United States v. Sterling

724 F.3d 482

UNITED STATES of America, Plaintiff–Appellant,

v. Jeffrey Alexander STERLING, Defendant–Appellee,James Risen, Intervenor–Appellee.The Thomas Jefferson Center for the Protection of Free Expression; ABC, Incorporated; Advance Publications, Incorporated; ALM Media, Incorporated; The Associated Press; Bloomberg, L.P.; Cable News Network, Incorporated; CBS Corporation; Cox Media Group, Inc.; Daily News, L.P.; Dow Jones and Company, Incorporated; The E.W. Scripps Company; First Amendment Coalition; Fox News Network, L.L.C.; Gannett Company, Incorporated; The Hearst Corporation; The McClatchy Company; National Association of Broadcasters; National Public Radio, Incorporated; NBCUniversal Media, LLC; The New York Times Company; Newspaper Association of America; The Newsweek Daily Beast Company LLC; Radio Television Digital News Association; Reporters Committee for Freedom of the Press; Reuters America LLC; Time Inc.; Tribune Company; The Washington Post; WNET, Amici Supporting Intervenor.

No. 11–5028.

United States Court of Appeals, Fourth Circuit.

Argued: May 18, 2012.

Decided: July 19, 2013.

ARGUED:Robert A. Parker, United States Department of Justice, Washington, D.C., for Appellant. Joel Kurtzberg, Cahill, Gordon & Reindel, New York, New York; Edward Brian MacMahon, Jr., Middleburg, Virginia; Barry Joel Pollack, Miller & Chevalier, Chartered, Washington, D.C., for Appellees. ON BRIEF: Neil H. MacBride, United States Attorney, James L. Trump, Senior Litigation Counsel, Office of the United States Attorney, Alexandria, Virginia; William M. Welch II, Senior Litigation Counsel, Timothy J. Kelly, Trial Attorney, Criminal Division, Lanny A. Breuer, Assistant Attorney General, Mythili Raman, Principal Deputy Assistant Attorney General, United States Department of Justice, Washington, D.C., for Appellant. Mia Haessly, Miller & Chevalier, Chartered, Washington, D.C., for Appellee Jeffrey Alexander Sterling. David N. Kelley, Cahill, Gordon & Reindel, New York, New York, for Appellee James Risen. J. Joshua Wheeler, The Thomas Jefferson Center for the Protection of Free Expression, Charlottesville, Virginia; Bruce D. Brown, Laurie A. Babinski, Baker & Hostetler LLP, Washington, D.C., for The Thomas Jefferson Center for the Protection of Free Expression, Amicus Supporting James Risen. Lee Levine, Jeanette Melendez Bead, Levine Sullivan Koch & Schulz, LLP, Washington, D.C., for Amici Curiae; John W. Zucker, Indira Satyendra, ABC, INC., New York, New York, for Amicus ABC, Inc.; Richard A. Bernstein, Sabin, Bermant & Gould LLP, New York, New York, for Amicus Advance Publications, Inc.; Allison C. Hoffman, Fabio B. Bertoni, ALM Media, LLC, New York, New York, for Amicus ALM Media, LLC; Karen Kaiser, The Associated Press, New York, New York, for Amicus The Associated Press; Charles J. Glasser, Jr., Bloomberg L.P., New York, New York, for Amicus Bloomberg L.P.; David C. Vigilante, Johnita P. Due, Cable News Network, Inc., Atlanta, Georgia, for Amicus Cable News Network, Inc.; Anthony M. Bongiorno, CBS Corporation, New York, New York, for Amicus CBS Corporation; Lance Lovell, Cox Media Group, INC., Atlanta, Georgia, for Amicus Cox Media Group, Inc.; Anne B. Carroll, Daily News, L.P., New York, New York, for Amicus Daily News, L.P.; Mark H. Jackson, Jason P. Conti, Gail C. Gove, Dow Jones & Company, Inc., New York, New York, for Amicus Dow Jones & Company, Inc.; David M. Giles, The E.W. Scripps Company, Cincinnati, Ohio, for Amicus The E.W. Scripps Company; Peter Scheer, First Amendment Coalition, San Rafael, California, for Amicus First Amendment Coalition; Dianne Brandi, Christopher Silvestri, Fox News Network, L.L.C., New York, New York, for Amicus Fox News Network, L.L.C.; Barbara W. Wall, Gannett Co., INC., McLean, Virginia, for Amicus Gannett Co., Inc.; Eve Burton, Jonathan Donnellan, The Hearst Corporation, New York, New York, for Amicus The Hearst Corporation; Karole Morgan–Prager, Stephen J. Burns, The McClatchy Company, Sacramento, California, for Amicus The McClatchy Company; Jane E. Mago, Jerianne Timmerman, National Association of Broadcasters, Washington, D.C., for Amicus National Association of Broadcasters; Denise Leary, Ashley Messenger, National Public Radio, Inc., Washington, D.C., for Amicus National Public Radio, Inc.; Susan E. Weiner, NBCUniversal Media, LLC, New York, New York, for Amicus NBCUniversal Media, LLC; George Freeman, The New York Times Company, New York, New York, for Amicus The New York Times Company; Kurt Wimmer, Covington & Burling, LP, Washington, D.C., for Amicus Newspaper Association of America; Randy L. Shapiro, The Newsweek/Daily Beast Company LLC, New York, New York, for Amicus The Newsweek/Daily Beast Company LLC; Kathleen A. Kirby, Wiley Rein & Fielding LLP, Washington, D.C., for Amicus Radio Television Digital News Association; Lucy A. Dalglish, Gregg P. Leslie, Reporters Committee for Freedom of the Press, Arlington, Virginia, for Amicus Reporters Committee for Freedom of the Press; Shmuel R. Bulka, Reuters America LLC, New York, New York, for Amicus Reuters America LLC; Andrew B. Lachow, Time Inc., New York, New York, for Amicus Time Inc.; David S. Bralow, Karen H. Flax, Karlene W. Goller, Tribune Company, Chicago, Illinois, for Amicus Tribune Company; Eric N. Lieberman, James A. McLaughlin, The Washington Post, Washington, D.C., for Amicus The Washington Post; Robert A. Feinberg, WNET, New York, New York, for Amicus WNET.

