United States v. Sterling, No. 11-5028

Decided:  July 19, 2013

The Fourth Circuit held that the United States District Court for the Eastern District of Virginia (“the district court”) improperly granted a qualified reporter’s privilege to James Risen (“Risen”) under the First Amendment, thereby preventing the government from uncovering the identify of a source who allegedly leaked national security information in violation of the Espionage Act, 18 U.S.C. § 793(d)–(e); that the district court improperly struck two government witnesses to sanction the government’s violation of a discovery order; and that the district court properly ordered disclosure of the names of certain government witnesses—specifically, current or former operatives for the Central Intelligence Agency (“CIA”)—to defendant Jeffrey Alexander Sterling (“Sterling”) and his attorney, but improperly ordered disclosure of these names to the jurors.  The Fourth Circuit therefore affirmed the decision of the district court in part, reversed the decision in part, and remanded the case.

In 1993, the CIA hired Sterling as a case officer and granted him top-secret security clearance.  In 1998, the CIA assigned Sterling to a classified program designed to encumber Iran’s acquisition or development of nuclear weapons (“the CIA program”).  Sterling was reassigned from the CIA program in May 2000.  In August 2000, Sterling filed an equal opportunity complaint, alleging the CIA denied him assignments on the basis of race.  He later filed a federal lawsuit against the CIA, seeking compensation for racial discrimination.  Sterling was removed from service in October 2001, and terminated from the CIA in January 2002; his federal lawsuit was subsequently dismissed.  Sterling also filed a second civil suit against the CIA in March 2003, claiming that the CIA had infringed upon his right to publish his memoirs after the CIA’s Publications Review Board edited portions of the memoirs.  The suit was later dismissed by stipulation of the parties.  In 2006, Risen published a book titled State of War:  The Secret History of the CIA and the Bush Administration, which contained classified details about the CIA program.  Risen did not reveal his sources for the classified details.  In December 2010, Sterling was indicted by a federal grand jury for, inter alia, violations of the Espionage Act—specifically, the unauthorized retention and disclosure of national security information.  The grand jury made a probable cause determination that Sterling illegally disclosed classified information to Risen, and that he may have done so to retaliate against the CIA for terminating him and interfering with his memoirs.

In May 2011, the government obtained authorization to issue a trial subpoena seeking, inter alia, testimony from Risen regarding his source of information on the CIA program.  The government asked the court to admit the testimony through a motion in limine.  Claiming the First Amendment or, in the alternative, a federal common-law reporter’s privilege protected him from compelled testimony, Risen moved to quash the subpoena.  The district court quashed the subpoena and denied the government’s motion in limine.  The district court found that Risen had a qualified reporter’s privilege under the First Amendment, and the government did not meet the three-part test established in LaRouche v. National Broadcasting Co., 780 F.2d 1134, thereby failing to overcome the privilege.

The parties consented to a discovery order prior to trial, in which the government agreed to a schedule for disclosing evidence tending to impeach a prosecution witness, per Giglio v. United States, 405 U.S. 150.  Under this schedule, the government had to provide all Giglio materials to Sterling no later than five days prior to the trial’s commencement.  As the disclosure deadline approached, the government discovered impeachment materials in the personnel files of certain CIA witnesses; the government did not disclose these materials to Sterling until the day after the discovery period’s expiration.  Sterling objected to the late disclosure at a pre-trial hearing, and the district court sanctioned the government by striking two of its witnesses.

The government also moved for a protective order prior to trial, under the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. 3 § 6.  Seeking to protect the identities of certain witnesses—specifically, current or former CIA operatives—the government asked the court to, inter alia, allow the witnesses to use their last initials instead of their full names.  At a pre-trial hearing, the court agreed to allow the witnesses to use pseudonyms while testifying, but ordered the government to provide a key with the witnesses’ actual names (“the witness key”) to Sterling, his counsel, and the jury.

On appeal, the Fourth Circuit found that the First Amendment reporter’s privilege claimed by Risen—involving testimony in a criminal proceeding regarding criminal conduct the reporter personally observed or participated in—had been rejected by the Supreme Court in Branzburg v. Hayes, 408 U.S. 665.  Furthermore, the Fourth Circuit found that the subpoena was not issued in bad faith or for purposes of harassment.  The court also rejected Risen’s claim to a common-law reporter’s privilege, noting that the Branzburg Court failed to recognize such a privilege, and finding that the Supreme Court’s interpretation of Federal Rule of Evidence 501 in Jaffee v. Redmond, 518 U.S. 1—which established a psychotherapist-patient privilege—did not overrule Branzburg or allow federal courts to recognize a reporter’s privilege under the common law.  With regard to the sanction for the government’s late Giglio disclosure, the Fourth Circuit found that the Giglio violation was not made in bad faith; that Sterling’s trial preparations were not irreparably damaged by the late disclosure; and that a less severe sanction—specifically, a continuance—would have remedied any prejudice from the brief delay.  Lastly, with regard to the district court’s CIPA ruling, the Fourth Circuit noted that Sterling already knew or may know some of the witnesses, and asserted that depriving Sterling of the witness key could infringe upon his Confrontation Clause rights; furthermore, the court noted that the government made no showing that Sterling or his counsel posed an actual threat to the witnesses’ safety.  However, the Fourth Circuit also noted that the jurors could remember the names on the witness key; that the actual names of the witnesses would not help the jury understand the facts and legal issues of the case, and that disclosure of the witness key to jurors was therefore not worth the risk; and that a proper jury instruction could alleviate any prejudice to Sterling.

Full Opinion

-Stephen Sutherland

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