MEMORANDUM OPINION & ORDER
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STAT
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division
UNITED STATES OF AMERICA, )
v. ) Criminal No. 84-92-A
RICHARD CRAIG SMITH. )
MEMORANDUM OPINION & ORDER
This matter comes before the Court pursuant to ?6(a) of the
Classified Information Procedures Act (CIPA) for a determination
"concerning the use, relevance, or admissibility of classified
information"-sought to be used at trial. 18 U.S.C. App. ?6(a).
For reasons developed below, the Court holds as follows:
(1) Defendant Smith's version of events, if believed,
constitutes a legally valid defense to the charges against him;
(2) Federal rules of evidence, CIPA, and the Federal
Constitution require that Smith be permitted both to testify to
his version of the facts and to present other competent evidence,
including classified information, in support of his defense;
(3) In accordance with CIPA and federal rules of evidence,
Smith may introduce the specific items of classified information
enumerated in Parts III, IV & V of this opinion.
I. THE INDICTMENT AND THE DEFENSE
The government alleges that Richard Craig Smith unlawfully
disclosed classified information to an agent of the Soviet Union.
According to the indictment, Smith met with Victor I. Okunev, a
Soviet agent, at the Soviet Commercial Compound in Tokyo, Japan
twice in November of 1982 and once in February of 1983. Smith,
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who was employed by the Army Intelligence Security Command
(INSCOM) between 1973 and 1980, allegedly gave Okunev classified
details concerning five INSCOM double agent operations in
exchange for $11,000. All in all, the indictment charges Smith
with five counts of violating the Espionage Act. 18 U.S.C.
SS793(d); 794(a) & (c).
Smith's version of the facts differs dramatically from that
set forth in the indictment. He claims that in disclosing secret
information to Okunev he believed he was acting at the behest of
the CIA. According to Smith, he was contacted in Japan by two
men, Ken White and Danny Ishida, who held themselves out as CIA
agents. Although he did not ask to see identification papers, he
claims that their familiarity with the details of secret INSCOM
operations convinced him that they were in fact CIA agents.
White and Ishida, Smith asserts, sought to enlist him in a'double
agent project directed at the Soviets in Japan. They assertedly
told him that, in order to gain the confidence of the Soviets, he
had authority to disclose the details of eight INSCOM double
agent operations, including all of those mentioned in the
indictment. The information, they allegedly told him, was of
no value to the Soviets because the pertinent operations had been
discontinued.
II. THE ADMISSIBILITY OF CLASSIFIED INFORMATION
The government, relying on essentially two arguments, takes
the extreme position that Smith may not present any classified
information in support of his factual defense. It first insists
that Smith's factual allegations, even if believed, are
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insufficient, as a matter of law, to exculpate him. Its second
argument goes to the believability, as distinguished from the
legal sufficiency, of Smith's factual assertions. The
government, in essence, urges the Court to exclude all classified
information based on a judicial determination that Smith's
version of events is a "total fabrication." The Court rejects
both arguments.
A. Legal Sufficiency of Smith's Alleged Facts
The Court undoubtedly has authority to exclude evidence
offered by the defense which, if believed, fails to establish a
legally cognizable defense. U.S. v. Bailey, 444 U.S. 394, 414-16
& n.ll (1980); U.S. v. Bifield, 702 F.2d 342 (2d Cir. 1983).1
The government argues that the facts Smith alleges, if credited
by a jury, do not establish a legally valid defense under the
Espionage Act. It is not sufficient, the government contends,
that Smith believed that (1) White and Ishida were CIA agents
and, (2) acting on behalf of the CIA, they authorized him to
disclose the details of INSCOM operations to the Soviets. To
establish a valid defense, the argument runs, Smith must be
prepared to prove that White and Ishida actually were CIA agents
who actually had authority to permit Smith to disclose INSCOM
information. The Court disagrees.
Smith is charged with violating two sections of the
Espionage Act. 18 U.S.C. ??793(d), 794(a) & (c). Both sections,
which define unlawful disclosure of information relating to the
national defense, contain express state-of-mind requirements.
Section 794 prohibits a person from transmitting such information
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to an agent of a foreign government "with intent or reason to
believe that it is to be used to the injury of the United States
or the advantage of a foreign nation . . . ." (emphasis added).
Section 793(d) similarly proscribes disclosure of national
defense information by a person who "has reason to believe" such
information could be used to injure this country or aid a foreign
government. (emphasis added). As the language of these
provisions and the cases interpreting them conclusively
demonstrate, the government must prove beyond a reasonable doubt
that the accused had the requisite intent to injure this country
or aid a foreign government. In the words of the Supreme Court:
[The statute] requires those prosecuted to have acted
in bad faith. The sanctions apply only when scienter
is established.
Gorin v. U.S., 312 U.S. 19, 28 (1941). See also U.S. v.. I
Rosenberg, 195 F.2d 583, 592 (2d Cir. 1952); U.S. v. Enger, 472
F.2d 490, 508 (D. N.J. 1978).
The government reads the state-of-mind requirements out of
the statute, seeking, in effect, to transform ?794 and ?793 into
strict liability offenses. Smith obviously did not intend to, or
have reason to believe that he would, injure this country if he
thought that in disclosing INSCOM information he was furthering a
CIA-authorized double agent program. In the government's view,
however, Smith's state-of-mind -- whether he believed,
reasonably or otherwise,2 that the CIA agents had authorized
disclosure -- is irrelevant. Even though Smith might have
reasonably believed that White and Ishida were CIA agents, the
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government interprets the statute to require that Smith actually
have had authority to release INSCOM information to the Sodiets.3
This view of the statute misdirects attention from the subjective
issue of Smith's intent to the objective issue of whether release
of INSCOM information actually, or reasonably might have, harmed
this country. By ignoring the crucial issue of Smith's
state-of-mind, the government treats the applicable provisions of
the Espionage Act as strict liability offenses. If the
government's interpretation were correct, a person who, based on
facts then known to him, mistakenly but reasonably believed that
a CIA official had authorized disclosure would nevertheless be in
violation of the Act, even though he fully intended to help this
country. This is not the law. The Congress that enacted 5794
provided that violations may be punished by death.4 The Court
finds it difficult to believe that the government can be serious
in its contention that Congress intended to provide capital
punishment for what it interprets as a strict liability offense.
The government's interpretation of ?794(a) & (c) thus defies
express statutory language, Supreme Court precedent, and plain
common-sense.
The government, characterizing Smith's alleged belief that
CIA agents had authorized him to reveal secret information as a
mistake of law,5 couches its argument in the vernacular of the
mistake of law doctrine. It is true that, as a general matter, a
mistake of law is no defense. Nevertheless, this case is quite
unlike the classic mistake of law situation where the accused
claims innocence because he was ignorant of the underlying
5
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offense. It is no defense to murder, for example, to say that
the accused did not know that murder is a crime. Nor is it a
defense to a charge of espionage to claim that the accused was
unaware of the Espionage Act. In both of these examples, the
accused, while ignorant of the charged offenses, had an intent
that the law proscribes. See U.S. v. International Minerals &
Chemical Corp., 402 U.S. 558 (1971)(ignorance of the charged
offense is no defense); U.S. v. Rosenfeld, 469 F.2d 598 (2d Cir.
1972)(same). In contrast, Smith's alleged mistake, whether
labeled a mistake of law or of fact, negates the very intent that
the Espionage Act requires. To reiterate, Smith did not intend
to, or have reason to believe he would, injure this country if,
based on White and Ishida's putative status as CIA agents, he
believed that CIA agents had authorized disclosure of the INSCOM
information. If his version of the facts is accepted, he, in
fact, intended to help this country by acting as a double agent.
No amount of legal legerdemain can obscure this basic
conclusion.6 It is settled law that a mistake of law is a
defense where it negates the intent required by the charged
offense. See U.S. v. Behenna, 552 F.2d 573, 575-77 (4th Cir.
1977); U.S. v. Palmer, 314 F.2d 939 (4th Cir. 1963); U.S. v.
Fierros, 692 F.2d 1291 (9th Cir. 1982); U.S. v. Currier, 621 F.2d
7, 9 n.l (1st Cir. 1980); U.S. v. Petersen, 513 F.2d 1133, 1135
(9th Cir. 1975); U.S. v. Squires, 440 F.2d 859, 862-65 (2d Cir.
1971); Kratz v. Kratz, 477 F. Supp. 463, 480 (E.D. Pa. 1979);
Model Penal Code ?2.04(l)(a) (Tent. Draft No. 4 1955). Because
Smith's alleged mistake negates the intent required by the
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Espionage Act, it constitutes a valid defense. Assuming arguendo
that it is properly labeled a "mistake of law",7 it must be
treated as mistakes of fact have traditionally been treated.8 To
hold otherwise would be to interpret the applicable provisions of
the Espionage Act as creating strict liability offenses, an
interpretation that is utterly impossible to reconcile with the
Act's express state-of-mind requirements. The mistake of law
doctrine, a judicially created set of rules, must be flexibly
interpreted in light of, and yield to, express statutory language
and intent.
