Petition — Girard v. United States

‘Supreme Court, UcA

FILED’

AUG 18 1979

In the L Mics RODAK, JR., CLERK

Supreme Court of the United’ States.

OcrosBer TERM, 1979.

No. 79-267

GEORGE E. GIRARD, JR., AND

PAUL A. LAMBERT,

PETITIONERS,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

Rosert F.. Cou.ins,

TROY AND COLLINS,

51 Neponset Avenue,

Dorchester, Massachusetts 02122.

(617) 825-8122

Attorney for Petitioner Girard.

WiurE J. Davis,

10 Post Office Square,

Boston, Massachusetts 02109.

(617) 482-5177

Attorney for Petitioner Lambert.

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS

Table of Contents.

Opinions below l

Jurisdiction 9

Question presented 2

Constitutional and statutory provisions involved 9

Statement of the case 3

Reasons why the writ should be granted 5

Conclusion ll

Appendix

Opinion of United States Court of Appeals for the

Second ‘Circuit la

Opinion of United States District Court for the Dis-

trict of Connecticut 9a

Table of Authorities Cited.

CASEs.

Baggett v. Bullitt, 377 U.S. 360 (1964) 9

- Bates v. State Bar of Arizona, 433 U.S. 350 (1977) 6n

Broadrick v. Oklahoma, 413 U.S. 601 (1973) 6, 7n, 8

Cantwell v. Connecticut, 310 U.S 296 (1940) 6

Dombrowski v. Pfister, 380 U.S. 479 (1965) 9

Edwards v. South Carolina, 372 U.S. 229 (1963) 6

Garner v. Louisiana, 368 U.S. 157 (1961) 6

Grayned v. City of Rockford, 408 U.S. 104 (1972) 6n, 9

Hynes v. Mayor and Council of Oradell, 425 U.S. 610

(1976) 8, 10

ii TABLE OF AUTHORITIES CITED.

Landmark Communications, Inc. v. Virginia, ___

U.S. ___., 98 S. Ct. 1535 (1978) 7

Morissette v. United States, 342 U.S. 246 (1952) 6

Smith v. Goguen, 415 U.S. 566 (1974) lin

Terry v. California State Board of Pharmacy, 395 F.

Supp. 94 (N.D. Cal. 1975), aff’d, 426 U.S. 913

(1976) 6, 10

United States v. Diaz, 499 F. 2d 113 (9th Cir. 1974) 9

United States v. Harriss, 347 U.S. 612 (1954) 9

United States v. Russo, No. 9373-(WMB)-CD (filed

December 29, 1971), dismissed (C.D. Cal. May 11,

1973) 7

Virginia Pharmacy Board v. Virginia Citizens Con-

sumer Council, 425 U.S. 748 (1976) 8, 10n

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

First Amendment 2, 6, 7n, 8, 9, 11

Fifth Amendment 2,3, 6,11

5 U.S.C. § 552(a)(i)(1), (3) 8n

18 U.S.C.

§ 371 4

§ 641 2, 3, 4, 5, 6, 7, 8, et seq.

§ 793(d), (3) 8n

28 U.S.C. § 1254(1) 2

In the

Supreme Court of the United States.

Ocroser TERM, 1979.

No.

GEORGE E. GIRARD, JR., Anp

PAUL A. LAMBERT,

PETITIONERS,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

George E. Girard, Jr., and Paul A. Lambert petition for a

writ of certiorari to review the judgment of the United States

Court of Appeals for the Second Circuit entered in this case on

June 20, 1979.

Opinions Below.

The Court of Appeals for the Second Circuit issued an opin-

ion, not yet reported, on June 20, 1979. The opinion is repro-

2

duced in the Appendix at pp. la-8a. Petitioners’ motion to

dismiss was denied by the District Court. The court’s written

opinion, dated February 3, 1978, and reported at 446 F. Supp.

890 (D. Conn. 1978), is reproduced in the Appendix at pp.

9a-27a.

Jurisdiction.

The judgment of the Court of Appeals was entered on June

20, 1979. The original date for the filing of this petition, July

20, 1979, was extended by order of Mr. Justice Marshall to and

including August 18, 1979. The jurisdiction of this Court is in-

voked under 28 U.S.C. § 1254(1).

Question Presented.

Whether, when construed to prohibit the dissemination of

information recorded in government files, 18 U.S.C. § 641 is

vague and overbroad on its face and penalizes a wide range of

protected speech activities in violation of the First and Fifth

Amendments to the Constitution of the United States?

Constitutional and Statutory Provisions Involved.

The First Amendment to the United States Constitution

provides in pertinent part:

Congress, shail make no law . . . abridging the free-

dom of speech, or of the press. . . .

3

The Fifth Amendment to the United States Constitution

provides in pertinent part:

. . . [NJor shall any person . . . be deprived of life, liber-

ty, or property, without due process of law. . ..

Title 18, United States Code, § 641, provides:

Whoever embezzles, steals, purloins, or knowingly con-

verts to his use or the use of another, or without author-

ity, sells, conveys or disposes of any record, voucher,

money, or thing of value of the United States or of any de-

partment or agency thereof, or any property made or

being made under contract for the United States or any

department or agency thereof; or

Whoever, receives, conceals, or retains the same with

intent to convert it to his use or gain, knowing it to have

been embezzled, stolen, purloined or converted —

Shall be fined not more than $10,000 or imprisoned not

more than ten years, or both; but if the value of such

property does not exceed the sum of $100, he shall be

fined not more than $1,000 or imprisoned not more than

one year, or both. ;

The word “value” means face, par, or market value, or

cost price, either wholesale or retail, whichever is

greater.

Statement of the Case.

Petitioners were convicted of the unauthorized sale of gov-

ernment property and of conspiring to sell such property in

4

violation of 18 U.S.C. §§ 641 and 371 (App. 2a). The proper-

ty consisted of information on the computer files of the Drug

Enforcement Administration (hereafter “D.E.A.”) concerning

four specific names provided to Girard by a government in-

former who had obtained the names from the D.E.A. agents

for whom he was working as an informer (App. 2a-3a). Girard

was also convicted of possession of cocaine with intent to dis-

tribute. At the time of the activities alleged — May, 1977, to

"July, 1977 — Lambert was a D.E.A. agent stationed in Wash-

ington, D.C., and Girard was a former D.E.A. agent living in

Boston, Massachusetts.

The two primary government witnesses during the six and

one-half week trial were James Bond, a paid government in-

former who had proposed a marijuana smuggling operation to

Girard, and Michael Levine, a D.E.A. agent posing as an in-

vestor in Bond’s smuggling operations.

In May, 1977, Bond met with Girard in Massachusetts and

proposed the smuggling of marijuana from Mexico into the

United States. According to Bond, Girard told him he could

obtain information from D.E.A. files to determine whether

any proposed participant in the operation was a D.E.A. in-

formant. Bond then went to the D.E.A. offering to serve as a

confidential informant — an offer which was accepted. In

the course of setting up the “smuggling operation,” Bond re-

quested information from Girard on a Richard Lumiere — a

totally fictitious individual concerning whom the D.E.A. had

constructed a file in order to confirm Bond’s allegations that

Girard had told him he could obtain information from D.E.A.

files.

On June 29, 1977, Bond and Girard met in New Haven,

Connecticut, with agent Levine, who was posing as an in-

vestor in Bond’s smuggling operation. Levine paid Girard

5

$500 for the Lumiere file check and offered to pay an addi-

tional $500 for a check on one Howard Fuchs.'

Girard provided Bond with information regarding Lumiere

and Fuchs on July 9, 1977. On the evening of July 8, 1977,

Lambert signed into D.E.A. headquarters in Washington,

D.C., and on that same evening computer information about

Richard Lumiere was requested by someone using a computer

terminal located in Lambert’s office complex.?

Subsequently, Levine provided Girard with two other

names he wanted checked on the computer. Those names

were checked from the same terminal located in Lambert’s of-

fice and videotapes showed that Lambert had used the ter-

minal at the time the names provided were being checked on

the computer (see App. 3a).

