UNITED STATES CODE SERVICE
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*** CURRENT THROUGH P.L. 108-498, APPROVED 12/23/04 ***
*** WITH GAPS OF P.L. 108-458 and 108-487 ***
TITLE 18. CRIMES AND CRIMINAL PROCEDURE
PART I. CRIMES
CHAPTER 37. ESPIONAGE AND CENSORSHIP
GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION
18 USCS @ 794 (2004)
@ 794. Gathering or delivering defense information to aid foreign government
(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978 [50 USCS @ 1801(a)]) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.
(b) Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates, or attempts to elicit any information with respect to the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense, which might be useful to the enemy, shall be punished by death or by imprisonment for any term of years or for life.
(c) If two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.
(d) (1) Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law--
(A) any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation, and
(B) any of the person's property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.
For the purposes of this subsection, the term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1) of this subsection.
(3) The provisions of subsections (b), (c) and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)-(p)) shall apply to--
(A) property subject to forfeiture under this subsection;
(B) any seizure or disposition of such property; and
(C) any administrative or judicial proceeding in relation to such property,
if not inconsistent with this subsection.
(4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund in the Treasury all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.
HISTORY:
(June 25, 1948, ch 645, @ 1, 62 Stat. 737; Sept. 3, 1954, ch 1261, Title II, @ 201, 68 Stat. 1219; Aug. 27, 1986, P.L. 99-399, Title XIII, @ 1306(b), 100 Stat. 898; Nov. 18, 1988, P.L. 100-690, Title VII, Subtitle B, @ 7064, 102 Stat. 4404; Sept. 13, 1994, P.L. 103-322, Title VI, @ 60003(a)(2), 108 Stat. 1968; Oct. 14, 1994, P.L. 103-359, Title VIII, @ 804(b)(2), 108 Stat. 3440.)
(As amended Oct. 11, 1996, P.L. 104-294, Title VI, @@ 604(b)(3), 607(b), 110 Stat. 3506, 3511.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Prior law and revision:
This section is based on Act June 15, 1917, ch 30, Title I, @@ 2, 4, 40 Stat. 218, 219 (former 50 U.S.C. @@ 32 and 34).
The words "or induces or aids another" were omitted as unnecessary in view of definition of "principal" in 18 USCS @ 2. The conspiracy provision of 50 U.S.C. former @ 34 of Title 50 was also incorporated in 18 USCS @ 2388.
Minor changes in phraseology were made.
Amendments:
1954. Act Sept. 3, 1954, in subsec. (a), substituted "punished by death or by imprisonment for any term of years or for life" for "imprisoned not more than twenty years"; deleted former subsec. (b), which read: "Whoever violates subsection (a) in time of war shall be punished by death or by imprisonment for not more than thirty years."; redesignated former subsec. (c) to be (b), and, in such subsec. (b), substituted "any term of years or for life" for "not more than thirty years"; and redesignated former subsec. (d) to be subsec. (c).
1986. Act Aug. 27, 1986 added subsec. (d).
1988. Act Nov. 18, 1988, in subsec. (d)(4), substituted "amounts" for "amount".
1994. Act Sept. 13, 1994, as amended by Act Oct. 11, 1996 (effective on 9/13/94, pursuant to @ 604(d) of such Act, which appears as 18 USCS @ 13 note), in subsec. (a), inserted ", except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.".
Act Oct. 14, 1994, in subsec. (d)(3), in the introductory matter, substituted "(p)" for "(o)" in two places.
1996. Act Oct. 11, 1996 (effective on 9/13/94, pursuant to @ 604(d) of such Act, which appears as 18 USCS @ 13 note) amended the directory language of Act Sept. 13, 1994 without affecting the text of this section.
Such Act further, in subsec. (d)(1), added the concluding matter.
Other provisions:
Temporary extension of section. Act June 30, 1953, ch 175, @ 7, 67 Stat. 133, repealed Joint Res. July 3, 1952, ch 570, @ 1(a)(29), 66 Stat. 333; Joint Res. March 31, 1953, ch 13, @ 1, 67 Stat. 18, which had provided that this section should continue in force until six months after the termination of the National emergency proclaimed by 1950 Proc. No. 2914 which is set out as a note preceding 50 USCS Appx @ 1.
Joint Res. July 3, 1952, @ 6, repealed Joint Res. April 14, 1952, ch 204, 66 Stat. 54, as amended by Joint Res. May 28, 1952, ch 339, 66 Stat. 96. Intermediate extensions by Joint Res. June 14, 1952, ch 437, 66 Stat. 137, and Joint Res. June 30, 1952, ch 526, 66 Stat. 296, which continued provisions until July 3, 1952, expired by their own terms. See also, 18 USCS @ 798.
Limitation of prosecution. Act Sept. 23, 1950, ch 1024, Title I, @ 19, 64 Stat. 1005, provided: "An indictment for any violation of title 18, United States Code, sections 792, 793, or 794, other than a violation constituting a capital offense, may be found at any time within ten years next after such violation shall have been committed. This section [this note] shall not authorize prosecution, trial, or punishment for any offense now [on Sept. 23, 1950] barred by the provisions of existing law.".
