Amicus Curiae Brief — McAusland v. United States

No. 92-960 tj MAR & 1993

TGHEICE OF THE CLERK |

rn eee .

In the Supreme Court of the United States

OCTOBER TERM, 1992

THOMAS D. MCAUSLAND AND CHRISTOPHER M. PAFORT,

Petitioners

V.

UNITED STATES OF AMERICA,

Respondent

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF OF CONGRESSMAN DON EDWARDS AND

CONGRESSMAN JOHN CONYERS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

JAMES L. QUARLES III

DAVID A. WILSON

SEAN P. SHERMAN

Hale and Dorr

1455 Pennsylvania Avenue, N. W.

Washington, D.C. 20004

(202) 393-0800

QUESTION PRESENTED

Whether a private citizen who obtains unclassified

government information may be convicted of theft of

government property (18 § U.S.C. 641) or wire fraud (18

U.S.C. § 1343) where disclosure of the information, although

not prohibited by statute or published regulation, violates

internal government rules, custom or practice.

@)

TABLE OF CONTENTS

Page

Eames OF AMICT CURIAE ........... ]

STATEMENT OF THE CASE ............ 2

REASONS FOR GRANTING THE PETITION .. 3

‘ THE COURT OF APPEALS’

CONSTRUCTION OF SECTION 641’s

“WITHOUT AUTHORITY” LANGUAGE IS

CONTRARY TO THE PRINCIPLES OF

OPEN GOVERNMENT AND FREE ACCESS

TO GOVERNMENTAL INFORMATION,

AND IS INCONSISTENT WITH THE

SEPARATION OF POWERS ........ 4

A. Section 641 Must Be Construed

Narrowly In Light Of Principles

Of Open Government And Free

Access To Government Information

Embodied In The Constitution

And In Numerous Statutes....... 4

B. The Availability Of Government

Information Is Implicit In The

IE Gach kh & be 690-0 5 8 5

(u)

C. Congress Has Created A

Presumption Of Access To

Government Information ....... 6

D. The Court Of Appeals’ Reading

Of “Without Authority” Is

Contrary To Separation Of

POweES PEERCHISS . «2 es eee es 9

1. Congress Is The Appropriate

Entity To Determine Whether

And When Disclosure Or

Receipt Of Information May

i. re 9

2. Section 641 Cannot Apply

To Information Whose

Disclosure Is Not Prohibited

By Statute Or Regulation ... 9

I. INFORMATION IS NOT A “THING OF

VALUE” UNDER SECTION 641 ..... 13

Ii. MEANS OTHER THAN IMPOSING

CRIMINAL SANCTIONS ON THE

RECIPIENT ARE AVAILABLE

TO ENFORCE LEGITIMATE

INTERNAL RESTRICTIONS ON

DISSEMINATION OF GOVERNMENT

SONI og nok wk a cw ws 15

ED 6 ore x cea k 6 o.aa cee acne 17

(ui)

TABLE OF AUTHORITIES

Cases: Page

Department of the Air Force v. Rose,

ae Wi OMEN 8h ox oe eae 6

FAA vy. Robertson, 422 U.S. 255

SEN eit oy os a eee 8

Garner v. Louisiana, 368 U.S. 157

RN Cs ee eae era 6

Kolender v. Lawson, 461 U.S. 352

5 MR ane pea 5 eu ay ale ela Pune ar ae 12

Liparota v. United States, 471 U.S.

ee SE 6 a 5 ta A eas oes a ee, 9, 12

Morissette v. United States, 342 U.S.

te bc ee woe ee 13

NLRB vy. Robbins Tire & Rubber Co..,

GST WB. BOO CRP TR wo ec ee we 5

United States v. Bass, 404 U.S. 336

INES ye Se Sa lee nee ae 9,12

United States v. Gradwell, 243 U.S. 476

GR io eee er tre Un ana 9

United States v. Hubbard, 474 F. Supp.