In support of its use of the mistake of law doctrine, the
government cites the various opinions in U.S. v. Barker, 546 F.2d
910 (D.C. Cir. 1976). There the defendants had burglarized a
psychiatrist's office in search of psychiatric records concerning
a patient who was suspected of leaking classified government
documents to the press. They were charged with conspiring to
violate the federal rights of another, an offense that requires
an intent to violate another person's "clearly established"
federal rights. U.S. v. Ehrlichman, 546 F.2d 910 (D.C. Cir.
1976). The defense was based on the allegation that the
defendants believed that a highly placed White House official had
authorized their actions. Treating this allegation as raising a
mistake of law defense, a divided panel reversed defendants'
convictions. Judges Wilkey and Merhige, writing separately,
concluded that there is a limited exception to the mistake of law
doctrine where the accused reasonably relies on an official's
erroneous representation of the legal authority of his offfice.
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The government argues that this limited exception is inapplicable
here because, however defined, it depends on an initial showing
that a governmental official was actually involved.
The government's reliance on Barker is misplaced. In Barker
the defendants' mistake was clearly one of law. The defense was
based on an erroneous legal conclusion, implicitly communicated
to the defendants by persons who were unquestionably White House
officials, that the President, or his highest advisers, could
legitimately authorize national security burglaries. In
.contrast, Smith did not base his actions on a mistaken perception
of the law. -First, the government does not contend that Smith
was confused or mistaken as to the legal conditions under which a
person may be deemed to be a CIA agent. If Smith was mistaken,9
his mistakes were factual in nature. Based on White and Ishida's
extensive knowledge of secret INSCOM information, he allegedly
believed their factual representations that they were directing
covert operations, including his own, on behalf of the CIA.
Persons who direct covert CIA operations undoubtedly satisfy the
legal definition of a CIA agent. Second, the government does not
maintain that Smith misconstrued the legal authority of a CIA
agent, acting on behalf of the CIA, to permit disclosure of
classified information. It does not suggest that CIA agents may
not authorize disclosure of classified information. Cf. U.S. v.
Kelley, 718 F.2d 661, 665 (4th Cir. 1983)(defendant's "alleged
state of mind . . . was not a mistake of fact as to Ray's status
[as an informant), but resulted from a misconception of the legal
prerogatives attached to that status"). Such a suggestion, if
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accepted, would cripple double agent programs which, by
necessity, involve disclosure of information that is not in the
public domain. In short, Smith's alleged belief that he had been
authorized by the CIA to disclose INSCOM information to the
Soviets was not based on a mistaken view of the legal definition
of a CIA agent or of the legal authority of a CIA agent.10 His
belief was instead predicated on a possibly mistaken view of the
facts concerning White and Ishida's true activities.-1
This, then, is not a case like Barker where the defendant
allegedly acted in reliance on an official's erroneous statement
of the law.`' Smith did not, for instance, act at the direction of
a local police officer who told Smith that, as a local police
officer, he had authority to permit release of classified
information to the Soviets. Smith acted in reliance on an
implied representation, made by persons he believed to be CIA
agents, that the CIA has legal authority to permit release of
classified information. The government has not, and could not,
seriously suggest that, like the governmental officials in
Barker, White and Ishida misrepresented the legal authority of
the office the defendant believed them to hold. Rather than
acting on a mistaken view of the legal authority of governmental
officials, Smith, if believed, acted in reliance on facts that
led him to believe that he was dealing with. government agents.
Barker does not address this situation. There all were agreed
that the governmental officials involved were, in fact, the
governmental officials they purported to be. Nothing in Barker
suggests that a defendant's has no defense where, although
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mistaken as to the person's actual status, he has a proper
conception of the legal authority possessed by an official having
the purported status.12 This suggestion would be flatly contrary
to the general principle, recognized in Barker, that a mistake of
law constitutes a defense where it negates the intent required by
the charged offense. In this case there is can be no question
that Smith's acts would not have been criminal if the facts were
as he says he believed them to be, that is, if White and Ishida
actually were engaged in the activities they explained to him.
The mistake of fact defense is available in this situation. U.S.
v. Barker, 546 F.2d 946 & n.15 (Wilkey, J.); 546 F.2d at 961 &
nn. 12 & 13 (Leventhal, J.); Note, Reliance on Apparent Authority
as a Defense to Criminal Prosecution, 77 Colum. L. Rev. 775, 790
& n. 78 (1977). If believed, Smith, due to his view of the facts
concerning White and Ishida's activities, lacked the
state-of-mind required to establish a violation of the Espionage
Act.
In light of the Espionage Act's express state-of-mind
requirements, the Court holds that Smith's factual allegations,
if believed, establish a legally valid defense to the charges
against him. If he truly believed that CIA agents had authorized
the disclosure of INSCOM information he lacked the intent,
required by the Espionage Act, to injure this country or to aid a
foreign power.13
B. Believability of Smith's alleged facts
The government advances a second argument in favor of its
position that Smith may not introduce any classifed information
10
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at trial. Whereas its first argument addresses the legal
sufficiency of Smith's account of the facts, its second argument
concerns its believability. This is an important distinction.
Unlike the situation where evidence, if believed, fails to
establish a legally cognizable defense, a court's authority to
exclude evidence of a defense on the ground that it lacks
believability is extremely limited, if it exists at all.
Smith's defense, the government submits, is a patent
fabrication. It points out that the FBI interviewed Smith
approximately 23 times over the course of nearly 8 months,
sometimes using a polygraph in an attempt to elicit the truth.
At all times he maintained that he had acted alone in contacting
the Soviets, never mentioning either the names of White and
Ishida or his supposed connection with the CIA. The first
mention of his so-called CIA defense came after his arrest and
indictment. The government insists that the only reasonable
inference to be drawn from his failure to mention his CIA defense
during the FBI interviews is that he concocted his defense in a
rather blatant attempt at "graymail." Because this tactic
undermines the clear purpose of CIPA, the government asks the
Court to rule all classified information inadmissible.
The Court declines to make the requested ruling. Although
the government believes that such a ruling would further the
purposes of CIPA, its position, in reality, is fundamentally at
odds with Congress' intent in enacting the Act.
Congress enacted CIPA to minimize the problem of "graymail,"
whereby a defendant threatens to disclose classified information
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in the course of trial in an attempt to force the government to
drop the prosecution. By permitting a court to determine before
trial whether "classified information at issue is admissible and
in what form it may be introduced", CIPA enables "the government
to ascertain [before trial] the potential damage to national
security [associated] with a given prosecution" so that it can
intelligently decide whether "the prosecution is sufficiently
important to incur the national security risks." S. Rep. No.
96-823, 96th Cong. 2d Sess., reprinted in 1980 U.S. Code, Cong. &
Ad. News 4294, 4297, 4300.
Although CIPA is designed to prohibit the defendant from
needlessly disclosing irrelevant classified information, it was
not intended to deny the defendant use of relevant and admissible
classified information. In determining the admissibility of
classified information, the court must apply the standards,
generally applicable to evidence in federal court. Congress did
not intend to compromise, in the interests of national security,
the defendant's right to adduce evidence to which he would
otherwise be entitled. As the drafters of CIPA stated:
A defendant should not be denied the ofofinftheormation
that he would otherwise use simply because
procedures of this bill. [Oln the question of a
standard of admissibility of evidence at trial, the
committee intends to retain current law regardless of
the sensitivity of the information.
1980 U.S. Code, Cong. & Ad. News at 4301. H. Conference Rep. No.
96-1436, 96th Cong., 2d Sess. reprinted in 1980 U.S. Code, Cong.
& Ad. News at 4310 ("the conferees agree that, [as noted in both
the House and Senate reports], nothing in the conference
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substitute is intended to change the existing standards for
determining relevance and admissibility"). See also U.S. v.
Wilson, S-83-Cr.-69, slip op. at 2 (S.D. N.Y. Oct. 4, 1983); U.S.
v. Collins, 720 F.2d 1195, 1199 (11th Cir. 1983). Once the court
makes a determination under ?6(a) that classified information is
admissible, the prosecution may seek to avoid or minimize
disclosure of sensitive information by exercising its options
under 6(c) & (e) of the Act,14 or by dismissing the indictment.
Rather than permitting the Court to exclude otherwise admissible
evidence due to its sensitivity, the Act properly leaves the task
of protecting the national security to the executive branch.