NOTES:
Related Statutes & Rules:
Federal retirement benefits, forfeiture upon conviction of offenses described under this section, 5 USCS @ 8312.
Sentencing Guidelines for the United States Courts, 18 USCS Appx @ 2M3.1.
Conspiracy to commit offense generally, 18 USCS @ 371.
Classified information, disclosure by Government official, or other person, penalty for, 18 USCS @ 798; 50 USCS @ 783.
Letters, writings, etc. in violation of this section as nonmailable, 18 USCS @ 1717.
Jurisdiction of offenses, 18 USCS @ 3241.
Forfeiture of veterans' benefits upon conviction under this section, 38 USCS @ 6105.
This section is referred to in 5 USCS @ 8312; 18 USCS @@ 14, 792, 798A, 951, 1717, 1956, 3077, 3239, 3591, 3592, 3681; 22 USCS @ 2778, 38 USCS @ 6105; 42 USCS @ 2000aa; 50 USCS Appx @@ 19, 34, 2410.
Research Guide:
Federal Procedure:
3 Fed Proc L Ed, Armed Forces, Civil Disturbances, and National Defense @ 5:606.
14 Fed Proc L Ed, Foreign Trade and Commerce @@ 37:946, 37:1009.
Am Jur:
3B Am Jur 2d, Aliens and Citizens @ 1862.
70 Am Jur 2d, Sedition, Subversive Activities, and Treason @@ 18, 19, 21-24, 28, 30, 31, 33, 35, 39-42.
70B Am Jur 2d, Social Security and Medicare @ 1666.
Am Jur Trials:
20 Am Jur Trials, Handling the Defense in a Conspiracy Prosecution, p. 356.
Forms:
3 Fed Procedural Forms L Ed, Armed Forces, Civil Disturbances, and National Defense (2002) @ 5:240.
Law Review Articles:
Edgar and Schmidt. The Espionage Statutes and Publication of Defense Information. 73 Columbia L Rev 929.
Interpretive Notes and Decisions:
I. IN GENERAL
1. Generally
2. Power of Congress
3. Constitutionality
4. Purpose
5. Relation to United States Constitution
6. Relation to other laws
II. ELEMENTS OF CRIME
7. Communicates, delivers, transmits; attempts
8. National defense
9. --Property or information related to national defense
10. --Public information
11. Title to or possession of property or information
12. Time of war
13. Scienter
14. Act to effect object of conspiracy
III. PARTIES
15. Who may commit crime
IV. PROSECUTION AND PUNISHMENT
A. Pretrial Issues
16. Jurisdiction
17. Indictment or information
18. Pretrial discovery
B. Conduct of Trial
1. In General
19. Burden of proof
20. Witnesses
21. Questions of fact
22. Instructions
2. Evidence
23. Generally
24. --Business records
25. --Map, diagram, or chart
26. --Memberships; associations
27. --Wiretaps
28. Miscellaneous
C. Judgment and Sentence
29. Generally
30. --Death sentence
31. --Reduction of sentence
I. IN GENERAL
1. Generally
Prosecution for espionage and conspiracy to commit espionage was proper since Wharton's Rule is inapplicable when conspiracy involves co-operation of greater number of persons than is required for commission of substantive offense, it is judicial presumption which applies only in absence of legislative intent that conspiracy and substantive offense are to remain separate crimes, and it is only applicable if substantive offense is imbued with certain distinctive characteristics: (1) parties to agreement are only persons who participate in commission of substantive offense, (2) immediate consequences of crime rests on parties themselves rather than on society at large, and (3) agreement that necessarily attends substantive offense is not likely to generate additional agreements to engage in other criminal endeavors. United States v Walker (1986, CA4 Va) 796 F2d 43, 21 Fed Rules Evid Serv 102.
Where stockholder's action for accounting and for rescission of license agreement did not concern structure or details of any patent or contract but merely consideration for license agreement, motion to stay based on contention that many of patents involved in litigation were directly concerned with military production and that their disclosure would be violation of our security laws and defendant's government military contracts, would be denied, subject to reconsideration if it should appear that further prosecution of suit would be inimical to United States. Hirshhorn v Mine Safety Appliances Co. (1944, DC Pa) 54 F Supp 588, 61 USPQ 517.
Contractors furnishing war materials to United States could lawfully admit to their factories representatives of countries allied with United States and communicate to them secret information about manufacturing methods and products when specifically authorized by war department in accordance with applicable regulations. (1942) 40 Op Atty Gen 247.
2. Power of Congress
Congress has power to prescribe death penalty for espionage during time of war. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
Congress has power and authority to break down into separate offenses various aspects of espionage activity and to make each separate aspect punishable as provided separately in 18 USCS @ 793 and 18 USCS @ 794. Boeckenhaupt v United States (1968, CA4 Va) 392 F2d 24, cert den (1968) 393 US 896, 21 L Ed 2d 177, 89 S Ct 162.