The conviction on counts one and two of the indictment

were based on the sale of this information.

Reasons Why the Writ Should be Granted.

This case presents this Court with an opportunity to clarify

the constitutionally permissible reach of 18 U.S.C. § 641 —

a statute originally designed to recodify a number of prior

statutes penalizing the taking of concrete, tangible property

‘Fuchs was a former D.E.A. informant known to Levine who was no

longer being used by the D.E.A. He was allegedly to be checked in connec-

tion with what Levine told Girard was Fuchs’ offer of a kilogram of cocaine

for flying someone from Mexico to the United States. There was, in fact, no

such offer and Agent Levine raised the subject of cocaine because Fuchs had

smuggled cocaine in the past.

® Access to the four names provided by Bond and Levine was monitored by

the D.E.A. through a system which indicated the date, time, and terminal

used to obtain information from the computerized records concerning those

names.

6

from the government, however accomplished. See, e.g., Mor-

rissette v. United States, 342 U.S. 246, 265-269 (1952). In

holding that the statute encompasses the sale or disposition,

- without authority, of information from government computer

files, the courts below have, petitioners submit, expanded the

scope of the statute beyond the limits permissible under the

First and Fifth Amendments to the United States Constitution

— an extension which should be reviewed by this Court.

The construction of 18 U.S.C. § 641 adopted below converts

a statute otherwise confined to simple larcenous conduct into a

catch-all covering any form of unauthorized transmission of

information. In such form, the statute penalizes a broad

range of speech activities of the type which have been jealously

guarded by the First Amendment and is both vague and over-

broad.°

Although invalidating a statute for overbreadth is “strong

medicine” (Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)),

it must be administered when necessary. A statute cannot sur-

vive First Amendment scrutiny unless it has been “narrowly

drawn to define and punish specific conduct as constituting a

clear and present danger to a substantial interest of the State.”

Garner v. Louisiana, 368 U.S. 157, 201 (1961), Harlan, J.,

concurring and quoting Cantwell v. Connecticut, 310 U.S.

296, 311 (1940). See also Edwards v. South Carolina, 372

U.S. 229, 236 (1963); Terry v. California State Board of Phar-

macy, 395 F. Supp. 94, 106 (N.D. Cal. 1975), aff'd, 426 U.S.

913 (1976).*

*Petitioners may raise the overbreadth challenge here even though their

conduct might constitutionally be punished under a properly drawn statute,

since “the statute’s very existence may cause others . . . to refrain from con-

stitutionally protected speech or expression.” Broadrick v. Oklahoma, 413

U.S. 601, 612 (1973); Bates v. State Bar of Arizona, 433 U.S. 350, 380 (1977);

Grayned v. City of Rockford, 408 U.S. 104, 114 (1972).

‘The constitutional question can, of course, be avoided by conforming the

statute to the fair import of its terms, which do not prohibit the dissemination

7

In this case, the inclusion of information generally in the

prohibitions of § 641 draws in clearly protected activity — dis-

seminating information about the conduct of our government.

The likelihood that such protected activities will be threatened

by the statute is substantial, as is witnessed by the prosecution

of Daniel Ellsberg and others. See United States v. Russo,

No. 9373-(WMB)-CD (filed December 29, 1971), dismissed

(C.D. Cal. May 11, 1973). Cf. Landmark Communications,

Inc. v. Virginia, ____ U.S. , 98S. Ct. 1535 (1978), where

this Court was obliged to reverse a conviction under a state

statute prohibiting dissemination of information about a

judicial inquiry applied to a newspaper which published the

results of confidential proceedings of the Judicial Inquiry and

Review Commission.

It is also clear that the statute has not been narrowly drawn

to define and punish specific conduct. Rather, it could be

used to penalize any disclosure of information without regard

to the type of information, its source or importance to the

government, or the purpose for which it is disclosed. In

essence, as construed below, it provides a blunderbuss weapon

which could be used to prohibit disclosures which the govern-

ment can have no legitimate interest in prohibiting, such as in-

formation embarrassing or incriminating government of-

ficials. It would encompass Senator Dole’s disclosure of

privileged communications concerning the Panama Canal. In-

deed, it could even sweep within its purview the dissemination

by any government officer of information obtained from un-

of information. The statute would then be, as it was intended, an ordinary

criminal law which would threaten First Amendment rights only in unique

application. Broadrick v. Oklahoma, 413 U.S. at 613. The partial limita-

tion on the broad sweep of the “dissemination of information” reading of

§ 641 found in certain Justice Department regulations by the court below

does not, as will be discussed infra, adequately cure the deficiencies created

by the broad construction adopted below.

8

published government files during the course of his employ-

ment in his/her memoirs.

The construction of § 641 to encompass information as a

“thing of value” also creates a statute which impermissibly en-

croaches on First Amendment freedoms by virtue of its ex-

treme vagueness. Not only is it impossible to determine what

types of disclosures are prohibited, but criminal liability is also

made to turn on disclosure “without authority,” without

defining whose authority or the acceptable procedures for ob-

taining authorization. However, such a law “delegate[s]

standardless discretionary power to local funciionaries,

resulting in virtually unreviewable prior restraints on First

Amendment rights.” Broadrick v. Oklahoma, 413 U.S. at

613. See also Hynes v. Mayor and Council of Oradell, 425

U.S. 610 (1976), condemning a city ordinance prohibiting

political canvassing without notification of the police depart-

ment but without specifying the requisite procedures for

notification.

Thus, however great the government’s interest in prevent-

ing the disclosure of confidential investigative files, 18 U.S.C.

§ 641 is not narrowly drawn to serve that end.* As construed,

§ 641 neither restricts the application of criminal penalties to

conduct which is not protected by the First Amendment nor

provides any discernible standards for those who are entrusted

with the task of determining which disclosures would be au-

thorized and which would not. Here, as in Virginia Phar-

macy Board v. Virginia Citizens Consumer Council, 425 U.S.

748, 773 (1976), the statute completely suppresses the dissemi-

5As demonstrated by 18 U.S.C. § 793(d) and (e) (statute governing

dissemination of national defense information) and 5 U.S.C. § 552(a)(i)(1)

and (3) (penalizing disclosure of information concerning individuals re-

corded in government files under the Privacy Act of 1974), when Congress

has found governmental interests in protecting the confidentiality of infor-

mation in its files to be threatened, it has drawn specific and narrow penal

statutes addressed to the precise evil to be avoided.

9

tion of information and therefore intolerably burdens the flow

of information essential in a democratic society. The con-

struction of § 641 adopted by the courts below is, therefore,

overbroad and must be invalidated.

“The constitutional requirement of definiteness is violated

by a criminal statute that fails to give a person of ordinary in-

telligence fair notice that his [or her] contemplated conduct is

forbidden by the statute.” United States v. Harriss, 347 U.S.

612, 617 (1954). Due process requires specificity in criminal

statutes, both to provide the citizen with a reasonable oppor-

tunity to know what is prohibited and to prevent arbitrary and

discriminatory enforcement by providing explicit standards

for those who must apply the law. Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972). A greater degree of

specificity is required of statutes which affect activities in the

sensitive area of First Amendment freedoms, since fear of

criminal penalties may inhibit the exercise of those freedoms:

“({u]ncertain meanings inevitably lead citizens to ‘steer far

wider of the unlawful zone’. . . than if the boundaries of the

forbidden areas were clearly n.arked.” Jd. at 109, quoting

Baggett v. Bullitt, 377 U.S. 360, 372 (1964). See also Dom-

browski v. Pfister, 380 U.S. 479, 494 (1965).

