Professional Documents
Culture Documents
United States District Court For The District of Columbia
United States District Court For The District of Columbia
v.
Criminal Action No. 10-225 (CKK)
STEPHEN JIN-WOO KIM,
Defendant.
indictment with unlawfully disclosing national defense information to a person not entitled to
receive it in violation of 18 U.S.C. § 793(d) and making a false statement to agents ofthe Federal
the Court are: Defendant's [23] Motion to Dismiss Count One of the Indictment Under the
Treason Clause ofthe Constitution; Defendant's [24] Motion to Dismiss Count One of the
Indictment on Due Process and First Amendment Grounds; and Defendant's [25] Motion to
Dismiss Count Two of the Indictment and for an Evidentiary Hearing. 1 The Government has
filed a consolidated opposition to these three motions, and Defendant has filed a consolidated
reply. Accordingly, the motions are ripe for the Court's resolution. For the reasons explained
I. BACKGROUND
Defendant was charged in a two-count indictment on August 19, 2010 and arraigned on
August 27, 2010. Count One of the Indictment alleges that Kim had lawful possession of, access
1
Defendant has also filed a [26] Motion to Suppress Statements and for an Evidentiary
Hearing. The Court shall address this motion separately and set a date for an evidentiary hearing
at a later time.
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 2 of 24
to, control over, or was entrusted with information relating to national defense-specifically, the
INFORMATION concerning intelligence sources and/or methods and intelligence about the
military capabilities and preparedness of a particular foreign nation. The indictment charges that
Kim had a reason to believe that this information could be used to the injury of the United States
and to the advantage of a foreign nation and that Kim knowingly and willfully communicated,
delivered or transmitted that information to a reporter for a national news organization, who was
not entitled to receive that information. The indictment charges this conduct was a violation of
18 U.S.C. § 793(d), part ofthe Espionage Act of 1917, as amended. Section 793(d) reads as
follows:
Whoever, lawfully having possession of, access to, control over, or being entrusted
with any document, writing, code book, signal book, sketch, photograph,
photographic negative, blueprint, plan, map, model, instrument, appliance, or note
relating to the national defense, or information relating to the national defense which
information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicates,
delivers, transmits or causes to be communicated, delivered, or transmitted or
attempts to communicate, deliver, transmit or cause to be communicated, delivered
or transmitted the same to any person not entitled to receive it, or willfully retains the
same and fails to deliver it on demand to the officer or employee of the United States
entitled to receive it ... [s]hall be fined ... or imprisoned not more than ten years,
or both.
18 U.S.C. § 793(d).
Count Two of the indictment charges that on or about September 24, 2009, Kim denied to
agents of the Federal Bureau of Investigation that he had had any contact with a named reporter
for a national news organization since meeting the reporter in or about March 2009. The
indictment alleges that Kim actually had repeated contact with the reporter in the months
following the March 2009 meeting. The indictment charges that Kim knowingly and willfully
2
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 3 of 24
made a materially false, fictitious, and fraudulent statement and representation to the FBI in
violation of I8 U.S.C. § IOOI(a)(2). Section IOOI provides that any person within the
jurisdiction of the executive, legislative, or judicial branch of the Government of the United
(I) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
(3) makes or uses any false writing or document knowing the same to contain any
materially false, fictitious, or fraudulent statement or entry;
I8 U.S.C. § I 00 I (a). Kim contends that when they asked him about whether he had met with the
news reporter, the FBI agents already knew the answer to the question. Kim also contends that
he provided truthful information about his meetings with the reporter before the investigators
II. DISCUSSION
Defendant's first motion to dismiss Count One of the indictment is based on his view that
the Treason Clause, Article III, Section 3 of the United States Constitution, precludes Congress
from imposing criminal liability for the conduct charged in Count One. Defendant argues that
the Framers intended to limit the power of Congress to prosecute persons for "political" offenses
against the United States, and they did so by enshrining in the Constitution a limited definition of
treason with heightened evidentiary requirements. The Treason Clause provides in full:
Treason against the United States, shall consist only in levying War against them, or
3
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 4 of 24
in adhering to their Enemies, giving them Aid and Comfort. No Person shall be
convicted of Treason unless on the Testimony of two Witnesses to the same overt
Act, or on Confession in open Court. The Congress shall have Power to declare the
Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood,
or Forfeiture except during the Life of the Person attained.
U.S. Const., art. III, § 3. Defendant argues that the Framers intended treason to be the exclusive
mechanism for prosecuting crimes against the United States, and therefore he contends that the
Government cannot prosecute him under the Espionage Act for speech-based conduct against the
United States. Defendant's argument, essentially, is that he must be charged with treason or
nothing at all.