3. Constitutionality
Act prohibiting transmission of defense information to foreign nation does not violate Sixth Amendment on the ground of vagueness, since term "National Defense" has well understood meaning, and does not violate First Amendment, since guaranty of free speech does not include privilege of transmitting information concerning defense of country to another nation. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
Defendant's motion to dismiss two counts of indictment charging him with attempted espionage was denied because 18 USCS @ 794(a) is not unconstitutionally vague; term "directly concerned" had common sense meaning that jury could properly understand and reasonably apply, and defendant had actual notice that classified information he allegedly sought to transmit "directly concerned" satellite technology and other national security items listed in 18 USCS @ 794(a). United States v Regan (2002, ED Va) 221 F Supp 2d 666, motion to strike den (2002, ED Va) 221 F Supp 2d 661.
4. Purpose
Purpose of death penalty for disclosing defense information to foreign power in time of war was to place ultimate discouragement on communicating defense information when nation was fighting for its own life, and to exact ultimate penalty from those who did; although this purpose would not end on firing of last shot or even on signing of surrender, it also would not continue indefinitely thereafter. United States v Sobell (1963, CA2 NY) 314 F2d 314, cert den (1963) 374 US 857, 10 L Ed 2d 1077, 83 S Ct 1906.
18 USCS @ 794 was intended to protect and to keep inviolate our military secrets from all foreign powers, whether friendly or enemy country. United States v Rosenberg (1953, DC NY) 109 F Supp 108, affd (1953, CA2 NY) 204 F2d 688.
5. Relation to United States Constitution
Offense of communication of restricted information to advantage of any foreign nation is distinct from crime of treason in USCS Constitution Article 3 @ 3 clause 1, and constitutional safeguards for treason do not apply. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
Treason provision of Article 3 @ 3 clause 1 of Constitution which requires two witnesses, is not applicable to 18 USCS @ 794. United States v Drummond (1965, CA2 NY) 354 F2d 132, cert den (1966) 384 US 1013, 16 L Ed 2d 1031, 86 S Ct 1968, reh den (1966) 385 US 892, 17 L Ed 2d 126, 87 S Ct 24.
6. Relation to other laws
Atomic Energy Act [42 USCS @@ 2011 et seq.] did not repeal, amend, or supersede Espionage Act [18 USCS @@ 791 et seq.]. Rosenberg v United States (1953) 346 US 273, 97 L Ed 1607, 73 S Ct 1152.
With respect to delivery of instrument relating to national defense, there are sufficient differences between 18 USCS @ 793 and 18 USCS @ 794 to justify conclusion that legal bar to prosecution under 18 USCS @ 793 would not prevent prosecution under 18 USCS @ 794, although there may be question of res judicata as to particular facts; provisions of 18 USCS @ 793 closely correspond to those of 18 USCS @ 794, but penalty is different, since 18 USCS @ 793 carries maximum punishment extending only to imprisonment for term of 10 years, yet 18 USCS @ 794 authorizes death penalty, and court-martial has no jurisdiction over offense defined in general Federal Penal Code that authorizes death sentence. United States v Soblen (1962, CA2 NY) 301 F2d 236, cert den (1962) 370 US 944, 8 L Ed 2d 810, 82 S Ct 1585; United States v Coplon (1949, DC NY) 88 F Supp 910; United States v French (1959) 10 USCMA 171, 27 CMR 245; United States v Kirsch (1964) 15 USCMA 84 35 CMR 56.
Attempt and conspiracy to commit espionage in violation of 18 USCS @ 794 is capital for purposes of @ 3148, irrespective of fact that government does not seek death penalty facially available under @ 794. United States v Kostadinov (1983, CA2 NY) 721 F2d 411.
18 USCS @ 3281 provides appropriate time period for which indictment charging violation of @ 794 are to be returned. United States v Helmich (1981, MD Fla) 521 F Supp 1246, affd (1983, CA11 Fla) 704 F2d 547, cert den (1983) 464 US 939, 78 L Ed 2d 317, 104 S Ct 353.
II. ELEMENTS OF CRIME
7. Communicates, delivers, transmits; attempts
Federal employee who copied certain confidential data from government files and met Russian agent in part for purpose of delivering same to him, but had not done so when interrupted by federal agents, had gone beyond stage of preparation, and was engaged in attempt to deliver information to foreign agent. United States v Coplon (1950, CA2 NY) 185 F2d 629, 28 ALR2d 1041, cert den (1952) 342 US 920, 96 L Ed 688, 72 S Ct 362.
8. National defense
Words "national defense" as used in Espionage Act refer to military and naval establishment of United States and related activities of national preparedness; whether information, obtaining and delivery of which to agent of foreign government is alleged to constitute violation, was connected with or related to national defense, is question of fact for determination of jury, under instruction that connection must be reasonable, direct, and natural. Gorin v United States (1941) 312 US 19, 85 L Ed 488, 61 S Ct 429, reh den (1941) 312 US 713, 85 L Ed 1144, 61 S Ct 617.