Before TRAXLER, Chief Judge, and GREGORY and DIAZ, Circuit Judges.

Affirmed in part, reversed in part, and remanded by published opinion. Chief Judge TRAXLER wrote the opinion for the court in Part I, in which Judge GREGORY and Judge DIAZ joined. Chief Judge TRAXLER wrote the opinion for the court in Parts II–V, in which Judge DIAZ joined. Judge GREGORY wrote the opinion for the court in Part VI, in which Chief Judge TRAXLER and Judge DIAZ joined. Judge GREGORY wrote the opinion for the court in Part VII, in which Judge DIAZ joined. Chief Judge TRAXLER wrote an opinion concurring in part and dissenting in part as to Part VII. Judge GREGORY wrote an opinion dissenting as to Parts II–V.

TRAXLER, Chief Judge:

Jeffrey Sterling is a former CIA agent who has been indicted for, inter alia, the unauthorized retention and disclosure of national defense information, in violation of the Espionage Act, 18 U.S.C. § 793(d) & (e). The indictment followed the grand jury's probable cause determination that Sterling illegally disclosed classified information about a covert CIA operation pertaining to the Iranian nuclear weapons operation to James Risen, for publication in a book written by Risen, and that he may have done so in retaliation for the CIA's decision to terminate his employment and to interfere with his efforts to publish such classified information in his personal memoirs. Prior to trial, the district court made three evidentiary rulings that are the subject of this appeal. We affirm in part, reverse in part, and remand for further proceedings.

I. Background

A.

According to the indictment, Defendant Jeffrey Sterling was hired as a CIA case officer in 1993, and granted a top secret security clearance. As a condition of his hire, and on several occasions thereafter, Sterling signed agreements with the CIA explicitly acknowledging that he was not permitted to retain or disclose classified information that he obtained in the course of his employment, without prior authorization from the CIA, and that doing so could be a criminal offense.

In November 1998, the CIA assigned Sterling to a highly classified program intended to impede Iran's efforts to acquire or develop nuclear weapons (“Classified Program No. 1”). Sterling also served as the case officer for a covert asset (“Human Asset No. 1”) who was assisting the CIA with this program. In May 2000, Sterling was reassigned and his involvement with Classified Program No. 1 ended.

In August 2000, shortly after Sterling's reassignment and after being told that he had not met performance targets, Sterling filed an equal opportunity complaint alleging that the CIA had denied him certain assignments because he was African American. The EEO office of the CIA investigated Sterling's complaint and determined that it was without merit. In August 2001, Sterling filed a federal lawsuit against the CIA alleging that he had been the victim of racial discrimination, and seeking monetary compensation. Several settlement demands were rejected, and the lawsuit was dismissed in March 2004, following the government's invocation of the state secrets doctrine. We affirmed the dismissal. See Sterling v. Tenet, 416 F.3d 338, 341 (4th Cir.2005).

Sterling was officially terminated from the CIA on January 31, 2002, but he had been “outprocessed” and effectively removed from service in October 2001. As part of his termination, Sterling was asked to sign a final acknowledgment of his continuing legal obligation not to disclose classified information. Sterling refused.

On November 4, 2001, James Risen published an article in The New York Times, under the headline “Secret C.I.A. Site in New York Was Destroyed on Sept. 11.” J.A. 655. A “former agency official” was cited as a source. J.A. 655. In March 2002, Risen published an article about Sterling's discrimination suit in The New York Times, under the headline “Fired by C.I.A., He Says Agency Practiced Bias.” J.A. 156, 725. The article states that Sterling provided Risen with a copy of one of his CIA performance evaluations, which is identified as a classified document. The article also states that Sterling “relished his secret assignment to recruit Iranians as spies.” J.A. 156.

In January 2002, in accordance with his non-disclosure agreements with the CIA, Sterling submitted a book proposal and sample chapters of his memoirs to the CIA's Publications Review Board. The Board expressed concerns about Sterling's inclusion of classified information in the materials he submitted.

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