United States v. Squillacote ( 2000 )

Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THERESA MARIE SQUILLACOTE, a/k/a
Tina, a/k/a Mary Teresa Miller,
No. 99-4088
a/k/a The Swan, a/k/a Margaret,
a/k/a Margit, a/k/a Margret, a/k/a
Margrit, a/k/a Lisa Martin, a/k/a
Resi, a/k/a Anne,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4089
KURT ALAN STAND, a/k/a Ken, a/k/a
Junior, a/k/a Alan David Jackson,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-98-61)
Argued: March 3, 2000
Decided: August 11, 2000
Before LUTTIG and TRAXLER, Circuit Judges, and
Jackson L. KISER, Senior United States District Judge
for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Traxler wrote the opinion, in
which Judge Luttig and Senior Judge Kiser joined.
_________________________________________________________________
COUNSEL
ARGUED: Lawrence S. Robbins, MAYER, BROWN & PLATT,
Washington, D.C., for Appellant Squillacote; Richard Alan Sauber,
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, Washington,
D.C., for Appellant Stand. Randy I. Bellows, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alex-
andria, Virginia; Michael Charles Liebman, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Lee H. Rubin, Edward S. Lee, MAYER, BROWN &
PLATT, Washington, D.C., for Appellant Squillacote; Douglas W.
Baruch, David B. Wiseman, FRIED, FRANK, HARRIS, SHRIVER
& JACOBSON, Washington, D.C., for Appellant Stand. Helen F.
Fahey, United States Attorney, Vincent L. Gambale, Assistant United
States Attorney, Robert A. Spencer, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellee.
_________________________________________________________________
OPINION
TRAXLER, Circuit Judge:
Appellants Theresa Squillacote and her husband Kurt Stand appeal
from their convictions on various espionage-related charges. We
affirm.
I.
Viewed in the light most favorable to the government, the evidence
presented at trial established the following. Kurt Stand's parents fled
to the United States from Germany during Hitler's reign. After the
war, his family maintained contact with friends in the German Demo-
cratic Republic ("East Germany"). When Stand was approximately
18, his father introduced him to Lothar Ziemer, an officer with the
2
Ministerium fur Staatssicherheit ("MfS"), East Germany's intelli-
gence agency. The "HVA" was the foreign intelligence arm of the
MfS, and Ziemer was in charge of Section 3 of the HVA's Depart-
ment XI. The "primary mission" of Department XI was the "opera-
tional reconnaissance of North America." J.A. 726. Its purpose was
to "acquire data of significance to the German Democratic Republic
. . . that could not be acquired by legal means." J.A. 726. In the early
1970s, Stand began working for Ziemer as an HVA agent.
Stand's HVA activities consisted primarily of recruiting other
agents. In 1976, Stand invited James Michael Clark, a college friend,
to travel with him to Germany. Stand introduced Clark to an HVA
operative, who introduced him to Ziemer. Ziemer invited Clark to join
his organization, which he described as performing intelligence work
on behalf of East Germany and other socialist countries, as well as
"liberation movements" in Asia, Latin America, and Africa. J.A. 903.
Clark agreed. Sometime between 1979 and 1981, Stand brought his
wife Theresa Squillacote into the fold, and she too became what
Ziemer described as an "informal collaborator[ ]." J.A. 703. At some
point, Squillacote's relationship with Ziemer became more than pro-
fessional, and they had an affair that lasted until 1996.
The HVA devoted substantial resources to the training of Stand,
Squillacote, and Clark. They traveled to many countries, including
East Germany and Mexico, to meet with their "handlers." They
received training on detecting and avoiding surveillance, receiving
and decoding messages sent by shortwave radio from Cuba, mailing
and receiving packages through the use of "accommodation"
addresses, using codewords and phrases, using a miniature camera to
photograph documents, and removing classified markings from docu-
ments. HVA records indicate that the three conspirators were together
paid more than $40,000 between 1985 and 1989, primarily as reim-
bursement for travel expenses.
As part of his "operational plan" devised with Ziemer, J.A. 925,
Clark moved to Washington, D.C., and obtained a master's degree in
Russian. For a time Clark worked for a private company in a position
that required him to obtain a security clearance. He later obtained a
position with the United States Army, in its environmental law divi-
sion, which also required a security clearance. Clark had friends who
3
worked for the State Department, and through them he obtained
numerous classified documents that he turned over to the HVA.
Squillacote and Stand also moved to Washington, D.C., and she
went to law school at the HVA's suggestion. Squillacote first fol-
lowed in her father's footsteps by becoming an attorney for the
National Labor Relations Board. When she realized that she had taken
a career path that was not "in the best direction," J.A. 2213, she began
trying to "move [her] professional work more in line with the commit-
ments that [she] had made." J.A. 1682. To that end, Squillacote used
her father's connections to obtain an unprecedented temporary detail
from the NLRB to the House Armed Services Committee. In 1991,
Squillacote obtained a permanent job as an attorney in the Department
of Defense, eventually becoming the Director of Legislative Affairs
in the Office of the Undersecretary of Defense (Acquisition Reform),
a position that required a security clearance and provided access to
valuable information. During her tenure with the federal government,
Squillacote applied for numerous government jobs, including posi-
tions with the Central Intelligence Agency, the National Security
Agency, United States Army, Navy, and Air Force, and the Depart-
ments of State, Commerce, Energy, and Treasury. Apparently it was
not until she began working for the Department of Defense that Squil-
lacote gained access to the kind of information sought by her handlers.1
However, by that time, East Germany had collapsed.
After the fall of the Berlin Wall, Ziemer began working with the
KGB, the Soviet Union's intelligence agency. Ziemer maintained his
relationships with Stand, Squillacote, and Clark during this time, and
they, too, became involved with the KGB. Stand, Squillacote, and
Clark each traveled overseas to meet with Ziemer during the period
after the collapse of East Germany. Ziemer instructed the conspirators
to purchase Casio digital diaries with interchangeable memory cards.
The conspirators, Ziemer, and their KGB contacts communicated with
each other by exchanging memory cards.
_________________________________________________________________
1 The government's evidence established that it was not unusual for the
HVA to recruit agents and then, "over the course of years, . . . seek to
install [the agent] into a sector where [the agent] will be of use." J.A.
718.
4
In April 1992, Ziemer and another former HVA official were
arrested and ultimately convicted for their post-unification intelli-
gence activities with the KGB. Stand, Squillacote, and Clark became
understandably concerned about their personal safety after Ziemer's
arrest. They knew that "western services" were looking for two men
and one woman operating out of Washington, D.C., and that the west-
ern services were aware of code names they had used. J.A. 2240.
However, they believed that Ziemer and other former HVA officials
would not compromise their identities. When Ziemer was released
from prison in September 1992, Stand, Squillacote, and Clark re-
established a system of communication with him, one purpose of
which was to keep everyone informed about any threats to their
safety.
From the beginning of their involvement with the HVA, Stand,
Squillacote, and Clark operated independently of each other and gen-
erally were unaware of the others' activities. After Ziemer's arrest in
1992, however, the three began talking in detail about their activities
and precautions needed to maintain their security. They began dis-
cussing the possibility of future intelligence work, perhaps for Viet-
nam or Cuba. Squillacote also talked to Clark about her interest in
South Africa's Communist Party.
In 1994, Squillacote, as part of her search for"another connection,"
J.A. 2290, went to Amsterdam to speak to David Truong, whom she
had met in college. Truong, who had been convicted of espionage on
behalf of North Vietnam, was intrigued, but took no further action.
In 1995, Squillacote went to great lengths to obtain a post office
box under the name of "Lisa Martin." In June 1995, Squillacote, as
Lisa Martin, sent a letter to Ronnie Kasrils, the Deputy Defense Min-
ister of South Africa. Kasrils was a Communist party official, and had
received training in East Germany, the Soviet Union, and Cuba. The
letter, which took Squillacote months to write, was primarily devoted
to Squillacote's explanation for the collapse of socialism that began
with the fall of the Berlin Wall, and her views on how the communist
movement should proceed in the future. The letter was an attempt by
Squillacote to make a connection with Kasrils, whom Squillacote
hoped would "read between the lines." J.A. 1912. Stand and Clark
5
were aware of the letter, but Clark apparently doubted its effective-
ness.
In February 1996, Squillacote received a Christmas card from Kas-
rils addressed to L. Martin. In the card, Kasrils thanked "Lisa" for
"the best letter" he had received in 1995. J.A. 1675. Stand and Squil-
lacote were thrilled they received the note, and they began to think
that perhaps a connection could be made. In September 1996, Squilla-
cote found another letter from Kasrils in her Lisa Martin post office
box. The letter stated that "you may have the interest and vision to
assist in our struggle," and invited Squillacote to a meeting in New
York City with a representative of "our special components." J.A.
1681.
Squillacote and Stand, however, were unaware that, for many
years, they had been the subjects of an intense FBI investigation. As
part of its investigation, the FBI in January 1996 obtained authoriza-
tion to conduct clandestine electronic surveillance, which included the
monitoring of all conversations in the Appellants' home, as well as
calls made to and from their home and Squillacote's office. Through
its investigation, the FBI had learned of Squillacote's letter to Kasrils
and the Appellants' response to the February 1996 note from Kasrils.
The September 1996 Kasrils letter in fact was written by the FBI as
part of a "false flag" operation intended to uncover information about
the prior espionage activities of Stand, Squillacote, and Clark.
When designing the false flag operation, the FBI's Behavioral
Analysis Program Team prepared a report "to examine the personality
of [Squillacote] . . ., and based on this examination, to provide sug-
gestions . . . that could be used in furthering the objective of this
investigation--to obtain evidence regarding the subject's espionage
activity." J.A. 2057. The report (the "BAP report") was based on
information the FBI had learned during its extensive investigation and
surveillance of the Appellants.
The BAP report traced Squillacote's family background, including
the suicide of her older sister and her mother's history of depression.
The report stated that Squillacote was suffering from depression and
listed the anti-depressant medications she was taking. The primary
focus of the BAP report, however, was Squillacote's emotional
6
makeup and how to tailor the approach to her emotional characteris-
tics.
The report described Squillacote as having "a cluster of personality
characteristics often loosely referred to as `emotional and dramatic,'"
J.A. 2060, and recommended taking advantage of Squillacote's "emo-
tional vulnerability" during her period of grieving over the then-recent
end of her affair with Ziemer, using an undercover agent "who pos-
sesses the same qualities of dedication and professionalism as her last
contact," and structuring the undercover agent's"pitch" to mirror her
relationship with Ziemer. J.A. 2061. The BAP report also made very
specific recommendations about how the false flag operation should
be designed:
The following scenario has been developed upon an analysis
of the subject's personality, and includes suggestions
designed to exploit her narcissistic and histrionic character-
istics. It is believed that [Squillacote] will be susceptible to
an approach through her mail drop based on her recent
rejection by her long-term German handler, and her thrill at
receiving a Christmas card from the South African official.
J.A. 2064. The report suggested the use of a letter from "the object
of [Squillacote's] adulation in South Africa." J.A. 2064. It recom-
mended that the letter instruct Squillacote to travel a circuitous route
to the location of the first meeting to "add a sense of excitement and
intrigue to the scenario." J.A. 2064. The report recommended the use
of a mature male undercover agent, who should "capitalize on [Squil-
lacote's] fantasies and intrigue" by making a"friendly overture," and
"act[ing] professional and somewhat aloof yet responsive to her
moods. The initial meet should be brief and leave[Squillacote]
beguiled and craving more attention." J.A. 2065.
The false flag letter received by Squillacote in September 1996
served its intended purpose. Unaware of any FBI involvement, Squil-
lacote and Stand were thrilled about the letter, and Squillacote began
enthusiastically making plans for a trip to New York City to meet the
South African emissary.
In October 1996, Squillacote met with an undercover FBI agent
posing as a South African intelligence officer. She had face-to-face
7
meetings with the agent a total of four times, including one meeting
where she brought Stand and her two children. Several letters were
also exchanged, including a letter that Squillacote wrote at the request
of the undercover agent describing her previous activities with
Ziemer. In these meetings and letters, Squillacote expressed her
enthusiasm for her new South African connection and her hope for a
productive collaboration.
Throughout her association with the undercover agent, Squillacote
discussed the possibility of bringing Ziemer and other former East
German contacts into the operation. In December 1996, she contacted
Ziemer to see if he was interested in the operation. According to
Squillacote, Ziemer's response was "[y]es, yes, yes, yes, yes!" J.A.
1939.
At the second meeting with the undercover agent on January 5,
1997, Squillacote presented the agent with four classified documents
she had obtained from the Department of Defense. Although the agent
had never requested any documents or classified information from
Squillacote, she explained that one day when she and her secretary
were alone in her office, she decided to "score what [she] could
score." J.A. 509. In fact, she had obtained one of the documents even
before her first meeting with the undercover agent. The documents
Squillacote gave to the undercover agent were: (1)"Defense Planning
Guidance for Fiscal Year 1997 through 2001," J.A. 499, a numbered
document, classified "secret," with restricted dissemination; (2) "De-
fense Planning Guidance Scenario Appendix" for 1998 through 2003,
J.A. 501, a numbered document classified at the"secret" level, which
forbade reproduction or further dissemination without authorization;
(3) "Defense Planning Guidance, Fiscal Years 1996 through 2001,
Final For Comment Draft," J.A. 504, which was classified "secret,"
with restricted dissemination; and (4) an untitled CIA intelligence
report classified "secret," with restricted dissemination. Three of the
documents Squillacote gave to the undercover agent were copies; the
"Scenario Appendix" was an original that Squillacote said would not
be missed. These documents formed the basis of the charges against
Squillacote and Stand.