Oe CRP ss EOFTE 8. ke ee et eee wD 6

United States v. Kozminski, 487 U.S. 931

4 RC ee Lae 9,13

(iv)

TABLE OF AUTHORITIES - Continued

Page

United States v. Lacher, 134 U.S. 624

(ROP) .o ou ets oe ee eee Y

United States v. Morison, 844 F.2d 1057

(4ta Cir. ISG) ce vk a ee eee ee 5

United States v. R.L.C., 112 S.Ct. 1329

(1992)... cent bw eee Eee eee 12

United States v. Tobias, 836 F.2d 449

(9th Cir. 1988), cert. denied,

465 U.S. Sen Clee. ce hee ees 13

United States v. Truong Dinh Hung,

629 F.2d 908

CO Gt; eee ere ee ee eee 10, 13

Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council,

Gad We; Pa fs ae ee a 6

Statutes and regulations:

2 Ua. Bae eee a. x vs aS oo ee ee 6

ER Rome hy 8 fg : een eae neers 7

BOR Tome Bee OR. 2: | ere er 8

S Dike: @ SPR D RISD oc «> So ee lee 8

(v)

TABLE OF AUTHORITIES - Continued

Page

BOR FOR Be, sg) a ree 3)

BOR Some 8 2) ee er ere er ere 7

CF Secoc SU OMEED vik ea 8 ow ke 6

Cah Ree ee er 2

Ege Soe & oS). re 7

£2 U.S.C. $6 ZPSE-2POO CIGAR) ow ee es 7

Se Wien ee Se, Es ees ee eA (i

41 U.S.C. § 423 (Supp. 1992) .......... 2, 14

42 U.S.C. $8 ZIGi-2IGO CFTS) nc cee as 7

FO When Be GRUP EFEE) ob eee we ees 7

Pub. L. No. 100-679, § 6(b),

WUE Gee. Ge CAFO) 6 ne ee ee 14

Pub. L. No. 101-28, 103 Stat. 57

So er ee a ea 15

Pub. L. No. 101-194, § 506(1),

Re | re 15

be Ge Oe Pe BREE 6%. o's BR Ree 7

(v1)

enitelieiiidaaiaeeiile

TABLE OF AUTHORITIES - Continued

Page

Miscellaneous:

9 Writings of James Madison

oe rr 5

Benjamin DuVal, The Occasions of

Secrecy, 47 U. Pitt. L. Rev.

Pee Sn 9k 8S eho 8 ws 13, 16

Harold Edgar & Benno Schmidt,

Curtiss-Wright Comes Home: Executive

Power and National Secrecy, 21 Harv.

C.R.-C.L.L. Rev. 349 (1986) ........ 16

Potter Stewart, Or of the Press,

26 Hastings L.J. 631 (1975) ....... 5, 15

Treatises:

89 C.J.S. Trover and Conversion

Bo 3. Ue a ee 13

Legislative Materials:

135 Cong. Rec. H1876 (May 15, 1989) ...... 15

135 Cong. Rec. $15960 (Nov. 17, 1989) ...... 12

135 Cong. Rec. $15961 (Nov. 17, 1989) ...... 14

(vii)

TABLE OF AUTHORITIES - Continued

135 Cong. Rec. $15992 (Nov. 17, 1989)

Oversight of DoD’s Management of

Inside Information in the

Acquisition Process: Hearing

Before the Subcommittee on

Oversight of Governmental Affairs,

United States Senate, 101st Cong.,

Ce 10, 11, 12

snes husumnaninineeaamn amit

In the Supreme Cout of the Ginted States

OCTOBER TERM, 1992

No. 92-960

THOMAS D. MCAUSLAND AND CHRISTOPHER PAFORT,

Petitioners,

Vz.

THE UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

for the Fourth Circuit

BRIEF OF CONGRESSMAN DON EDWARDS AND

CONGRESSMAN JOHN CONYERS

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

Congressman Don Edwards is Chairman of the

Subcommittee on Civil and Constitutional Rights of the House

Committee on the Judiciary. Congressman John Conyers is

Chairman of the House Committee on Government Operations

and is also a member of the House Committee on the

Judiciary. In these positions, Congressmen Edwards and

Conyers have a strong interest in and appreciation for the

civil liberties and separation of powers issues raised by this

petition. They believe that imposing criminal sanctions for

the receipt of information from the government where there

is no explicit statute or regulation forbidding the disclosure of

this information threatens the principles of open government

2

and the separation of powers that they were elected, in part,

to preserve.