Term "national defense" within meaning of 18 USCS @ 794 is not limited strictly to information concerning military establishment and military preparedness for defending territory of United States; national defense is generic concept of broad connotation. United States v Boyce (1979, CA9 Cal) 594 F2d 1246, cert den (1979) 444 US 855, 62 L Ed 2d 73, 100 S Ct 112.
9. --Property or information related to national defense
Defendant was member of general conspiracy to transmit defense information to Russia, even though he only transmitted engineering information, while codefendants transmitted atomic energy information. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
Documents relating to study of worldwide communication satellite system to be used by American agents of Central Intelligence Agency in "denied areas" of world was information relating to national defense within meaning of 18 USCS @ 794. United States v Boyce (1979, CA9 Cal) 594 F2d 1246, cert den (1979) 444 US 855, 62 L Ed 2d 73, 100 S Ct 112.
Documents involved in prosecution for violation of 18 USCS @ 794 need relate only to "national defense"; documents need not necessarily be proved to be of secret, nonpublic nature. United States v Enger (1978, DC NJ) 472 F Supp 490.
In action by mother and daughter alleging violations of their civil rights in connection with custody proceedings, federal question jurisdiction does not exist based on 18 USCS @ 794(a), where mother asserts that if she divulges information about her activities concerning her parent representative position at school at which daughter, U.S. Vice-President's daughter, and former Secretary of State's daughter attend, it would lead to treason and sedition, because mother has not established that she has obtained or furnished guarded information that is connected to national defense or has communicated that information to foreign nation or would be required to if discovery is allowed to proceed. Offutt v Kaplan (1995, ND Ill) 884 F Supp 1179.
Material transmitted, copies of diplomatic cables and other classified papers procured from employee of United States Information Agency, related to "national defense" within meaning of 18 USCS @@ 793 and 794. United States v Truong Dinh Hung (7/17/80, CA4) 27 Cr L 2418.
10. --Public information
Where defendant collected from various sources that were lawfully accessible to anyone who was willing to take the pains to find, sift, and collate it, information concerning airplane manufacture in United States and arranged information in reports so as to constitute as full a conspectus as possible of airplane industry and sent them to Germany so that German government should be fully advised of our defense in event of war, he nevertheless was not guilty of unlawfully disclosing information affecting national defense. United States v Heine (1945, CA2 NY) 151 F2d 813, cert den (1946) 328 US 833, 90 L Ed 1608, 66 S Ct 975.
11. Title to or possession of property or information
The plaintiff is entitled to his out-of-pocket expenses only where the government seeks to regain possession of government equipment, which the government had failed to demilitarize, since the equipment was still covered by national security considerations, even though no longer classified. Ast/Servo Systems, Inc. v United States (1971) 196 Ct Cl 150, 449 F2d 789.
12. Time of war
In prosecution for transmitting defense information to foreign power in time of war, "time of war" did not continue until presidential proclamation of termination of state of war with Japan on April 28, 1952, nor did war end September 2, 1945 as contended by defendant; for purposes of this provision, war ended before summer and fall of 1948; terms such as war and peace must be construed in light of precise facts of each case and impact of particular statute involved. United States v Sobell (1963, CA2 NY) 314 F2d 314, cert den (1963) 374 US 857, 10 L Ed 2d 1077, 83 S Ct 1906.
13. Scienter
Statutory prohibitions were not simple prohibitions against obtaining or delivering to foreign powers information which jury could have considered relating to national defense, but required those prosecuted to have acted in bad faith and sanctions applied only when scienter was established. Gorin v United States (1941) 312 US 19, 85 L Ed 488, 61 S Ct 429, reh den (1941) 312 US 713, 85 L Ed 1144, 61 S Ct 617.
Scienter, that is, intent or reason to believe that information to be obtained is to be used to injury of United States or to advantage of any foreign nation, is essential element under 18 USCS @ 794. United States v Enger (1978, DC NJ) 472 F Supp 490.
14. Act to effect object of conspiracy
"Act" to effect object of conspiracy may be any act and need not be forbidden by specific statute. Farnsworth v Zerbst (1938, CA5 Ga) 98 F2d 541.
Conspiracy is not necessarily part of substantive violation of 18 USCS @ 794 in that substantive portions of @ 794, (a) and (b), by their terms do not require conspiratorial agreement. United States v Helmich (1981, MD Fla) 521 F Supp 1246, affd (1983, CA11 Fla) 704 F2d 547, cert den (1983) 464 US 939, 78 L Ed 2d 317, 104 S Ct 353.