Shortly after this meeting, Squillacote quit her job with the Depart-
ment of Defense, a political maneuver she hoped would put her in
8
position for a more prestigious job.2 Nonetheless, Squillacote contin-
ued meeting and corresponding with the undercover agent for several
more months, until she and Stand were arrested in October 1997. A
search of their home uncovered a wealth of incriminating evidence,
including a miniature camera, a Casio digital diary and memory cards,
and an extra copy of two of the documents given to the undercover
agent.
Clark eventually pleaded guilty to a single charge of conspiring to
commit espionage, and he testified for the government at the trial of
Squillacote and Stand. At trial, the government introduced certain
HVA records, including "true name" cards showing the names and
addresses of Stand, Squillacote, and Clark, as well as documents list-
ing some of their code names and the names of the operations to
which they were assigned. The HVA records listed Squillacote as a
"[d]evelopmental agent" whose target was the "U.S. central govern-
ment" and described Squillacote as trustworthy. J.A. 2028. The
records described Stand as reliable, and listed him as a "[s]ource with
direct access," with a target of "U.S. union/organization, direct/upper
level, IBFG union, U.S.A." J.A. 2034. Clark was listed as a "[s]ource
with direct access," whose activities were targeted against the "De-
fense Ministry NATO Country FRG USA." J.A. 2010. The records
also described Clark as reliable. Other than the four documents passed
to the undercover agent, the government presented no evidence estab-
lishing that Squillacote or Stand had previously supplied classified
documents or information to Ziemer or anyone else.
Squillacote and Stand were convicted of conspiracy to transmit
information relating to the national defense, see 18 U.S.C.A. § 794(a)
and (c) (West 2000); attempted transmission of national defense
_________________________________________________________________
2 However, Squillacote explained to the undercover agent that her
involvement in the political maneuvering and her decision to quit were
primarily motivated by her "joint efforts" with the undercover agent.
Squillacote believed that her former Department of Defense boss might
be named Deputy Secretary of Defense and that she would be able to fol-
low her former employer back into the Department. Squillacote
described this scenario as "the big time," noting that if it worked out,
there would be a "straight f---ing line," J.A. 515, presumably to the Sec-
retary of Defense. This scenario never came to pass.
9
information, see 18 U.S.C.A. § 794(a); and obtaining national defense
information. See 18 U.S.C.A. § 793(b) (West 2000).3 Squillacote was
also convicted of making false statements. See 18 U.S.C.A. § 1001
(West 2000).
Squillacote and Stand appeal, raising numerous issues arising dur-
ing the course of the prosecution. We address each issue, although not
in the order presented by the Appellants.
II.
The Appellants filed several pre-trial motions to suppress various
portions of the government's evidence. The district court denied each
of the motions, and the Appellants challenge those rulings on appeal.
A.
The government conducted 550 consecutive days of clandestine
surveillance of the Appellants, surveillance that was authorized under
the Foreign Intelligence Surveillance Act of 1978 ("FISA"), 50
U.S.C.A. § 1801 - 1811 (West 1991 & Supp. 2000). FISA was
enacted "to put to rest a troubling constitutional issue" regarding the
President's "inherent power to conduct warrantless electronic surveil-
lance in order to gather foreign intelligence in the interests of national
security," ACLU Found. of Southern California v. Barr, 952 F.2d
457, 460 (D.C. Cir. 1991), a question that had not been definitively
answered by the Supreme Court. See id. at 461. "FISA thus created
a `secure framework by which the Executive Branch may conduct
legitimate electronic surveillance for foreign intelligence purposes
within the context of this Nation's commitment to privacy and indi-
vidual rights.'" Id. (quoting S. Rep. No. 604, pt. 1, 95th Cong., 1st
Sess. 15 (1977), reprinted in 1978 U.S.C.C.A.N. 3904, 3916)).
FISA established a special court, composed of seven federal district
court judges appointed by the Chief Justice, which reviews applica-
_________________________________________________________________
3 As to each of these counts, the indictment also alleged violations of
18 U.S.C.A. § 2(a) (West 2000), which provides that "[w]hoever com-
mits an offense against the United States or aids, abets, counsels, com-
mands, induces or procures its commission, is punishable as a principal."
10
tions for authorization of electronic surveillance aimed at obtaining
foreign intelligence information. See 50 U.S.C.A. § 1803. "With sev-
eral exceptions not here relevant, electronic surveillance of a foreign
power or its agents may not be conducted unless the FISA Court
authorizes it in advance." ACLU of Southern California, 952 F.2d at
461.
Each application to the FISA court must first be personally
approved by the Attorney General. See 50 U.S.C.A. § 1804(a). The
application must contain, among other things,
a statement of reasons to believe that the target of the sur-
veillance is a foreign power or agent of a foreign power,
specified information on the implementation of the surveil-
lance, and a "certification" from a high-ranking executive
branch official stating that the official "deems the informa-
tion sought to be foreign intelligence information" and that
the information sought cannot be obtained by other means.
United States v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987); see 50
U.S.C.A. § 1804(a)(7). Where the target of the surveillance is a
"United States person,"4 the FISA court may issue an order authoriz-
ing the surveillance only if the FISA judge concludes that there is
"probable cause to believe that the target of the surveillance is a for-
eign power or agent of a foreign power, that proposed `minimization
procedures' are sufficient under the terms of the statute, that the certi-
fications required by § 1804 have been made, and . . . that the certifi-
cations are not `clearly erroneous.'" Pelton, 835 F.2d at 1075; see 50
U.S.C.A. § 1805(a) (setting forth the findings necessary to support the
issuance of an order authorizing surveillance).
_________________________________________________________________
4 See 50 U.S.C.A. § 1801(i) ("`United States person' means a citizen of
the United States, an alien lawfully admitted for permanent residence
. . ., an unincorporated association a substantial number of members of
which are citizens of the United States or aliens lawfully admitted for
permanent residence, or a corporation which is incorporated in the
United States, but does not include a corporation or an association which
is a foreign power . . . .").
11
Prior to trial, the Appellants sought to suppress the fruits of the
FISA surveillance. They attacked the validity of the surveillance on
several grounds, all of which were rejected by the district court. On
appeal, however, the Appellants press only one FISA-related issue:
They contend that the surveillance was improper because there was
no probable cause to believe that Squillacote or Stand were agents of
a foreign power. We disagree.
Under FISA, an agent of a foreign power is any person who
"knowingly engages in clandestine intelligence gathering activities for
or on behalf of a foreign power, which activities involve or may
involve a violation of the criminal statutes of the United States." 50
U.S.C.A. § 1801(b)(2)(A). One who knowingly aids and abets another
engaging in such clandestine intelligence activities, or one who know-
ingly conspires with another to engage in the clandestine intelligence
activities, is also considered an agent of a foreign power. See 50
U.S.C.A. § 1801(b)(2)(D). A "United States person" may not be
determined to be an agent of a foreign power "solely upon the basis
of activities protected by the first amendment to the Constitution of
the United States." 50 U.S.C.A. § 1805(a)(3)(A).
FISA provides that the district court must review in camera and ex
parte the FISA application and other materials necessary to rule upon
a defendant's suppression motion "if the Attorney General files an
affidavit under oath that disclosure or an adversary hearing would
harm the national security of the United States." 50 U.S.C.A.
§ 1806(f). Because the Attorney General filed such an affidavit in this
case, the district court reviewed the applications and other materials
in camera, and the documents were not disclosed to counsel for the
Appellants. See 50 U.S.C.A. § 1806(f) (The district court "may dis-
close to the aggrieved person, under appropriate security procedures
and protective orders, portions of the application, order, or other
materials relating to the surveillance only where such disclosure is
necessary to make an accurate determination of the legality of the sur-
veillance.").
After reviewing the applications, the district court concluded that
each of the more than 20 FISA applications established probable
cause to believe that the Appellants were agents of a foreign power.
We have reviewed de novo the relevant materials, and likewise con-
12
clude that each FISA application established probable cause to
believe that Squillacote and Stand were agents of a foreign power at
the time the applications were granted, notwithstanding the fact that
East Germany was no longer in existence when the applications were
granted. See 50 U.S.C.A. § 1801(a) (defining "foreign power"); 50
U.S.C.A. § 1801(b) (defining "agent of a foreign power"). We are
also satisfied that the Appellants were not targeted solely because of
any protected First Amendment activities in which they may have
engaged. Given the sensitive nature of the information upon which we
have relied in making this determination and the Attorney General's
conclusion that disclosure of the underlying information would harm
the national security, it would be improper to elaborate further. See
United States v. Isa, 923 F.2d 1300, 1304 (8th Cir. 1991) (finding
probable cause to authorize FISA surveillance and declining to com-
ment further on the probable cause issue where the Attorney General
filed an affidavit and claim of privilege).
Accordingly, we reject the Appellants' contention that the FISA
surveillance was illegal. In addition, because the documents submitted
by the government were sufficient for the district court and this Court
to determine the legality of the surveillance, we also deny the Appel-
lants' request for disclosure of the FISA materials. See United States
v. Belfield, 692 F.2d 141, 147 (D.C. Cir. 1982) ("The language of sec-
tion 1806(f) clearly anticipates that an ex parte, in camera determina-
tion is to be the rule. Disclosure and an adversary hearing are the
exception, occurring only when necessary.").
B.
The Appellants also sought to suppress the evidence obtained dur-
ing the search of their home, including the miniature camera, the digi-
tal diary and memory cards, a doll with a roll of miniature film hidden
inside, and copies of two of the documents Squillacote passed to the
undercover agent. The Appellants contend that the search was con-
ducted in flagrant disregard of the express terms of the warrant, and
that the district court therefore erred in denying their suppression
motion.
The warrant authorizing the search of the Appellants' home stated
that the government was to search the residence"on or before October
13
10, 1997 (not to exceed ten days) . . ., serving this warrant and mak-
ing the search [ ]in the daytime--6:00 A.M. to 10:00 P.M." J.A. 330.5
The search extended over six days, with two FBI agents remaining at
the house each night. It is the presence of the FBI agents in the home
after 10:00 p.m. that forms the basis of the Appellants' suppression
arguments.
(1)
The Appellants first contend that, by remaining inside the Appel-
lants' home overnight for five consecutive nights, the FBI searched
the home at night, thus flagrantly disregarding the warrant's time
restriction. We are wholly unpersuaded by this argument.
Preliminarily, we reject the main premise of the Appellants' chal-
lenge to the search: that the presence of the agents in the house, in
and of itself, constitutes a search that should be considered separate
and distinct from the authorized search of the residence. The cases
upon which the Appellants rely for this proposition--Segura v.
United States, 468 U.S. 796 (1984), and United States v. Jacobsen,
466 U.S. 109 (1984)--involved questions about the nature and propri-
ety of law enforcement conduct that occurred without a warrant. See
Segura, 468 U.S. at 799-801; Jacobsen, 466 U.S. at 111-12.6 Thus,
a determination of whether the conduct amounted to a search or sei-
zure in those cases was a necessary predicate to the resolution of the
Fourth Amendment claims raised. In this case, there is simply no
doubt that the government searched the Appellants' home and seized
an abundance of incriminating evidence. The search and seizure,
however, were authorized by a warrant, the validity of which the
_________________________________________________________________
5 See Fed. R. Crim. P. 41(c)(1) (A search warrant "shall be served in
the daytime, unless the issuing authority . . . authorizes its execution at
times other than daytime."); Fed. R. Crim. P. 41(h) (defining "daytime"
as "the hours from 6:00 a.m. to 10:00 p.m.").
6 We note that the Supreme Court has recently granted certiorari in Illi-
nois v. McArthur, 713 N.E.2d 93 (Ill. App. Ct. 1999), to determine
whether the police may secure a residence from the outside, and prohibit
the defendant from entering the house unless accompanied by a police
officer, for approximately two hours while awaiting a search warrant. See
Illinois v. McArthur, 120 S. Ct. 1830 (2000).
14
Appellants do not challenge. Where a search is authorized by a war-
rant, we believe it unnecessary and improper to isolate certain con-
duct occurring during the execution of the warrant and treat that
conduct as a separate and discrete search. Instead, the government's
actions while executing a warrant must be considered in context, and
the question that must be answered is whether the government
exceeded the scope of the warrant. See, e.g., Walter v. United States,
447 U.S. 649, 656 (1980) (plurality opinion) ("When an official
search is properly authorized--whether by consent or by the issuance
of a valid warrant--the scope of the search is limited by the terms of
its authorization."). We first conclude that the government did not
exceed the scope of the warrant. Second, we conclude that even if the
government did exceed the scope of the warrant, blanket suppression
of all evidence seized would not be required.
(a)
Distilled to its essence, the Appellants' "flagrant disregard" argu-
ment is this: (1) The warrant authorized searching the residence only
between the hours of 6:00 a.m. and 10:00 p.m.; (2) government agents
remained inside the residence between 10:00 p.m. and 6:00 a.m.; (3)
ipso facto, the government flagrantly disregarded the terms of the
warrant. The validity of this argument, however, is largely dependent
upon the Appellants' assumption that the mere presence of the agents
in the house amounted to a search, an assumption we have already
rejected. And without this assumption, the argument fails, as we dis-
cuss below.