Construed to include information recorded in the files of the

government as a “thing of value,” 18 U.S.C. § 641 provides no

discernible guide for behavior and no standard for its applica-

tion. The statute offers no means of determining what types

of information will subject the disseminator to criminal liabili-

ty — “information” is an extremely general term, and the

statute provided no definition whatsoever of the types of data

covered. Cf. United States v. Diaz, 499 F. 2d 113, 114 (9th

Cir. 1974) (terms such as “ruin,” “monument” and “object of

antiquity” found too general to give warning of the nature of

the objects it was unlawful to remove). The phrase “without

authority” adds but another wholly undefined term to the

10

equation -- a requirement of approval without notice of how

it must be obtained or from whom to avoid the penalty. See

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976), condemning

an ordinance which required notification of the police without

specifying the requisite means. See also Terry v. California

State Board of Pharmacy, 395 F. Supp. 94 (N.D. Cal. 1975),

aff'd, 426 U.S. 913 (1976). Here, as in the cases cited, the

possible forms of conduct which would come within the un-

defined terms of the statute are so unimaginably large in

number that one can only speculate as to which forms of

behavior are prohibited.°®

Since 18 U.S.C. § 641 provides no standard by which peti-

tioners Lambert and Girard could determine whether their

conduct was criminal or merely unethical, and provides no

means but the test of prosecution by, which those who seek to

expose perceived evils or injustices in the workings of govern-

ment may determine whether they can speak without fear of

punishment, § 641 lacks the specificity required of a statute

&

*In holding that, construed to encompass information as a “thing of

value”, 18 U.S.C. § 641 was neither vague nor overbroad, the courts below

relied on D.E.A. rules and regulations forbidding disclosure as “both a

delimitation and a clarification of the conduct proscribed by the statute”

(App. 5a; see also App. 26a-27a). However, these regulations do not purport

to implement or construe § 641; indeed, they appear in an entirely different

title of the United States Code. They simply cannot be considered determin-

ative of whether the sweep of § 641 has been limited sufficiently to preclude

criminal prosecutions of those who engage in protected speech activities or to

assure those who propose to disseminate information about the government

that their activities may be undertaken without fear of punishment. In any

case, these narrowing regulations are addressed to the activities of Depart-

ment of Justice personnel and provide no guidance to the scope of § 641's im-

pact on the activities of persons, such as petitioner Girard, who are not

members of an agency. Cf. Virginia Pharmacy Board v. Virginia Citizens

Consumer Council, 425 U.S. 748 (1976).

11

which regulates First Amendment activities and, as construed

below, must be declared void for vagueness.’

Conclusion.

As construed by the courts below, 18 U.S.C. § 641 violates

both the First and Fifth Amendments to the United States

Constitution. Accordingly, for all the foregoing reasons, this

petition for a writ of certiorari should be granted.

Respectfully submitted,

ROBERT F. COLLINS,

TROY anv COLLINS,

51 Neponset Avenue,

Dorchester, Massachusetts 02122.

(617) 825-8122

Attorney for Petitioner Girard.

WILLIE J. DAVIS,

10 Post Office Square,

Boston, Massachusetts 02109.

(617) 482-5177

Attorney for Petitioner Lambert.

7 The statute is also vague as applied to petitioners Lambert and Girard, as

well as vague on its face, even if their actions were to be regarded as “hard

core” examples of the evil against which the statute is directed. Since abso-

lutely no standard of conduct at all is specified, “[s]uch a provision simply

has no core. . .. The language at issue is void for vagueness as applied . . .

because it subjected [them] to criminal liability under a standard so indefi-

nite that police, court and jury were free to react to nothing more than their

own preferences.” Smith v. Goguen, 415 U.S. 566, 578 (1974).

la

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

line

Nos. 556, 557—August Term, 1978.

(Argued January 18, 1979 Decided June 20, 1979.)

Docket Nos. 78-1191, 78-1292

—»—

Unitep STATES OF AMERICA,

Appellee,

—V—

GEORGE E. GIRARD, JR., PAUL A. LAMBERT,

Appellants.

Before:

OAKES, GURFEIN, and VAN GRAAFEILAND,

Circuit Judges.

>

Appeal from judgments of the United States District

Court for the District of Connecticut convicting both de

fendants after a jury trial before Daly, J., of violating 18

U.S.C. § 641 and conspiring to violate it, 18 U.S.C § 371,

and convicting defendant Girard on a third count of

violating 21 U.S.C. § 841(a) (1).

Affirmed.

2a

CHARLES NorMAN SHAFFER, Rockville, Md.

(Shaffer & Davis, Rockville, Md., Peter

I. J. Davis, of Counsel), for Appellant

Lambert.

Rozert F. Couiins, Dorchester, Mass., for Ap-

pellant Girard.

RicHAk) BLUMENTHAL, New Haven, Conn.,

United States Attorney, and Michael

Hartmere, Assistant United States Attor-

ney, District of Connecticut, for Appellee.

—>

VAN GRAAFEILAND, Circuit Judge:

Appellants have appealed from judgments convicting |

them of the unauthorized sale of government property (18

U.S.C. § 641) and of conspiring to accomplish the sale (18

U.S.C. § 371). Appellant Girard also appeals from his sep-

arate conviction on a third count charging possession of

cocaine with intent to distribute (21 U.S.C. § 841(a) (1)).

In May 1977, appellant Lambert was an agent of the

Drug Enforcement Administration, and Girard was a

former agent. During that month, Girard and one James

Bond began to discuss a proposed illegal venture that in-

volved smuggling a planeload of marijuana from Mexico

into the United States. Girard told Bond that for $500

per name he could, through an inside source, secure re

ports from the DEA files that would show whether any

participant in the proposed operation was a government

informant. Unfortunately for Mr. Girard, Bond himself

became an informant and disclosed his conversations with

Girard to the DEA. Thereafter, dealings between Bond

and Girard were conducted under the watchful eye of the

DEA. Bond asked Girard to secure reports on four men

3a

whose names were furnished him by DEA agents. DEA

records are kept in computerized files, and the DEA

hoped to identify the inside source by monitoring access

to the four names in the computer bank. In this manner,

the DEA learned that Girard’s informant was Lambert,

who obtained the reports through a computer terminal

located in his office. The convictions on Counts One and

Two are based on the sale of this information.

Section 641, so far as pertinent, provides that whoever

without authority sells any “record... or thing of value”

of the United States or who “receives... the same with

intent to convert it to his use or gain, knowing it to have

been embezzled, stolen, purloined or converted”, shall be

guilty of a crime. Appellants contend that the statute

covers only tangible property or documents and therefore

is not violated by the sale of information. This contention

was rejected by District Judge Daly in a well-reasoned

opinion reported at 446 F. Supp. 890. We agree with the

District Judge’s decision and can do little more than har-

row the ground he has already plowed.

Like the District Judge, we are impressed by Congress’

repeated use of the phrase “thing of value” in section 641

and its predecessors. These words are found in so many

criminal statutes throughout the United States that they

have in a sense become words of art. The word “thing”

notwithstanding, the phrase is generally construed to

cover intangibles as well as tangibles. For example,

amusement is held to be a thing of value under gambling

statutes. Giomi v. Chase, 47 N.M. 22, 25-26, 132 P.2d

715, 716-17 (1942); Hightower v. State, 156 S.W. 2d 327,

328 (Tex. Ct. Civ. App. 1942); State v. Baitler, 131 Me.

285, 287, 161 A. 671, 672 (1932). Sexual intercourse, or

the promise of sexual intercourse, is a thing of value

under a bribery statute. McDonald v. State, 57 Ala. App.

4a

529, 329 So. 2d 583, 587-88 (1975), cert. denied, 429

U.S. 834 (1976); Scott v. State, 107 Ohio St. 475, 485-87,

141 N.E. 19, 22-23 (1923). So also are a promise to re-

instate an employee, People ex rel. Dickinson v. Van De

Carr; 87 App. Div. 386, 389-90, 84 N.Y.S. 461, 463-64

(1st Dep’t 1963), and an agreement not to run in a pni-

mary election, People v. Hochberg, 62 App. Div. 2d 239,

246-47, 404 N.Y.S. 2d 161, 167 (3d Dep’t 1978). The tes-

timony of a witness is a thing of value under 18 U.S.C.