III. PARTIES
15. Who may commit crime
Mere fact that defendant's office was located in building considered part of Bulgarian Embassy does not, without more, establish that he was one of persons who comprised Bulgarian mission to United States entitled to immunity from criminal prosecution. United States v Kostadinov (1984, CA2 NY) 734 F2d 905, cert den (1984) 469 US 881, 83 L Ed 2d 184, 105 S Ct 246.
In prosecution for acts of espionage under 18 USCS @ 794, certification by Department of State that defendant did not enjoy diplomatic status was dispositive fact on issue of diplomatic status, since it is political question and matter of state. United States v Coplon (1950, DC NY) 88 F Supp 915.
IV. PROSECUTION AND PUNISHMENT
A. Pretrial Issues
16. Jurisdiction
Court-martial was without jurisdiction to try accused on charge alleging as violation of Article 134 of Uniform Code of Military Justice (10 USCS @ 934), conspiracy to violate 18 USCS @ 794(a), offense for which death penalty is authorized. United States v Rhodes (1958, US) 28 CMR 427.
Offense of attempting to deliver classified document to foreign government is based on 18 USCS @ 794, and court-martial would not have jurisdiction if offense were committed in area where federal civilian courts could operate, but court-martial had jurisdiction where offense was committed in Germany. United States v Northrup (1960, US) 31 CMR 599.
Although 18 USCS @ 794 had no extraterritorial effect at time of accused's alleged offenses in Germany, court-martial had jurisdiction to try accused on charges of conspiracy to communicate and communicating defense information to foreign agents, which charges were based on 18 USCS @ 794, but were charged as violations of Articles 81 and 134 of Uniform Code of Military Justice. United States v Kauffman (1962, US) 33 CMR 748.
Challenge to courts-martial jurisdiction would fail where government alleged noncapital offenses under Article 134, Uniform Code of Military Justice (10 USCS @ 934), although accused urged that conviction of violation of 18 USCS @ 794(a) in different jurisdiction could have occurred, since language of relevant specifications dealt with 50 USCS @ 783(b) rather than 18 USCS @ 794(a); it was thus immaterial whether conviction under @ 794(a) could have been sustained based upon evidence presented by government. United States v DeChamplain (1972, US) 46 CMR 784.
Defendant waived issue of personal jurisdiction based on ground that government officials had participated in alleged abduction of defendant from Mexico, where he failed to raise objection until end of trial. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
Espionage Act (18 USCS @@ 792-99) applies to extraterritorial acts of espionage committed by citizens and noncitizens inasmuch as espionage is offense threatening national security of United States; thus court has jurisdiction over prosecution against East German citizen for alleged act of espionage committed in Mexico and German Democratic Republic. United States v Zehe (1985, DC Mass) 601 F Supp 196.
17. Indictment or information
Indictment for transmitting defense information to Russia was not defective in that it failed to allege that information transmitted was not public, where indictment followed wording of statute. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
Indictment charging defendant with transmitting national security information to foreign government and with conspiracy to transmit such information is not duplicitous since, even if espionage was necessarily 2-part crime, alleged conspiracy could have entailed individuals other than immediate transmitter of secret information. United States v Helmich (1983, CA11 Fla) 704 F2d 547, cert den (1983) 464 US 939, 78 L Ed 2d 317, 104 S Ct 353.
Indictments charging defendants with conspiring and agreeing with officials of Soviet military intelligence to communicate and transmit to Soviet Union information relating to national defense of the United States in violation of 18 USCS @ 794(c) and 18 USCS @@ 371 and 951 would not be dismissed on ground that government placed prospective witnesses who could have given material testimony beneficial to defendants beyond jurisdiction of court without notice to defendants, where there was no proof of suppression of evidence. United States v Egorov (1964, ED NY) 232 F Supp 732.
For violation of 18 USCS @ 794, indictment will not be dismissed because of 17 year delay where defendant makes no showing of prejudice and there is no appearance of initial delay or bad faith on part of government. United States v Helmich (1981, MD Fla) 521 F Supp 1246, affd (1983, CA11 Fla) 704 F2d 547, cert den (1983) 464 US 939, 78 L Ed 2d 317, 104 S Ct 353.
18. Pretrial discovery
Trial court properly denied defendant's discovery motions where in prosecution for violation of 18 USCS @@ 793 and 794 government introduced 8 of some 35 documents relating to project from which information was gathered and transmitted; defendant completely failed to show how documents given were inadequate to substantiate his theory that project involved did not relate to "national defense" as required by statutes and government had stipulated that defendant's representative would be permitted to view documents in offices of United States Attorney and defendant had full opportunity to cross-examination government witness who authorized project and testified that project related to "national defense". United States v Lee (1979, CA9 Cal) 589 F2d 980, 4 Fed Rules Evid Serv 326, cert den (1979) 444 US 969, 62 L Ed 2d 382, 100 S Ct 460.
B. Conduct of Trial
1. In General
19. Burden of proof
Burden is on government to establish that evidence it intends to offer to substantiate charges in indictment for transmitting documents related to national defense and conspiracy thereof springs from independent sources, untainted by and not traceable to unlawful wiretap interceptions. United States v Coplon (1950, DC NY) 88 F Supp 921.