When denying the Appellants' motion to suppress, the district court
found that the government complied with the warrant by conducting
the search "during the hours that were set out in the warrant." J.A.
415. This conclusion is supported by the affidavit of Special Agent
Gregory Leylegian, an FBI agent who took part in the search. Leyle-
gian's affidavit stated that the FBI "conducted no searching of the
premises after 10:00 p.m. each day" and that"[t]he FBI maintained
two agents on the premises each night to preserve the integrity of the
search process, to expedite the completion of the search, and to main-
tain security of the premises to prevent the removal or destruction of
evidence." J.A. 360. Because the district court's factual determination
of the conduct actually engaged in by the FBI agents is supported by
15
the evidence presented at the suppression hearing and is not implausi-
ble, the standard of review governing this issue dictates that we accept
that conclusion. See United States v. Lattimore , 87 F.3d 647, 651 (4th
Cir. 1996) (en banc) (A district court's factual determination is clearly
erroneous if "it can be said that the view of the evidence taken by the
district court is implausible in light of the entire record."). The war-
rant provided only that the search must be conducted between the
hours of 6:00 a.m. and 10:00 p.m.; it did not expressly prohibit the
presence of non-searching agents in the house after 10:00 p.m.
Because the FBI did not search during the hours prohibited by the
warrant, we therefore conclude that the FBI did not exceed the scope
of the warrant by remaining in the house overnight.
(b)
Nonetheless, even if we were to conclude that the FBI exceeded the
scope of the warrant, we still would not conclude that the govern-
ment's actions required suppression of all the evidence seized during
the search. As a general rule, if officers executing a search warrant
exceed the scope of the warrant, only the improperly-seized evidence
will be suppressed; the properly-seized evidence remains admissible.
See United States v. Jones, 31 F.3d 1304, 1314 (4th Cir. 1994); see
also Horton v. California, 496 U.S. 128, 140 (1990) ("If the scope of
the search exceeds that permitted by the terms of a validly issued war-
rant or the character of the relevant exception from the warrant
requirement, the subsequent seizure is unconstitutional without more.
Thus, in the case of a search incident to a lawful arrest, if the police
stray outside the scope of an authorized . . . search they are already
in violation of the Fourth Amendment, and evidence so seized will be
excluded . . . ." (emphasis added) (alteration and internal quotation
marks omitted)). However, "[i]n extreme circumstances even properly
seized evidence may be excluded when the officers executing the
warrant exhibit a flagrant disregard for its terms." United States v.
Ruhe, 191 F.3d 376, 383 (4th Cir. 1999) (internal quotation marks
omitted).
The extraordinary remedy of blanket suppression of all evidence
seized "should be used only when the violations of the warrant's
requirements are so extreme that the search is essentially transformed
into an impermissible general search." United States v. Chen, 979
16
F.2d 714, 717 (9th Cir. 1992); accord United States v. Medlin, 842
F.2d 1194, 1199 (10th Cir. 1988). Thus, in the few cases where blan-
ket suppression has been ordered, most involved the seizure by law
enforcement officials of large quantities of evidence clearly not
within the scope of the warrant. See United States v. Foster, 100 F.3d
846, 848 (10th Cir. 1996); Medlin, 842 F.2d at 1196, 1199; United
States v. Rettig, 589 F.2d 418, 420-21 (9th Cir. 1978).
In this case, however, the Appellants do not contend that any of the
evidence seized by the government was beyond the scope of the war-
rant or that, by remaining in the house after 10:00 p.m., the govern-
ment impermissibly converted the warrant into a general warrant.
Instead, the Appellants complain only about the manner by which the
government executed the warrant, a complaint that is inadequate to
justify the severe remedy of blanket suppression.
First, we note that when a warrant authorizes only a daytime
search, some courts have held that there is no violation of the terms
of the warrant if the search is commenced in the daytime, even if it
continues into the night. See, e.g., United States v. Young, 877 F.2d
1099, 1104-05 (1st Cir. 1989); United States v. Burgard, 551 F.2d
190, 193 (8th Cir. 1977); United States v. Joseph, 278 F.2d 504, 505
(3rd Cir. 1960) (per curiam). Because the search of the Appellants'
home was commenced in the daytime, as required by the warrant, the
FBI agents reasonably could have believed (if their actions after 10:00
p.m. could be considered a search) that it was proper to continue the
search into the night. Second, the FBI reasonably could have con-
cluded that it was proper to station agents inside the house after the
search was suspended each evening in order to guard against the pos-
sible destruction of evidence. Cf. United States v. Gagnon, 635 F.2d
766, 769 (10th Cir. 1980) (concluding that when agents executing a
search warrant discovered more marijuana than they could transport,
the agents were responsible for preserving the evidence, and properly
remained on the scene overnight and resumed the search the next day,
when a truck arrived that could carry away the drugs). The reason-
ableness of the agents' conduct makes it difficult to conclude that
they flagrantly disregarded the terms of the warrant.
Under these circumstances, even if the FBI's actions amounted to
technical violations of the terms of the warrant, the violations were
17
relatively minor and were "motivated by considerations of practicality
rather than by a desire to engage in indiscriminate`fishing.'" United
States v. Tamura, 694 F.2d 591, 597 (9th Cir. 1982). Thus, any viola-
tions are wholly insufficient to require blanket suppression of all the
evidence seized under the warrant.
(2)
In a last-ditch effort to invalidate the search, the Appellants con-
tend that if the government did in fact stop searching each night at
10:00, then the evidence must still be suppressed because the govern-
ment did not obtain a new warrant for each successive day of search-
ing. Again we disagree.
It is beyond dispute that FBI agents entered the Appellants' home
on six consecutive days to search for evidence. However, given the
number and type of items that can be evidence of espionage-related
activities, the search was necessarily extensive and exhaustive. See
United States v. Wuagneux, 683 F.2d 1343, 1352 11th Cir. 1982)
("[T]he magnitude of a search is insufficient, by itself, to establish a
constitutional violation; rather, the relevant inquiry is whether the
search and seizures were reasonable under all the circumstances. . . .
[G]iven the complexity of the crimes under investigation and the fact
that they would be detected primarily if not exclusively through anal-
ysis and synthesis of a large number of documents, a rather extensive
search could reasonably be expected.").
As Agent Leylegian explained in his affidavit, a"search for evi-
dence of espionage . . . requires extreme thoroughness in order to dis-
cover the covert instruments, communications, and records of the
illegal activity." J.A. 358. In addition, the search was complicated by
the condition of the home. According to Leylegian,"[t]he house was
extremely cluttered, and the [Appellants'] personal possessions and
documents were of such quantity and in such a state of disarray as to
create a great obstacle to the execution of the warrant." J.A. 359. The
search was further complicated because the house was undergoing
renovations, which increased the clutter and made it difficult to search
certain areas of the house. Leylegian also explained that the agents
were unable to search the basement, where many items were located,
"for long stretches of time due to the irritation caused by an immense
18
amount of dust and the odor of cat urine." J.A. 360. Therefore, not-
withstanding the large number of agents involved in the search, it is
apparent that the search could not have been completed in a single
day. Under these circumstances, the subsequent entries were not sepa-
rate searches requiring separate warrants, but instead were simply rea-
sonable continuations of the original search. The government,
therefore, was not required to obtain additional warrants for each day
that the search continued. See United States v. Kaplan, 895 F.2d 618,
623 (9th Cir. 1990) (concluding that second search conducted two
hours after first search was a proper continuation of the first search);
United States v. Carter, 854 F.2d 1102, 1107 (8th Cir. 1988) (uphold-
ing under a single warrant a second search occurring several hours
after initial search: "The authority of the warrant had not expired and
therefore the return search was not beyond the scope of the Fourth
Amendment."); United States v. Bowling, 351 F.2d 236, 241 (6th Cir.
1965) (upholding entries on successive days pursuant to a single war-
rant); see also United States v. Gerber, 994 F.2d 1556, 1558-60 (11th
Cir. 1993) (reversing the suppression of evidence found on Monday
during search under the hood of a car even though warrant authoriz-
ing the search of the car expired on the previous Friday).
Although this search may well have extended over a substantially
longer period of time, the length of the search was a function only of
the nature of the evidence sought and the condition of the home. To
require the government to obtain a new search warrant for each con-
tinued day of searching would impose an undue burden on the gov-
ernment's efforts to investigate complex crimes, a burden that would
be unjustifiable under the circumstances of this case. See United
States v. Sakyi, 160 F.3d 164, 167 (4th Cir. 1998) ("The touchstone
of our analysis under the Fourth Amendment is always the reason-
ableness in all the circumstances of the particular governmental inva-
sion of a citizen's personal security. Reasonableness is determined by
weighing the public interest against the individual's right to personal
security free from arbitrary interference by law officers." (citations
and internal quotations omitted)). Accordingly, we conclude that the
district court properly denied the Appellants' motion to suppress the
evidence obtained during the search of their house.
19
C.
During the FISA-authorized surveillance of the Appellants, the
government intercepted several telephone calls between Squillacote
and her psychotherapists. Only the first two of these conversations,
however, were listened to or transcribed by the government.7 Once the
supervising FBI agent learned of the conversations, she instructed the
agent responsible for transcribing and indexing the conversations not
to listen to, index, or transcribe any other conversations between
Squillacote and her therapists.
The Appellants moved to suppress any evidence derived from the
privileged communications, and requested a hearing to require the
government to prove that the evidence it would present at trial was
derived from sources independent of the privileged communications.
The district court refused to hold the hearing, concluding that such a
hearing was required only when a constitutionally-based privilege
was at issue.
On appeal, the Appellants contend that the FBI employee who lis-
tened to and transcribed the conversations between Squillacote and
her therapists was involved in the preparation of Squillacote's BAP
report, and that privileged information was therefore used to formu-
late the false flag operation that led to the arrest of the Appellants.
The Appellants contend that any evidence derived from the privileged
information should have been suppressed and that they were entitled
to a hearing to vindicate the principles set forth by the Supreme Court
in Kastigar v. United States, 406 U.S. 441 (1972). We, however, con-
clude that Kastigar simply is not applicable to this case.
In Kastigar, the issue was whether a witness who asserts his Fifth
Amendment privilege against self-incrimination may be compelled to
testify "by granting immunity from the use of compelled testimony
_________________________________________________________________
7 Actually, one of these conversations was between Stand and one of
Squillacote's therapists. Because Squillacote gave the therapist permis-
sion to talk to Stand, we will assume for purposes of this discussion that
the conversation was privileged, and, in the interest of convenience, we
refer to both conversations as having taken place between Squillacote
and her therapists.
20
and evidence derived therefrom (`use and derivative use' immunity),
or whether it is necessary to grant immunity from prosecution for
offenses to which compelled testimony relates (`transactional' immu-
nity)." Id. at 443. The Court concluded that a grant of "immunity from
use and derivative use is coextensive with the scope of the privilege
against self-incrimination, and therefore is sufficient to compel testi-
mony over a claim of the privilege." Id. at 453. The Court noted that
if a witness who has been granted use and derivative use immunity
is subsequently prosecuted, the prosecutors bear"`the burden of
showing that their evidence is not tainted by establishing that they had
an independent, legitimate source for the disputed evidence.'" Id. at
460 (quoting Murphy v. Waterfront Comm'n of New York Harbor,
378 U.S. 52, 79 n.18 (1964)). The Court further explained that "[t]his
total prohibition on use provides a comprehensive safeguard, barring
the use of compelled testimony as an `investigatory lead,' and also
barring the use of any evidence obtained by focusing investigation on
a witness as a result of his compelled disclosures." Id. at 460 (foot-
note omitted).
We agree with the Appellants that Squillacote's conversations with
her psychotherapists are privileged. See Jaffee v. Redmond, 518 U.S.
1, 15 (1996) ("[W]e hold that confidential communications between
a licensed psychotherapist and her patients in the course of diagnosis
or treatment are protected from compelled disclosure under Rule 501
of the Federal Rules of Evidence."). The question, then, is whether the
mere existence of this privileged information brings to bear the full
weight of Kastigar, as Appellants apparently contend.
Contrary to the Appellants' view, a Kastigar analysis is not trig-
gered by the existence of evidence protected by a privilege, but
instead by the government's effort to compel a witness to testify over
the witness's claim of privilege. See United States v. Hubbell, ___
S. Ct. ___, ___, 2000 WL 712810, *6 (2000) (stating that Kastigar
"particularly emphasized the critical importance of protection against
a future prosecution based on knowledge and sources of information
obtained from the compelled testimony" (emphasis added) (internal
quotation marks omitted)); United States v. McHan, 101 F.3d 1027,
1035 (4th Cir. 1996) ("Whether the oral use-immunity agreement at
issue in this case is subject to the full Kastigar protections is doubtful
because McHan voluntarily cooperated with the government.");
21
United States v. Eliason, 3 F.3d 1149, 1152 (7th Cir. 1993) (Under
Kastigar, "if a defendant is able to establish through relevant evidence
that he gave compelled testimony in a court proceeding based upon
a promise of immunity, the government must come forth with evi-
dence that the information it purports to use against the defendant
came from a source independent of the defendant's immunized testi-
mony."); United States v. Gutierrez, 696 F.2d 753, 756 n.6 (10th Cir.