Defendant makes a compelling and eloquent argument based on the history of treason in
England and America and the debate among the Framers regarding the Treason Clause.
However, Defendant's interpretation of the Treason Clause has been rejected by the Supreme
Court. In Cramer v. United States, 325 U.S. 1 ( 1945), the Supreme Court reviewed a conviction
for treason. In doing so, the Court rejected the government's argument that the Treason Clause
should be interpreted broadly, noting that "the treason offense is not the only nor can it well serve
as the principal legal weapon to vindicate our national cohesion and security." !d. at 45. The
Court elaborated:
Of course we do not intimate that Congress could dispense with the two-witness rule
merely by giving the same offense another name. But the power of Congress is in no
way limited to enact prohibitions of specified acts thought detrimental to our wartime
safety. The loyal and the disloyal alike may be forbidden to do acts which place our
security in peril, and the trial thereof may be focussed [sic] upon defendant's specific
intent to do those particular acts thus eliminating the accusation of treachery and
general intent to betray which have such passion-rousing potentialities. Congress
repeatedly has enacted prohibitions of specific acts thought to endanger our security
and the practice of foreign nations with defense problems more acute than our own
affords examples of others.
4
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 5 of 24
!d. at 45-46 (footnote omitted). Following the word "security" in this passage, the Court
included a footnote referencing the prior version of the Espionage Act provision with which Kim
is charged in Count One. See id. at 45 n.53. The Second Circuit has ruled, based on Cramer,
that prosecutions for Espionage Act violations are not subject to the requirements of the Treason
Clause and are properly prosecuted as separate offenses. See United States v. Rahman, 189 F .3d
88, 111-14 (2d Cir. 1999); United States v. Drummond, 354 F .2d 132, 152 (2d Cir. 1965). If
Defendant's interpretation of the Treason Clause were correct, the prosecutions in these cases
In fact, in Frohwerk v. United States, 249 U.S. 204 ( 1919)-a case not cited by the parties
in their discussion of this issue-the Supreme Court essentially rejected Defendant's argument
without discussion. Frohwerk involved review of convictions under the Espionage Act shortly
after its passage in 1917. Writing for the majority, Justice Oliver Wendell Holmes wrote,
Some reference was made in the proceedings and in argument to the provision in the
Constitution concerning treason, and it was suggested on the one hand that some of
the matters dealt with in the Act of 1917 were treasonable and punishable as treason
or not at all, and on the other that the acts complained of not being treason could not
be punished. These suggestions seem to us to need no more than to be stated.
249 U.S. at 210. The Court upheld the indictment. Other courts have recognized this holding of
Frohwerk and rejected similar arguments. For example, in Wimmer v. United States, 264 F. 11
(6th Cir. 1920), a case involving the Espionage Act, the court noted:
5
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 6 of 24
hence that it cannot be punished unless shown by the degree of proof required by the
Constitution. A very similar contention was summarily overruled by the Supreme
Court in Frohwerk ....
264 F. at 12; accord Berg v. State, 233 P. 497 (Okla. Crim. App. 1925) (rejecting challenge to
Both Frohwerk and Cramer make clear that conduct which is not equivalent to treason as
defined in the Treason Clause may be otherwise proscribed by Congress. Accordingly, the Court
finds that Defendant's prosecution under§ 793(d) does not violate the Treason Clause.
B. Motion to Dismiss Count One on Due Process and First Amendment Grounds
In his second motion to dismiss Count One of the indictment, Defendant raises challenges
under both the First and Fifth Amendments to the U.S. Constitution. First, Defendant argues that
his prosecution under § 793( d) violates his right to due process under the Fifth Amendment
because the statute fails to provide him constitutionally adequate notice that it was unlawful for
him to verbally communicate information contained in or derived from a classified report to the
news media. Second, Defendant argues that his prosecution under§ 793(d) violates the First
At the beginning of his motion to dismiss Count One on due process grounds, Defendant
briefly discusses the history of government leaks and essentially argues that the practice has
become so commonplace in the modem era that he could not have had fair warning that the
conduct charged in the indictment-which reaches the verbal disclosure of information obtained
vagueness doctrine, which generally holds that criminal statutes must be sufficiently specific that
6
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 7 of 24
they provide "fair warning" of the conduct that is proscribed. See United States v. Lanier, 520
U.S. 259, 266 (1997). The Fifth Amendment's guarantee of due process "bars enforcement of 'a
statute which either forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application."' !d. at 266
(quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 39I (I926)). This guarantee is also
enforced through the rule of lenity, which "ensures fair warning by so resolving ambiguity in a
criminal statute so as to apply it only to conduct clearly covered." !d. "[A]lthough clarity at the
requisite level may be supplied by judicial gloss on an otherwise uncertain statute, due process
bars courts from applying a novel construction of a criminal statute to conduct that neither the
statute nor any prior judicial decision has fairly disclosed to be within its scope." !d. (internal
citations omitted). The void-for-vagueness doctrine "requires legislatures to set reasonably clear
guidelines for law enforcement officials and triers of fact in order to prevent 'arbitrary and
discriminatory enforcement."' Smith v. Goguen, 4I5 U.S. 566, 572-73 (1974) (citations omitted).