20. Witnesses
Where government introduced testimony that defendants had told accomplice that they intended to flee country, and one of defendants testified that he never had any passport pictures made, evidence on rebuttal by government of photographer not on official list of witnesses did not violate 18 USCS @ 3432, if government did not know of name of witness until day before start of trial. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
Offense under 18 USCS @ 794 is not merely treason by another name, and two witness rule applicable to treason prosecutions was not applicable to prosecution for offense under @ 794. United States v Drummond (1965, CA2 NY) 354 F2d 132, cert den (1966) 384 US 1013, 16 L Ed 2d 1031, 86 S Ct 1968, reh den (1966) 385 US 892, 17 L Ed 2d 126, 87 S Ct 24.
21. Questions of fact
Whether information, obtaining and delivery of which to agent of foreign government is alleged to constitute violation, was connected with or related to national defense, is question of fact for determination of jury, under instruction that connection must be reasonable, direct, and natural. Gorin v United States (1941) 312 US 19, 85 L Ed 488, 61 S Ct 429, reh den (1941) 312 US 713, 85 L Ed 1144, 61 S Ct 617.
22. Instructions
Whether information, obtaining and delivery of which to agent of foreign government is alleged to constitute violation, was connected with or related to national defense, is question of fact for determination of jury, under instruction that connection must be reasonable, direct, and natural. Gorin v United States (1941) 312 US 19, 85 L Ed 488, 61 S Ct 429, reh den (1941) 312 US 713, 85 L Ed 1144, 61 S Ct 617.
Instructions that relied upon 18 USCS @ 794(a) as basis for maximum punishment of life imprisonment were erroneous, since accused was not charged with violating 18 USCS @ 794(a) under third clause of general article (10 USCS @ 934) or otherwise, and therefore maximum legal sentence imposable is dismissal, total forfeitures, and confinement at hard labor for 10 years, which is maximum confinement authorized under 42 USCS @ 2274(b), for unlawfully communicating, or attempting to communicate, atomic data. United States v French (1957, US) 25 CMR 851; United States v Melville (1958) 8 USCMA 597, 25 CMR 101.
Instruction which stated that development of highly destructive weapons gave new significance to enforcement of Espionage Act did not constitute mandate to jury to bring in verdict of guilty, if judge added that "mere use of word espionage does not justify a verdict of guilty." United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
Instructions were adequate in prosecution for violation of 18 USCS @@ 793 and 794 where trial court repeatedly explained what intent jury had to find in order to support guilty verdict under each of counts of indictment; defendant was not deprived of opportunity to present defense based on alleged Central Intelligence Agency employment or reasonable belief in such employment. United States v Lee (1979, CA9 Cal) 589 F2d 980, 4 Fed Rules Evid Serv 326, cert den (1979) 444 US 969, 62 L Ed 2d 382, 100 S Ct 460.
2. Evidence
23. Generally
Where government witness testified that government became suspicious of defendant as result of "confidential informant" and defendant attempted to question witness to see if "confidential informant" might have been wire tapper, it was error for court to stop examination by defendant. United States v Coplon (1950, CA2 NY) 185 F2d 629, 28 ALR2d 1041, cert den (1952) 342 US 920, 96 L Ed 688, 72 S Ct 362.
Evidence of accomplice of defendant cannot be attacked on appeal on ground of credibility, since that is function of jury. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
It was not error to permit jury in prosecution under 18 USCS @ 794 to view documents without first obliterating or belittling legend which each of them bore that material contained information affecting national defense of the United States within meaning of Espionage Act. United States v Drummond (1965, CA2 NY) 354 F2d 132, cert den (1966) 384 US 1013, 16 L Ed 2d 1031, 86 S Ct 1968, reh den (1966) 385 US 892, 17 L Ed 2d 126, 87 S Ct 24.
Evidence of secret nature of documents is relevant to element of scienter in prosecution for violation of 18 USCS @ 794. United States United States v Enger (1978, DC NJ) 472 F Supp 490.
24. --Business records
Entry of immigration inspector that defendant had re-entered as "deported from Mexico" was admissible as entry in regular course of business. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
25. --Map, diagram, or chart
Sketches of atomic secrets testified to by government witness as being accurate replicas of sketches transmitted by witness to defendants for purpose of transmission to Russia were admissible under "map, diagram, and chart" rule. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
26. --Memberships; associations
In trial of defendants charged with transmitting information to Russia evidence of membership in Communist Party was admissible where it was connected up with offense charged by testimony that members of Communist Party are required to furnish information to Russia or be expelled from party; and evidence of pro-Russian sympathy of defendants was admissible since evidence showed motive for acts of defendants. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
27. --Wiretaps
Refusal of court to allow defendant permission to examine suppressed original records of wire tapping of defendant's phone was error where court based its findings on same after reading records in chambers. United States v Coplon (1950, CA2 NY) 185 F2d 629, 28 ALR2d 1041, cert den (1952) 342 US 920, 96 L Ed 688, 72 S Ct 362.