1982) ("Because [the defendant], with full knowledge of her rights,
voluntarily agreed to make a statement, the constitutional principles
enunciated in Kastigar . . . are inapplicable to her claim."). If the priv-
ilege can be vindicated through a grant of immunity--as can, for
example, the privilege against self-incrimination--then the witness
may be compelled to testify if an adequate offer of immunity is made.
To this extent then, we agree with the Appellants' assertion that
Kastigar-like protections may be required in cases involving testi-
mony compelled over the assertion of a non-constitutional privilege.
For example, a spouse asserting the adverse spousal testimony privi-
lege or the marital communications privilege may be compelled to
testify if the prosecutor gives an adequate promise that the informa-
tion will not be used against the other spouse. See, e.g., In re Grand
Jury, 111 F.3d 1083, 1087 (3rd Cir. 1997) ("[O]nce the government
grants immunity that eliminates the possibility that the testimony will
be used to prosecute the witness's spouse, the witness spouse may no
longer invoke the testimonial privilege."); In re Grand Jury Subpoena
of Ford, 756 F.2d 249, 252 (2nd Cir. 1985) (concluding that husband
could be held in contempt for refusing to testify before the grand jury
about actions of his wife where the prosecutor promised that "no
grand jury testimony elicited from [the husband] would be used,
either directly or indirectly, against [his] wife"). However, because
the government's right to compel testimony in the face of a claim of
privilege is the issue at the heart of Kastigar , its protections do not
apply in cases where there is privileged evidence, but no compelled
testimony.
Moreover, because "[t]estimonial exclusionary rules and privileges
contravene the fundamental principle that the public. . . has a right
to every man's evidence," any such privilege"must be strictly con-
strued." Trammel v. United States, 445 U.S. 40, 50 (1980) (ellipses
in original) (citation and internal quotation marks omitted). Thus, we
22
do not believe that suppression of any evidence derived from the priv-
ileged conversations would be proper in this case, given that the privi-
lege is a testimonial or evidentiary one, and not constitutionally-
based. See United States v. Elie, 111 F.3d 1135, 1142 (4th Cir. 1997)
(rejecting defendant's claim that evidence found as a result of his cus-
todial statements made without receiving Miranda warnings should
be suppressed because "the `tainted fruits' analysis applies only when
a defendant's constitutional rights have been infringed").
Other circuits have rejected similar arguments under similar cir-
cumstances. For example, in United States v. Marashi, 913 F.2d 724(9th Cir. 1990), the court concluded that the testimony of the defen-
dant's ex-wife was not barred by the marital communications privi-
lege, and the court therefore declined to address the defendant's
argument that all evidence derived from the ex-wife's information
and testimony should be suppressed. See id. at 731 n.11. The court
noted, however, that "no court has ever applied the [fruit-of-the-
poisonous-tree] theory to any evidentiary privilege." Id.; see also
Nickel v. Hannigan, 97 F.3d 403, 409 (10th Cir. 1996) (even if testi-
mony of attorney consulted by the defendant before the defendant was
charged with a crime should have been suppressed on the basis of a
breach of the attorney-client privilege, evidence obtained by the
police that was derived from the attorney's information should not
have been suppressed); United States v. Lefkowitz, 618 F.2d 1313,
1318 n.8 (9th Cir. 1980) ("Because we reject . . . Lefkowitz's argu-
ment that the marital privileges are somehow constitutionally
grounded in, among other locations, the Fourth Amendment, we
doubt that a secondary source of information obtained through infor-
mation protected by the confidential marital communications privi-
lege would in any way be `tainted.'").
Because this case does not involve the use of compelled testimony,
the district court properly refused the Appellants' request for a Kasti-
gar hearing. In addition, because the privilege at issue here is not a
constitutional one, the district court properly refused to suppress any
evidence arguably derived from the government's interception of the
two conversations with Squillacote's therapists. 8
_________________________________________________________________
8 We recognize that in United States v. White, 970 F.2d 328 (7th Cir.
1992), a case where the defendants' sixth amendment rights to counsel
23
III.
Perhaps some of the most damaging evidence introduced against
the Appellants at trial were the HVA documents--the "true name"
cards listing the names of the Appellants and their code names, and
the "agent data sheets" showing the nature of their assignments for the
HVA. The Appellants moved to prevent the introduction of these doc-
uments, but the district court denied the motion. On appeal, the
Appellants contend that the documents were improperly admitted,
arguing that they were not properly authenticated and that, even if
authenticated, the documents were inadmissible hearsay.
A.
The Federal Rules of Civil Procedure provide that official records
of a foreign country are considered properly authenticated if the
records are
attested by a person authorized to make the attestation, and
accompanied by a final certification as to the genuineness of
the signature and official position (i) of the attesting person,
or (ii) of any foreign official whose certificate of genuine-
ness of signature and official position relates to the attesta-
tion or is a chain of certificates of genuineness of signature
and official position relating to the attestation.
Fed. R. Civ. P. 44(a)(2).9 "A final certification may be made by a sec-
retary of embassy or legation, consul general, vice consul, or consular
_________________________________________________________________
were not at issue, the Seventh Circuit suggested that, had there been any
government involvement in the breach of the attorney-client privilege,
the proper remedy would be the suppression of the privileged evidence,
as well as any derivative evidence. Id. at 336. Even assuming that sup-
pression of derivative evidence may, under extraordinary circumstances,
be required in cases involving the attorney-client privilege, such an
extreme remedy is not required in this case.
9 The procedure set forth in Rule 44(a)(2) is applicable in criminal pro-
ceedings by virtue of Rule 27 of the Federal Rules of Criminal Proce-
dure. See Fed. R. Crim. P. 27 ("An official record . . . may be proved in
the same manner as in civil actions.").
24
agent of the United States, or a diplomatic or consular official of the
foreign country assigned or accredited to the United States." Id. Rule
902(3) of the Federal Rules of Evidence sets forth an essentially iden-
tical self-authentication process for the somewhat broader category of
"foreign public documents" "purporting to be executed or attested in
an official capacity" by a foreign official. See Fed. R. Evid. 902(3);
id. advisory committee's note (Rule 902(3) "is derived from Rule
44(a)(2) of the Rules of Civil Procedure but is broader in applying to
public documents rather than being limited to public records.").
In this case, the government presented a certification from Dirk
Dorrenberg, the director of the counterespionage and protective secur-
ity department of the Bundesamt fur Verfassungsschutz, the counter-
intelligence service for the unified Federal Republic of Germany
("FRG"). In his certification Dorrenberg stated that the FRG is the
legal successor to East Germany and that he had the"authority to
make this certification by virtue of [his] official position and area of
expertise." J.A. 1982. Dorrenberg stated that he had compared the
HVA documents introduced by the government to "actual duplicates"
of the original records, and he certified that the government's copies
were "true and correct copies" of "genuine and authentic records" of
the HVA. J.A. 1983-84. Dorrenberg also certified that the signature
of Lothar Ziemer appearing on some of the records was "genuine and
authentic." J.A. 1984. The government also presented a final certifica-
tion from Manfred Bless, an FRG representative "assigned and
accredited to the United States as a Counselor, Political Section, of
the Embassy of the Federal Republic of Germany, in Washington,
D.C." J.A. 1980. In this final certification, Bless certified that Dorren-
berg held the position claimed in the Dorrenberg certification and that
Dorrenberg was authorized to make the certification.
These certifications comply in all respects with the requirements of
Rule 44(a)(2) and Rule 902(3). Therefore, whether the documents are
considered official documents or official records, the district court
quite properly concluded that the government adequately authenti-
cated the HVA documents.
The Appellants, however, contend that the certification process of
Rule 902(3) is intended to confirm the signature or attestation con-
tained in the offered document. According to the Appellants, if the
25
document being offered into evidence does not contain a signature, a
self-serving declaration of authenticity is meaningless. Thus, the
Appellants contend that many of the HVA documents are not subject
to self-authentication under the rules because the documents them-
selves are not signed or do not contain an attestation. This argument
is without merit.
Nothing in Rule 44(a)(2) or in Rule 902(3) requires that the docu-
ments themselves be signed or contain an attestation within the body
of the document. The rules are written in the alternative--foreign
documents may be authenticated by a certification from the official
executing the document or by an official attesting to the document.
To "attest" means to "affirm to be correct, true, or genuine." American
Heritage College Dictionary 89 (3d ed. 1997). Thus, so long as a
proper official attests that the proffered document is true and genuine,
it simply does not matter whether the document itself is signed or
contains its own attestation.
As noted above, Rule 44(a)(2) also requires a final certification
regarding the signature and position "(i) of the attesting person, or (ii)
of any foreign official whose certificate of genuineness of signature
and official position relates to the attestation or is in a chain of certifi-
cates of genuineness of signature and official position relating to the
attestation." Fed. R. Civ. P. 44(a)(2); see also Fed. R. Evid. 902(3)(A)
& (B). Seizing on these requirements, the Appellants contend that nei-
ther the Dorrenberg certification nor the Bless certification establish
that "Dorrenberg is an official `whose certificate of genuineness of
signature and official position relates to the execution or attestation'
or that his certificate is in a `chain of certificates of genuineness of
signature and official position relating to the execution or attesta-
tion.'" Brief of Appellants at 73. This argument is likewise without
merit, as it is premised upon a fundamental misapprehension of the
requirements for the authentication of foreign documents.
An examination of Rule 44(a)(2) and Rule 902(3) reveals two
requirements for the authentication of a foreign document. First, there
must be some indication that the document is what it purports to be.
Thus, the proffered document must be executed by a proper official
in his official capacity, or the genuineness of the document must be
attested to by a proper official in his official capacity. See Fed. R.
26
Civ. P. 44(a)(2); Fed. R. Evid. 902(3); see also United States v.
Doyle, 130 F.3d 523, 545 (2d Cir. 1997) (noting that the authentica-
tion provisions of the Rules of Evidence are not concerned with estab-
lishing the truth of information contained in proffered documents, but
only with "assuring that evidence is what it purports to be"). Second,
there must be some indication that the official vouching for the docu-
ment is who he purports to be. Thus, the rules require that one of a
specified group of foreign officials must issue a final certification
attesting to the genuineness of signature and title of the person exe-
cuting or attesting to the document, or of another official who has cer-
tified the signature and position of the person executing or attesting
to the document. By the plain language of the rules, it is only when
the genuineness of signature and position is established in the second
manner described above that it is relevant whether the official is "re-
late[d] to" the execution or attestation or is in the "chain of certificates
of signature and position." See Fed R. Civ. P. 44(a)(2); Fed. R. Evid.
902(3).
In this case, the government satisfied the first requirement of estab-
lishing that the HVA records were what they purported to be by pre-
senting Dorrenberg's certification that the government's records were
true and accurate copies of genuine HVA records. The government
then established that the official vouching for the document was who
he purported to be in the first manner described above--by presenting
a final certification from another official establishing that it was Dor-
renberg's signature on the proffered certification and that Dorrenberg
was authorized to attest to the authenticity of the HVA documents.
Because the government established the genuineness of signature and
position of the person attesting to the documents, the portions of the
rules dealing with officials related to the execution or attestation or
in the chain of certifications are not applicable.
Finally, contrary to the Appellants' suggestions, the rules do not
require the official attesting to the genuineness of foreign documents
or records to have possession or custody of the proffered documents,
to be an expert in handwriting analysis, or to have been associated
with the foreign government at the time the documents were created.
See Fed. R. Civ. P. 44(a)(2); Fed. R. Evid. 902(3). Accordingly, we
conclude that the government properly authenticated the HVA
records, whether the authentication is considered under Rule 44(a)(2)
27
of the Rules of Civil Procedure or under Rule 902(3) of the Rules of
Evidence. Cf. United States v. Koziy, 728 F.2d 1314, 1322 (11th Cir.
1984) (concluding that World War II-era employment forms showing
the defendant's affiliation with the Ukranian police, during a period
when Russia was in control of the region, were properly authenticated
under Fed. R. Evid. 902(3) where the documents were attested to by
"[a] Russian official authorized to authenticate such documents").
B.
The Appellants also challenge the district court's ruling that the
HVA documents were admissible as statements of a co-conspirator
under Rule 801(d)(2)(E) of the Federal Rules of Evidence. We review
the district court's admission of evidence under Rule 801(d)(2)(E) for
an abuse of discretion. See United States v. Blevins, 960 F.2d 1252,
1255 (4th Cir. 1992).
Evidence that would otherwise be considered hearsay may be
admitted as a statement by a co-conspirator if the government estab-
lishes, by a preponderance of the evidence, "(1) that there was a con-
spiracy involving the declarant and the party against whom admission
of the evidence is sought and (2) that the statements at issue were
made during the course of and in furtherance of that conspiracy." Id.;
see also Bourjaily v. United States, 483 U.S. 171, 175 (1987). In our
view, the district court properly admitted the HVA records as state-
ments by a co-conspirator.
First, the indictment specifically charged the Appellants with con-
spiring with, among others, "agents and officers of the GDR," J.A. 88,
and the government presented ample evidence supporting that allega-
tion, including the government's overwhelming evidence of the
Appellants' relationship with Lothar Ziemer, whose signature appears
on many of the disputed HVA documents. Second, although some of
the documents are undated, many bear dates that are clearly within the
course of the conspiracy as defined by the government's evidence.
And many of the undated HVA documents show the same registration
number as the dated documents and the documents bearing Ziemer's
signature, thus establishing a connection between all of the HVA doc-
uments. Accordingly, the government's evidence demonstrated that
the statements were made during the course of the conspiracy. Third,
28
there can be no real dispute that, by compiling the information con-
tained in the disputed documents--the Appellants' real and code
names, their addresses, the object of their assignments, how they
could be contacted--the GDR was acting in furtherance of the con-
spiracy.