§ 876, which prohibits threats made through the mails

with the intent to extort money or any other “thing of

value”. United States v. Zouras, 497 F.2d 1115, 1121 (7th

Cir. 1974).

Although the content of a writing is an intangible, it is

nonetheless a thing of value. The existence of a property

in the contents of unpublished writings was judicially rec

ognized long before the advent of copyright laws. Mazer

v. Stein, 347 U.S. 201, 214-15 (1954); Wheaton v. Peters,

8 Pet. 591, 657, 33 U.S. 591, 657 (1834); Press Pub. Co.

v. Monroe, 73 F. 196, 199 (2d Cir.), appeal dismissed,

164 U.S. 105 (1896). This property was “not distinguish-

able from any other personal property’ and was

“protected by the same process, and [had] the benefit of

all the remedies accorded to other property so far as ap

plicable.” Palmer v. De Witt, 47 N.Y. 532, 538 (1872). Ak

though we are not concerned here with the laws of copy

right, we are satisfied, nonetheless, that the Government |

has a property interest in certain of its private records

which it may protect by statute as a thing of value. It

has done this by the enactment of section 641. See

United States v. Friedman, 445 F.2d 1076, 1087 (9th

Cir.), cert. denied, 404 U.S. 958 (1971) (transcript of

grand jury proceedings). Section 641 is not simply a stat-

utory codification of the common law of larceny. See

Morissette v. United States, 342 U.S. 246, 269 n28

5a

(1952). Indeed, theft is not a requisite element of the pro

scribed statutory offense, which is based upon unauthor-

ized sale or conversion. United States v. Sher, 418 F.2d

914, 915 (9th Cir. 1969). If, as the Court said in

Morissette, supra, conversion is the “misuse or abuse of

property” or its use “in an unauthorized manner”, the de

fendants herein could properly be found to have con-

verted DEA’s computerized records. .

The District Judge also rejected appellants’ constitutional

challenge to section 641 based upon alleged vagueness and

overbreadth, and again we agree with his ruling. Ap-

pellants, at the time of the crime a current and a former

employee of the DEA, must have known that the sale of

DEA confidential law enforcement records was prohibited.

The DEA’s own rules and regulations forbidding such dis-

closure may be considered as both a delimitation and a clar-

ification of the conduct proscribed by the statute. See

United States Civil Service Commission v. National Associa-

tion of Letter Carriers, 413 U.S. 548, 576-79 (1973);

Adamian v. Jacobsen, 523 F.2d 929, 932-35 (9th Cir. 1975).

Where, as here, we are not dealing with defendants exer

cise of a first amendment freedom, we should not search for

statutory vagueness that did not exist for the defendants

themselves. United States v. Mazurie, 419 U.S. 544, 550

(1975); Williams v. United States, 341 U.S. 97, 104 (1951);

United States v. Swarovski, 592 F.2d 131, 133 (2d Cir.

1979). Neither should we find a constitutional infirmity

simply because the statute might conceivably trespass upon

the first amendment rights of others. Arnett v. Kennedy,

416 U.S. 134, 158-64 (1974); Colten v. Kentucky, 407 U.S.

104, 110-11 (1972). In view of the statute’s plainly

legitimate sweep in regulating conduct, it is not so substan- |

tially overbroad that any overbreadth that may exist cam

not be cured on a case by case basis. See Broadrick uv.

f

6a

Oklahoma, 413 U.S. 601, 615-16 (1973); Arbeitman v. Dis-

trict Court, 522 F.2d 1031, 1033-34 (2d Cir. 1975).

Appellants’ remaining assertions of error require but

brief comment. In Count Two of the indictment, appellants

were charged with the unlawful sale and receipt of the

records of four individuals. Appellants contend that this

count was Cuplicitous in that it charged four separate of-

fenses. See Fed. R. Crim. P. 8(a). The Government’s posi-

tion, on the other hand, is that the four sales were part of a

single continuing scheme. The District Court did not abuse

its discretion in permitting them to be treated as such.

Cohen v. United States, 378 F.2d 751, 754 (9th Cir.), cert.

denied, 389 U.S. 897 (1967).

The District Court likewise did not abuse its sound discre-

tion in refusing to sever the trial of the two defendants.

Where, as here, the crime charged involves a common

scheme or plan, a joint trial of the participants is proper,

absent a clear showing of prejudice. United States v.

Arroyo-Angulo, 580 F.2d 1137, 1144 (2d Cir. 1978); United

States v. Green, 561 F.2d 423, 426 (2d Cir. 1977), cert.

denied, 434 U.S. 1018 (1978). Appellants have made no

such showing in this case.

We find no merit in appellants’ contention that Girard’s

portion of a tape-recorded telephone conversation with

Lambert’ was improperly admitted into evidence. On July

13, 1977, a meeting in a New Haven motel room between

Girard, Bond, and an undercover DEA agent was tape

recorded with the knowledge and consent of Bond and the

agent. During this meeting, Girard made a telephone call to

Lambert in the presence of Bond and the DEA agent, and

his conversation was of course recorded. Girard does not

contend he had an expectation of privacy that would

preclude Bond and the DEA agent from testifying as to

what he said. See United States v. Llanes, 398 F.2d 880,

7a

883-84 (2d Cir. 1968), cert. denied, 393 U.S. 1032 (1969).

Under the circumstances, he cannot complain because his

words were recorded with their consent. United States v.

Santillo, 507 F.2d 629, 632-35 (3d Cir.), cert. denied, 421

U.S. 968 (1975).

Moreover, the telephone conversation played no part in

the development of the Government’s case against Lambert.

Immediately following the recorded conversation, the

government agents involved in the investigation were in-

structéd not to attempt to identify the person with whom

Girard was talking and not to use any information derived

from the conversation in the course of their investigation.

Testimony introduced during a six-day suppression hearing

showed that Lambert was already the “chief suspect” as

Girard’s inside source at the time of the July 13 telephone

call and that his activities were already being monitored.

The District Court found that none of the Government's

evidence against Lambert was tainted by the call, and that

finding is supported by the proof. Under those cir-

cumstances, the District Court did not err in receiving the

evidence as to Lambert, which was part of an ongoing in-

vestigation and not the “fruit of the poisonous tree”. United

States v. Ceccolini, 435 U.S. 268 (1978); United States v.

San Martin, 469 F.2d 5, 8 (2d Cir. 1972), cert. denied, 410

U.S. 934 (1973).

Evidence of other conversations between co-conspirators

which took place during the course of the conspiracy and in

furtherance of it was clearly admissible. United States v.

Green, 523 F.2d 229, 233 (2d Cir. 1975), cert. denied, 423

U.S. 1074 (1976). The District Judge, in the exercise of his

sound discretion, was entitled to place reasonable limits on

the scope of appellants’ cross-examination of the witness

Bond. See United States v. Carr, 584 F.2d 612, 617 (2d Cir.

1978). Appellant Girard did not show any compelling and

8a

legitimate need for calling an Assistant United States At-

torney as a witness, and the District Court did not err in

refusing to permit it. United States v. Schwartzbaum, 527

F.2d 249, 253 (2d Cir. 1975), cert. denied, 424 U.S. 942

(1976). Finally, we see no error in the District Court's

charge.

The evidence was amply sufficient to support the

judgments of conviction on all counts. Appellants claims of

procedural error are without merit. The judgments appealed

from are affirmed.

“

9a

United States District Court for the

District of Connecticut.

Crim. No. N-77-98.

UNITED STATES OF AMERICA,

PLAINTIFF,

v.

PAUL. A. LAMBERT,

DEFENDANT.

February 3, 1978.

Richard N. Blumenthal, U. S. Atty. for the District of

Conn., New Haven, Conn. Asst. U. S. Attys., Michael J. Hart-

mere and Lawrence M. Herrmann, for plaintiff.

Peter I. J. Davis and Charles Norman Shaffer, Rockville,

Md., for defendant.

Ruling on Motion to Dismiss.

Da y, District Judge.