28. Miscellaneous
Where defendant had met Russian agent in park on two occasions where she was observed by Federal Bureau of Investigation, and on third occasion was arrested without warrant and packet on her person was seized, packet was inadmissible in evidence against defendant, since defendant had indicated no intent to escape. United States v Coplon (1950, CA2 NY) 185 F2d 629, 28 ALR2d 1041, cert den (1952) 342 US 920, 96 L Ed 688, 72 S Ct 362.
In trial of defendants charged with transmitting information to Russia, testimony by accomplice that one of defendants admitted "stealing a proximity fuse from the Emerson Radio Company and giving the fuse to Russia" was relevant, even though court struck word "stealing," since nature of device strongly suggested that it was secret and connected with national defense. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
Evidence was sufficient to sustain defendant's conviction for violation of 18 USCS @@ 793 and 794 where he was arrested by Mexican authorities in front of Russian Embassy in Mexico when he stuck his head through Embassy fence and discarded some "trash" from his pockets, at time of arrest pockets contained business envelope with strips of photographic negatives of documents marked "Top Secret", trial evidence shows that he and codefendant worked closely together in selling defense secrets to Russian agents and evidence was also introduced to show that he and codefendant were seen numerous times together where they worked together and had made many trips to Mexico, defendant always traveled under alias and returned from trips with large amounts of money, and witness testified that defendant had told her he was Russian spy who filmed top secret documents. United States v Lee (1979, CA9 Cal) 589 F2d 980, 4 Fed Rules Evid Serv 326, cert den (1979) 444 US 969, 62 L Ed 2d 382, 100 S Ct 460.
Evidence was sufficient to sustain defendant's conviction for violation of 18 USCS @@ 641, 793(e) and 794(a) where evidence established that defendant had been living in Greece at time in question, that defendant received large sum of money at that time, that he had access to classified material involved, and defendant admitted meeting with Soviet agent in Greece during which time he received sum of money. United States v Kampiles (1979, CA7 Ind) 609 F2d 1233, 5 Fed Rules Evid Serv 922, cert den (1980) 446 US 954, 64 L Ed 2d 812, 100 S Ct 2923.
Sufficient evidence exists to sustain jury verdict of guilty of attempting to deliver national defense document to agent of foreign nation, where West German national had delivered military information to intelligence agent of East Germany, had purchased classified document from undercover FBI agent, and had exited hotel room with document concealed. United States v Forbrich (1985, CA11 Fla) 758 F2d 555.
Evidence was sufficient to prove that defendant communicated, delivered, or transmitted defense information to agent of foreign government where it showed that defendant's brother was Soviet agent. United States v Walker (1986, CA4 Va) 796 F2d 43, 21 Fed Rules Evid Serv 102.
Evidence was sufficient to support conviction for attempted espionage in violation of 18 USCS @ 794, where defendant evidenced intent to contact Soviets and took substantial step toward relaying information concerning national security to them by traveling to Austria and walking in designated meeting area for 3 days, despite his failure to contact them. United States v Pelton (1987, CA4 Md) 835 F2d 1067, cert den (1988) 486 US 1010, 100 L Ed 2d 204, 108 S Ct 1741.
Army intelligence officer who betrayed 5 double agents to Soviet Union in exchange for $11,000 may produce classified information to support his claim that he was directed by CIA officers to reveal that information to KGB officers, and even though such claim is inherently incredible, in that although CIA officers by necessity may reveal classified information in order to establish credibility of double agent, revelation of specific details of actual double agent operations is highly counterproductive, where inherent incredibility of story is irrelevant to admissibility of evidence, where story if believed can be defense to charge, and accuracy of alleged CIA officers' knowledge of intelligence operations is crucial to defendant's belief of their apparent authority and resultant negation of defendant's intent to injure United States. United States v Smith (1984, ED Va) 592 F Supp 424, 16 Fed Rules Evid Serv 10, affd (1984, CA4 Va) 750 F2d 1215, 16 Fed Rules Evid Serv 846, different results reached on reh, en banc (1985, CA4 Va) 780 F2d 1102, 19 Fed Rules Evid Serv 1.
C. Judgment and Sentence
29. Generally
18 USCS @ 794(a) may not be looked to for guidance as to maximum authorized confinement for peacetime espionage offenses, notwithstanding fact that accused was not charged with violation thereof, since 18 USCS @ 794 is capital offense statute and cannot be relied upon to authorize life imprisonment for noncapital offense consisting of conduct of nature to bring discredit upon armed forces, and therefore maximum punishment stated of dismissal, total forfeitures, and life imprisonment was erroneous. United States v French (1957, US) 25 CMR 851.
Law officer erred when he instructed, on basis of P 127c, @ A, footnote 3, of Manual for Courts-Martial, 1951, that maximum authorized confinement for attempting to deliver classified document to foreign government was 20 years, since footnote 3 is not applicable because, under 18 USCS @ 794, attempt to deliver is substantive offense and carries same penalty as delivery. United States v Northrup (1960, US) 31 CMR 599.