Where a statute criminalizes activity that would otherwise be protected by the First Amendment,
"the doctrine demands a greater degree of specificity than in other contexts." !d. at 573; see also
Grayned v. City of Rockford, 408 U.S. I 04, I 09 (1972). "[T]he touchstone is whether the statute,
either standing alone or as construed, made it reasonably clear at the relevant time that the
Defendant argues that 18 U.S.C. § 793(d) is vague as applied to him in Count One
because it is not clear that the phrase "information relating to the national defense" encompasses
intangible information that might be gleaned from classified documents. Defendant points to the
fact that this phrase follows a series of tangible items (document, writing, code book, signal
7
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 8 of 24
book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument,
appliance, or note) and asks the Court to apply the doctrine of noscitur a sociis, a canon of
statutory construction that says that "words are generally known by the company they keep."
FTC v. Ken Roberts Co., 276 F.3d 583,590 (D.C. Cir. 2001). This canon is applied "to avoid
ascribing to one word a meaning so broad that it is inconsistent with its accompanying words,
thus giving 'unintended breadth to the Acts of Congress."' Gustafson v. A lloyd Co., 513 U.S.
561,575 (1995) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303,307 (1961)). However, it
is reasonably clear from the text and the structure of§ 793(d) that Congress intended the phrase
"information relating to the national defense" to encompass both physical and intangible forms of
information.
Firstly, the word "information" is usually defined so as to include intangible forms of data
or knowledge. See Merriam-Webster's Collegiate Dictionary 599 (lOth ed. 1997) (defining
established that, when the statutory language is plain, we must enforce it according to its terms."
Jiminez v. Quarterman, 555 U.S. 113, 118 (2009). Given this ordinary definition of the term, it
would be unusual to construe the word "information" to refer only to information in tangible
forms. This is particularly so in light of the fact that the list of tangible items in§ 793(d) is
structurally separated from the phrase "information relating to the national defense," which alone
is modified by the requirement that "the possessor has reason to believe [the information] could
be used to the injury of the United States or to the advantage of any foreign nation." 18 U.S.C.
§ 793(d). Congress's decision to impose a mens rea requirement for the communication,
delivery, or transmission of"information" but not for tangible items demonstrates that Congress
8
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 9 of 24
understood and embraced the distinction between the tangible items listed in the statute and
intangible "information." See United States v. Aquino, 555 F.3d 124, 131 n.13 (3d Cir. 2009)
("Section 793(e) differentiates between 'tangible' information, i.e., the laundry list of items in the
statute, and 'intangible' information, i.e., knowledge.") 2 ; United States v. Morison, 622 F. Supp.
2d 1009, 10 11 (D. Md. ), appeal dismissed, 77 4 F .2d 1156 (4th Cir. 1985).
Defendant argues that construing the word "information" as "knowledge" will lead to
absurd results because§ 793(d) makes it unlawful to "willfully retain[]" such information and
"fail[] to deliver it on demand to the officer or employee of the United States entitled to receive
it." 18 U.S.C. § 793(d). Defendant argues that it makes no sense to criminalize the retention of
otherwise. See United States v. Rosen, 444 F. Supp. 2d 664, 669 n.6 (E.D. Va. 2006) ("Because
punishing someone for the willful retention of intangible information, i.e., knowledge, is absurd,
this clause could not apply to the information alleged to have been disclosed orally to
[defendants]."). However, as Judge T.S. Ellis III recently explained in a thorough and thoughtful
opinion, "[a] closer look at§ 793 's history reveals that th[is] absurdity ... is a result of
inadvertence and careless drafting, and not an indication that the drafters intended to restrict the
prohibition of the first clause to tangible items." United States v. Rosen, 445 F. Supp. 2d 602,
615-17 (E.D. Va. 2006), aff'd in part on other grounds, 557 F.3d 192 (4th Cir. 2009). Therefore,
the fact that the retention clause in § 793( d) might apply only to tangible items does not provide a
basis for narrowing the plain meaning of "information" with respect to the communication
2
Section 793(e) contains the same language at issue as§ 793(d), but it applies to persons
who have unauthorized rather than lawful access to information relating to national defense. See