Despite CIPA's unambiguous legislative history, the
government urges the Court to give special treatment to the
admissibility of classified information. It does not argue that
the Court should, or could, preclude Smith from testifying to his
version of events. Rather, based on the asserted unbelievability
of Smith's account and the sensitivity of classified information,
it argues only for the exclusion of classified information. The
government's position is inconsistent with Congress' clearly
expressed intent that, "in making its rulings on admissibility,
the Court is to disregard the fact that certain material may be
classified." U.S. v. Wilson, supra at 2.15
In an attempt to square its position that only classified
information should be excluded with CIPA's intent that the
admissibility of classified information be governed by generally
applicable rules of evidence, the government misinterprets the
relevance rules. Federal Rule of Evidence 403 provides that
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relevant evidence may be excluded if its probative value is
substantially outweighed by "the danger of unfair prejudice."
The government argues that the harm to national security flowing
from disclosure of classified information is a component of
"unfair prejudice" within the meaning of Rule 403. As used in
the rule, however, "prejudice" refers to the effect the
information will have on the finder of fact, not, as the
government suggests, on events outside the courtroom such as the
national security. Fed. R. Evid. 403, Notes of Advisory
Committee ("unfair prejudice . . . means an undue tendency to
suggest decision on an improper basis")(emphasis added). A court
is ill-equipped to determine, and a defendant without means to
challenge, the extent to which disclosure of particular items of
classified information would damage the national security.
Assuming the court could evaluate such harm, it would be unable
to balance the harm against the defendant's need for the
information in any honest and meaningful way. Indeed, if the
government's interpretation were correct, Rule 403 would require
the court automatically to exclude classified information. The
interests of the entire nation, by definition, always
"substantially outweigh" the interest of a single individual in a
given item of classified information. In addition to raising
serious constitutional questions, this result would undercut the
clear intent of CIPA. The drafters of CIPA spoke to this very
issue, directing courts not to engage in the one-sided balancing
proposed by the government;
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It should be emphasized, however, that the court should
not balance the national security interests of the
Government against the rights of the defendant to
obtain the information.
1980 U.S. Code, Cong. & Ad. News at 4303.16 For all of these
reasons, the Court holds that "unfair prejudice" within the
meaning of Rule 403 refers to the effect information will have on
the judicial truth-finding process, not to potential harm to the
national security.
The government further argues that Rules 402 and 403 permit
the Court to consider the credibility of evidence in determining
whether it is'relevant and admissible. In exceptional cases a.
court may have very limited authority to exclude evidence on the
ground that no rational trier of fact could believe it. See
infra. But apart from this narrow situation, not present here,
the court may not consider credibility in determining the
admissibility of evidence. Our Anglo-American system of
jurisprudence, as set forth in the Federal Rules of Evidence and
the Constitution,requires the trier of fact to evaluate the
credibility of witnesses and other evidence. The government,
like all parties in our system, has a right to impeach and
cross-examine adverse witnesses. Yet the protections available
to it do not extend so far as to permit the exclusion of evidence
on the basis of a judicial determination that it lacks
credibility.17
The government's argument that the court may consider
credibility in deciding admissibility sweeps more broadly than
the government perhaps desires. The alleged incredibility of
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Smith's account of the facts would not provide a basis for
excluding only classified evidence; it strikes at the very heart
of Smith's defense. The government's position, if accepted,
consequently requires that Smith be precluded from adducing any
evidence, whether classified or not, in support of his factual
defense.
The government cannot, consistent with CIPA's intent and
generally applicable principles of evidence, concede that Smith's
testimonial recital of his factual defense may be admitted but at
the same time argue that classified information corroborative of
his defense-'must be excluded. The Act, together with the Federal
Rules of Evidence, require the Court to rule either that
competent evidence supporting Smith's factual defense is
generally admissible or that such evidence is categorically
inadmissible.
For reasons delineated below, the Court holds that evidence
offered in support of Smith's factual defense, whether classified
or not, is generally admissible.
The government's characterization of Smith's defense as a
patent fabrication raises, by implication, the doctrine of
inherent incredibility. 3 Weinstein's Evidence ?601[01], at
601-09 (1981 & Supp. 1984). In criminal cases, the doctrine,
which permits a court to exclude evidence because a reasonable
juror could not accept it as credible, has been invoked
exclusively by defendants seeking to avoid the testimony of
government witnesses. See, e.g, U.S. v. Rodriguez, 702 F.2d 38,
43 (2d Cir. 1983); U.S. v. Duhon, 565 F.2d 345 (5th Cir. 1978).
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As far as this Court can determine, no federal court has ever
excluded evidence proffered by a criminal defendant on the ground
of inherent incredibility. Indeed, a cluster of interrelated
constitutional considerations casts serious doubt on the
authority of the court to invoke the doctrine to preclude a
criminal defendant, or his witnesses, from giving testimony.
A criminal defendant has a constitutional right to insist
that the government prove his guilt beyond a reasonable doubt.
In re Winship, 397 U.S. 358 (1970). A court must accordingly set
aside an unreasonable verdict of guilty, that is, a verdict not
supported by'evidence sufficient to permit a jury to find all
essential elements of the charged crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979). Applied against
government witnesses, the doctrine of inherent incredibility
safeguards against an unreasonable verdict of guilty. In this
context, then, the constitutionality of the doctrine is undoubted.
In fact, it may be constitutionally required.
The same constitutional concerns that support application of
the doctrine against government witnesses militate against its
application in the context of defense witnesses. The reasonable
doubt standard reflects a policy judgment, firmly embedded in our
system of criminal justice, that it is better for a guilty person
to go unpunished that for an innocent person to unjustly suffer
the loss of liberty and stigmatization associated with a criminal
conviction. A series of important constitutional requirements
spring from this policy. Whereas the defendant has a right to
demand a reasonable verdict of guilty, the goverment has no
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corresponding right to insist on a reasonable verdict of
acquittal:
[T]he factfinder in a criminal case has traditonally
been permitted to enter an unassailable but
unreasonable verdict of "not guilty." This is the
logical corrollary of the rule that there can be no
appeal from a judgment of acquittal, even if the
evidence of guilt is overwhelming.
Jackson v. Virginia, 443 U.S. at 317 n.10. Consequently, while a
court may direct a verdict of acquittal, the constitution will
not permit it to direct a verdict of guilty, or to make a ruling
that tends to have this effect, "regardless of how overwhelmingly
the evidence,'may point [towards guilt]." U.S. v. Martin Linen
Supply Co., 430 U.S. 564, 572-73 (1977); U.S. v. Hayward, 420
F.2d 142 (D.C. Cir. 1969); U.S. v. Musgrave, 444 F.2d 755 (5th
Cir. 1971)(instruction that tends to direct a verdict for the
prosecution constitutes plain error). See also U.S. v. McClain,
545 F.2d 988, 1004 (5th Cir. 1977); U.S. v. England, 347 F.2d
425, 430 (7th Cir. 1965). Further, unlike a verdict of guilty, a
verdict of acquittal may not be appealed, even if based on an
egregiously erroneous foundation. Sanabria v. U.S., 437 U.S. 54,
77 (1978). This rule, described by the Supreme Court as
"[p]erhaps the most fundamental rule in the history of double
jeopardy jurisprudence", is, like the reasonable doubt standard,
designed in part to reduce the possibility that an innocent
person may be found guilty. U.S. v. Martin Linen Supply Co., 430
U.S. at 569; Green v. U.S., 355 U.S. 184, 187-88 (1957)(retrial
enhances the possibility that an innocent person may be found
guilty). All of these specific rules reflect and implement the
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policy of giving the accused the benefit of error, even if the
error is unreasonable.
The doctrine of inherent incredibility, as applied against
government witnesses, advances the fundamental policy of
providing special protections so that the accused will not be
unjustly convicted. Applied against defense witnesses, however,
the doctrine undercuts this policy by depriving the accused of
evidence which, if believed, would exculpate him. See Zemina v.
Solem, 438 F. Supp. 455, 468 (D. S.D. 1977). It would seem to
follow that, if it applies at all, the doctrine should be
construed more narrowly when invoked against defense witnesses.
Although this conclusion might be interpreted as requiring
courts to employ a "double standard" in evaluating evidence
offered by the prosecution and by the defense, analogous double
standards are found throughout criminal procedure. As discussed
above, for example, the rights of the prosecution and the defense
are asymetrical with respect to directed verdicts and appeals.