Defendants have been charged in an indictment with violat-

ing 18 U.S.C. § 641 (1970),' a statute which establishes sanc-

'18 U.S.C. § 641 (1970) provides:

Whoever embezzles, steals, purloins, or knowingly converts to his use or

the use of another, or without authority, sells, conveys or disposes of any

record, voucher, money, or thing of value of the United States or of any de-

10a

tions upon any person who “embezzles, steals, purloins, or

knowingly converts to his use or the use of another, or without

authority, sells, conveys or disposes of any record, voucher,

money, or thing of value of the United States. . ..” The in-

dictment alleges that the defendants sold information derived

from a computer within the Drug Enforcement Administra-

tion, Washington, D. C. The information allegedly included

the identity of possible informants and the status of govern-

ment investigations into illegal drug traffic. Because only in-

formation rather than documents was transferred, defendant

Lambert claims that § 641 is inapplicable. Furthermore, if

§ 641 is found to apply, the defendant argues that the statute

is unconstitutionally vague and overbroad.

_ SECTION 641: INFORMATION AS A “ THING OF VALUE”

Defendant’s specific contention is that the phrase “any

record, voucher, money, or thing of value of the United States”

encompasses only tangible objects, e. g., a document embody-

ing information rather than the information itself. Defend-

ants point to the legislative history for support. The section

appeared originally in the 1948 Revision, which recodified but

did not alter the substantive offenses in the U. S. Code. There-

partment or agency thereof, or any property made or being made under con-

tract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to

his use or gain, knowing it to have been embezzled, stolen, purloined or con-

verted —

Shall be fined not more than $10,000 or imprisoned not more than ten

years, or both; but if the value of such property does not exceed the sum of

$100, he shall be fined not more than $1,000 or imprisoned not more than

one year, or both.

The word “value” means face, par, or market value, or cost price, either

wholesale or retail, whichever is greater.

lla

fore, the Court must first look to the section’s legislative

history prior to the 1948 revision.

Section 641 is a condensation of at least four sections in the

1940 Code, 18 U.S.C. §§ 82, 87, 100, 101. Section 82 referred

to the larceny of “any property” of the government, or “any

property which has been or is being made, manufactured, or

constructed under contract.” Section 87 referred to the theft

of “any ordinance, arms, ammunition, clothing, subsistence,

stores, money, or other property of the United States.” Clear-

ly, these sections refer to tangible goods. Sections 100 and

101, however, both referred to “money, property, record,

voucher, or valuable thing whatever, of the money, goods,

chattels, records, or property of the United States.” Thus the

mention of a “record . . . or thing of value” in § 641 can be

traced to these two broadly worded sections, the language of

which contrasts sharply with the more concrete references of

§§ 82 and 87. Sections 100 and 101, in turn, descended from

two sections of the 1909 codification, Act of March 4, 1909,

ch. 321, §§ 47, 48, 35 Stat. 1097, 1098. The relevant phrasing

in these latter sections is identical to the wording of the 1940

Code, as is the language of their predecessors, Act of March 3,

1875, ch. 144, §§ 1, 2, 18 Stat. 479.

Because the relevant statutory language has traveled

through more than a century without substantive change,

there is little recent legislative history to illuminate Congress’

intent. In addition, the Congressional debates of 1875 fail to

delineate the scope of the statutory language. Defendants

therefore argue that the use of the word “record” in statutes

contemporaneous with or prior to the original statute of 1875

should be examined. The defendants point to statutes dealing

with the theft of court records, §§ 5394, 5403, 5408, (Rev.

Stat. 1875); Act of February 26, 1853, § 4, 10 Stat. 170; Act of

1790, § 15, 1 Stat. 115, as proof that Congress meant to refer

only to government documents, rather than to mere informa-

l2a

tion as well when legislating in 1875. This “matrix of judicial

meaning”, as the defendant calls it, is far too selective, and

fails to account for the open-ended phrase “thing of value” in

§ 641 and its predecessors. This phrase evidences Congress’ in-

tent to cover a wide variety of conduct. However, the Court

does not consider the legislative history conclusive as to the ap-

plicability of § 641 to the specific conduct alleged in this case.

Further guidance must be sought from judicial interpretations

of that section.

It has been contended that the transfer of mere information

does not constitute a violation of § 641, because traditional tort

law does not encompass such conduct. A similar conclusion

was reached by the Ninth Circuit in the case of Chappell v.

United States, 270 F.2d 274 (9th Cir. 1959), the continuing

validity of which is in doubt.? In that decision, the Court of

Appeals dismissed part of an indictment because the defend-

ant’s conduct did not constitute conversion under § 641. The

defendant, a Master Sergeant in the U. S. Air Force, utilized

an airman’s labor while on duty to paint several apartments

owned by the defendant. In the court’s view, § 641 was mere-

ly a codification of common-law offenses, and under tort law

conversion could only be performed upon tangible goods. Asa

result, the court termed the application of § 641 to the misap-

propriation of an employee’s labor a “revolutionary concept”,

and invoked the need for strict construction of criminal stat-

utes in finding § 641 inapplicable to the defendant’s conduct.

Id. at 278.°

This court sees no reason to restrict the meaning of § 641 to

its common-law origins. In Morissette v. United States, 342

2 See United States v. Friedman, 445 F.2d 1076 (9th Cir. 1971), discussed

later in this opinion.

3 Prior to the Chappell decision, the Sixth Circuit had applied § 641 to vir-

tually identical facts without considering a “tangibility” limitation. See

Burnett v. United States, 222 F.2d 426 (6th Cir. 1955).

l3a

U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the Supreme

Court interpreted § 641 as requiring a criminal intent, al-

though the statute as worded did not explicitly refer to such a

mental state. The respondents had argued that to “knowingly

convert” did not require the same mental state as did the other

common-law offenses listed in the statute. The Court rejected

such a close equivalence between the statutory provision and

earlier case law. In discussing the history of § 641, the Court

concluded that the section applied to “acts which constituted

larceny or embezzlement at common law and also acts which

shade into those crimes but which, most strictly considered,

inight not be found to fit their fixed definitions.” Jd. at 269,

n.28, 72 S.Ct. at 253. The relevant statutory predecessor to

§ 641 was similarly described by the Fifth Circuit in Crabb v.

Zerbst, 99 F.2d 562, 565 (5th Cir. 1938), as covering “larceny,

as well as any new situation which may arise under changing

modern conditions and not envisioned under the common-law

...«.” Inparticular, the Court of Appeals was concerned with

the difficult relationship between common-law crimes, whose

borders were indistinct, and the statutory language. Between

the common-law offenses of embezzlement and larceny, the

court wrote, “lies a gap which has grown wider and wider as

the multifarious activities of the central government have

spread and increased.” Id. To fill this gap, Congress included

the word “steal,” a word “having no common law definition to

restrict its meaning as an offense, and commonly used to

denote any dishonest transaction whereby one person obtains

that which rightfully belongs to another, and deprives the

owner of the rights and benefits of ownership ....” Id. A

more flexible interpretation of § 641 than that found in Chap-

pell is therefore appropriate.

In United States v. Bottone, 365 F.2d 389 (2d Cir.), cert.

denied, 385 U.S. 974, 87 S.Ct. 514, 17 L.Ed.2d 437 (1966),

the Court of Appeals interpreted a statute prohibiting the in-

l4a

terstate transportation of “any goods, wares, merchandise,

securities or money, of the value of $5,000 or more, knowing

the same to have been stolen, converted, or taken by fraud.”

18 U.S.C. § 2314. The defendants had removed from corpor-

ate offices, inter alia, documents detailing a valuable organic

chemical process. The documents were copied at another lo-

cation and notes were made. Then the originals were re-

turned. Only the copies and notes travelled through interstate

commerce. The issue was whether the copies and notes were

“goods” within the meaning of the statute. The court con-

cluded that the copies and notes were included within the

definition of “goods”, reasoning that “where the physical form

of the stolen goods is secondary in every respect to the matter

recorded in them, the transformation of the information in the

stolen papers into a tangible object never possessed by the

original owner should be deemed immaterial.”* Jd. at

393-94.