18 U.S.C. § 793(e).
9
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 10 of 24
clause. Furthermore, Defendant was not charged under the retention clause and therefore he
lacks standing to challenge it on vagueness grounds. See Vill. of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 495 (1982) ("A [party] who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of
others."); Parker v. Levy, 417 U.S. 733, 756 (1974) ("One to whose conduct a statute clearly
Defendant also argues that the phrase "relating to the national defense" is
unconstitutionally vague. However, the Supreme Court rejected this argument in Gorin v. United
States, 312 U.S. 19 (1941 ), which involved a challenge to the same language in § 2(a) of the
Espionage Act. 3 The Court found that the term "national defense" has "a well understood
connotation" and held that "[t]he language employed appears sufficiently definite to apprise the
public of prohibited activities and is consonant with due process." 312 U.S. at 28. "The question
of the connection of the information with national defense is a question of fact to be determined
by the jury as negligence upon undisputed facts is determined." !d. at 32. Other courts have also
3
Section 2(a) of the Espionage Act provided as follows:
Whoever, with intent or reason to believe that it is to be used to the injury of the
United States or to the advantage of a foreign nation, communicates, delivers, or
transmits, or attempts to, or aids or induces another to, communicate, deliver, or
transmit, to any foreign government, or to any faction or party or military or naval
force within a foreign country, whether recognized or unrecognized by the United
States, or to any representative officer, agent, employee, subject, or citizen thereof,
either directly or indirectly, any document, writing, code book, signal book, sketch,
photograph, photographic negative, blue print, plan, map, model, note, instrument,
appliance, or information relating to the national defense, shall be punished by
imprisonment for not more than twenty years ....
40 Stat. 217.
10
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 11 of 24
recognized that the phrase "relating to the national defense" in§ 793(d) is not unconstitutionally
vague. See United States v. Morison, 844 F.2d 1057, 1071-74 (4th Cir. 1988); Rosen, 445 F.
fact that he is charged with disclosing the contents of an intelligence report concerning
intelligence sources and/or methods and intelligence about the military capabilities and
"the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave
damage to the national security." Exec. Order No. 12958 § 1.2, as amended by Exec. Order No.
13,292, 3 C.F.R. 196 (2004), reprinted, 50 U.S.C. § 435 note (2006). Furthermore, "[t]he
national security." !d. § 1.1. There can be no reasonable doubt that such information qualifies as
"relating to the national defense." Accord Morison, 844 F.2d at 1074 (rejecting vagueness
challenge to§ 793(d) based in part on defendant's knowledge that information was classified as
"Secret").
Defendant may dislike the breadth of the phrase "information relating to the national
defense," but breadth and vagueness are not congruent concepts. To sustain a vagueness
challenge, "the complainant must prove that the enactment is vague 'not in the sense that it
requires a person to conform his conduct to an imprecise but comprehensible normative standard,
but rather in the sense that no standard of conduct is specified at all."' Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489,495 n.7 (1982) (quoting Coates v. City of
Cincinnati, 402 U.S. 611, 614). The Due Process Clause does not require "that a person
11
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 12 of 24
contemplating a course of behavior know with certainty whether his or her act will be found to
violate the [statute]. Rather, ... [it] requires that the enactment be drafted with reasonable
specificity sufficient to provide fair notice." United States v. Thomas, 864 F.2d 188, 195 (D.C.
Cir. 1988). The Court finds that the ordinary meaning of "information relating to national
information.
Secondly, any vagueness concerns about the meaning of"information relating to national
defense" are eliminated by the other limitations in the statute, most importantly the willfulness
requirement. The Supreme Court has recognized that "a scienter requirement may mitigate a
law's vagueness, especially with respect to the adequacy of notice to the complainant that his
conduct is proscribed." Vill. of Hoffman Estates, 455 U.S. at 499. In this case, the Government
must prove not only that Defendant had a reasonable belief that the information he possessed
could be used to the injury of the United States or to the advantage of any foreign nation but also
that Defendant willfully communicated that information to a person not entitled to receive it.
"[I]n order to establish a willful violation of a statute, the Government must prove that the
defendant acted with knowledge that his conduct was unlawful." Bryan v. United States, 524
U.S. 184, 191-92 ( 1998) (internal quotation marks omitted). Because the Government must
prove that Defendant knew his conduct was unlawful, he cannot complain that he did not have
fair warning that he could be criminally prosecuted for his actions. See Screws v. United States,
325 U.S. 91, 102 (1945) (plurality opinion) ("[W]here the punishment imposed is only for an act
knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be
said to suffer from lack of warning or knowledge that the act which he does is a violation of
12
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 13 of 24
law."); Gorin, 312 U.S. at 27-28 (rejecting vagueness challenge based on scienter requirement in
statute).