Similar asymetries exist in the law of evidence. Federal Rule of
Evidence 404(a)(1), for example, prohibits the prosecution from
introducing evidence of a pertinent character trait of the
accused in its case-in-chief to prove that he committed the
charged crime. The same rule, however, permits an accused to
introduce character evidence in an attempt to establish his
innocence. This rule cannot be persuasively explained on the
ground that character evidence used to establish guilt is less
relevant or more prejudicial than character evidence used to
establish innocence. There is no reason to believe that jurors
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are more likely to convict on the basis of character evidence
than they are to acquit on the same type of evidence. The most
persuasive justification for the rule lies in the policy that it
is worse for an innocent person to suffer unjustly than it for a
guilty person to go free. This explains why the prosecution may
not use evidence that tends to unduly increase the likelihood of
conviction but the accused may use the same type of evidence
tending to unduly increase the likelihood of acquittal.18 Rule
404(a) thus supports the conclusion that the doctrine of inherent
incredibility should be construed more narrowly, or abandoned
altogether,.,in the context of defense witnesses.19
In addition to the fundamental policy, discussed above,
arising from the reasonable doubt standard and Rule 404(a), two
other constitutional considerations argue strongly in favor of
narrowing the doctrine of inherent incredibility in the case of
defense witnesses. First, a criminal defendant is entitled to
take the stand in his own defense in federal court. Congress
long ago abolished the common law rule that a criminal defendant
is incompetent to testify in his own behalf, 18 U.S.C. ?3481,
and, under the prevailing view, the accused's right to testify in
his own defense has a constitutional foundation. See U.S. v.
Bifield, 702 F.2d 342, 349 (2d Cir. 1983); Alicea v. Gagnon, 675
F.2d 913, 920-23 (7th Cir. 1982). By excluding an accused's
testimony on the ground that it is inherently unbelievable, the
court runs the risk that it will deny the defendant's right to
testify on his own behalf. That danger is especially acute here.
The core of the government's case consists of confessions Smith
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made to FBI agents. The government will, in effect, put Smith on
the stand by having FBI agents recount his confessions. Fed. R.
Evid. 801(d)(2). The defendant's right to testify in his own
defense is especially important in this situation. Where the
defendant's confessions are introduced through the testimony of
others, surely his right to testify guarantees him an opportunity
personally to present his version of events and, as in this case,
to explain prior inconsistent confessions. The Court rejects the
government's suggestion that Smith may testify to his version of
events but may not introduce evidence substantiating his
testimony. ?'To be meaningful, the defendant's right to testify on
his own behalf necessarily implies a right to introduce
additional competent evidence in support of a defense. See
Washington v. Texas, 388 U.S. 14, 19 (1967)(accused has a
fundamental due process right "to present his own witnesses to
establish a defense"); U.S. v. Bifield, 702 F.2d 342, 349 (2d
Cir. 1983).
Second, the Sixth Amendment provides that an accused shall
enjoy the right to a trial by jury. The right to a jury trial, a
right particularly important in criminal prosecutions, requires
that the jury determine all issues of fact that bear on the
ultimate determination of the defendant's guilt or innocence.
Sandstrom v. Montana, 442 U.S. 510, 523 (1979); Duncan v.
Louisiana, 391 U.S. 145, 156 (1968); Ford v. U.S., 273 U.S. 593,
606 (1927); U.S. v. Barletta, 644 F.2d 50, 58 (1st Cir. 1981);
U.S. V. Berrigan, 482 F.2d 171, 175 (3d Cir. 1973); U.S. v.
Shober, 489 F. Supp. 393, 403 (E.D. Pa. 1079); Fed. R. Crim. P.
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12(b)(1); 1 Wright, Federal Practice and Procedure ?194, at 715
(1982). It is within the exclusive province of the jury to
decide the validity and credibility of the testimony of all
witnesses, including the defendant. In U.S. v. Bailey, 444 U.S.
394, 414-15 (1980), the Supreme Court described the fact-finding
role of the jury:
The Anglo-Saxon tradition of criminal justice embodied
in the United States Constitution and in federal
statutes, makes jurors the judges of the credibility of
testimony offered by witnesses. It is for them,
generally, and not for appellate courts, to say that a
particular witness spoke the truth or fabricated a
cock-and-bull story.
As this description implies, courts have been extemely careful
not to usurp the jury's exclusive prerogative to find facts and
to make credibility determinations. Indeed, the defendant's
Sixth Amendment right to a jury trial is designed to protect him
for arbitrary law enforcement, ranging from overzealous or
politically motivated prosecutors to "compliant, biased or
eccentric judges." Duncan. A court accordingly may not, for
instance, direct a verdict of guilty, or take action that tends
to have that effect, "no matter how conclusive the evidence in
the case may be." U.S. v. Hayward, 420 F.2d 142 (D.C. Cir. 1969).
See supra. Consequently, where the defendant presents evidence
which, if believed, would constitute a valid defense, the court
is constitutionally required to instruct the jury on the defense,
"even though the evidence may be weak, insufficient,
inconsistent, or of doubtful credibility." U.S. v. Lewis, 592
F.2d 1282, 1286 (5th Cir. 1979)(quoting U.S. v. Parker, 566 F.2d
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1304, 1305 (5th Cir. 1978))(emphasis added). See also U.S. ex
rel. Peery v. Sielaff, 615 F.2d 402, 403 (7th Cir. 1979); U.S. V.
Garner, 529 F.2d 962, 970 (6th Cir. 1976); Strauss v. U.S., 376
F.2d 416, 419 (5th Cir. 1967); Zemina v. Solem, 438 F. Supp. 455,
468 (D. S.D. 1977). The virtually unqualified deference courts
have shown to the role of the criminal jury in deciding issues of
fact and credibility strongly suggests that the doctrine of
inherent incredibility should be invoked only in the most
extraordinary circumstances, and-p.erhaps,not at all, in the case
of defense witnesses.20
The doctrine of inherent unbelievability arguably can be
reconciled with the the constitutional rights discussed above by
interpreting them as limited to the right to present competent
evidence to the jury. While this definitional move seemingly
solves all, it misses the point. The important point is that the
court must define "competent evidence" broadly so as to afford
the defendant his constitutional rights and to preserve the
historic role of the criminal jury in deciding matters of
credibility. The constitutional considerations discussed above
-- the reasonable doubt requirement and implementing rules, the
defendant's right to testify on his own behalf, and his right to
a jury trial -- combine to cast serious doubt on the Court's
authority to rule the testimony of a defendant or other defense
witnesses unbelievable as a matter of law. Indeed, the Court has
been unable to find a single case where a court has so ruled.
But even assuming arguendo that the doctrine may be applied
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against defense witnesses in some circumstances, it is
inapplicable on these facts.
Even as applied against government witnesses, the doctrine
of inherent unbelievability has been narrowly construed in
criminal cases. While the cases recognize the doctrine in
theory, they almost uniformly refuse to hold the challenged
testimony unbelievable as a matter of law. E.g., U.S. v.
Rodriguez, 702 F.2d 38, 43 (2d Cir. 1983); U.S. v. Shulman, 624
F.2d 384, 388 (2d Cir. 1980); U.S. v. Strahi, 590 F.2d 10, 12
(10th Cir. 1978); U.S. v. Duhon, 565 F.2d 345 (5th Cir. 1978);
U.S. v. Crayero, 530 F.2d 666, 670 (5th Cir. 1976); Lyda v. U.S.,
321 F.2d 788, 794-95 (9th Cir. 1963); Haakinson v. U.S., 238 F.2d
775 (8th Cir. 1956); U.S. v. Narciso, supra. In Cravero, for
instance, the government witness had consistently lied in the
past, had engaged in criminal activities, thought that his
testimony would benefit him and showed elements of mental
instability. Even though the government's entire case rested on
the testimony of this witness, the court declined to rule the
testimony incredible as a matter of law. Cases holding the
testimony of a government witness unbelievable as a matter of law
are exceedingly rare.21 The doctrine has been reserved for cases
where the witnesses testimony contradicts indisputable physical
facts or laws. As the Fifth Circuit has stated the test:
Only when testimony is so unbelievable on its face that
it defies physical laws should the court intervene and
declare it incredible as a matter of law.
U.S. v. Lerma, 657 F.2d 786, 789 (5th Cir. 1981)(Unit A)(citing
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cases).22 Accord U.S. v. Mack, 695 F.2d 820 (5th Cir. 1983);
U.S. v. Narciso, 446 F. Supp. 252, 282-83 (E.D. Mich. 1977).23
It is clear that the doctrine, so defined, does not apply
here. This is not a case where the proffered testimony
contradicts unalterable physical fact, as where the witness could
not possibly have observed what he claims to observe or his
testimony defies physical laws. See Southern Pacific Co. v.
Matthews, 335 F.2d 924 (5th Cir. 1964)(civil case); Ferrar v.
U.S., 275 F.2d 868, 869, 876-77 (D.C. Cir. 1959). See also Wood
v. U.S., 342 F.2d 708, 713 (8th Cir. 1965). Smith's current
explanation of events is consistent with the indisputable
physical facts and laws. For this reason alone, the doctrine of
inherent incredibility does not apply.