Congressmen Edwards and Conyers believe that their

perspective as Members of Congress may prove of assistance

to the Court in its consideration of this petition. They submit

this brief in support of Petitioners with the written consent of

all parties. The written consents are on file with the Clerk of

the Court. |

STATEMENT OF THE CASE

Petitioners Thomas McAusland and Christopher Pafort

were convicted of obtaining in 1987 and early 1988

unclassified government information related to bids on various

defense contracts being sought by their employer, Litton Data

Systems, Inc. Although Congress has subsequently enacted,

and the President has signed into law, legislation that

expressly forbids the giving and receiving of the kind of

information obtained by Petitioners,’ there was no statute or

formal regulation restricting access to this information at the

time of the actions in question.’

Nevertheless, the Justice Department prosecuted (and

Petitioners were convicted) under the theory that no explicit

Statute or regulation restricting access to this information was

required to find a violation of 18 U.S.C. § 641. Section 641

imposes criminal penalties on a person who “knowingly

converts * * * or without authority, sells, conveys or disposes

' The Procurement Integrity Act of 1988, 41 U.S.C. § 423

(Supp. 1992).

* There is nothing in the record below to suggest that Petitioners

received this information as a result of bribery or any other

improper conduct.

3

of any * * * thing of value of the United States.”°

Petitioners’ convictions were obtained on the theory that

information is a “thing of value” under § 641 and that the

acquisition of such information in contravention of an

agency’s internal, unpublished custom and practice of keeping

information confidential was “without authority” and

therefore a violation of Section 641.‘

REASONS FOR GRANTING THE PETITION

This Court has never construed the term “without

authority” in Section 641 or determined how or whether the

statute applies to information. This case, therefore, raises

issues of first impression that are of exceptional importance

to the principles of open government and the separation of

powers.

The Fourth Circuit’s interpretation of the “without

authority” element of Section 641 is incompatible with those

principles. By elevating informal internal policies of a

government agency to the level of criminal statutes, the Court

of Appeals’ formulation would permit any bureaucrat with the

“authority” to restrict access to information to essentially

enact a new criminal statute. This result flies in the face of

the authority of Congress — not the judiciary, prosecutors or

federal agencies — to determine the kinds of conduct that will

be subject to criminal sanctions.

> The Government’s theories under sections 371 and 1343 derived

from the same notion that this information was “property” and that

private individuals can be criminally liable for obtaining

information whose disclosure violates an unpublished, internal

government practice or policy, but no statute or regulation.

* Additional details concerning the background on this case are

provided in the Statement contained in the Petition for a Writ of

Certiorari which, in the interest of brevity, is adopted by Amici.

4

Moreover, the Fourth Circuit has incorrectly presumed

that Congress intended that government information be

considered a “thing of value” under Section 641. The statute

contains no indication that it was intended to apply to

information or to any other intangible item. Where Congress

has intended to restrict access to information it has done so

specifically and with precision. No such precision exists in

Section 641.

Constitutional principles and numerous statutes enacted

by the Congress reflect a presumption that government

information should be made available to citizens. This

presumption should only be overcome — and criminal

sanctions should only be imposed — where Congress has

clearly and unambiguously determined that the receipt of

particular information should be restricted.

I. THE COURT OF APPEALS’ CONSTRUCTION OF

SECTION 641’s “WITHOUT AUTHORITY”

LANGUAGE IS CONTRARY TO THE PRINCIPLES

OF OPEN GOVERNMENT AND FREE ACCESS TO

GOVERNMENT INFORMATION, AND IS

INCONSISTENT WITH THE SEPARATION OF

POWERS

A. Section 641 Must Be Construed Narrowly In Light

Of Principles Of Open Government And Free

Access To Government Information Embodied In

The Constitution And In Numerous Statutes

Even if government information can be a “thing of

value” under Section 641, it would be absurd to assume that

Section 641 covers all transfers of government information.

The free transfer of information from the government to

private individuals is pervasive and, unlike the transfer of

other items that may be “things of value,” is fundamental and

beneficial to our system of government. Nonetheless, those

in government will always attempt to impose limits on the

public’s access to information in order to obfuscate mistakes

5

and avoid embarrassment.’ See United States v. Morison,

844 F.2d 1057, 1081 (4th Cir. 1988) (Wilkinson, J.,

concurring) (“There exists the tendency, even in a

constitutional democracy, for government to withhold reports

of disquieting developments and to manage news in a fashion

most favorable to itself.”) It was this realization, in part,

which motivated the Founders to draft the First Amendment

and provided the impetus for Congress’ consideration and

passage of numerous statutes reflecting a presumption in favor

of open access to government information. Section 641

should be construed narrowly in light of that presumption.