Defendant also argues that § 793( d) is unconstitutionally vague because it does not
specify who is "not entitled to receive" such information. Defendant is correct that the statute
does not define this phrase. However, courts interpreting similar language have generally
construed the statute harmoniously with applicable regulatory restrictions on the disclosure of
protected information. For example, in United States v. Girard, 601 F.2d 69 (2d Cir. 1979), the
court affirmed the defendants' convictions under 18 U.S.C. § 641 4 for selling confidential law
enforcement records; the court held that the law enforcement agency's own "rules and
clarification ofthe conduct proscribed by the statute." !d. at 71; see also McGehee v. Casey, 718
F .2d 113 7, 1143-44 (D.C. Cir. 1983) (construing the term "national security" with reference to
the classification system). As the district court explained in United States v. Morison, "[t]he
phrase 'not entitled to receive' is not at all vague when discussed in reference with the
classification system, which clearly sets out who is entitled to receive (those with proper security
clearances and the 'need to know') and [defendant] was certainly aware of the proscripts of the
classification system." 604 F. Supp. at 662; accord Morison, 844 F.2d at 1075 ("We ... hold
that the words 'entitled to receive' in the statute in this case can be limited and clarified by the
Classification Regulations and, as so limited and clarified, are not vague."); "[W]hile the
language of the statute, by itself, may lack precision, the gloss of judicial precedent has clarified
4
The statute provides in pertinent part that "[ w ]hoever ... without authority, sells,
conveys or disposes of any record ... of the United States" shall be subject to criminal sanction.
18 U.S.C. § 641.
13
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 14 of 24
that the statute incorporates the executive branch's classification regulations, which provide the
Defendant argues that incorporating the classification regulations does not resolve the
ambiguity in the statute with respect to oral disclosures of information. Defendant proffers a
hypothetical situation in which a government official has access to classified information that is
also published in a newspaper. Because classification regulations dictate that "[ c]lassified
identical or similar information," Exec. Order No. 13292 § 1.1(b), Defendant argues that the
hypothetical government official might be prosecuted for orally discussing the contents of the
newspaper article with a member of the press, whereas another government official who did not
have access to the classified information could discuss the same article without fear of
prosecution. Defendant also argues that applying§ 793(d) to oral disclosures is problematic
because not all information contained within a classified document is necessarily classified, and
therefore government officials are not given fair notice as to what information can or cannot be
revealed. The Court fails to see a vagueness problem with Defendant's hypothetical. First of all,
it is far from clear that the hypothetical defendant would be found to have "communicated,
delivered, or transmitted" information if he did not explicitly or implicitly confirm the validity of
the newspaper article. Second of all, the hypothetical defendant might be able to persuade a jury
that based on the public disclosure of the information, he did not act "willfully." Ultimately,
these are factual issues that must be decided by the jury in a particular case; they do not indicate
unconstitutional vagueness in the statute. To the extent that Defendant intends to argue that the
information he is charged with leaking was previously disclosed or was not properly classified,
14
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 15 of 24
he may do so as part of his defense, but such arguments do not render the statute vague.
Finally, Defendant argues that his prosecution for Count One violates the "arbitrary
enforcement" aspect of the vagueness doctrine, which "require[s] that a legislature establish
minimal guidelines to govern law enforcement." Smith, 415 U.S. at 574. Defendant argues that
government leaking is commonplace but rarely prosecuted, and therefore it is nearly impossible
to determine the circumstances under which § 793 will be enforced. Again, however, the
willfulness requirement in the statute effectively eliminates any concerns that Defendant may
have been subject to arbitrary enforcement. See United States v. Klecker, 348 F.3d 69, 71 (4th
Cir. 2003) ("The intent requirement alone tends to defeat any vagueness challenge based on the
potential for arbitrary enforcement."). The fact that the government infrequently prosecutes
leakers under § 793( d) does not necessarily suggest that enforcement is arbitrary. To the
contrary, the statute requires the Government to prove: ( 1) that the defendant lawfully had
possession of, access to, control over, or was entrusted with (2) information relating to the
national defense (3) that the defendant reasonably believed could be used to the injury of the
United States or to the advantage of a foreign nation and (4) that the defendant willfully
communicated, delivered, or transmitted such information to a person not entitled to receive it.