The government nevertheless maintains that it is
inconceivable that, if Smith had actually believed he spoke to
Okunev at the behest of the CIA, he would not have disclosed this
fact to the FBI agents who interviewed him. In the government's
view, there is an irreconciliable conflict between Smith's
current statements and his undisputed prior actions that renders
his current statements unbelievable as a matter of law. The
caselaw makes clear, however, that where an inconsistency arises
from a witness' prior statements or actions, the jury, not the
court, must determine which version shall prevail. See
California v. Green, 399 U.S. 163, 160 (1970); U.S. v. Greene,
578 F.2d 648, 657 (5th Cir. 1978); U.S. v. Barber, 442 F.2d 517,
522 (3d. Cir. 1971). Further, Smith has made no secret of his
intention to explain at trial his failure to mention to his
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alleged connection with the CIA during his FBI interviews. He
asserts that because he was convinced that the CIA would disavow
any affiliation with his activities, disclosure of a CIA
connection would have been, at best, pointless and, at worst,
harmful to his case This explanation is not utterly devoid of
plausibility. If Smith thought that the CIA would deny any
connection with him, a rational juror could conclude that he
feared assertion of a CIA connection would make him look foolish
in the eyes of the FBI. There is, moreoever, some evidence that
the CIA would have and did disavow any affiliation with him,
either because it had decided to "cut him loose" or because it
was ignorant of the activities of White, Ishida and their alleged
CIA superior. He has proffered evidence that the CIA agent who
allegedly directed his double agent project often acted
independently, without obtaining prior authorization. He further
says that one of his witnesses will testify that the CIA does, in
fact, disclaim any affiliation with double agents in certain
circumstances. Disclosure of his CIA connection, he moreover
maintains, would have violated a secrecy pact he made with the
CIA, a pact that, as a former military intelligence officer, he
felt under a special obligation to uphold. This is thus not a
case where a witness' more recent statements contravene, without
explanation, prior statements or actions. While the credibility
of Smith's explanation may be suspect, it is clearly not
unbelievable as a matter of law.
The government adverts to another fact that it maintains
renders Smith's account inherently unbelievable. In June of
26
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1983 in San Francisco, Smith called FBI agent Paul Shields, a
former bishop in his church, and asked Shields to put him in
touch with the CIA. He met with a CIA agent later that day,
telling the agent that he had met with the Soviets in Japan and,
in exchange for $11,000, had disclosed useless information. In
the government's view, Smith's contention that he had disclosed
information at the direction of the CIA is hopelessly
inconsistent with the circumstances surrounding his contact with
the CIA in San Francisco. Smith, the government points out,
evidently did not assume that the CIA was familiar with his story.
Rather, he told it as though he believed that the CIA had had no
connection with, or knowledge of, his activities. Viewing the
evidence in the light most favorable to Smith, however, a
reasonable juror could conclude that Smith's contact with the CIA
in San Francisco is not inconsistent with his factual defense.
Smith has represented that he left messages for, and was
recontacted by, Ken White on a regular basis. Beginning in April
1983, however, Smith says that White did not return the messages
he left for White. As Smith tells it, he became worried that the
CIA had "cut him loose." Based on this evidence, a reasonable
juror could infer that Smith's approach of the CIA in San
Francisco was, at least initially, an attempt to reestablish
contact with the CIA. Once it became apparent that the CIA was
not prepared to acknowledge his activities, a juror might infer,
Smith decided to maintain a cautious silence concerning his
connection with CIA agents White and Ishida. Alternatively, a
rational juror might infer that Smith approached the CIA in an
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attempt to learn whether the CIA had in fact disassociated itself
from him. Under this view, Smith was understandably silent about
his CIA connection because he was attempting to discover whether
the CIA would voluntarily acknowledge, or claim ignorance of, the
connection. In light of these reasonable inferences, Smith's
approach of the CIA in San Francisco does not render his account
unbelievable on its face.
In short, Smith's account of the facts is not so internally
inconsistent that it could not create a reasonable doubt as to
his guilt in the mind of a reasonable juror.
The Court also notes that there is independent evidence
tending to corroborate Smith's story. [remainder of paragraph
deleted due to classified information]
[paragraph deleted due to classified information]
[paragraph deleted due to classified information]
Viewing all of this evidence in the light most favorable to
Smith, a reasonable juror could draw inferences that would
corroborate his story.
Smith's account of events is not so internally inconsistent
that a rational juror could not believe it. His failure to
mention his CIA defense to the CIA in San Francisco and to the
FBI during his interviews does not render his account wholly
unbelievable. In addition, he is prepared to adduce independent
evidence in support of his defense.
In conclusion, the Court, based on the alternative holdings
summarized below, declines to invoke the doctrine of inherent
incredibility to categorically preclude Smith from adducing
28
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evidence in support of his defense. First, the Court holds that
the doctrine of inherent incredibility may not be applied to
exclude the testimony of a criminal defendant or his witnesses.26
Second, the Court assumes arguendo that the doctrine, as defined
in cases involving the testimony of prosecution witnesses, may be
used against defense witnesses. So defined, the doctrine does
not apply in this case because Smith's account of events does not
contradict physical laws. Third, the Court holds that the
doctrine of inherent incredibility must be construed more
narrowly than in the case of government witnesses. The second
holding implies a fortiori that the doctrine does not apply here.
Fourth, the Court assumes arguendo that, contrary to the above,
the doctrine applies wherever a rational juror, for whatever
reason, could not believe a witness. Under this interpretation,
the court may exclude evidence not only because it contradicts
physical laws but also because it defies "common sense."27 Even
given this expansive interpretation, the doctrine does not apply
here. Smith's account of events is not necessarily internally
inconsistent. In addition, there is independent evidence
corrobating Smith's story. Thus, drawing all inferences in
Smith's favor, a rational juror, based on the evidence Smith
intends to adduce at trial, could legitimately entertain a
reasonable doubt as to his guilt.
It is entirely possible, of course, that the government's
probing cross-examination and overwhelming rebuttal evidence
might reduce Smith's factual defense to shambles. Nevertheless,
there is a legitimate conflict of evidence that the jury is
~4
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entitled to resolve. See U.S. v. McCrae, 459 F.2d 1140 (D.C.
Cir. 1972); U.S. v. Beck, 615 F.2d 441 (7th Cir. 1980). Once the
Court determines that evidence meets minimum standards of
credibility, if any exist, its task is at an end. As the Supreme
Court has declared:
The established safeguards of an Anglo-American legal
system leave the veracity of a witness to be detected
by cross-examination, and the credibility of his
testimony to be determined by a properly instructed
jury.
Hoffa v. U.S., 385 U.S. 293, 311 (1966). Smith's account of
events is not unbelievable as a matter of law. Whether his
account can withstand the acid tests of impeachment,
cross-examination, and rebuttal is for a jury to decide.
C. Conclusion
The Court holds that Smith may testify to his version.of
events and present any other evidence, whether classified or not,
tending to corroborate his defense. A contrary holding would
violate CIPA, federal rules of evidence and the Federal
Constitution. By refusing to permit Smith to testify to his
factual defense, the Court would be denying Smith his right to
take the stand in his own defense. That right is especially
compelling here because the government, in effect, intends to put
Smith on the stand in the form of confessions he made to FBI
agents. By excluding competent evidence that directly bears on
the issue of guilt, the Court would deny Smith his right to a
jury trial. Exclusion of such evidence would have the effect of
directing a verdict of guilty against Smith, a practice that is
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strictly forbidden by the Constitution. And, finally, by
depriving him of evidence which, if believed, establishes his
innocence, the Court would deny Smith his right to raise a
reasonable doubt as to his guilt in the minds of jurors.
III. INSCOM INFORMATION
Defense counsel have indicated that they do not intend to
introduce any classified information concerning INSCOM operations
as part of their case-in-chief. Smith will, of course, testify
that White and Ishida, who held themselves out as CIA agents,
authorized him to disclose secret INSCOM information so that he
could establish a relationship with the Soviets. On direct, he
will not discuss details of INSCOM operations. Rather, he
intends to say only that, upon questioning, White and Ishida
revealed details about the operations that, based on knowledge
acquired while he was with INSCOM, he knew to be true. Because
counsel do not intend to explore classified details, there are no
CIPA issues with respect to this aspect of Smith's testimony.
In compliance with their ?5 notice obligations, however,
defense counsel have designated several items of classified
information that they might need to explore in response to the
government's cross-examination and rebuttal case. Although the
government has indicated that its cross-examination and rebuttal
will be extremely limited as to the INSCOM material, the Court,
in accordance with the objectives of CIPA, will rule on the
designated items so that the government can have the maximum
possible guidance.
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Details concerning INSCOM operations are generally
admissible if they are relevant to information White and Ishida
allegedly told Smith. This is true whether or not Smith, as a
result of his employment with INSCOM, had prior knowledge of the
items of information.