Other courts have noted with approval the Bottone court’s

emphasis on the content of government documents, rather

than their form. The district court in United States v. Rosner,

352 F.Supp. 915 (S.D.N.Y.1972), contrasted § 641 to 18

U.S.C. § 2071. The defendants were charged with removing

certain papers, including Grand Jury minutes, from the files of

the U. S. Attorney’s Office in the Southern District of New

York. The Government argued that it had been deprived of

the full benefit of the temporarily removed documents in that

‘However, the Second Circuit also noted in dicta that § 2314 would

“presumably not extend to the case where a carefully guarded secret formula

was memorized, carried away in the recesses of a thievish mind and placed in

writing only after a boundary had been crossed.” United States v. Bottone,

365 F.2d 389, 393 (2d Cir. 1966). Thus the court indicated that the failure

to reduce the information to writing might well have been a fatal flaw in a

§ 2314 prosecution. However, § 2314 includes narrower language than does

§ 641. The former provision refers to “goods”, a statutory term clearly con-

noting tangibility.

l5a

the exclusivity of possession would have helped the prosecutor.

United States v. Bottone, supra, was relied upon to overcome

the fact that the documents themselves were returned un-

scathed after copies were made. Nevertheless, the court con-

cluded that § 2071 did not apply because the documents were

neither impaired nor destroyed. In dismissing the count

brought under § 2071, the court noted that the Government

would likely have met with greater success had the defendants

been indicted for violating § 641, under which statute the

transmission of the information contained in the documents

m.ght be considered as larcenous as the taking of the docu-

ments themselves. Id. at 922.

The most recent source of guidance as to the proper scope of

§ 641 is United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976).

In that case, the defendants were prosecuted for periodically

copying FBI investigative records and selling them to the sub-

ject of the investigation. The Government contended that the

deprivation of its exclusive possession of the contents of the in-

vestigative files was proscribed by § 641. The Third Circuit

found such a conclusion unnecessary. Because copies were

made during office time, with government machines, and on

government paper, the court determined that the copies them-

selves were government property. The court cautioned that it

“did not, by resting upon the narrower ground that a technical

larceny has been proved, intend to imply a rejection of the

government’s broader interpretation of § 641.” Id. at 978.

The court also mentioned the apparent inconsistency between

the Ninth Circuit’s restrictive interpretation of § 641 in United

States v. Chappell, supra, and the Supreme Court’s discussion

of that section’s history in Morissette v. United States, supra.

But the court declined to rule on the application of § 641 to the

l6a

theft of information, as opposed to documents, otherwise held

exclusively by the government. Id.°

The only decision in which § 641 was applied to the theft of

government information was United States v. Friedman, 445

F.2d 1076 (9th Cir.), cert. denied sub nom., Jacobs v. United

States, 404 U.S. 958, 92 S.Ct. 326, 30 L.Ed.2d 275 (1971). The

Government in that case alleged the transfer of secret Grand

Jury transcripts in violation of § 641. The defendants were

found guilty of copying portions of the transcripts without au-

thority. In contrast to the situation in United States v. Di-

Gilio, supra, the copies were made privately, therefore finding

a technical larceny of government copying supplies was im-

possible. In the charge to the jury, the trial judge explained

that under Rule 6(e) of the Federal Rules of Criminal Proce-

dure the Grand Jury transcripts could not be released until au-

thorized by the court. The judge then continued:

The effect of said Rule is that information as to the ques-

tions asked and answers given at a particular session of

the Grand Jury are the property of the United States and

remain its property alone unless and until the release of

said information is ordered by a court order. Said infor-

mation is Government property regardless of who may be

said to own the particular sheets of paper or tapes on

which said information is recorded.

Id. at 1087. The Court of Appeals upheld this charge. How-

ever, the defendant’s challenge to the trial judge’s action was

restricted to whether the charge removed the “authority” ele-

ment from the jury’s consideration.

*The Third Circuit mentioned that any prosecution for theft of govern-

ment information, rather than of the documents themselves, would

presumably rely on the “thing of value” language in § 641. United States v.

DiGilio, 538 F.2d 972, 978 n.10 (3d Cir. 1976).

17a

This Court agrees with the approach of the trial judge in

United States v. Friedman, supra. In order for § 641 to realize

the broad-gauge role articulated by the Supreme Court in

Morissette v. United States, supra, and suggested by the statu-

tory phrase “thing of value”, it must be independent of the

constraints, and the vagaries, of particular common-law doc-

trines. As United States v. Bottone, supra, teaches us, the con-

tent of a document may be more important than its original

four corners. In fact, the defendant himself admits that gov-

ernment documents have little value apart from the informa-

tion contained in them. The Government’s brief describes

well the importance of the allegedly stolen information:

The property involved here, highly sensitive and confi-

dential information maintained in computerized records,

had a value only so long as it remained in the Govern-

ment’s exclusive possession. While so possesed, it was

. a thing of extraordinary, incalculable value, some-

thing gained by the expenditure of countless man hours

and other resources, capable of saving lives or, if misap-

propriated, severely jeopardizing them.

This Court sees no reason to restrict the scope of § 641 to the

theft of government paper and ink, or to unauthorized repro-

duction. The phrase “thing of value” in § 641, in conjunction

with the explicit reference to “any record”, covers the content

of such a record.®

® This Court does not mean to suggest by this holding that § 641 may cover

the unauthorized oral transfer of government information not found in

government records.

18a

VAGUENESS AS APPLIED

Defendant Lambert argues that § 641 is unconstitutionally

vague as applied to him given the Court’s interpretation of the

statutory phrase “thing of value” to include information de-

rived from government records. The Due Process Clause of

the Fifth Amendment requires that the language of a statute

be precise enough to provide notice of prohibited conduct. A

statute written in “terms so vague that men of common in-

telligence must necessarily guess at its meaning, and differ as

to its application, violates the first essential of due process of

law.” Connally v. General Construction Co. 269 U.S. 385,

391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). See Smith v. Goguen,

415 U.S. 566, 572-74, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974);

Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83

L.Ed. 888 (1939). “The underlying principle is that no man

shall be held criminally responsible for conduct which he

could not reasonably understand to be proscribed.” United

States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98

L.Ed. 989 (1954). The issue thus is whether a person of “com-

mon intelligence” would “necessarily” wonder if his contem-

plated conduct were illegal.

The language of the statute provides significant guidance.

The reference to “any record” clearly includes information

held in a government computer data bank. The phrase “other

thing of value” strongly suggests that something other than the

particular records themselves, i.e., the contents, are probably

covered as well. Indeed, the distinction between a govern-

ment “record” and its contents is rather fine. The individual

of common intelligence would probably include the informa-

tion held in a government computer in the statutory term

“record” without reference to the catch-al! phrase “thing of

value.” Furthermore, an investigation as to whether a statute

is so vague as to “trap the innocent by not providing fair warn-

19a

ing’, Grayned v. City of Rockford, 408 U.S. 104, 108, 92

S.Ct. 2294, 2299, 33 L.Ed.2d 222 (1972), must consider not

only the statutory language, but also judicial interpretations of

the statute and analogous legislation, id. at 110, 92 S.Ct. 2294;

Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d

408 (1972); Chaplinsky v. New Hampshire, 315 U.S. 568, 62

S.Ct. 766, 86 L.Ed. 1031 (1942). The judicial decisions dis-

cussed earlier constitute a supplemental form of notice that

§ 641 covers the conduct alleged in the indictment. This

Court therefore holds that an individual planning the unau-

thorized sale of information held in a government data bank

had sufficient notice that such conduct would be covered by

§ 641.

The Due Process doctrine of vagueness also requires that the

terms of the statute be clear enough to prevent arbitrary and

discriminatory enforcement by the prosecutor, the court, or

the jury. Smith v. Goguen, supra, 415 U.S. at 572, 94 S.Ct.