While the identity of the declarant of the unsigned documents may
not be known, the only conclusion that can be drawn from the infor-
mation included in the documents--information that was corrobo-
rated in many respects by Clark's testimony and by Squillacote's own
statements to the undercover agent--is that the documents were cre-
ated by or at the direction of East German agents who had knowledge
of and were involved in the conspiracy with the Appellants. While
there may be cases where the inability to identify the declarant of an
alleged co-conspirator's statement could render the statement inad-
missible, this is not one of those cases. The HVA documents were
sufficiently connected to each other and to the conspiracy established
by the government's evidence to make them reliable and admissible
under Rule 801(d)(2)(E), notwithstanding the government's inability
to identify the declarants. See United States v. Cruz, 910 F.2d 1072,
1081 n.10 (3d Cir. 1990) ("Unidentifiability[of the declarant] may be
important in some situations, but when the statement itself and the
surrounding circumstances provide sufficient evidence of reliability,
unidentifiability will not be particularly important.").
We therefore conclude that the HVA records were properly authen-
ticated and were properly admitted as statements of co-conspirators.
The Appellants' complaints about the reliability of the HVA records,
including the fact that the government purchased the documents from
unidentified sources, merely go to the weight to be accorded the
records by the jury, and not to the admissibility of the records. Cf.
Koziy, 728 F.2d at 1322 (noting that the appellant's contention that
Ukranian police documents were forgeries "fails to go their admissi-
bility, but rather to the weight of the evidence").10
_________________________________________________________________
10 Another of the Appellants' complaints about the documents centers
around the fact that the documents were not contained in the records of
the Gauck Commission, the post-unification repository for MfS docu-
ments. The Gauck Commission, however, became the repository only of
29
IV.
Finally, the Appellants raise numerous issues in connection with
the district court's instructions to the jury. Their challenges involve
the district court's instructions on their entrapment defense, the
court's failure to include an instruction on multiple conspiracies, and
its explanation to the jury of "information relating to the national
defense."
A.
The Appellants raise several issues in connection with the district
court's refusal to give their entrapment instructions. There are two
elements to the affirmative defense of entrapment:"government
inducement and the defendant's lack of predisposition to commit the
crime." United States v. Sligh, 142 F.3d 761, 762 (4th Cir. 1998); see
United States v. Russell, 411 U.S. 423, 436 (1973) ("It is only when
the Government's deception actually implants the criminal design in
the mind of the defendant that the defense of entrapment comes into
play."). "Where the Government has induced an individual to break
the law and the defense of entrapment is at issue . . . the prosecution
must prove beyond reasonable doubt that the defendant was disposed
to commit the criminal act prior to first being approached by Govern-
ment agents." Jacobson v. United States, 503 U.S. 540, 548-49 (1992).11
_________________________________________________________________
the "documents that were still there upon dissolution of the MfS, which
occurred during December of 1989. The MfS had gone through several
transitional phases, which resulted in a good number of documents hav-
ing disappeared." J.A. 823A. That the documents were not among the
Gauck Commission's records does not prevent them from being admitted
at trial, but is simply another credibility question to be resolved by the
jury.
11 The government contends that the Appellants were not entitled to an
entrapment instruction. However, because the government did not
oppose the Appellants' request for an entrapment instruction at trial and
the instruction was in fact given, we believe it proper to consider the
Appellants' challenges to the entrapment instruction.
30
Volume 2 of 2
31
(1)
The Appellants first contend that the district court erred by reject-
ing their proposed predisposition charge. To determine whether the
district court's failure to give the requested charge is reversible error,
we must determine whether the instruction "(1) was correct; (2) was
not substantially covered by the court's charge to the jury; and (3)
dealt with some point in the trial so important, that failure to give the
requested instruction seriously impaired the defendant's ability to
conduct his defense." United States v. Lewis, 53 F.3d 29, 32 (4th Cir.
1995) (internal quotation marks omitted).
The instruction requested by the Appellants stated that, for the gov-
ernment to carry its burden of proving predisposition, "the Govern-
ment must prove beyond a reasonable doubt that Ms. Squillacote had
a predisposition prior to the first time the Government approached her
. . . . However, you may not find a predisposition based on any of Ms.
Squillacote's conduct that was induced by the Government." J.A.
1579. The Appellants contend that their instruction is based on Jacob-
son, and that the instruction thus is a correct statement of the law.
In Jacobson, the defendant had previously ordered through the mail
certain magazines depicting nude children at a time when possession
of such magazines was legal. After the enactment of a federal statute
criminalizing the receipt by mail of sexually explicit depictions of
children, the government began targeting the defendant. After more
than two years of repeated government solicitations, which involved
the use of "five fictitious organizations and a bogus pen pal, to
explore [the defendant's] willingness to break the new law by order-
ing sexually explicit photographs of children through the mail," id. at
543, the defendant finally ordered a magazine entitled "Boys Who
Love Boys," which contained photographs of young boys engaging in
sexual activities. The jury convicted the defendant, rejecting his
entrapment defense. The conviction was affirmed by the Eighth Cir-
cuit Court of Appeals sitting en banc, which concluded that the defen-
dant "was not entrapped as a matter of law." Id. at 547-48.
The Supreme Court, however, disagreed. The Court held that when
"the Government has induced an individual to break the law and the
defense of entrapment is at issue, . . . the prosecution must prove
32
beyond a reasonable doubt that the defendant was disposed to commit
the criminal act prior to first being approached by Government
agents." Id. at 548-49. Concluding that the government failed to prove
that the defendant's predisposition to commit the crime was "indepen-
dent and not the product of the attention that the Government had
directed at [the defendant]," id. at 550, the Supreme Court reversed
the defendant's conviction, see id. at 554.
Clearly, then, the first part of the Appellants' requested instruction
--that the disposition to commit the crime must exist "prior to first
being approached by Government agents"--is a correct statement of
the law as explained in Jacobson. We do not believe, however, that
the second part of the requested instruction is a correct statement of
the law.
The second part of the instruction informed the jury that it could
"not find a predisposition based on any of Ms. Squillacote's conduct
that was induced by the Government." J.A. 1579. While Jacobson
requires that the defendant's disposition to commit the crime must be
"independent of the Government's acts," 503 U.S. at 554, Jacobson
does not prohibit the consideration of actions occurring after the
defendant was contacted by the government when determining
whether the defendant was predisposed to commit the crime. See, e.g.,
United States v. Garcia, 182 F.3d 1165, 1169 (10th Cir.) (While
Jacobson "requires that the defendant's predisposition be viewed at
the time the government agent first approached the defendant, infer-
ences about that predisposition may be drawn from events occurring
after the two parties came into contact."), cert. denied, 120 S. Ct. 448(1999); United States v. Byrd, 31 F.3d 1329, 1336 (5th Cir. 1994)
("[T]he crucial holding of Jacobson is that predisposition must be
independent of government action. Evidence of the defendant's ready
response to the solicitation, as well as evidence of independently
motivated behavior that occurs after government solicitation begins,
can be used to prove that the defendant was predisposed . . . .");
United States v. Garza-Juarez, 992 F.2d 896, 908 (9th Cir. 1993)
("[E]vidence of predisposition may arise both before the govern-
ment's initial contact and during the course of dealings."); see also
United States v. Jones, 976 F.2d 176, 179 (4th Cir. 1992) ("The gov-
ernment may meet its burden [of proving predisposition] by demon-
strating the defendant's ready response to the inducement offered.").
33
Because the Appellants' requested instruction would have prevented
the jury from considering Squillacote's actions occurring after being
contacted by the undercover agent, actions which may properly be
considered under Jacobson, the district court did not err in refusing
the instruction.
Moreover, the district court's predisposition instructions were suf-
ficient. The court instructed the jury that:
A person is entrapped when that person has no previous
disposition or willingness or intent to commit the crime
charged and is induced by law enforcement officers to com-
mit the offense.
A person is not entrapped when that person has a previous
disposition or willingness or intent to commit the crime
charged and a law enforcement officer merely provides what
appears to be a favorable opportunity to commit the offense.
...
In determining the question of entrapment, you should
consider all of the evidence received in this case concerning
the intentions and disposition of the defendant before
encountering the law enforcement officer, as well as the
nature and degree of inducement provided by the law
enforcement officer.
The burden is on the Government to prove beyond a rea-
sonable doubt that the defendant had a previous disposition
or willingness or intent to commit the crime charged. If the
Government satisfies that burden, there is no entrapment.
In other words, if the defendant was disposed to commit
the crime, there can be no entrapment.
J.A. 1445-47 (emphasis added). By informing the jury that the defen-
dants must have a "previous disposition" that existed "before encoun-
tering the law enforcement officer," the instruction given sufficiently
34
conveyed to the jury the requirement that the Appellants must have
been predisposed to commit the crimes before they were contacted by
the undercover agent. See United States v. Lorenzo, 43 F.3d 1303,
1306-07 (9th Cir. 1995) (finding no error in jury charge explaining
that the government must prove that the defendant"has a previous
intent or disposition" because the jury charge also explained that the
disposition must have existed "before encountering the law enforce-
ment officers or their agents" (internal quotation marks omitted)).12
(2)
The Appellants next contend that the district court erred by refus-
ing to instruct the jury that, in order to prove predisposition, the gov-
ernment must prove that Squillacote was "in a position by virtue of
his or her acquaintances, experience, occupation, or training to com-
mit the offenses without the government's help or involvement." J.A.
1577. In essence, the Appellants contend that the question of predis-
position includes a "positional" element--that is, a defendant is pre-
disposed to commit a crime only if the defendant was in the position
to commit the crime without assistance from the government.
_________________________________________________________________
12 The Appellants, however, contend that the government's first contact
with Squillacote--the phony Kasrils letter--was an "approach," not an
"encounter," because encounter can only mean a face-to-face meeting.
Thus, the Appellants argue that by instructing the jury to consider predis-
position that existed before the first encounter with the government, the
jury may have concluded that Squillacote became predisposed to commit
the crimes only after receiving the Kasrils letter, but still rejected the
entrapment defense because the disposition arose before Squillacote met
the undercover agent for the first time. While it may have been prefera-
ble for the instructions to use "approach" or"contact" rather than "en-
counter," we believe that the district court's instruction sufficiently
directed the jury's focus to the proper time frame for determining the
existence of Squillacote's predisposition, particularly since there was no
dispute that the government's first contact was the Kasrils letter. See,
e.g., United States v. Heater, 63 F.3d 311, 326 (4th Cir. 1995) ("We will
not reverse a conviction based on improper jury instructions as long as
the instructions given by the district court, as a whole, included the sub-
stance of the defendant's requested . . . charge.").
35
The Appellants' "positional" argument is based on the Seventh Cir-
cuit's decision in United States v. Hollingsworth, 27 F.3d 1196 (7th
Cir. 1994) (en banc), in which a sharply divided court held that
"[p]redisposition is not a purely mental state, the state of being will-
ing to swallow the government's bait. It has positional as well as dis-
positional force." Id. at 1200. The court determined that defining
predisposition only as willingness, without including an element of
readiness, was inconsistent with the Supreme Court's decision in
Jacobson:
[H]ad the Court in Jacobson believed that the legal concept
of predisposition is exhausted in the demonstrated willing-
ness of the defendant to commit the crime without threats or
promises by the government, then Jacobson was predis-
posed, in which event the Court's reversal of his conviction
would be difficult to explain. The government did not offer
Jacobson any inducements to buy pornographic magazines
or threaten him with harm if he failed to buy them. It was
not as if the government had had to badger Jacobson for 26
months in order to overcome his resistance to committing a
crime. He never resisted.
Id. at 1199.
Whether predisposition includes a readiness element has yet to be
considered in this circuit, although the Ninth Circuit has rejected the
Hollingsworth formulation. See United States v. Thickstun, 110 F.3d
1394, 1398 (9th Cir. 1997) ("We read Jacobson not as creating a
requirement of positional readiness but as applying settled entrapment
law. The inference that the government's methods had persuaded an
otherwise law-abiding citizen to break the law, coupled with the
absence of evidence of predisposition, established entrapment as a
matter of law under the existing two-part test. It was not necessary for
the court to expand the entrapment defense, nor is there language in
the opinion indicating that it did so.").13 We need not, however,
_________________________________________________________________
13 A panel of the Fifth Circuit followed Hollingsworth and concluded
that predisposition includes a positional element, see United States v.
Knox, 112 F.3d 802, 807 (5th Cir. 1997), but the Fifth Circuit sitting en
36
decide whether predisposition includes a positional element because
even under the Hollingsworth formulation, Squillacote clearly was in
the position to commit the crimes with which she was charged.
After years of trying, Squillacote finally had a job that provided her
with access to classified information and documents. She had
received excellent training in the arts of espionage and she had a long
relationship with a "spy-master" who was trying to find another con-
nection interested in the services that he and his minions could pro-
vide. In addition, as evidenced by her approach of David Truong, the
convicted spy, and her letter to her South African hero, Squillacote
herself was actively searching for another customer for her skills.