? Evidence showing that Smith had prior knowledge of details
White and Ishida.allegedly revealed to him corroborates Smith's
assertion that he believed White and Ishida's alleged
representations, both as to their bona fides and as to the
significance of the INSCOM information. [sentence deleted due to
classified i'nformation] Smith's knowledge of this fact, if
established, tends to corroborate his assertion that he believed
White and Ishida's representation that the operation had been
discontinued.
Details of INSCOM operations White and Ishida allegedly
conveyed to Smith may also be admitted despite the fact that
Smith had no prior knowledge of them. This type of evidence is
admissible to confirm the truth of information White and Ishida
allegedly communicated to Smith. The truth of such information
may be shown because it makes the existence of White and Ishida
more probable than would otherwise be the case. Fed. R. Evid.
401. Smith alleges, for example, that White and Ishida told him
that several INSCOM operations had been discontinued. If, in
fact, the operations had not been discontinued, a rational juror
could conclude that Smith's story is a fabrication. If White and
Ishida existed and were CIA agents, a juror might reason, surely
they would have had accurate information. This line of reasoning
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demonstrates that the truth/falsity of the information White and
Ishida alleged communicated to Smith is relevant to his defense.
Evidence concerning INSCOM operations that does not relate
to information White and Ishida allegedly communicated to Smith
is inadmissible.
Assuming that the proper foundation is laid, the INSCOM
files which contain relevant information may be admissible as
business records under Federal Rule of Evidence 803(6).
Under the hearsay rule, information contained in the reports is
admissible only if: (1) the information reflects the personal
observation's of the person making the report; (2) the information
is not offered to prove the truth of the matter therein asserted;
or (3) comes within another exception to the hearsay rule.
With these general guidelines in the mind, the Court rules
the following items inadmissible:
(1) Royal Miter, FN4183. White and Ishida could not
possibly have conveyed this information to Smith -- it refers to
events occuring after he allegedly met with White and Ishida.
(2) Royal Miter, FN4159-62, 4185, 4193, 4473, 4475. The
issue of whether Smith actually harmed this country by disclosing
information to the Soviets is irrelevant. Under the statute,
only Smith's state-of-mind is irrelevant.
(3) Royal Miter, FN4671, 4473, 4475. Inadmissible unless
there is evidence that White and Ishida communicated this
information to Smith.
(4) Royal Miter, FN4075-last 1, 4485. Inadmissible to
prove that the asset was paid the indicated sum. May be admitted
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to show that the indicated sum did not suprise the case officer
who made the report.
(5) Royal Miter, FN4201, 4204, 4243. Irrelevant to any
possible issue in the case.
The remainder of the material may possibly be brought within
the guidelines enunciated above.
IV. BISHOP, BALDWIN INFORMATION
Smith alleges that White and Ishida gave him a Honolulu
telephone number where he could leave messages for them. He
assertedly called this number several times, leaving messages for
White who, as a result, either contacted him by phone or arranged
to meet him. Although he did not know this at the time, the
number Smith allegedly called, (808-531-4189), is associated with
the now defunct Honolulu investment firm Bishop, Baldwin, Rewald,
Dillingham & Wong . . . .
[the remainder of this section has been deleted because it
is inextricably intertwined with classified information]
V. [This section has been deleted due to
classified information]
DATE:
AS AMENDED:
AS REDACTED:
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1. Both Bailey and Bifield stand for the proposition that the
court, in determining whether evidence is sufficient to meet all
of the legal requirements of a defense, must accept the truth of
the proffered evidence. In those cases the defendant was charged
with escaping from federal custody, a violation of 18 U.S.C. S751.
The defendant asserted a hybrid duress/necessity defense,
claiming that prison conditions were so egregious that he was
forced to flee. In Bailey the Supreme Court held that in the
context of ?751 the defense of duress/necessity requires "a bona
fide effort to surrender or return to custody as soon as the
claimed duress or necessity [loses] its coercive force." 444
U.S. at 415. Because the defense adduced no evidence that could
satisfy this legal element of the defense, the Court in Bailey
held that the trial court properly refused to instruct the jury
on the defense. Although the dissent chided the Court for
"deciding factual questions that should be presented to the
jury", 444 U.S. 419, 428 (Blackmun & Brennan, JJ., dissenting),
the Court disagreed:
[W]e remain satisfied that, even if credited by the
fury, the testimony set forth at length in [the
dissenting] opinion could not support a finding that
the [accused had made a bona fide effort to surrender].
444 U.S. at 415-16 n.ll.
The defendant in Bifield offered to testify that he intended
to return to the prison. In affirming the trial court's refusal
to permit evidence of the asserted duress/necessity defense to go
to the jury, the Second Circuit held that the proffered testimony
was insufficient to satisfy the legal requirement of a bona fide
effort to surrender. The court, however, did not base its
decison on its own views concerning the credibility of the
testimony. Rather, it reasoned the defendant's intention, no
matter "how convincingly expressed", was insufficient because the
law requires proof of objective acts showing a bona fide attempt
to return to custody. 702 F.2d at 346.
2. An unreasonable mistake is arguably insufficient to
constitute a defense to the Act. Where a person makes an
unreasonable mistake, he arguably had "reason to believe" that
his actions would injure this country. For purposes of deciding
whether Smith is entitled to present evidence of his version of
events to the jury, however, the Court need not now decide
whether Smith's mistake must have been reasonable to constitute a
valid defense. Assuming that only a reasonable mistake will
suffice, the Court cannot exclude evidence of his alleged defense
because his mistake was, as a matter of law, unreasonable. In
light of Smith's testimony that White and Ishida satisfied his
inquiries as to secret details of INSCOM operations, a rational
juror could conclude that he reasonably believed them to be CIA
agents.
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3. The government seems to suggest that it can establish Smith's
guilt simply by showing that Smith knowingly released classified
information:
He knew that the information that he was to disclose
was classified information and he intended to disclose
the information with which he is.charged. The conversa-
tion he had with White and Ishida merely goes to his
motivation in doing so and does not vitiate the intent
with which he dealt with Okunev.
Government's Supplemental Submission on CIPA Matters, at 13. The
government's position seems to be that once it has shown that the
defendant knowingly disclosed classified information, the burden
shifts to the defendant to show, by way of affirmative defense,
that disclosure was in fact authorized. This view of the statute
ignores the obvious fact that members of the American
intelligence community necessarily disclose classified
information as part of double agent operations. Yet, if the
government's position is accepted, double agents who make such
disclosures are in violation of the Espionage Act -- they have
knowingly disclosed classified information. Congress did not
intend this anomolous result. This type of disclosure, the type
of disclosure in which Smith allegedly believed himself to be
engaged, does not violate the Espionage Act.
The government cannot establish that a person intended to,
or had reason to know he would, injure this country merely, by
showing that the person knowingly released classified information.
The language of the Espionage Act does not proscribe release of
classified information per se. It is not the disclosure of
classified information that the statute condemns but the intent
to injure this country. Consonant with the express requirements
of the Act, the government must prove that the defendant
disclosed the information with the required intent to injure this
country. A person such as a double agent who releases classified
information in the belief that disclosure is authorized lacks the
required intent to injured this country. Because the person lacks
the intent ab initio, he does not, as the government suggests,
bear the burden of pleading or proving actual authorization as an
affirmative defense. A persuasion-shifting presumption that
knowing disclosure of classified information carries with it an
implied intent to injure this country would unconstitutionally
shift the burden of prove on the issue of intent. See Sandstrom
v. Montana, 442 U.S. 510 (1979).
The government's argument that the defendant has no defense
to the statute unless his release of classified information was,
in fact, authorized is treated and rejected in the text.
4. The Act's death penalty provision has been struck down as
unconstitutional because it lacks the discretion-channeling
standards needed to safeguard against the arbitrariness condemned
in Furman v. Georgia. U.S. v. Harper, 52 U.S.L.W. 2582 (9th Cir.
2
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April 3, 1984). This provision is nevertheless relevant in
construing the enacting Congress' intent.
5. The government entire argument is based on the assumption
that White and Ishida were not actually CIA agents. The validity
of this assumption, however, is an issue of fact that is
legitimately in dispute. That the CIA has no records of persons
using the names White or Ishida does not, as the government
seemingly assumes, conclusively establish that they do not exist
or were not CIA agents. As proffered to the Court, Smith's
testimony provides circumstantial evidence from which a rational
juror could conclude that White and Ishida actually were CIA
agents. Because Smith's account of the facts is not incredible
as a matter of law, see Part I., ?B, infra, the jury is entitled
to accept it. The Court accordingly cannot rule as a matter of
law that White and Ishida did not exist or that they were not in
fact CIA agents.