B. The Availability Of Government Information Is

Implicit In The Constitution

The principles of open government and free access to

government information are part of the philosophical

underpinnings of the United States Constitution. See NLRB

v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978)

(availability of government information necessary to ensure an

informed citizenry, which is “vital to the functioning of a

democratic society, [and is] needed to check against

corruption and to hold the governors accountable to the

governed”). As James Madison wrote: “A popular

Government, without popular information, or a means of

acquiring it, is but a Prologue to a Farce or a Tragedy; or,

perhaps both.” 9 Writings of James Madison 103 (G. Hunt

ed. 1910) (quoted in Morison, 844 F.2d at 1081 (Wilkinson,

J., concurring)). These principles inform not only the First

> Justice Stewart has described the tug and pull between the

government and the press over information as a “contest”: while

the government may have internal policies against disclosure of

certain types of information, parties outside the government are free

to attempt to obtain and use that information. Potter Stewart, Or

of the Press, 26 Hastings L.J. 631, 635-36 (1975). Congress may

resolve this contest, making merely engaging in it illegal, only

through “carefully drawn legislation.” Jd. at 636.

6

Amendment, but other constitutional provisions, such as the

right to vote and to otherwise participate in the political

process. They serve the goal of the First Amendment to

“enlighten public decisionmaking in a democracy.” Virginia

State Board of Pharmacy v. Virginia Citizens Consumer

Council, 425 U.S. 748, 765 (1976); See United States v.

Hubbard, 474 F. Supp. 64, 80 (D.D.C. 1979) (“free

exchange of ideas, especially ideas in possession of the

government, is at the very heart of our first amendment

guarantees”). They apply with equal force regardless of the

reasons that information is sought and irrespective of the kind

of information at issue. Jd. (pursuit and exchange of

commercial information “indispensable”).

In light of the fundamental role of the dissemination of

government information in our generally open system of

government, the Court should read the “without authority”

language narrowly. See Garner v. Louisiana, 368 U.S. 157,

202 (1961) (Harlan, J., concurring) (statutes criminalizing

conduct touching on First Amendment principles must be

“narrowly drawn to define and punish specific conduct as

constituting a clear and present danger to a substantial interest

of the State”). The Fourth Circuit’s formulation — that

“authority” can mean an informal custom and practice of an

agency — is incompatible with these notions.

C. Congress Has Created A Presumption Of Access

To Government Information

Numerous statutes reflect Congress’ longstanding view

that there is a presumption of open access to government

information. For example, the Copyright Act, 17 U.S.C. §

105 (1977), exempts government information from copyright

protection. The Freedom of Information Act requires public

disclosure of agency records, subject to certain specific

exceptions. 5 U.S.C. § 552 (1988). See Department of the

Air Force v. Rose, 425 U.S. 352, 361 (1976) (“disclosure,

not secrecy, is the dominant objective of [FOIA]”).

5 mama ada

7

Similarly, the Government in the Sunshine Act requires most

agency business to be conducted in a manner that is “open to

public observation.” 5 U.S.C. § 552b (1977).

Congress is well aware that some policy objectives may

at times interfere with the principles of open government and

has demonstrated in numerous instances, mostly relating to

national security, that it knows how to exempt certain

information from the presumption of full disclosure when it

wants to. See, e.g., The Espionage Act, 18 U.S.C. § 793

(1976); Atomic Energy Act, 42 U.S.C. §§ 2161-2166 (1973);

Intelligence Identities Protection Act of 1982, 50 U.S.C.