Thus, Squillacote was in the position to become an active spy even
without the help of the undercover agent. To conclude otherwise
would mean that a drug trafficker holding the keys to a warehouse full
of cocaine is not in a position to distribute the cocaine while he is
searching for a trustworthy customer, a clearly unreasonable and
unrealistic conclusion. See Hollingsworth, 27 F.3d at 1200 ("The
defendant must be so situated by reason of previous training or expe-
rience or occupation or acquaintances that it is likely that if the gov-
ernment had not induced him to commit the crime some criminal
would have done so . . . . A public official is in a position to take
bribes; a drug addict to deal drugs; a gun dealer to engage in illegal
gun sales."). If the evidence in this case does not establish Squilla-
cote's readiness, then we cannot imagine what would be sufficient.
(3)
The Appellants also contend that the district court erred by refusing
to instruct the jury that a defendant can be entrapped through forms
of inducement more subtle than outright coercion, such as persuasion
or an appeal to sympathy. We find no error.
_________________________________________________________________
banc vacated that portion of the panel opinion, see United States v.
Brace, 145 F.3d 247, 250 (5th Cir. 1998) (en banc). The en banc court
concluded that the question of whether predisposition included a posi-
tional element had not been raised at trial or on appeal, and the court
therefore expressly declined to consider it. See id. at 261.
37
The Appellants' theory of the case was that the FBI, through its
BAP report profiling Squillacote, masterfully catalogued Squilla-
cote's every emotional and psychological vulnerability. The FBI then
used this information to devise an undercover operation exploiting
these weaknesses to ensure that Squillacote would fall for the under-
cover agent's pitch. The Appellants claim that the agent induced
Squillacote into going along with his scheme by making subtle psy-
chological appeals to which he knew Squillacote would be uniquely
vulnerable. Consistent with this theory of entrapment, the Appellants
requested the following instruction on entrapment:
Entrapment occurs . . . [w]here the Government goes
beyond providing an opportunity for a crime but instead
induces its commission by taking advantage of the defen-
dant through such persuasion as appealing to the defendant's
political beliefs or to some other alternative, noncriminal
type of motive, or by playing on defendant's personal sym-
pathies and life experiences, or by exploiting the unique vul-
nerabilities of the defendant. The law of entrapment forbids
the conviction of [a] person where the Government has
played on the weaknesses of an innocent party and beguiled
her into committing crimes which she otherwise would not
have attempted had she not been induced by the Govern-
ment.
J.A. 1575-76.
The district court refused to give this instruction. Instead, the court
instructed the jury as follows:
A person is entrapped when that person has no previous
disposition or willingness or intent to commit the crime
charged and is induced by law enforcement officers to com-
mit the offense.
...
[It is not] entrapment . . . for the Government merely to
solicit to commit a crime.
38
In determining the question of entrapment, you should
consider all of the evidence received in this case concerning
the intentions and disposition of the defendant before
encountering the law enforcement officer, as well as the
nature and the degree of the inducement provided by the law
enforcement officer.
J.A. 1445-46. The court did not define inducement, nor did it give any
examples of the type of conduct that could be considered inducement.
The Appellants contend that the district court, by refusing to give
their requested instruction, prevented the jury from properly consider-
ing their defense because the court's instructions failed to adequately
inform the jury about the different ways in which a defendant can be
induced to commit a crime. See United States v. Hicks, 748 F.2d 854,
857 (4th Cir. 1984) ("[A] defendant is entitled to an instruction sub-
mitting to the jury any theory of defense for which there is a founda-
tion in the evidence."); United States v. Miller, 658 F.2d 235, 237 (4th
Cir. 1981) (The "district court's charge to the jury must be suffi-
ciently precise to instruct the jury in the defendant's theory of
defense." (internal quotation marks omitted)).
While "mild forms of persuasion" do not amount to inducement,
United States v. Daniel, 3 F.3d 775, 779 (4th Cir. 1993), we agree
with the Appellants that certain kinds of persuasion or appeals to
sympathy can be considered inducements for purposes of an entrap-
ment defense. See, e.g., United States v. Montanez, 105 F.3d 36, 39
(1st Cir. 1997) ("By omitting [from its entrapment instruction] any
`sympathy' examples, the trial court may well have left the jury with
the mistaken impression that coercion is a necessary element of
entrapment and, in this case, such a misunderstanding could well have
affected the outcome"); United States v. Jackson, 700 F.2d 181, 191
(5th Cir. 1983) (noting that to support an entrapment defense, "the
government conduct must include an element of persuasion or mild
coercion, such as . . . pleas based on need, sympathy, or friendship.").
The instruction proposed by the Appellants, however, failed to
explain to the jury that mild forms of persuasion cannot be considered
inducement. To this extent, the Appellants' instruction was not a cor-
rect statement of the law, and the district court properly rejected it.
39
More importantly, however, we disagree with the Appellants'
assertion that the instruction given by the district court was inade-
quate. While the instruction did not specifically state that inducement
could be accomplished through "persuasion," neither did it limit
inducement to coercion, which, according to the Appellants, was the
thrust of the government's argument to the jury. Instead, the instruc-
tion required the jury to determine "the nature and the degree of the
inducement" from all of the evidence presented at trial. J.A. 1446.
The parties skillfully argued their views of the case during closing
arguments, and the instruction gave the jury sufficient latitude to con-
clude that the government's actions amounted to inducement. Thus,
the district court did not err by refusing to give the Appellants'
requested instruction. See Chaudhry v. Gallerizzo, 174 F.3d 394, 408
(4th Cir.) ("The test of the adequacy of jury instructions is whether
the jury charge, construed as a whole, adequately states the control-
ling legal principle without misleading or confusing the jury."), cert.
denied, 120 S. Ct. 215 (1999).
Moreover, even if we were to conclude that the district court's
inducement instruction was inadequate, that conclusion would not
require reversal. "[T]he principal element in the defense of entrap-
ment [is] the defendant's predisposition to commit the crime." Rus-
sell, 411 U.S. at 433. Thus, even when the evidence clearly
establishes that the government's actions induced the defendant to
commit the crime, an entrapment defense fails if the defendant was
predisposed to commit the crime. See Jacobson , 503 U.S. at 548-49;
see also United States v. Cervante, 958 F.2d 175, 178 (7th Cir. 1992)
("The entrapment analysis ends without inquiry into government
inducement if the defendant was predisposed to commit the charged
conduct."); United States v. Osborne, 935 F.2d 32, 37 (4th Cir. 1991)
("[I]f the defendant's predisposition is established, the defense of
entrapment may not be based on government misconduct."); see also
Brace, 145 F.3d at 255 ("The Government acknowledges that it
induced [the defendant] to launder money. Therefore, at issue is
whether the evidence was sufficient to prove, beyond a reasonable
doubt, that [the defendant] was predisposed to do so."). Thus, any
error in the district court's instructions as to the government's induce-
ment of Squillacote would be harmless if we can conclude that the
jury could only have found that Squillacote was predisposed to com-
mit the crimes with which she was charged. See United States v. Has-
40
tings, 134 F.3d 235, 241 (4th Cir. 1998) ("When, over a proper
objection, a district court erroneously instructs the jury on an element
of the offense, the error may be disregarded as harmless if a review-
ing court can determine, beyond a reasonable doubt, that a correctly
instructed jury would have reached the same conclusion."); see also
United States v. Jackson, 72 F.3d 1370, 1378 (9th Cir. 1995) (con-
cluding, under a plain error review, that a faulty entrapment instruc-
tion did not require reversal of the defendant's conviction because
"the evidence virtually compels a finding that the defendant was pre-
disposed"); United States v. Jannotti, 729 F.2d 213, 225 (3d Cir.
1984) (concluding that error in the district court's entrapment instruc-
tions did not require reversal where the government presented over-
whelming proof of the defendants' predisposition). 14
In our view, the evidence of Squillacote's predisposition can only
be described as overwhelming. The government's evidence estab-
lished that Squillacote's involvement with the HVA went back almost
twenty years. Through her East German contacts, Squillacote learned
how to determine if she was being followed and how to evade those
who might be following her, how to receive and decipher sophisti-
cated coded messages, how to use the miniature document camera,
and how best to remove any "classified" markings on documents.
After the fall of East Germany, when Squillacote finally had a job that
gave her access to sensitive information, Squillacote herself sought
out opportunities to use these skills. She contacted David Truong, a
convicted spy, in the hopes of establishing a new"connection," and
she sent her fan letter to Kasrils, the South African official, hoping
that he would "read between the lines." That Squillacote actively
sought employment as a spy is powerful evidence that she was dis-
posed to committing espionage well before the government first con-
tacted her.
_________________________________________________________________
14 The defense of entrapment "is not of a constitutional dimension."
Russell, 411 U.S. at 433. Thus, as the Third Circuit noted in Jannotti,
729 F.2d at 225, it would seem that we would not be required to find any
error in the district court's entrapment instructions harmless beyond a
reasonable doubt, as we would with a constitutional error. See Chapman
v. California, 386 U.S. 18 (1967). Nonetheless, even under the beyond-
a-reasonable-doubt standard, we find any error to be harmless.
41
Squillacote's response to the government's phony Kasrils letter is
also strong evidence of her predisposition. It is perhaps an understate-
ment to say that Squillacote was ecstatic when she received the letter.
When she received the letter, Squillacote called her brother to tell him
about the letter. While laughing and crying, Squillacote said, "Mi-
chael, I did it. I did it Mike. All those years. All those years and I did
it. I did it." J.A. 1893. To her husband Squillacote described the letter
as "really, really, really, amazing," J.A. 1898. In fact, Squillacote was
so excited when she received the letter that she even told her children
about the impending meeting. See J.A. 1903. In another telephone
conversation with her brother, Squillacote explained how proud she
was that Kasrils had "read between the lines" of her letter. J.A. 1912.
Squillacote's predisposition to commit espionage is also evidenced
by her statements to the undercover agent during their first meeting.
In that meeting, the agent identified himself as being with the South
African Intelligence Service, and he explained that"there are still
operations being conducted without the full knowledge of everybody
in the state, for reasons, I guess, you can well understand." J.A. 2189.
Squillacote responded that "[t]his is an area that's not unfamiliar to
me." J.A. 2190. Squillacote then elaborated that she had been associ-
ated with similar activities "in another kind of capacity" for many
years, "so, you should understand that this is not a tabula rasa for me.
I'm coming with a history." J.A. 2190. Squillacote described her
covert activities as her "raison d'etre." J.A. 2212. When the under-
cover agent told Squillacote that he had "done some things that this
government would consider to be illegal," J.A. 2238, Squillacote
responded, "[b]een there," J.A. 2238, and she explained that she had
"violated Federal eighteen, lots and lots." 15 J.A. 2239. In our view,
these statements clearly show that Squillacote was more than willing,
without any encouragement from the government, to commit espio-
nage.
And perhaps the most compelling evidence of Squillacote's predis-
position is related to the documents she passed to the undercover
agent at their second meeting. The government's evidence established
_________________________________________________________________
15 Given the context, it is apparent that this statement is a reference to
Title 18 of the United States Code, which is entitled "Crimes and Crimi-
nal Procedure."
42
that Squillacote obtained one of the documents sometime before her
first meeting with the undercover agent, even though the phony Kas-
rils letter did not request, or even suggest, that Squillacote bring any
classified materials to the meeting. And extra copies of two of the
documents were found in Squillacote's home when the government
executed its search warrant. Thus, even before she first met the under-
cover agent, Squillacote had already violated 18 U.S.C.A. § 793(b) by
taking or copying classified national defense information. Clearer evi-
dence of predisposition is difficult to imagine.
The evidence of Squillacote's predisposition was so strong that the
jury could only conclude that Squillacote was predisposed to commit
espionage. Therefore, even if the jury had been instructed on the
actions that can be considered inducement and had concluded that the
government in fact induced Squillacote to commit the crime, it still
would have found Squillacote predisposed, thus making any finding
of inducement legally irrelevant. See Osborne , 935 F.2d at 37 ("[I]f
the defendant's predisposition is established, the defense of entrap-
ment may not be based on government misconduct."). We therefore
conclude beyond a reasonable doubt that, had the jury received a
more thorough inducement charge, it still would have rejected her
entrapment defense. Accordingly, any error in the district court's
inducement instruction was harmless. See Hastings, 134 F.3d at 241.
(4)
The Appellants also contend that the district court erred when it
gave an entrapment instruction that deviated from the charge the court
had informed the parties it would give and to which the Appellants
had tailored their closing arguments. We find no error.
Before closing arguments, the district court held a charge confer-
ence. As to the entrapment defense, the court stated that it "plan[ned]
to simply give the Devitt and Blackmar16 instruction on entrapment."
J.A. 1344. After the court rejected the Appellants' requested entrap-
ment instructions, some of which have already been discussed in this
opinion, the Appellants stated that they "would prefer the full `92
_________________________________________________________________
16 See 1 Edward J. Devitt et al., Federal Jury Practice and Instructions
§ 19.04 (4th ed. 1992).
43
Devitt and Blackmar to the Government's proposed charge on entrap-
ment." J.A. 1354. The court agreed to give the Devitt & Blackmar
charge.
The Devitt & Blackmar entrapment instruction sought by the
Appellants states, in relevant part:
A defendant may not be convicted of this crime, however,
if that person was entrapped by the government to the acts
charged.
A person is entrapped when that person has no previous
intent or disposition or willingness to commit the crime
charged and is induced or persuaded by law enforcement
officers [or by their agents] to commit the offense.
...