1242; United States v. Cohen Grocery, 255 U.S. 81, 89, 41

S.Ct. 298, 65 L.Ed. 516 (1921); United States v. Reese, 92

U.S. 214, 221, 23 L.Ed. 563 (1876). However, the present

case is not an example of Government’s “unfettered discre-

tion” in prosecuting on the basis of a statute so vague or of such

broad applicability that “even handed administration of the

law is not possible.” Papachristou v. City of Jacksonville, 405

U.S. 156, 168, 171, 92 S.Ct. 839, 848, 31 L.Ed.2d 110 (1972).

Nor is it the task of the jury in this case to give meaning to the

statutory phrase “thing of value.” The interpretation of § 641

suggested by the statutory language, supported by case law,

proposed by the Government, and endorsed by this Court;

provides a “reasonably ascertainable standard of guilt.” Hern-

don v. Lowry, 301 U.S. 242, 264, 57 S.Ct. 732, 742, 81 L.Ed.

1066 (1932).

20a

First AMENDMENT Jus TERTII

Defendant Lambert argues that § 641 should be declared

facially unconstitutional because it violates the First Amend-

ment. The defendant does not allege interference with his

own rights, and it is clear from the indictment that the alleged

conduct was not constitutionally protected. Rather, he raises

the claims of those not before this Court, as permitted by the

First Amendment exception to the traditional rule of standing.

Contrast Grayned v. City of Rockford, 408 U.S. 104, 114, 92

S.Ct. 2294, 33 L.Ed.2d 222 (1972), with United States v.

Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 4 L.Ed.2d 524

(1960); see also Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct.

1116, 14 L.Ed.2d 22 (1965). This exception “is deerned

necessary because persons whose expression is constitutionally

protected may well refrain from exercising their rights for fear

of criminal sanctions provided by a statute susceptible of ap-

plication to protected expression.” Gooding v. Wilson, 405

U.S. 518, 521, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972); see

Coates v. City of Cincinnati, 402 U.S. 611, 619-20, 91 S.Ct.

1686, 29 L.Ed.2d 214 (White, J., dissenting). In particular,

defendant claims that the blanket prohibition against unau-

thorized disclosures of government records and information is

overbroad because it fails to indicate when disclosure is unau-

thorized, thus leaving to the jury the task of regulating the

flow of information about government activity. The jury’s

freedom, the defendant continues, makes possible the punish-

ment of constitutionally protected communication, and the

prospect of such verdicts may deter those who might otherwise

speak.’

*For a similar constitutional criticism of § 641, see Nimmer, National

Security Secrets v. Free Speech; The Issues Left Undecided in the Ellsberg

Case, 26 Stan.L.Rev. 311, 322-23 (1973).

2la

Although the defendant challenges the statute for over-

breadth, the statutory phrase “without authority” is also sus-

ceptible to attack for vagueness. In many cases, the doctrines

of vagueness and overbreadth are distinguishable. The for-

mer, originally a due process doctrine, applies when the statu-

tory language is unclear, and is concerned with notice to the

potential wrongdoer and prevention of arbitrary or discrimi-

natory enforcement. The doctrine of overbreadth, in con-

trast, is exclusively a First Amendment product, and usually

applies when the statutory language is clear, but encompasses

activities in which people have a right to engage without in-

terference. However, in a suit challenging an ambiguously

worded statute for infringing upon First Amendment rights,

the doctrines blend. The same evils are addressed, i. e., appli-

cation of the statute’s sanctions to protected activity and deter-

rence of others from engaging in similar conduct, and the same

remedies are available, i. e., a narrowing interpretation or

facial invalidation. As a result, some courts have made no at-

tempt to distinguish the two doctrines when measuring a stat-

ute against the requirements of the First Amendment. See,

e. g., Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31

L.Ed.2d 408 (1972); Cox v. Louisiana, 379 U.S. 536, 551, 85

S.Ct 453, 462, 13 L.Ed.2d 471 (1965) (statute held “unconsti-

tutionally vague in its overly broad scope”). Finally, both

doctrines permit a court to invalidate a statute if one who has

not participated in constitutionally protected activity can

show that the discouragement of protected activity is “both

real and substantial,” and that the statute is not susceptible to

a narrowing construction. Young v. American Mini Theatres,

Inc., 427 U.S. 50, 59-61, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)

(vagueness); Broadrick v. Oklahoma, 413 U.S. 601, 615, 93

S.Ct. 2908, 37 L.Ed.2d 830 (1973) (everbreadth).®

®In Young, the Supreme Court referred to these criteria as a test of stand-

ing. Young v. American Mini Theatres, Inc., 427 U.S. 50, 59-61, 96 S.Ct.

22a

In Broadrick, the Supreme Court explained that facial in-

validation of an overbroad statute would be justified if the

statute’s illegitimate sweep was “substantial” in relation to the

statute’s proper applications. Jd. Other courts, however,

have inverted the test and declared that a statute is valid on its

face if the number of proper applications are “substantial.”

See, e. g., Arbeitman v. District Court of Vermont, 522 F.2d

1031, 1034 (2d Cir. 1975); Paulos v. Breier, 507 F.2d 1383,

1386 (7th Cir. 1974). It is clear that the word “substantial” is

no talisman. This Court considers a strictly quantitative inter-

pretation of the Broadrick test inadvisable. Otherwise, a

legislature could insulate large-scale interferences with First

Amendment rights by embedding those restrictions in a regu-

latory framework of much broader applicability. The enor-

mous variety of potential applications of the statute requires

both the comparison of the government’s interest in continuing

to prohibit the non-protected activities covered by the statute

with the First Amendment interest in avoiding the potential

chill created by the statute, and the search for a judicial

remedy designed to minimize the conflict.

Section 641 prohibits a large variety of possessory offenses.

In relation to tangible items, the government’s interest in pre-

venting theft, and thus preserving its exclusive possession, is

great. Equally important, the sweep of the statute is clear.

Ownership of property is usually evident; at least an in-

dividual knows when property does not belong to him. More-

2440, 49 L.Ed.2d 310; see Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547,

41 L.Ed.2d 439 (1974). But the test does not prevent a party from raising the

First Amendment claims and it does not relieve a court from considering

them. However, once the claims of third parties have been raised, the test

places a heavy burden on the party seeking invalidation of the statute to show

that the statute deserves to be declared void on its face. The test thus con-

cerns the requirements for successfully asserting the right of third parties.

Otherwise the distinction between standing and success on the merits would

be lost.

23a

over, because property rights in tangible items are easily dis-

cerned, there is little confusion about when a transfer of

possession is “without authority.” In the realm of government

records and information, however, there is no established

common law of exclusive possession. In addition, the govern-

ment’s interest in secrecy must in every case be carefully bal-

anced against the First Amendment interest in disclosure.

Discussion of government affairs is the creative force of a plu-

ralistic republic, and it constitutes the core activity protected

by the First Amendment. Buckley v. Valeo, 424 U.S. 1, 14-15,

96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Whitney v. California,

274 U.S. 357, 375-76, 47 S.Ct. 641, 71 L.Ed 1095 (1927)

(Brandeis, J., concurring). “The dominant purpose of the

First Amendment was to prohibit the widespread practice of

governmental suppression of embarrassing information. . . .

[S]ecrecy in government is fundamentally anti-democratic,

perpetuating bureaucratic errors.” New York Times Co. v.

United States, 403 U.S. 713, 724-25, 91 S.Ct. 2140, 2146, 29

L.Ed.2d 822 (1971) (Douglas, J., concurring). In order for

discussion to be “uninhibited, robust, and wide-open,” New

York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710,

11 L.Ed.2d 686 (1964), information about the government

must be available. Although the Constitution does not impose

on governments an affirmative duty to disclose information,

T. Emerson, The System of Freedom of Expression 673 (1970),

it does prohibit interference with not only the right to dissem-

inate information, but also the right to receive it. See, e. g.,

Virginia State Board of Pharmacy v. Virginia Citizens Con-

sumer Council, Inc., 425 U.S. 748, 756-57, 96 S.Ct. 1817, 48

L.Ed.2d 346 (1976) (prescription drug prices); Hynes v.