§§ 421-26 (1991); Arms Export Control Act, 22 U.S.C. §§

2751-2796 (1990); National Security Act, 50 U.S.C. § 401-

432 (1991). These statutes, and the regulations promulgated

pursuant to them, provide specific prohibitions concerning the

disclosure of information or data.® See, e.g., 22 C.F.R. §§

120.21, 121.1 (U.S. Munitions List regulations). Even in

FOIA, which embodies the presumption of openness,

Congress has provided specificity in setting forth the

° The government here has taken the position that an informal,

unwritten rule is sufficient and it is this position which Amici assert

is demonstrably incorrect. Therefore, for purposes of this case, the

Court need not consider whether formal regulations, published in

the Code of Federal Regulations and subject to the usual notice and

comment periods as well as the other provisions of the

Administrative Procedures Act (“APA”), 5 U.S.C. § 551 (1977),

can define conduct subject to criminal sanctions. However, formal

rulemaking procedures are distinguishable from the kinds of

informal practices on which the government relies in this case.

Rulemaking is conducted in accordance with an Act of Congress —

the APA — and generally is undertaken pursuant to statute.

Moreover, because such rules are in published form, Congress can

exercise’ its oversight function. Thus, formal rulemaking

procedures have at least some imprimatur of congressional

approval, a characteristic completely absent here.

8

information that can be withheld, subject to rights of appeal

within the agency and to judicial review. 5 U.S.C. § 552(b).

Congress’ and this Court’s treatment of Exemption 3 to

FOIA’s disclosure mandate (5 U.S.C. § 552(b)(3)) is

instructive in demonstrating Congress’ intent and ability to

narrowly circumscribe exceptions to the presumption of open

access to government information. As originally enacted,

Exemption 3 protected information “specifically exempted

from disclosure by statute.” 5 U.S.C. § 552(b)(3)(1970). In

FAA v. Robertson, 422 U.S. 255 (1975), this Court

interpreted Exemption 3 to allow statutes predating FOIA

which permitted the withholding of information to remain

unaffected by the presumption of disclosure in FOIA. 422

U.S. at 265. The Court therefore held that a provision in the

Federal Aviation Act providing nearly unlimited discretion to

agency Officials to withhold particular documents “in the

interest of the public” fell within Exemption 3. Jd. at 266.

Concerned that the holding in Robertson would enable

agencies to subvert FOIA’s mandate of disclosure, Congress

amended Exemption 3 in 1976 to avoid open-ended

discretionary agency decisionmaking regarding government

disclosure. As amended, Exemption 3 allows an agency to

withhold information where a statute: “(A) requires that the

matters be withheld from the public in such a manner as to

leave no discretion on the issue, or (B) establishes particular

criteria for withholding or refers to particular types of matters

to be withheld.” 5 U.S.C. § 552(b)(3)(1977).

These enactments demonstrate Congress’ abiding concern

for the principle of access to government information. In

light of these considerations, the “without authority” language

must be read narrowly to avoid infringing on the central role

of open access to information in our system of government.

Permitting informal, unwritten customs and practices to

trigger criminal sanctions would give government agencies

unbridled “authority” to choose among the vast array of

Ee

government information and render its dissemination or

receipt criminal conduct. That scenario is incompatible with

the open system of government envisioned by the Founders

and the Congress.

D. The Court Of Appeals’ Reading Of “Without

Authority” Is Contrary To Separation Of Powers

Principles

1. Congress Is The Appropriate Entity To

Determine Whether And When Disclosure Or

Receipt Of Information May Be A Crime

It is Congress, not bureaucrats, prosecutors or the

Courts, that has the authority to criminalize conduct relating

to the flow of information. United States v. Kouninski, 487

U.S. 931, 939 (1988) (“Federal crimes are defined by

Congress, and * * * this Court must give effect to Congress’

expressed intention concerning the scope of the conduct

prohibited”); Liparota v. United States, 471 U.S. 419, 424

(1985) (“The definition of the elements of a criminal offense

is entrusted to the legislature, particularly in the case of

federal crimes, which are solely creatures of statute”).

“[B]ecause of the seriousness of criminal penalties, and

because criminal punishment usually represents the moral

condemnation of the community, legislatures and not courts

should define criminal activity.” United States v. Bass, 404

U.S. 336, 348 (1971). For these reasons, Congress’

determination that particular conduct warrants the imposition

of criminal sanctions must be “plain[ ] and unmistakabl[e]”.

United States v. Gradwell, 243 U.S. 476, 485 (1917)(quoting

United States v. Lacher, 134 U.S. 624, 628 (1890)).