In determining the question of entrapment, the jury
should consider all of the evidence received in this case con-
cerning the intentions and disposition of the defendant
before encountering the law enforcement officers[or their
agents] as well as the nature and the degree of the induce-
ment or persuasion provided by the law enforcement offi-
cers [or their agents].
1 Devitt & Blackmar, § 19.04 (emphasis added).
The instructions actually given by the district court, however, were
largely the government's proposed instructions, and the instructions
deviated somewhat from the Devitt & Blackmar model instruction.
The court did not include the introductory paragraph explaining that
a defendant cannot be convicted if entrapped, and the district court
did not include the words "persuaded" or "persuasion" in its charge.
The Appellants contend that the district court violated Rule 30 of the
Rules of Criminal Procedure when it deviated from the promised
charge.
Rule 30 requires that the district court "inform counsel of its pro-
posed action upon the requests [for specific jury instructions] prior to
44
their arguments to the jury." Fed. R. Crim. P. 30. The purpose of the
rule is "to require the district court to inform the trial lawyers in a fair
way what the instructions are going to be in order to allow counsel
the opportunity to argue the case intelligently to the jury." United
States v. Horton, 921 F.2d 540, 547 (4th Cir. 1990) (internal quotation
marks omitted). A violation of Rule 30 requires reversal only if the
defendant can establish actual prejudice. See id.; United States v. Bur-
gess, 691 F.2d 1146, 1156 (4th Cir. 1982).
Although we question whether the district court in fact violated
Rule 30 by failing to deliver the Devitt & Blackmar instruction verba-
tim, we will nonetheless assume that a violation occurred. The ques-
tion, then, is whether the Appellants suffered any prejudice.
The Appellants contend they were prejudiced by the district court's
deviation from the Devitt & Blackmar charge because, based on their
expectation that the persuasion language would be included, they
argued persuasion to the jury and invited the jury to listen for persua-
sion in the court's entrapment instruction.17 The Appellants contend
that the district court's failure to give the expected jury instruction
damaged their credibility with the jury, and effectively bolstered the
government's credibility because the entrapment instructions dis-
cussed by the government during its closing were ultimately given by
the district court. We disagree.
Although counsel for Appellants did mention persuasion in closing
argument, the reference to the court's impending instructions was
rather general.18 There was no explicit promise that the court would
_________________________________________________________________
17 The Appellants also contend that by failing to include the opening
paragraph of the Devitt & Blackmar instruction, the court failed to
inform the jury that entrapment was a complete defense to the charges.
This argument is without merit. The district court informed the jury that
entrapment was asserted as a defense and that the government bore the
burden of proving beyond a reasonable doubt that the Appellants were
predisposed to committing the crimes. Viewing the charge as a whole,
we conclude that the district court adequately instructed the jury as to the
effect of the asserted defense. See Chaudhry, 174 F.3d at 408.
18 Counsel argued that the undercover agent "knew perfectly well that
being the first to offer money and being the first to propose an opera-
tional interest is exactly the kind of persuasion, and listen for the entrap-
ment instruction, persuasion, that the law forbids." J.A. 1425.
45
define persuasion, nor was there any attempt by the attorney to define
persuasion for the jury. In addition, although the government's clos-
ing argument did focus primarily on whether Squillacote was coerced
into committing the crimes, the government also used the word "per-
suasion" in its discussion of the entrapment defense. Under these cir-
cumstances, we simply cannot conclude that the district court's
deviation from the Devitt & Blackmar entrapment instruction dam-
aged the Appellants' credibility in the eyes of the jury. Moreover,
since we have already concluded that the overwhelming evidence of
Squillacote's predisposition rendered harmless any error in the court's
inducement instruction, we fail to see how the court's deviation from
the Devitt & Blackmar could have otherwise prejudiced the Appel-
lants.
Therefore, assuming that the district court violated Rule 30, we
conclude that the Appellants were not prejudiced by the violation and
that a new trial is not warranted.
(5)
Finally, Appellant Stand contends that the district court erred by
denying his request for a jury instruction on what is generally referred
to as "derivative entrapment." We find no error.
As a general rule, the defense of entrapment is applicable only in
cases where a government agent induces the commission of a crime
by a defendant who was not predisposed to commit the crime. Thus,
there is no defense of private entrapment; a defendant who was
induced to commit a crime by a private party, without any govern-
ment involvement, cannot claim that he was entrapped. See, e.g.,
United States v. Manzella, 791 F.2d 1263, 1269 (7th Cir. 1986)
("There is no defense of private entrapment. Private entrapment is just
another term for criminal solicitation, and outside the narrow haven
created by the defense of necessity or compulsion, the person who
yields to the solicitation and commits the solicited crime is guilty of
that crime." (citation omitted)); United States v. Burkley, 591 F.2d
903, 911 n.15 (D.C. Cir. 1978) ("Persuasion, seduction, or cajoling by
a private party does not qualify as entrapment even if the defendant
was not predisposed to commit the crime prior to such pressure.").
46
However, in cases where there is some involvement by government
agents, some circuits permit a defendant to raise a form of the entrap-
ment defense often referred to as derivative entrapment.19 While this
Circuit has never used the term "derivative entrapment" in a published
opinion, our case law makes it clear that the defense is not available.
In United States v. Dove, 629 F.2d 325 (4th Cir. 1980), Gene Baker
cooperated with the FBI to "cultivate contacts and develop informa-
tion about the trafficking of stolen automobiles." Id. at 326. Baker
ingratiated himself with George Hutto, and Baker and Hutto partici-
pated in several sales of stolen cars. Baker also helped Hutto steal
heavy equipment by teaching Hutto how to operate the equipment and
providing the means to transport the stolen equipment. Hutto negoti-
ated two separate sales of bulldozers to David Dove and Robert John-
ston, and Baker, the government agent, was present during both
transactions. On appeal, Dove and Johnston contended that they were
entrapped. The court quickly disposed of the argument, stating that
"only the inducements of government agents . . . give rise to an
entrapment defense. Dove and Johnston were induced to purchase the
bulldozers by Hutto. Baker's involvement as a silent partner in the
transaction does not change the essential `private entrapment' nature
of this argument." Id. at 329; see also United States v. Comi, 336 F.2d
856, 859-60 (4th Cir. 1964) (rejecting entrapment defense asserted by
defendant who claimed he was brought into the illegal venture by "the
continued insistence and pleading" of an intermediary who was asso-
ciated with a government agent, because the intermediary was not a
government agent and did not know he was working with a govern-
_________________________________________________________________
19 The derivative entrapment defense has different formulations. In
some circuits, a derivative entrapment defense may be raised only in
cases where a government agent directs a private party to bring a specific
person into a criminal scheme. See United States v. Washington, 106
F.3d 983, 996 (D.C. Cir. 1997) (per curiam); United States v. Murphy,
852 F.2d 1, 6 (1st Cir. 1988). Other circuits recognize a broader formula-
tion of the defense, allowing entrapment to be asserted by a defendant
who was induced to commit the crime by an intermediary who had been
induced by a government agent, even if the government agent did not
direct the intermediary to bring the defendant into the scheme. See Hol-
lingsworth, 27 F.3d at 1204; United States v. Valencia, 645 F.2d 1158,
1168 (2d Cir. 1980).
47
ment agent); Crisp v. United States, 262 F.2d 68, 69 (4th Cir. 1958)
(per curiam). These cases make it clear that, in the Fourth Circuit, a
defendant cannot claim an entrapment defense based upon the pur-
ported inducement of a third party who is not a government agent if
the third party is not aware that he is dealing with a government
agent. Accord Thickstun, 110 F.3d at 1398; United States v. Martinez,
979 F.2d 1424, 1432 (10th Cir. 1992). The district court, therefore,
committed no error by refusing to give the requested instruction.
B.
The Appellants also contend that the district court erred when it
determined that the evidence established only a single conspiracy and
thus refused to give the Appellants' requested multiple-conspiracy
instruction. We disagree.
"A multiple conspiracy instruction is not required unless the proof
at trial demonstrates that appellants were involved only in separate
conspiracies unrelated to the overall conspiracy charged in the indict-
ment." United States v. Kennedy, 32 F.3d 876, 884 (4th Cir. 1994)
(first emphasis added) (internal quotation marks omitted). "A single
conspiracy exists where there is one overall agreement, or one general
business venture. Whether there is a single conspiracy or multiple
conspiracies depends upon the overlap of key actors, methods, and
goals." United States v. Leavis, 853 F.2d 215, 218 (4th Cir. 1988)
(citations and internal quotation marks omitted).
The government's evidence established that Squillacote, Stand, and
Clark were involved in a single conspiracy to compromise informa-
tion related to this country's national defense. Stand, who was
recruited by Ziemer, recruited both Clark and Squillacote. Ziemer was
the primary handler for Stand, Squillacote, and Clark, and the three
received largely the same training and used the same methods of com-
municating with their East German contacts. After the collapse of
East Germany, the three continued their relationships with Ziemer,
which expanded to include the KGB. With the knowledge of the other
conspirators, Squillacote also sought to develop new contacts with
others who might be interested in what the group had to offer. Stand
was aware of Squillacote's letter to Kasrils, as well as her meetings
with the undercover agent. In fact, Stand helped Squillacote remove
48
the classified markings from the documents she provided to the agent.
Clark was likewise aware of the letter she wrote to Kasrils, and Squil-
lacote sought to involve Stand, Clark, and Ziemer in the operation
after she was contacted by the undercover agent.
In our view, this evidence is more than sufficient to support the
finding of a single conspiracy. That Squillacote, Stand, and Clark
were not always aware of the others' activities is part of the standard
operating procedure for those engaged in espionage and would not
prevent the jury from determining that a single conspiracy existed.
See United States v. Banks, 10 F.3d 1044, 1054 (4th Cir. 1993)
("[O]ne may be a member of a conspiracy without knowing its full
scope, or all its members, and without taking part in the full range of
its activities or over the whole period of its existence."); United States
v. Johnson, 54 F.3d 1150, 1154 (4th Cir. 1995) (concluding that evi-
dence established a single conspiracy even if the members of the con-
spiracy did not know each other or had limited contact with each
other).
While it is possible that Squillacote's South African foray could be
viewed as separate from the original conspiracy, it was certainly
closely related to the conspiracy charged in the indictment, a conspir-
acy in which the evidence overwhelmingly established the involve-
ment of Squillacote and Stand. Therefore, because the evidence did
not establish that the Appellants were involved"only in `separate con-
spiracies unrelated to the overall conspiracy charged in the indict-
ment,'" Kennedy, 32 F.3d at 884, the district court properly refused
to instruct the jury on multiple conspiracies. See id.20
_________________________________________________________________
20 The Appellants make much of Clark's testimony on cross-
examination that he did not have an agreement with the Appellants to
commit espionage, that he lost contact with the Appellants for a several
years in the late 1970s and early 1980s, and that he was not involved in
the South African effort. Given that Clark pleaded guilty to the charge
that he conspired with the Appellants to commit espionage, it seems
unlikely that the jury would have found this testimony particularly per-
suasive. In any event, to accept this argument would require us to con-
sider only Clark's testimony and to ignore the other evidence tending to
show the existence of a single conspiracy or multiple, but still related,
conspiracies, which of course we cannot do at this stage of the proceed-
ings.
49
Moreover, even if the evidence in this case warranted a multiple
conspiracy instruction, the district court's failure to give the instruc-
tion amounts to reversible error only if the Appellants can establish
that they were "prejudiced by the variance between the single conspir-
acy charged in the indictment and the multiple conspiracies proven at
trial." Id. at 884 n.1 (internal quotation marks omitted). "In order to
show actual prejudice stemming from a multiple conspiracy variance,
an appellant must prove that there are so many defendants and so
many separate conspiracies before the jury that the jury was likely to
transfer evidence from one conspiracy to a defendant involved in an
unrelated conspiracy." Id. at 883 (internal quotation marks omitted).
This case was relatively straightforward, at least as straightforward
as an espionage case can ever be. It involved a small number of con-
spirators engaged in a limited number of illegal activities. Thus, we
do not believe that there was any likelihood that the jury transferred
evidence from one defendant to another defendant involved in an
unrelated conspiracy. Moreover, the evidence of multiple conspiracies
was so weak when compared to the evidence establishing a single
conspiracy that we are convinced the jury would have convicted the
Appellants on the conspiracy charge even if a multiple-conspiracy
instruction had been given. See United States v. Tipton, 90 F.3d 861,
883 (4th Cir. 1996) (explaining that to find prejudice from the failure
to instruct the jury on multiple conspiracies, an appellate court "would
have to conclude that the evidence of multiple conspiracies was so
strong in relation to that of a single conspiracy that the jury probably
would have acquitted on the conspiracy count had it been given a cau-
tionary multiple-conspiracy instruction."). Because the Appellants
cannot show that they were prejudiced by the district court's refusal
to instruct the jury on multiple conspiracies, any error must be consid-
ered harmless.
C.
Finally, the Appellants contend that the district court improperly
defined "information relating to the national defense" when instruct-
ing the jury. We find no error.
The Appellants were convicted of violating 18 U.S.C.A. § 793(b)
and 18 U.S.C.A. § 794(a) and (c). In relevant part, these statutes pro-
50
hibit the obtaining or copying of documents "connected with the
national defense," 18 U.S.C.A. § 793(b), and conspiracies to or
attempts to transmit documents or information "relating to the
national defense," 18 U.S.C.A. § 794(a).