Offense of communicating national defense information to agents of foreign nation is based upon 18 USCS @ 794, which provides that accused shall be punished by death or by imprisonment for any term of years or for life, yet neither Table of Maximum Punishments in Manual for Courts-Martial nor Code of District of Columbia lists specific punishment for this offense; since death penalty is not authorized by Uniform Code of Military Justice for this offense during peacetime, only limitation would be that it could not be treated as capital offense, and accordingly, law officer properly instructed that maximum punishment which could be adjudged against accused, who was officer, was dismissal, total forfeitures, and confinement for life, which punishment also applies to offense of conspiracy to communicate information relating to national defense of United States to agents of foreign nation. United States v Kauffman (1962, US) 33 CMR 748.
Where act, accomplishment of which is object of conspiracy, was disclosure of defense information beginning at time of war and continuing into time of peace, heavier penalty may not be given to party to such conspiracy who did not join it in wartime; penalty for substantive offense at time of war is applicable to conspiring at such time. United States v Sobell (1963, CA2 NY) 314 F2d 314, cert den (1963) 374 US 857, 10 L Ed 2d 1077, 83 S Ct 1906.
Defendant was properly sentenced to consecutive sentences on each count where he was convicted by jury on counts 1 and 2 of 3-count indictment, where count 1 charged violation of 18 USCS @ 794(c) and count 2 charged violation of 18 USCS @ 793 (a). Boeckenhaupt v United States (1968, CA4 Va) 392 F2d 24, cert den (1968) 393 US 896, 21 L Ed 2d 177, 89 S Ct 162.
Period during which FBI agent actually engaged in espionage activity with foreign government was not connected by common criminal objective to agent's subsequent attempts to commit espionage in government undercover operation, and, thus, agent's convictions for conspiracy to commit espionage and attempt to commit espionage under 18 USCS @ 794 were not amenable to grouping under sentencing guidelines, even if defendant subjectively believed that undercover operation was continuation of actual espionage activity. United States v Pitts (1997, ED Va) 973 F Supp 576.
Provisions of 18 USCS @ 793 closely correspond to those of 18 USCS @ 794, but penalty is different, since 18 USCS @ 793 carries maximum punishment extending only to imprisonment for term of 10 years, yet 18 USCS @ 794 authorizes death penalty, and court-martial has no jurisdiction over offense defined in general Federal Penal Code that authorizes death sentence. United States v Kirsch (1964) 15 USCMA 84, 35 CMR 56.
30. --Death sentence
Regardless of whether 18 USCS @ 794(a) authorizes capital punishment, in cases of peacetime espionage occurring in foreign countries both officers and enlisted personnel can be convicted of military offense under either first or second clause of Article 134 of Uniform Code of Military Justice, and officers can also be convicted of military offense under Article 133 of Uniform Code of Military Justice. United States v French (1957, US) 25 CMR 851.
Although 18 USCS @ 794 authorizes death penalty for attempting to deliver classified document to foreign government, since this penalty is not authorized by Uniform Code of Military Justice, maximum punishment imposable by court-martial would be confinement at hard labor for life. United States v Northrup (1960, US) 31 CMR 599.
Death sentence for transmission of defense information to Russia while country was ally with Russia did not constitute cruel and unusual punishment where conspiracy continued long after close of Second World War. United States v Rosenberg (1952, CA2 NY) 195 F2d 583, cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 20, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 134 and cert den (1952) 344 US 838, 97 L Ed 652, 73 S Ct 21, reh den (1952) 344 US 889, 97 L Ed 687, 73 S Ct 180 and reh den (1954) 347 US 1021, 98 L Ed 1142, 74 S Ct 860.
Death penalty provision of 18 USCS @ 794 is unconstitutional and void because it sets forth no legislated guidelines to control factfinder's discretion. United States v Harper (1984, CA9 Cal) 729 F2d 1216.
Indictment for conspiracy to transmit, to Soviet Union, information relating to national defense, in violation of 18 USCS @ 794, charges capital offense, notwithstanding government's disclaimer of intention to seek death penalty. United States v Michelson (1985, ED NY) 607 F Supp 693.
31. --Reduction of sentence
Defendants, who passed defense secrets to Russia during period of Second World War and continued to do so until 1950, and who showed no repentance, were not entitled to reduction of sentence from death to period of 30 years where secrets passed endangered lives of their fellow countrymen. United States v Rosenberg (1953, DC NY) 109 F Supp 108, affd (1953, CA2 NY) 204 F2d 688.
Defendant convicted of conspiring with others to transfer defense secrets of United States to Russia was not entitled to reduction of 30-year sentence where he showed no remorse for crime and failed to aid government in detecting and bringing other conspirators to justice. United States v Sobell (1953, DC NY) 109 F Supp 381.