The Court adopts this conclusion as an independent basis for
its holding that the facts alleged by Smith, if believed,
constitute a valid defense. Assuming arguendo that the
government i's correct in interpeting the Espionage Act to require
that Smith establish that White and Ishida actually were CIA
agents, Smith's evidence is not, as the government contends,
insufficient as a matter of law. Based on Smith's testimony, a
rational juror could conclude that White and Ishida actually were
CIA agents who actually authorized him to reveal secret
information.
6. The following syllogism accurately captures the government's
position:
(1) White and Ishida, if they existed, were not CIA agents,
see note 5 supra, and thus were not empowered to authorize
disclosure. of classified information;
(2) Smith was therefore mistaken as to White and Ishida's
"legal authority";
(3) A mistake as to a person's legal authority is a mistake
of law;
(4) Except in circumstances not present here, a mistake of
law is no defense.
This line of reasoning is misleading.
First, the mechanistic labeling approach implicit in steps 2
through 4 confuses rather than clarifies the ultimate issue at
stake. Labels aside, the issue here boils down to one of
statutory construction: Does Smith's alleged mistake negate the
state-of-mind requirements spelled out in the charged offense?
The specific rules that courts have devised in dealing with
mistakes of law and of fact all spring from the more fundamental
principle-of statutory construction that a mistake that negates
the intent required by the offense constitutes a valid defense.
U.S. v. Petersen, 513 F.2d 1133, 1135 (9th Cir. 1975); U.S. v.
Squires, 440 F.2d 859, 862-65 (2d Cir. 1971); Model Penal Code
?2.04(l)(a) & Accompanying Comments (Tent. Draft No. 4 1955).
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See U.S. v. By, 352 F.2d 570 (2d Cir. 1965)(one is ordinarily
not guilty of a crime unless he is aware of the existence of all
of those facts which made his conduct criminal); U.S. v. Jonas
Bros., 368 F. Supp. 783 (D. Alaska 1974)(mistake of law is a
defense where offense establishes knowledge of law as an element
of the crime); U.S. v. Currier, 621 F.2d 7, 9 n.l (1st Cir.
1980)(mistake as to legal status defined independently of charged
offense is a defense). The question here, then, is whether
Smith's mistake, if he made one, negates the required intent to
injure this country. It does not answer this question to discuss
whether a mistake as to a person's legal authority is labeled a
mistake of law and treated as a valid defense in the context of
other offenses. As with other types of mistakes, the proper
treatment of such a mistake undoubtedly depends on the nature of
the intent required by the charged offense. See U.S. v. Miller,
658 F.2d 235, 237 (4th Cir. 1981); U.S. v. Behenna, 552 F.2d 573,
575-77 (4th Cir. 1977); U.S. v. Fierros, 692 F.2d 1291 (9th Cir.
1982).
Second, the government's characterization of Smith's alleged
mistake as a?mistake as to White and Ishida's legal authority
misstates, the nature of the mistake. As explained in the text,
see text accompanying nn. 11 & 12 infra, Smith was not mistaken
as to the law, that is, the legal definition of a CIA agent or
the legal authority of a CIA agent to authorize disclosure of
secret information. His mistake, if he made one, had to do with
the facts concerning White and Ishida's true activities, that is,
whether they were, as they allegedly told Smith, involved in
covert activities on behalf of the CIA. Thus, Smith's belief
that White and Ishida had legal authority to act might have been
mistaken, see note 5 supra, but the mistake rested on an
erroneous perception of the facts, not the law. See Note,
Reliance on Apparent Authority as a Defense to Criminal
Prosecution, 77 Colum. L. Rev. 775, 789-90 (1977).
7. For reasons expressed in the text, see text accompanying nn.
11 & 12, the Court holds that if Smith made a mistake it was one
of fact, not law. See note 6 supra.
8. Assuming that Smith's allegedly mistaken beliefs as to White
and Ishida's status as CIA agents or as to the authority of CIA
agents to permit disclosure of classified information can be
characterized as a mistake of law, the alleged mistakes fall
within a recognized exception to the mistake of law doctrine.
This exception, discussed more fully in note 10 infra, holds that
a mistake of law is a defense where the mistake concerns a legal
concept defined independently of the charged offense. See note
10. Legal authority to act on behalf of the CIA, like the legal
concept of residence in U.S. v. Behenna, 552 F.2d 573, 575-77
(4th Cir. 1977), is defined independently of the charged offense.
9. See note 5 supra.
10.' Its seems beyond cavil that the CIA, in carrying out double
agent programs, has authority to permit disclosure of classified
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information. But if, for reasons unknown to the Court, the CIA
has no such authority, Smith could not be fairly charged with
knowledge of the jurisdictional paramters of various intelligence
agencies for purposes of the Espionage Act.
One might argue, however, that Smith made a mistake of law
in assuming that CIA agents at White and Ishida's level had
authority to permit disclosure of classified information.
Although it may well be that agents at this level have no
authority themselves to permit disclosure of classified
information, they undoubtedly have authority to communicate
decisions made by those who in the CIA hierarchy who have
authority. A rational juror could conclude that Smith relied on
White and Ishida's authority to communicate top-level decisions
concerning disclosure.
Even if White and Ishida erroneously represented, and Smith
mistakenly assumed, that they themselves had authority to permit
disclosure, this mistake would not defeat his defense. A mistake
as to who in the CIA has authority to permit release of
classified information would not fall within the general rule
that a mistake of law is no defense. Although ignorance of the
law is generally no defense, Smith cannot be fairly charged with
knowledge of the CIA's internal structure of authority since this
structure is no doubt a well kept secret.
In addition, this type of mistake would fall within a
recognized exception to the general rule that a mistake of law
doctrine. A mistake of law constitutes a valid defense where the
mistake does not flow from the defendant's ignorance of the
charged offense but rather flows from his ignorance of "an
independently determined legal status or condition that is one of
the operative facts of the crime." U.S. v. Fierros, 692 F.2d
1291, 1294 (9th Cir. 1982). In U.S. v. Behenna, 552 F.2d 573,
575-77 (4th Cir. 1977), for instance, the defendant was charged
with knowingly making a false statement on a firearm registration
form. On the form he indicated South Carolina as his state of
residence even though this was not his true state of residence as
defined by the law. Treating the defendant's mistake as a
mistake of law, the Fourth Circuit held that an honest mistake as
to his "residence", a legal concept defined independently of the
charged offense, constituted a valid defense because it negated
the scienter specifically charged in the indictment. See also
U.S. v. Petersen, 513 F.2d 1133, 1135 (9th Cir. 1975); U.S. v.
Currier, 621 F.2d 7, 9 n.l (1st Cir. 1980). The rationale for
this exception is that a mistake as to an independently defined
legal status is, in reality, a mistake of fact. U.S. v. Fierros,
692 F.2d at 1294.
11. In analyzing the issue of a defendant's reliance on the
apparent authority of a governmental official, one commentator
has distinguished between two components of apparent authority:
the "status" component and the "authorization" component. The
status component refers to the defendant's belief, based on the
facts then known to him, that the person on whose authority he
relies is a government official of a particular type. The
authorization component refers to the defendant's belief as to
5
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the authority possessed by that type of official. Note, supra
note 6, at 789.
Mistakes as to the status element are generally mistakes of
fact; they rarely involve a misconception concerning the legal
definition of the governmental position. A mistake of law, if
one is made, will typically involve the authorization element.
In Barker, for instance, the defendants, based on the implicit
representation of White House officials, mistakenly believed that
the President has authority to order warrantless domestic
break-ins in the interest of national security.
In contrast, this case does not involve a mistake as to the
authorization element. If Smith made a mistake, it was only a
factual mistake as to White and Ishida's status.
12. Judge Merhige, addressing the case where the defendant
relies on an erroneous representation as to an official's
authority, did suggest that a defense is unavailable if the
person making the representation is not in fact a public official.
According to Judge Merhige, the reliance on an official statement
of the law defense does not apply where "an individual places his
or her reliance, through reasonable, in a stranger to public
office erroneously believing him to be a public official."
Barker, 546 F.2d at 956. The Court declines to apply this rule
here. First, the rule applies only where the defendant asserts
the "mistaken official statement of the law" defense. In other
words, the rule comes into play only where the defendant has made
a mistake both as to status component and the authorization
component described supra. See note 11. In this case the
defendant made a mistake only as to the status component.
Second, the Court rejects Judge Merhige's statement of the law as
inconsistent with the mistake of fact doctrine. Mistakes as to a
person's official status typically involve mistakes of fact. See
note 11. There is no reason to abandon the traditional treatment
of mistakes of fact in this context, even where coupled with a
mistake of. law as to the putative official's legal authority.
Indeed, to do so would lead to harsh and arbitrary results.