Mayor of Oradell, 425 U.S. 610, 621 n.5, 96 S.Ct. 1755, 48

L.Ed.2d 243 (1976) (door-to-door solicitation for political

causes); Procunier v. Martinez, 416 U.S. 396, 408-09, 94 S.Ct.

1800, 40 L.Ed.2d 224 (1974) (mail from prisoner); Griswold v.

24a

Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 14 L.Ed.2d

510 (1965) (contraceptive information); cf. Red Lion Broad-

casting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 23

L.Ed.2d 371 (1969) (FCC’s equal-time rule). And the in-

terests protected are not merely those of the speaker and the

audience, but those of society as a whole. See, e. g., Bates v.

State Bar, 433 U.S. 350, 364, 97 S.Ct. 2691, 2696, 53 L.Ed.2d

810 (1977). By regulating the disclosure of government infor-

mation, § 641 clearly touches a sensitive constitutional area.

Therefore the need for definiteness is acute. Yet § 641 pro-

vides no greater guidance as to when disclosure is prohibited

than it does in regard to traditionally recognizable possessory

interests. Indeed, the statutory phrase “without authority” is

virtually devoid of meaning when applied to the transfer of in-

formation.

This lack of content in the phrase “without authority”

makes application of the overbreadth test difficult, for an ex-

amination of the statute’s sweep, both legitimate and illegiti-

mate, largely depends on the meaning of that phrase. The

Court could interpret the phrase to mean “without express

permission,” but that would make illegal the disclosure of in-

formation of public interest that the government had no

reason to keep secret, and had not meant to protect, but had

merely overlooked. This would constitute a government

pocket veto on disclosure unrelated to the significance of the

information. The phrase also could mean, in the context of

government employees, “only with the permission of one’s

superior.” But this would punish subordinates who disclose

information of public significance against the arbitrary orders

of superiors who fear embarrassment. Numerous other inter-

pretations are possible, and without guidance the jury would

be free to construct its own test as to when disclosure of

government information is punishable. Whether the problem

25a

with the statute is termed overbreadth or vagueness, it is clear

that the statute is susceptible to impermissible applications.

This Court considers substantial both the Government’s

property and security interests protected by the statute, and

the statute’s potential for deterring constitutionally protected

speech. Facial invalidation is “strong medicine,” Broadrick v.

Oklahoma, supra, 413 U.S. at 613, 93 S.Ct. 2908, because it

necessarily involves the sacrifice of one important interest to

further another. In the present case, no such sacrifice is neces-

sary because a narrowing interpretation is possible. In Arnett

vu. Kennedy, 416 U.S. 134, 162, 94 S.Ct. 1633, 1648, 40

L.Ed.2d 15 (1974), the Supreme Court rejected an over-

breadth challenge to a federal statute that permitted the

dismissal of employees “for such cause as will promote the effi-

ciency of the service,” by declaring as a general rule that the

statute did not apply to constitutionally protected expression.

Here, there is also no indication that Congress meant to pro-

hibit constitutionally protected disclosures. But because the

statute in this case involves criminal sanctions, the language of

the statute must be further defined, and the scope of the

statute reduced. The solution is to interpret § 641 alone as

neither authorizing nor prohibiting the transfer of particular

types of information. The section must be read as merely

establishing a penalty for the violation of other, more par-

ticular, prohibitions against disclosure. Thus, the jury may

consider only transfers of information affirmatively prohibited

by other federal statutes, administrative rules and regulations,

or, perhaps, longstanding government practices. Because the

network of restrictions on the disclosure of government infor-

mation is complex, no government-wide validation or invali-

dation of § 641 is possible or appropriate. Constitutional

challenges to this statute must be considered on a case-by-case

basis in light of the particular type of information involved

and the character of the prohibition against disclosure. This

does not mean that further review of § 641’s chilling effect on

26a

First Amendment activities must be restricted to an examina-

tion of the government controls “as applied” to the particular

defendant. Rather, the various statutes and regulations deal-

ing with confidential government information may still be

challenged on their face, but only when relevant; the existence

of § 641 will mandate careful scrutiny.°®

Justice Department regulations prohibit the improper use of

official information that has come to an individual by reason

of his status as a Department of Justice employee and which

has not become part of the body of public information. 28

C.F.R. § 45.735-10 (1977).!° The Agents Manual of the Drug

Enforcement Administration further particularizes when a

disclosure of information is improper. Cf. Adamian v. Jacob-

®The issues before future courts in § 641 prosecutions involving First

Amendment defenses will be numerous. These courts will have to deal with

questions such as the right of the jury to consider “custom and usage,” rather

than explicit statutory or regulatory guidelines, as an affirmative prohibition

invoking § 641 sanctions, cf. Hynes v. Mayor of Oradell, 425 U.S. 610, 622

n.6, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); Parker v. Levy, 417 U.S. 733, 94

S.Ct. 2547, 41 L.Ed.2d 439, 754 (1974), and the feasibility of seeking an

authoritative interpretation of the particular regulatory prohibition prior to

engaging in arguably protected activity, cf. Buckley v. Valeo, 424 U.S. 1, 40,

96 S.Ct. 612, 46 L.Ed2d 659 (1976); Arnett v. Kennedy, 416 U.S. 134, 160,

94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). The myriad constitutional problems

involved in another context — the regulation of sensitive defense informa-

tion, are discussed in Edgar & Schmidt, The Espionage Statutes and Publica-

tion of Defense Information, 73 Colum. L.Rev. 929 (1973). See generally

M. Halperin & D. Hoffman, Freedom tv. National Security (1977).

'©See also 28 C.F.R. § 45.735-13 (1977) (Misuse of official position and

coercion); 28 C.F.R. § 45.735-18 (1977) (Conduct prejudicial to the Govern-

ment). Congress has granted to the heads of the various departments author-

ity to restrict access to government information, 5 U.S.C. § 301, through

means consistent with the requirements of the Freedom of Information Act, 5

U.S.C. §552. The Attorney General, in addition to promulgating

department-wide regulations, has delegated to division heads the authority

to issue supplemental and implementing regulations. 28 C.F.R. § 45.735-28

(1977). At the time of the alleged offenses, defendant Lambert was an em-

ployee of the Drug Enforcement Administration in Washington, D. C.

27a

sen, 523 F.2d 929, 934-35 (9th Cir. 1975). A “breach of in-

tegrity” is defined to include “[p]roviding official information

to any person known or suspected to be involved in the nar-

cotic or drug traffic. ...” § 6123(C). “Official information”

includes identification of investigative sources or targets, and

the identity of undercover agents. § 6123(C) (1), (2), & (4).

Disclosure of information held in the computerized records of

the Narcotics and Dangerous Drugs Information System

(NADDIS), from which the information in this case was

allegedly taken, is subject to a complex set of rules. See

§ 6142.1 et seq. The “disclosure of information” is defined as

“the release to a non-DOJ [Department of Justice] person or

agency of any item of information that includes either the

name of an individual or any number of identifying item, such

as a finger or voice print, by which the individual may be sub-

sequently identified,” and the release of information includes

oral disclosures. § 6141.2(C). Disclosure is permitted only

under certain conditions, and is generally based on a demon-

strated need to know, taking into consideration the needs of

law enforcement agencies, other departments, Congress, and

the Courts. To the extent relevant, provision is made for dis-

closures to members of the general public under The Privacy

Act, 5 U.S.C. § 552a, and The Freedom of Information Act, 5

U.S.C. § 552. However, an agent is not authorized to release

information to the general public. These rules are specific and

carefully constructed to take into consideration the govern-

ment’s interest in law enforcement and the right of various

groups to government information. The risk that these rules

might interfere with constitutionally protected activity is

minimal at best. Therefore these provisions are neither vague

nor overbroad on their face.

Accordingly, the motion to dismiss is hereby Denien.