2. Section 641 Cannot Apply To Information

Whose Disclosure Is Not Prohibited By

Statute Or Regulation

The Fourth Circuit’s interpretation of the words “without

authority” would put the decision to criminalize the

Galetti

10

dissemination of particular kinds of government information

in the hands of individual executive branch workers. See

United States v. Truong Dinh Hung, 629 F.2d 908, 925 (4th

Cir. 1980) (§ 641 as written provides no standard for exercise

of discretion by upper level government employees and may

result in arbitrary denial of access to public information).

The “internal policies, customs and practices” of a

government agency — precisely the thin reed on which the

petitioners’ convictions were hung — are often unclear and

confusing.’ Reliance on them in this context would subvert

’ A Senate hearing that took place before the effective date of the

Procurement Integrity Act (see pages 14-15, infra) concerning

“DoD’s Management of Inside Information in the Acquisition

Process” provides some insight into the highly confusing nature of

the informal practices at issue in this case. Oversight of DoD’s

Management of Inside Information in the Acquisition Process:

Hearing Before the Subcommittee on Oversight of Government

Management of the Committee on Governmental Affairs, United

States Senate, 101st Cong., 1st Sess. (1989) [hereinafter “Oversight

Hearing”|. The hearing was dominated by discussions of practices

relating to disclosure of procurement and planning information that

were in effect at the time of Petitioners’ conduct. The hearing’s

participants concluded that not only were the Pentagon’s practices

unclear and misunderstood but, because they provided no guidance

as to what types of procurement documents were disclosable, DoD

representatives had great discretion to make their own judgments on

disclosure of government information. See, e.g., Oversight

Hearing at 3 (Sen. Levin)(“a review of the services’ policies and

regulations reveals a system of rules and regulations that are highly

complex, confusing, unclear, and occasionally misunderstood even

by the officials responsible for administering them.”); Oversight

Hearing at 44 (Sen. Levin)(“So those two guidances which are

pointed to as the standard for whether something is disclosable

doesn’t [sic] give you guidance on disclosability, because under

both * * * of those standards, contractors can have access to those

documents”). This confusion concerning internal practices was

(continued. . .)

sak (asain

11

Congress’ power to determine what conduct should be subject

to criminal sanctions and permit arbitrary results obviously

contrary to congressional intent.* For example, the manager

of a section in an executive agency could circulate an

informal policy memo (or adopt an informal custom)

declaring that no dissemination of information to the public

may be made that would be embarrassing to his or her agency

or to the President. A reporter or historian who obtained this

information through an interview of a government employee

and without resort to bribery or other improper means would

then be subject to criminal sanctions.’

7 (...continued)

made even worse by the high turnover in procurement positions at

DoD. Oversight Hearing at 28 (Sen. Kohl).

As a result of the concerns expressed at the Hearing, Dr.

Robert Costello, Under Secretary of Defense for Acquisition,

declared that there was a need for “a clear and comprehensive

statement of DoD’s disclosure policies in a single document which

will be widely distributed to both contractors and DoD personnel

by the end of the year.” Oversight Hearing at 45. Senator Levin

concluded: “[we need] to make sure there is a line, so that we do

not put people at peril and at risk in trying to get information.”

Oversight Hearing at 62.

* Senator Levin remarked that the DoD practices in place at the

time of Petitioners’ conduct permitted individual procurement.

officers to have discretion over disclosure of government

information: “Document type after document type after document

type is either disclosable or not disclosable according to individual

procurement officers by their judgment as to whether or not that

‘For Official Use Only’ stamp allows it to be disclosed, and that

doesn’t tell you a damn thing.” Oversight Hearing at 44 (Sen.

Levin).

* Ironically, while Petitioners were convicted of receiving

information contrary to certain informal practices, their receipt of

(continued...)

ata ile

12

Such an outcome flies in the face of separation of powers

principles by providing executive branch employees with the

authority to, in essence, pass new criminal statutes.’° It

would enable individual employees to determine what is

deserving of “the moral condemnation of the community.”