According to the Appellants, information that is available to the
public can never be considered national defense information. Thus,
the Appellants requested that the court instruct the jury as follows:
The term "national defense" is a broad term which refers to
the United States military and naval establishments and to
all related activities of national preparedness. The informa-
tion need not be classified information under security
criteria as long as you determine that the information has a
reasonable and direct connection with our national defense.
If, however, the information is lawfully accessible to anyone
willing to take pains to find, to sift, and to collate it, you
may not find that the defendant is guilty under this section.
Only information relating to our national defense which is
not available to the public at the time of the claimed viola-
tion falls within the prohibition of this section .
J.A. 1645 (emphasis added).
The district court, however, refused to give the Appellants' instruc-
tion, and instead gave the instruction requested by the government.
That instruction stated, in pertinent part, that the government
must prove that the material is closely held by the United
States government.
Where the information has been made public by the
United States government and is found in sources . .. law-
fully available to the general public, it does not relate to the
national defense.
Similarly, where sources of information are lawfully
available to the public and the United States government has
made no effort to guard such information, the information
itself does not relate to the national defense.
51
J.A. 1435.
The Appellants contend that the district court's instructions
improperly hinge the national defense determination solely on the
government's actions. The Appellants argue that the proper inquiry is
whether the information is available to the general public, regardless
of who made the information available. The Appellants presented evi-
dence of the public availability of information similar to some of the
information contained in the documents passed by Squillacote to the
undercover agent. Thus, if the Appellants are correct, the instruction
given by the district court would have prevented the jury from prop-
erly considering this evidence.
The government, however, contends that the district court's
instruction was correct. According to the government, an espionage
conviction can be based upon the transmission of information closely
held by the government, even if some form of that information is
available to the public, perhaps as the result of an unreliable "leak."
The government points out that the Appellants were convicted of
attempting to transmit national defense documents, rather than just
national defense information. According to the government, official
government documents carry with them an imprimatur of legitimacy
and authenticity. Thus, even if speculative information similar to that
contained in a document appears in the press, that should not prevent
a conviction based upon the unauthorized release of the document
itself. The government therefore contends that the district court prop-
erly instructed the jury that closely held information must be made
available to the public by the government before it loses its status as
national defense information.
The statutes at issue unfortunately provide no guidance on the
question of what kind of information may be considered related to or
connected with the national defense. The task of defining "national
defense" information thus has been left to the courts.
The Supreme Court considered the possible limitations on national
defense information in Gorin v. United States , 312 U.S. 19 (1941).
Gorin involved sections one and two of the Espionage Act of 1917,
the predecessor to the statutes at issue here. The defendants in Gorin
argued that national defense information under the Espionage Act
52
must be limited to information related to the places and things speci-
fied in section 1(a) of the Espionage Act.21 According to the Gorin
defendants, failure to so limit the Act rendered it unconstitutionally
vague and infringed "upon the traditional freedom of discussion of
matters connected with national defense which is permitted in this
country." Id. at 23.
The Supreme Court rejected this argument, and adopted the gov-
ernment's definition of national defense as "a generic concept of
broad connotations, referring to the military and naval establishments
and the related activities of national preparedness." Id. at 28. The
Court concluded that the Act's requirement that the information be
intended to be "used to the injury of the United States, or to the
advantage of any foreign nation" provided a sufficient limitation on
the reach of the Act:
This [language] requires those prosecuted to have acted in
bad faith. The sanctions apply only when scienter is estab-
lished. Where there is no occasion for secrecy, as with
reports relating to national defense, published by authority
of Congress or the military departments, there can, of
course, in all likelihood be no reasonable intent to give an
advantage to a foreign government.
Id. (emphasis added).
In United States v. Heine, 151 F.2d 813 (2nd Cir. 1945), the Sec-
ond Circuit further considered the question of whether an espionage
conviction can be based upon the dissemination of publicly-available
_________________________________________________________________
21 Section 1(a) of the Espionage Act prohibited entering into, flying
over, or "otherwise obtain[ing] information concerning any vessel, air-
craft, work of defense, navy yard, naval station, submarine base, coaling
station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal,
camp, factory, mine, telegraph, telephone, wireless, or signal station,
building, office, or other place connected with the national defense," if
those actions were for the purpose of obtaining national defense informa-
tion intended to be used "to the injury of the United States, or to the
advantage of any foreign nation." Gorin, 312 U.S. at 21 n.1. Section
793(a) contains essentially identical language.
53
information. In Heine, the defendant, during the early stages of World
War II, provided a German corporation with reports about the avia-
tion industry in the United States. All of the information provided by
the defendant "came from sources that were lawfully accessible to
anyone who was willing to take the pains to find, sift and collate it."
Id. at 815. Relying on Gorin, the court concluded that the dissemina-
tion of information that the government had never kept secret could
not support an espionage conviction:
[I]t is obviously lawful to transmit any information about
weapons and munitions of war which the services had them-
selves made public; and if that be true, we can see no war-
rant for making a distinction between such information, and
information which the services have never thought it neces-
sary to withhold at all. There can, for example, be no ratio-
nal difference between information about a factory which is
turning out bombers, and to which the army allows access
to all comers, and information about the same bombers, con-
tained in an official report, or procured by a magazine
through interviews with officers. The services must be
trusted to determine what information may be broadcast
without prejudice to the "national defense," and their con-
sent to its dissemination is as much evidenced by what they
do not seek to suppress, as by what they utter. . . . "Informa-
tion relating to the national defense," whatever else it
means, cannot therefore include that kind of information,
and so far as Heine's reports contained it, they were not
within the section.
Id. at 816. The court, therefore, reversed the defendant's conviction
on the espionage count. Id. at 817.
Thus, under Gorin and Heine, the central issue is the secrecy of the
information, which is determined by the government's actions. See
Gorin, 312 U.S. at 28; Heine, 151 F.2d at 816. Under this analysis,
the instructions given by the district court in this case were clearly
correct, and properly focused the jury's attention on the actions of the
government when determining whether the documents were related to
the national defense. The Appellants contend, however, that cases
from this Circuit have further restricted the definition of national
54
defense information, thus rendering the instruction given by the dis-
trict court insufficient.
In United States v. Dedeyan, 584 F.2d 36 (4th Cir. 1978), the
defendant was convicted under 18 U.S.C.A. § 793(f)(2) of failing to
report the abstraction (by photographing) of a classified document
related to the national defense. On appeal, this Court rejected the
defendant's contention that section 793 was overbroad and thus vio-
lated the First and Fourteenth Amendments. Id. at 39. The Court con-
cluded that any overbreadth problem was cured by the district court's
jury instructions, which provided that
"Information about weapons, munitions of war and intel-
ligence which has been made public by Congress or the
Department of Defense and is found in sources lawfully
available to the general public does not relate to the national
defense.
"Similarly, where the sources of information are lawfully
available to the public, and the United States and the
Department of Defense have made no effort to guard such
information, the information itself does not relate to the
national defense."
Id. at 39-40 (emphasis added).
Clearly, the instruction given in this case is completely consistent
with the above-quoted instruction given in Dedeyan. However, the
quoted portions of the Dedeyan instructions are not complete, as this
Court noted in Dedeyan when it stated that the district court also
"stated the proposition conversely." Id. at 40. Although our opinion
in Dedeyan does not include the conversely-stated portion of the
instruction, the Appellants appended to their Reply Brief that portion
of the transcript of Dedeyan's trial containing the relevant instruc-
tions. The portion of the charge omitted from our opinion in Dedeyan
explains to the jury when information can be considered "available to
the public":
[I]f information appears in an official government docu-
ment that is closely held and on its face represents the
55
United States' own estimates of its strength and weaknesses
and its intelligence as to a potential enemy's strengths and
weaknesses, and such official estimates are not lawfully
available to the public, the document is a source not avail-
able to the public.
Although the Appellants believe this portion of the instruction sup-
ports their position, we conclude that it instead demonstrates the cor-
rectness of the district court's instruction.
As this instruction makes clear, there is a special significance to
our government's own official estimates of its strengths and weak-
nesses, or those of a potential enemy. When those estimates are
included in an official document closely held by the government,
those estimates carry with them the government's implicit stamp of
correctness and accuracy. That our government believes the estimates
to be correct in and of itself is a fact that would be highly valuable
to other countries. While general, unofficial information about the
same issues may be available in public sources, that information is
merely speculative, and is no substitute for the government's official
estimates. As the instruction in Dedeyan makes clear, a document
containing official government information relating to the national
defense will not be considered available to the public (and therefore
no longer national defense information) until the official information
in that document is lawfully available. Thus, as the government
argues, mere leaks of classified information are insufficient to prevent
prosecution for the transmission of a classified document that is the
official source of the leaked information.
Such an approach to cases involving the compromise of documents
is consistent with the Supreme Court's decision in Gorin, in which the
Court concluded that the required level of scienter could not be estab-
lished in cases "[w]here there is no occasion for secrecy." Gorin, 312
U.S. at 28. The approach is likewise consistent with the Second Cir-
cuit's analysis in Heine. See 151 F.2d at 816. And contrary to the
Appellants' contention, the approach is likewise consistent with sub-
sequent cases from this Circuit.
In United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980),22
_________________________________________________________________
22 It appears that the defendant in Truong is the David Truong
approached by Squillacote in her efforts to make a new "connection."
56
this court rejected the defendants' arguments that the information at
issue in that case did not relate to national defense. See id. at 918. In
a footnote, the court noted that the district court properly instructed
the jury that "transmission of publicly available information did not
fall within the statutory prohibitions," id. at 918 n.9, a proposition
established in Gorin, Heine, and Dedeyan.
Truong, however, contains no discussion of the central issue here
--that is, when can information contained in a closely-held document
be considered publicly available--and it does not stand for the broad
proposition urged by the Appellants that the presence in the public
domain of snippets of unattributed and unverified information similar
to that contained in official documents closely held by the govern-
ment prevents a prosecution based on the transmission of the docu-
ment itself.
To accept the Appellants' argument would effectively require the
government to prove, at least as to some piece of information con-
tained in the document, that no person anywhere in the world had
ever publicly speculated about that information. Requiring that kind
of "proof of a negative" would unduly hamper the government's abil-
ity to protect sensitive information and would render successful pros-
ecutions in cases involving closely-held documents nearly impossible.
Cf. United States v. Richardson, 30 M.J. 1239, 1244 (A.C.M.R. 1990)
(per curiam) ("The appellant contends that evidence of record is
insufficient to support his espionage conviction because there is no
evidence of record that the information he conveyed to `Vladimir'
was not accessible to the public . . . . Contrary to the appellant's inter-
pretation of the dicta in Gorin and the decision in Heine, the offense
of espionage does not require proof of a negative averment. These
decisions stand for the simple proposition that an inference of bad
faith on the part of the accused may not be justified where the
`national defense information' alleged in the charge is generally
accessible to the public or has been published to the public at large
by the United States government."), rev'd on other grounds, 33 M.J.
127 (C.M.A. 1991). The mere fact that similar but unofficial informa-
tion is publicly available does not automatically remove information
in closely-held documents from the realm of "national defense" infor-
mation, as the Appellants' requested instruction suggests. Truong's
shorthand summary of the instruction given in that case simply cannot
57
be read as silently but yet so fundamentally changing the law as estab-
lished in Gorin, Heine, and Dedeyan.
We reject the Appellants' reliance on United States v. Morison, 844
F.2d 1057 (4th Cir. 1988), for the same reason. In Morison, the defen-
dant again challenged section 793 as unconstitutionally vague. This
court again rejected that argument, concluding that the jury instruc-
tions defining wilfulness and national defense information were suffi-
cient to overcome any vagueness problem. See id. at 1071-72. The
national defense instruction given in Morison stated, in relevant part,
that "the government must prove that the documents or the photo-
graphs are closely held in that [they] . . . have not been made public
and are not available to the general public." Id. (ellipses and alteration
in original). This instruction is consistent with Gorin, Heine, and
Dedeyan in that it explains that information made public by the gov-
ernment as well as information never protected by the government is
not national defense information. While the "not available to the gen-
eral public" language of the charge could arguably provide some sup-
port for the Appellants' argument, we again decline to interpret this
brief reference to the jury charge as silently working a fundamental
change in the law.
Here, the district court instructed the jury that the information
made public by the government could not be considered national
defense information, nor could publicly available information that the
government has never protected. These instructions were consistent
with the teachings of Gorin, Heine, and Dedeyan. Although the court
did not give the additional Dedeyan instruction (which was not set out
in this Court's opinion in Dedeyan), that instruction was not requested
by either party, and its omission does not render improper the instruc-
tions given. We therefore reject the Appellants' challenge to the dis-
trict court's national defense instructions.23
_________________________________________________________________
23 As previously discussed, the Supreme Court in Gorin concluded that
the Espionage Act's scienter requirement sufficiently limited the reach of
the Act so as to overcome the defendant's vagueness challenge. How-
ever, Dedeyan, Truong, and Morison focused on the jury instructions
defining national defense information when rejecting the vagueness or
overbreadth challenges, even though the Supreme Court in Gorin found
no reversible error in the much more general national defense instruc-
tions that were given in that case. See Gorin , 312 U.S. at 30-31. To this
extent, Dedeyan, Truong, and Morison arguably offer more protection to
defendants than required by Gorin.
58
V.
After carefully reviewing the record and considering the arguments
of the parties, we find no reversible error in the proceedings below.
Accordingly, the convictions of the Appellants are hereby affirmed.
AFFIRMED
59