18 U.S.C. § 793(d). The difficulty in establishing such a violation, combined with the sensitive
nature of classified information and the procedures that must be followed in using such
information in a trial, see 18 U.S.C. App. 3, are the most likely reasons for the dearth of
prosecutions. Our justice system's reliance on prosecutorial discretion means that Defendant
cannot be set free merely because others have escaped prosecution for similar acts. The Court is
not persuaded that§ 793(d) is so vague as to permit arbitrary enforcement. Therefore, the Court
15
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 16 of 24
shall deny Defendant's motion to dismiss Count One on due process grounds.
Defendant argues that § 793( d), when applied to information communicated orally,
amounts to a content-based restriction on his First Amendment right to free speech that cannot
survive strict scrutiny. The Government argues that the conduct charged in the indictment is not
protected by the First Amendment; alternatively, it argues that § 793( d) can withstand any level
Supreme Court has made clear that not all categories of speech are protected by the First
Amendment. "From 1791 to the present, ... the First Amendment has permitted restrictions
upon the content of speech in a few limited areas." United States v. Stevens, 130 S. Ct. 1577,
1584 (20 10) (quotation marks and citation omitted). "These historic and traditional categories
... includ[e] obscentiy, defamation, fraud, incitement, and speech integral to criminal conduct."
!d. (quotation marks and internal citations omitted). With respect to the latter category, the
Supreme Court has said, "It rarely has been suggested that the constitutional freedom for speech
and press extends its immunity to speech or writing used as an integral part of conduct in
violation of a valid criminal statute. We reject the contention now." Giboney v. Empire Storage
& Ice Co., 336 U.S. 490,498 (1946); accord United States v. Freeman, 761 F.2d 549,552 (9th
Cir. 1985) ("[W]here speech becomes an integral part of the crime, a First Amendment defense is
foreclosed even if the prosecution rests on words alone."). Because§ 793(d) makes it unlawful
to communicate national defense information to those not entitled to receive it, courts have held
that the First Amendment affords no protection for this type of conduct even though it clearly
16
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 17 of 24
involves speech. See, e.g., Haig v. Agee, 453 U.S. 280, 308-09 (1981) (holding that defendant's
"repeated disclosures of intelligence operations and names of intelligence personnel" are "clearly
not protected by the Constitution"); Frohwerk, 249 U.S. at 205-06 (holding that defendants'
attempts to cause disloyalty and mutiny in the military through the publication of newspaper
articles in violation of the Espionage Act were not protected by the First Amendment); Morison,
844 F .2d at 1069 ("[I]t seems beyond controversy that a recreant intelligence department
employee who had abstracted from the government files secret intelligence information and had
wilfully transmitted or given it to one 'not entitled to receive it' as did the defendant in this case,
is not entitled to invoke the First Amendment as a shield to immunize his act of thievery.").
Defendant acknowledges that "the First Amendment does not confer on a government
official a right to violate the law in order to disseminate information to the public," Def. 's Br. at
30, but he contends that purely oral dissemination of information is somehow protected. The
Supreme Court, however, has made clear that the First Amendment protects expressive conduct
whether it is oral, written, or symbolic. See Texas v. Johnson, 491 U.S. 397, 404 (1989) ("The
First Amendment literally forbids the abridgment only of 'speech,' but we have long recognized
that its protection does not end at the spoken or written word."). There is no authority for
Defendant's proposition that the First Amendment protects his ability to orally disclose the
contents of a classified document but not his transmission of that document in writing.
Recently, the U.S. Court of Appeals for the D.C. Circuit, sitting en bane, noted that "there
are many federal provisions that forbid individuals from disclosing information they have
lawfully obtained," including§ 793(d), and that "[t]he validity of these provisions has long been
assumed." Boehner v. McDermott, 484 F.3d 573, 578 (D.C. Cir. 2007) (en bane). Relying on
17
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 18 of 24
the Supreme Court's decision in United States v. Aguilar, 515 U.S. 593 (1995), the D.C. Circuit
explained that "those who accept positions of trust involving a duty not to disclose information
they lawfully acquire while performing their responsibilities have no First Amendment right to
disclose that information." 484 F.3d at 579. Under that standard, it seems clear that Defendant's
prosecution under§ 793(d) does not run afoul of the First Amendment. By virtue of his security
clearance, Defendant was entrusted with access to classified national security information and
had a duty not to disclose that information. He cannot use the First Amendment to cloak his
breach of that duty. The Government also notes that Defendant expressly waived in writing his
right to disclose the national security information he obtained while in his government position.
Courts have uniformly held that government employees who sign such nondisclosure agreements
lack protection under the First Amendment. See McGehee, 718 F .2d at 1143 (holding that CIA's
enforcement of secrecy agreement signed by former employee does not violate the First
Amendment); Berntsen v. CIA, 618 F. Supp. 2d 27,29 (D.D.C. 2009) ("[T]he CIA's enforcement
Accordingly, the Court finds that Defendant's First Amendment challenge lacks merit.