Bass, 404 U.S. at 348. This formulation is plainly incorrect

in that it provides no “assur[ance] that the society, through its

representatives, has genuinely called for the punishment to be

meted out.” United States v. R.L.C., 112 §.Ct. 1329, 1340

(1992) (Scalia, J., concurring). Permitting informal agency

policies and practices concerning information to form the test

° (...continued)

this information was consistent with other informal methods of

operation at the Department of Defense regarding the sharing of

information with contractors. As explained by Senator Grassley,

the informal exchange of information between government and

contractors had become so widespread prior to the enactment of the

Procurement Integrity Act, it had “become a way of life,” and a

“cultural phenomenon” within the military-industrial complex. 135

Cong. Rec. $15960 (Nov. 17, 1989) (statement of Sen. Grassley).

Then-Under Secretary of the Navy Garrett declared that within the

sphere of government contracting, the information gathering

activities of private corporations, even if to gain advantage over

competitors, were “indispensable to proper fusion of Government’s

requirements with industry’s capabilities.” (Oversight Hearing at

74). Thus, adopting the government’s interpretaticn would permit

prosecutors to pick and choose among various internal policies to

determine what they believe should define criminal sanctions. This

is hardly the kind of “clear and unambiguous” demarkation of

criminal conduct that this Court has declared to be Congress’ role.

Cf. Liparota, 471 U.S. at 427 (“Of course, Congress could

have intended that this broad range of conduct be made illegal,

perhaps with the understanding that prosecutors would exercise

their discretion to avoid such harsh results. However, given the

paucity of material suggesting that Congress did so intend, we are

reluctant to adopt such a sweeping interpretation.”).

—

13

of criminal conduct would render Section 641 a penal statute

of sweeping application that would “encourage arbitrary and

discriminatory enforcement.” Kolender v. Lawson, 461 U.S.

352, 357 (1983). Accordingly, because the Court of Appeals’

decision would violate separation of powers principles and

contravene congressional intent, this Court should reverse that

decision.

Il. INFORMATION IS NOT A “THING OF VALUE”

UNDER SECTION 641

It is not clear that Section 641 should be applied to

information at all. There is nothing in Section 641 or in its

legislative history to suggest that Congress intended to reach

this delicate area. United States v. Tobias, 836 F.2d 449,

451 (9th Cir. 1988) (section 641 inapplicable to information),

cert. denied, 485 U.S. 991 (1989); Truong Dinh Hung, 629

F.2d at 926 (“Congress was never consciously aware that §

641 would punish the unauthorized disclosure of government

information”).'’ It is at least a plausible construction of

Section 641 that “thing of value” should apply only to

tangible items. United States v. Tobias, 836 F.2d at 451.

The “conversion” prohibited by Section 641 was not intended

to be a new crime. Rather, Section 641 was designed “to

recodify [crimes] then in existence.” Morissette v. United

States, 342 U.S. 246, 269 n.28 (1952). At common law,

only tangible property could be “converted.” 89 C.J.S.

Trover and Conversion § 11 (1955).

For all of these reasons, the “thing of value” language

must be considered, at a minimum, to be ambiguous. Where

a narrower construction of an ambiguous criminal statute is

plausible, the rule of lenity requires the Court to adopt the

more restrictive reading. See United States v. Kouninski, 487

See also Benjamin DuVal, The Occasions of Secrecy, 47 U. Pitt.

L. Rev. 579, 595-96 n.42 (1986)(Congress did not contemplate

restricting access to information by enacting Section 641).

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U.S. at 952 (1988) (“uncertainty regarding the ambit of

criminal statutes should be resolved in favor of lenity”).

Here, the rule of lenity dictates that the term “thing of value”

should not be read to include government information.

The Court of Appeals’ reading of Section 641 is

especially anomalous because it makes a mockery of

Congress’ carefully considered action in enacting the

Procurement Integrity Act of 1988 (“PIA”). 41 U.S.C. § 423

(Supp. 1992). Congress’ determination that this legislation

was necessary demonstrates that it did not believe that Section

641 applied to Petitioners’ conduct. The legislative history of

the PIA reveals myriad examples of Congress’ belief that no

law existed to prohibit receipt of unclassified procurement

information.’? Because of this belief and in order to enable

contractors and the Pentagon to adjust their conduct in light

of the Act’s criminal penalties to what Congress viewed as a

substantially different regime, Congress initially delayed the

effective date of the PIA for six months. See Pub. L. No.

