dire was inadequate.
1

Barnes v. United States (1973) 412 U.S. 837, 848, n.16, 93 S.Ct. 2357, 2364
n.16, 37 L.Ed.2d 380; Lawn v. United States (1958) 355 U.S. 339, 359, 78
S.Ct. 311, 322, 2 L.Ed.2d 321; Roviaro v. United States (1957) 353 U.S. 53,
59, n.6, 77 S.Ct. 623, 627 n.6, 1 L.Ed.2d 639; Hirabayashi v. United States
(1943) 320 U.S. 81, 85, 63 S.Ct. 1375, 1378, 87 L.Ed. 1774

United States v. Powell (4th Cir. 1969) 407 F.2d 582, 585, cert. denied, 395
U.S. 966, 89 S.Ct. 2113, 23 L.Ed.2d 753; United States v. Wechsler (4th Cir.
1968) 392 F.2d 344, 348, cert. denied, 392 U.S. 932, 88 S.Ct. 2283, 20 L.Ed.2d
1389; United States v. Jacobs (4th Cir. 1967) 386 F.2d 170, 172