C. Motion to Dismiss Count Two of the Indictment and for an Evidentiary Hearing
Defendant moves to dismiss Count Two of the Indictment, which charges that Kim
intentionally made materially false statements to FBI agents during the course of their
investigation by lying about never having met with a certain national news reporter. Defendant
argues that he is being prosecuted simply for denying his guilt to investigators, and he argues that
his prosecution cannot stand because (I) the government set a "perjury trap" by asking questions
18
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 19 of 24
to which it already knew the answers and (2) Defendant recanted any false statements before the
government relied on them. Because these arguments involve factual issues, Defendant asks the
Court for an evidentiary hearing. The Government contends that Defendant's motion should be
denied on both procedural and substantive grounds. The Government argues that Defendant's
motion raises factual issues concerning Kim's defenses that cannot be resolved in a pretrial
motion. The Government also argues that even assuming Kim's version of the facts, his motion
1. Section 1001 Does Not Contain an Exception for False Statements that Do
Not Influence the Government's Decisions
Defendant argues that the Government may not prosecute a defendant under 18 U.S.C.
§ 1001 for simply denying guilt or for providing a false response to a question for which the
government already knows the answer. Defendant's argument is based on the requirement that
the statement be materially false; Defendant contends that a statement cannot be materially false
Court's decision in Brogan v. United States, 522 U.S. 398 ( 1998). In Brogan, the Supreme Court
ruled that § 1001 does not contain an exception for false statements that merely deny
wrongdoing, the so-called "exculpatory no." The facts of Brogan are similar to those alleged by
the Government in this case. The defendant in Brogan voluntarily agreed to answer questions
asked by federal agents who visited him at his home. 522 U.S. at 399. The agents asked the
defendant whether he had ever received any cash or gifts from a certain real estate company
during his tenure as a union officer. ld. The defendant answered "no," and the agents then
19
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 20 of 24
disclosed evidence showing that the defendant had in fact received such payments. !d. at 399-
400. The agents told the defendant that lying to them was a federal crime, but the defendant
declined to change his answer. /d. at 400. The defendant was found guilty of making a false
statement in violation of§ I 00 I, and he appealed, arguing that § I 001 covers only false
statements that "pervert governmental functions" and that his simple denial did not do so. /d. at
We cannot imagine how it could be true that falsely denying guilt in a Government
investigation does not pervert a governmental function. Certainly the investigation
of wrongdoing is a proper governmental function; and since it is the very purpose of
an investigation to cover the truth, any falsehood relating to the subject of the
investigation perverts that function. It could be argued, perhaps, that a disbelieved
falsehood does not pervert an investigation. But making the existence of this crime
tum upon the credulousness of the federal investigator (or the persuasiveness of the
liar) would be exceedingly strange; such a defense to the analogous crime of perjury
is certainly unheard of.... In any event, we find no basis for the major premise that
only those falsehoods that pervert governmental functions are covered by § I 00 I.
/d. at 402. The Court also rejected the defendant's claim that the Fifth Amendment protected his
right to deny wrongdoing, noting that "the privilege against compulsory self-incrimination allows
a witness to remain silent, but not to swear falsely." !d. (quoting United States v. Apfelbaum, 445
U.S. 115, 117 (1980)). Finally, the Court rejected the notion that allowing an exception for the
"exculpatory no" was necessary to curb the potential for prosecutorial abuse, explaining that
Congress "has decreed the obstruction of a legitimate investigation to be a separate offense, and a
The only relevant difference between the version of§ I 00 I addressed in Brogan and the
current version of the statute is the addition of the word "material" to § I 00 I (a)(2). 5 Therefore,
5
According to the legislative history, Congress added the materiality requirement to
subsection (a)(2) to resolve a conflict among circuits as to whether materiality was an element of
20
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 21 of 24
the question is whether the requirement that a statement be materially false meaningfully changes
the Supreme Court's analysis in Brogan. The Supreme Court has not explicitly defined what
"material" means in the context of the amended§ 100l(a)(2). However, the Court recognized in
Kungys v. United States, 485 U.S. 759 (1988), that "[t]he federal courts have long displayed a
quite uniform understanding of the 'materiality' concept as embodied in ... statutes [such as
§ 1001]." !d. at 770. "The most common formulation ofthat understanding is that a
capable of influencing, the decision of the decisionmaking body to which it was addressed." !d.