100-679, § 6(b), 102 Stat. 4068 (1988). Congress then

delayed the effective date for an additional two months to

permit contractors to become familiar with the new

'? During debate on 1989 legislation that would have repealed the

PIA, Senator Grassley declared: “This is the only law on the

books that restricts the use of nonclassified procurement

information.” By repealing it “there is not going to be any law to

stop the * * * practice of document trafficking within the

contracting community.” 135 Cong. Rec. $15961 (Nov. 17, 1989).

Senator Grassley also stated that prosecutors with whom he had

spoken believed that pre-PIA law was adequate for prosecution of

procurement cases only where “there was evidence of bribery or

conspiracy or some other illegal activity. But without this law,

there are no prohibitions to giving sensitive information to favored

contractors. That’s what we’re talking about here.” 135 Cong.

Rec. $15992 (Nov. 17, 1989). There is no suggestion in this case

that Petitioners obtained the information in question through bribery

or other improper means.

15

regulations implementing the PIA. See Pub. L. No. 101-28,

103 Stat. 57 (1989); 135 Cong. Rec. H1876 (May 15,

1989)(remarks of Rep. Conyers). Finally, despite intense

efforts by certain members, Congress suspended the effective

date of the Act for a year until December 1, 1990, when it

ultimately became effective. See Pub. L. No. 101-194, §

507(1), 103 Stat. 1759 (1989).

Absent any mention of government information in

Section 641, then, and in view of Congress’ demonstrated

ability to provide particular provisions concerning information

where its statutes concern information dissemination, the

Court should conclude that Congress did not intend that

Section 641 apply to information.

Il. MEANS OTHER THAN IMPOSING CRIMINAL

SANCTIONS ON THE RECIPIENT ARE

AVAILABLE TO ENFORCE LEGITIMATE

INTERNAL RESTRICTIONS ON

DISSEMINATION OF GOVERNMENT

INFORMATION

Amici do not mean to suggest that there can be no

informal restrictions on the disclosure of government

information. However, the difficulties inherent in limiting the

dissemination of government information are particularly

acute where criminal sanctions are threatened or imposed on

private citizens who acquire the information without resort to

bribery or other improper influence. The factors outlined

above weigh against the imposition of criminal sanctions on

private citizens for simply receiving government information

absent “carefully drawn legislation.” Stewart, 26 Hastings

L.J. at 636. The balance of these factors may weigh

differently when government employees are the subjects of

particular restrictions, especially when criminal sanctions are

not at issue.

The Executive Branch may limit the dissemination of

government information through informal restrictive policies

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constraining government employees in some instances.

DuVal, 47 U. Pitt. L. Rev. at 672 (“Informal pressures and

administrative sanctions * * * are the principal means of

preventing the dissemination of government controlled

information.”); Harold Edgar & Benno Schmidt,

Curtiss-Wright Comes Home: Executive Power and National

Secrecy, 21 Harv. C.R.-C.L. L. Rev. 349, 356 (1986)(“No

one doubts that the Executive can invoke a wide range of

administrative sanctions to enforce secrecy rules on its

employees; the more difficult questions concern resort to

broader sanctions that must be enforced by the courts.”).

Along with these internal policies, agencies may impose

disciplinary measures on employees who violate the policies.

Those who are aware of the informal policies and practices

are then presumably aware of the corresponding penalties for

breach. In this manner, agencies have the means to enforce

legitimate interests in confidentiality while providing the

requisite notice of penalties to government employees.

However, to enforce these internal policies against

private citizens through criminal prosecution is intolerable in

our system of government. See Edgar & Schmidt, 21 Harv.

C.R.-C.L. L. Rev. at 406 (“Perhaps it is tolerable to permit

the Executive to shape the conditions of government

employment without clear guidance, but for the courts to use

the criminal law this way ignores the prohibition on common

law crimes.”). Whatever the authority of the Executive

Branch to discipline its employees for the violation of internal

rules, it is up to Congress to decide what conduct to punish

criminally. In the case of procurement sensitive information,

Congress decided to criminalize its disclosure and receipt, but

after the acts at issue here.

————_——«

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CONCLUSION

For the reasons stated above, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JAMES L. QUARLES III

DAVID A. WILSON

SEAN P. SHERMAN

Hale and Dorr

1455 Pennsylvania Avenue, N. W.

Washington, D.C. 20004

(202) 393-0800

MARCH 1993