13. The government argues that Smith's conversations with White
and Ishida are inadmissible hearsay:
[S]ince his defense is one of mistake of law and not
fact, the contents of the defendant's conversations
with White and Ishida are inadmissible hearsay since
those conversations do not fall within Federal Rules of
Evidence 803(3)[(exception for then existing mental,
emotional, or physical condition)].
Government's Supplemental Submission on CIPA Matters, at 11.
This argument is without merit. The conversations are not within
the definition of hearsay. They are offered to prove Smith's
state-of-mind rather than the truth of the matter therein
asserted. Fed. R. Evid. 801(c). The admissibility of the
conversations thus does not turn on the applicability of the
hearsay exceptions.
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14. Once the court determines that an item of classified
information is admissible, the government, under S6(c) of the
Act, may ask the court to substitute either a summary or an
admission of relevant facts. The court must permit the
substitution if it "will provide the defendant with substantially
the same ability to make his defense as would disclosure of
specific classified information."
Where the court denies the government's request for a ?6(c)
substitution, the government can require the court to order the
defendant not to disclose the classified information. 18 U.S.C.
App. ?6(e). Upon issuing such an order, the court must dismiss
the indictment or take other less drastic action, "as the court
determines is appropriate."
The government is entitled to take an interlocutory appeal
of any order of the district court "authorizing the disclosure of
classified information, imposing sanctions for nondisclosure of
classified information, or refusing a protective order . "
18 U.S.C. App. S7.
The government may, of course, always dismiss the indictment
if, after exercising its rights under the Act, it determines that
the prosecution would involve an unacceptably high risk to the
national security.
15. The court went on to state:
Both documentary and testimonial evidence
containing classified matter may be admitted if in
conformity with the Federal Rules of Evidence.
Id. See also 126 Cong. Rec. H9308 (Sept. 22, 1980)(statement of
Rep. Mazzoli)(the Act "does not alter the existing standards for
determining relevance or admissibility").
16. The Senate Committee made this statement in explaining
?6(e)(2), a section that permits the court to dismiss the
indictment or take other appropriate action in cases where the
Attorney General has decided to prohibit the defendant from
disclosing particular items of admissible classified information
at trial. Section 6(e) comes into play only after the court has
determined that the classified information in question is
admissible. The fact that, in considering its alternatives under
?6(e), the court may not weigh the national security against the
defendant's rights implies a fortiori that the court may not do
so in determining the admissiblity of classified information.
17. The government cites U.S. v. Wilson, supra, in support of
its contention that CIPA, in conjunction with the Federal Rules
of Evidence, permit the court to consider credibility in
determining the admissibility of classified information. The
Court rejects the Wilson decision if it is read as contrary to
the principles set forth in this Opinion.
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18. A similar analysis applies with respect to Rule 404(a)(2).
19. Chief Judge Weinstein makes much the same point in the
context of Rule 602 of the Federal Rules of Evidence, which
requires that the proponent of the evidence make a prima facie
showing that the witness has personal knowledge. After
explaining that Rule 602 permits a court to exclude a witness'
testimony where no reasonable person could find that the witness
actually perceived the matter about which he is testifying, see
note 22 infra, he cautions:
In a criminal case where the proponent is the
defense, the court should hesitate even more than
in other instances in excluding testimony on Rule
602 grounds.
3 Weinstein's Evidence ?602[02], at 602-5 (1981).
20. Given that both the government and the defendant have a
right to insist on a jury trial, it might be argued that there is
no reason to construe the doctrine of inherent incredibility more
narrowly in the case of defense witnesses. These rights,
however, do not have equal status. In contrast with the
defendant's constitutional right to a jury trial, the
government's right occupies a less exalted position in our system
of criminal justice. It is a statutory right that must be
flexibly interpreted to accomodate the defendant's more
fundamental rights, such as the constitutional right to require
the government to establish guilt beyond a reasonable doubt. Cf.
Singer v. U.S., 380 U.S. 24 (1965)(reserving question of whether
government's insistence on jury trial may in some circumstances
deny defendant's right to an impartial trial). In the case of
government witnesses, the court implements the reasonable doubt
standard by removing evidence of doubtful credibility from the
jury's consideration. But, as developed in the text, applying
the doctrine in the case of defense witnesses runs contrary to
the policy reflected by the reasonable doubt requirement.
Moreover, our system of jurisprudence acknowledges that the jury
has special importance for the criminal defendant by giving him a
constitutional right to a jury. As the Supreme Court has
observed, the primary purpose of the criminal jury is to provide
the accused with a bulwark against governmental oppression.
Duncan v. Louisiana, 391 U.S. 145 (1968). In light of jury's
role in protecting the defendant from "arbitrary law enforcement"
of all kinds, including "compliant, biased, or eccentric judges",
courts must be especially wary of taking the testimony of defense
witnesses away from the jury. Id.
21. See U.S. v. Wood, 342 F.2d 708, 713 (8th Cir. 1965); Ferrar
v. U.S.,.275 F.2d 868, 869, 876-77 (D.C. Cir. 1959).
22. Conceived in this way, the doctrine of inherent
incredibility overlaps Federal Rule of Evidence 602 to some
extent. Rule 602, which requires that a witness have personal
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knowledge of the matter to which he testifies, permits the court,
in circumstances especially limited in the case of defense
witnesses, see note 19 supra, to exclude testimony on the ground
that a rational fact finder could not believe that the witness
has personal knowledge. 3 Weinstein's Evidence ?602[02] (1981).
The doctrine of inherent incredibility sweeps more broadly than
Rule 602, however, because, unlike Rule 602, the doctrine of
inherent incredibility directly addresses the credibility of the
substance of the witness' testimony. Even though it is conceded
that the witness perceived the matter about which he testifies,
the doctrine of inherent incredibility would permit his testimony
to be excluded if the substance of his testimony defies physical
laws. In other words, the doctrine operates where the witness
perceived the subject about which he testifies but he is lying
about what he, in fact,. perceived. Rule 602 is narrower. It
comes into play only when the witness lacked the capacity to
perceive the subject matter about which he testifies -- where,
for example, uncontradicted evidence shows that the witness was
blind or deaf when he supposedly made his observations.
In this case there is no suggestion that Smith lacked the
claimed opportunity to observe, listen, and speak to White and
Ishida. His senses were evidently functional and he asserts,
without dispute, that he was present at locations where he
alleges White and Ishida were present.
23. The rule was defined more broadly in Jackson v. U.S., 353
F.2d 862, 867 (D.C. Cir. 1965):
Sometimes, it is possible to disprove testimony as a
matter of logic by the uncontradicted facts or by
scientific evidence. (citations omitted] But the
doctrine of inherent incredibility does not require
such positive proof. It is enough to invoke the
doctrine if the person whose testimony is under
scrutiny made allegations which seem highly
questionable in light of common experience and
knowledge, or behaved in a manner strongly at variance
with the way in which we would normally expect a
similarly situated person to behave.
Although Jackson is a criminal case, it is distinguishable.
There the court was reviewing a fact finding made by a judge on
an issue other than the defendant's guilt/innocence. Because
there was thus no right to a jury trial on this particular issue,
the court deliberately employed a more searching standard of
review. 353 F.2d at 864-65. Where, as here, the disputed issues
of fact go to the ultimate issue of guilt/innocence, a court must
accord more deference to the role of the fact-finder.
Even accepting Jackson's expansive interpretation of the
doctrine of inherent incredibility, the doctrine may not be
applied on these facts. See infra.
24. [footnote deleted due to classified information]
0
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25. [footnote deleted''dtae-to?'classifidd`informationl
26. This holding is necessarily a limited one. The Court, of
course, does not hold that the federal rules of evidence may
never be applied to disadvantage a criminL s Cf.
Chambers v. Mississippi, 410 U.S. 284 (1973)(application of a
state variant of hearsay rule held to violate defendant's due
process rights); Washington v. Texas, 388 U.S. 14 (1967). The
Court does not hold that evidence offered by a criminal defendant
must be admitted despite the rules concerning competency,
personal knowledge, relevance and hearsay. E.g., Fed. R. Evid.
401, 403, 601, 602, 801. The Court holds only that once these
threshold requirements have been met, the constitutional
considerations discussed supra, in combination, preclude the
Court from excluding evidence on the ground that it lacks
credibility.
27. Although the doctrine has been defined this broadly in some
civil cases, it must be defined more narrowly in criminal cases.
Criminal cases involve constitutional constraints not present in
civil cases,, the most prominent of which is perhaps the
reasonable doubt requirement. In addition, as the Supreme Court
has recognized, the right to a jury trial plays an especially
important role in criminal cases. Duncan v. Louisiana, 391 U.S.
145 (1968).
28. [footnote deleted due to classified information]
29. [footnote deleted due to classified information)
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