(quoting Weinstockv. United States, 231 F.2d 699,701-02 (D.C. Cir. 1956)). This definition is
consistent with the Supreme Court's rejection of the "exculpatory no" defense in Brogan. A
false statement concerning the subject of an investigation will generally be deemed material
because it will have a tendency to influence the investigators. See United States v. McBane, 433
F.3d 344, 350-52 (3d Cir. 2005) (holding that false statements were material even though they
did not actually influence the government's decisions because they were "capable of influencing
a reasonable decisionmaker"); United States v. Service Deli Inc., 151 F.3d 938,941 (9th Cir.
1998) ("The false statement need not have actually influenced the agency, and the agency need
not rely on the information in fact for it to be material.") (internal citations omitted).
Ultimately, the question of whether Kim's alleged statements were materially false is one
all three offenses listed in§ 1001 (which are now separated in subsections (a)(l), (a)(2), and
(a)(3)). See H.R. Rep. No. I 04-680 at 8 (1996), reprinted in 1996 U.S.C.C.A.N. 3935, 3942.
Compare United States v. Corsino, 812 F .2d 26, 30-31 (1st Cir. 1987) (holding that materiality is
an element of every offense listed in § 100 I), with United States v. Elkin, 731 F .2d 1005 (2d Cir.
1984) (holding that materiality was not an element ofthe offense of making a false statement
under§ 1001).
21
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 22 of 24
for the jury. United States v. Gaudin, 515 U.S. 506, 511-23 ( 1995). It is not the province of the
hearing. See United States v. Yakou, 428 U.S. 241,246 (D.C. Cir. 2005) ("There is no federal
criminal procedural mechanism that resembles a motion for summary judgment in the civil
context.").
Defendant also argues that the Court should impute a recantation defense into § I 00 I in
order to avoid an overly expansive application of the statute. Defendant notes that recantation is
a defense under the federal perjury statutes, see 18 U.S.C. § 1623(d), and he argues that similar
principles should apply in the false statements context as well. Defendant relies heavily on
United States v. Cowden, 677 F.2d 417 (8th Cir. 1982), a case in which the defendant's
conviction under § I 00 I was reversed on materiality grounds. The defendant in Cowden was
convicted for making a false statement on a customs declaration form by indicating that he was
not carrying over $5,000 in currency. See 677 F.2d at 418. When the customs inspector asked if
he was carrying over $5,000 in currency, the defendant answered affirmatively and asked to
amend his declaration. !d. The customs official refused to let him amend his declaration, and a
search of the defendant's belongings revealed the currency. /d. In reversing the conviction, the
court noted that had the customs official followed the governing regulations, the defendant would
have been allowed to amend his declaration prior to the discovery of the currency. /d. at 420-21.
The court therefore concluded that "the government's conduct contributed to the ultimate
existence of a material false statement" and held that under such circumstances, a conviction
22
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 23 of 24
Defendant's reliance on Cowden underscores the fact that his motion to dismiss is based
on factual issues relating to his defense on the element of materiality. Defendant contends that a
recantation of a false statement should bar a prosecution under § 1001 because it "cures the only
feasible ill" associated with the false statement. Def. 's Br. at 11. But as the Court noted above,
the Government need not prove that it actually relied on Kim's statement, only that Kim's
statement had a tendency to influence a reasonable investigator. Establishing that Kim recanted a
prior false statement could prove lack of actual reliance, but that would not negate the element of
materiality that the Government is required to prove. The Court also notes that the statutory
recantation defense for perjury under 18 U.S. C. § 1623(d) is distinct from the element of
materiality required for prosecution under that statute. See United States v. Moore, 613 F.2d
1029, 1038 (D.C. Cir. 1979). The Court sees no reason to impute a recantation defense under
§ 1001 where, unlike in§ 1623(d), Congress has chosen not to do so. Accordingly, the Court
For these reasons, the Court shall deny Defendant's motion to dismiss Count Two of the
III. CONCLUSION
For the foregoing reasons, the Court finds that Defendant's prosecution under 18 U.S.C.
§ 793( d) does not violate the Treason Clause, the Due Process Clause, or the First Amendment to
the United States Constitution. The Court also finds that Defendant may be held liable under 18
U.S.C. § IOOI(a)(2) even if his false statements were merely a denial of wrongdoing and were
23
Case 1:10-cr-00225-CKK Document 53 Filed 08/24/11 Page 24 of 24
ORDERED that Defendant's [23] Motion to Dismiss Count One of the Indictment Under
ORDERED that Defendant's [24] Motion to Dismiss Count One of the Indictment on
ORDERED that Defendant's [25] Motion to Dismiss Count Two of the Indictment and
SO ORDERED.
Is/
COLLEEN KOLLAR-KOTELL Y
United States District Judge
24