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United States v. Sterling

United States Court of Appeals, Fourth Circuit

June 22, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JEFFREY ALEXANDER STERLING, Defendant-Appellant.

          Argued: December 6, 2016

         Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Leonie M. Brinkema, District Judge. (1:10-cr-00485-LMB-1)

         ARGUED:

          William James Trunk, ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER, LLP, Washington, D.C., for Appellant.

          Eric Gary Olshan, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

         ON BRIEF:

          Lawrence S. Robbins, ROBBINS, RUSSELL, ENGLERT, ORSECK, UNTEREINER & SAUBER, LLP, Washington, D.C., for Appellant.

          Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy Assistant Attorney General, Robert A. Parker, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Dana J. Boente, United States Attorney, James L. Trump, Dennis M. Fitzpatrick, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.

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

          DIAZ, Circuit Judge

         Jeffrey Sterling, a former Central Intelligence Agency ("CIA") agent, appeals his convictions for unauthorized disclosure of national defense information, unlawful retention and disclosure of classified information, attempted unauthorized disclosure of classified information, unauthorized conveyance of government property, and obstruction of justice. Sterling argues that the district court incorrectly instructed the jury on venue and improperly admitted evidence showing his prior retention of classified documents. He also disputes the jury's finding that venue was proper in the Eastern District of Virginia, as well as the jury's verdict to convict on obstruction of justice.

         We hold that the government failed to prove proper venue for one of Sterling's offenses: unauthorized disclosure to a reporter of a letter relating to a classified program. As for the other charged crimes, we conclude that there is sufficient evidence in the record to support the jury's findings that-more likely than not-Sterling committed the essential conduct of these offenses in the Eastern District of Virginia. There was also sufficient evidence for the jury to conclude-beyond a reasonable doubt-that Sterling obstructed justice by trying to conceal an email from a grand jury investigation. Finally, the district court did not commit reversible error when instructing the jury on venue, nor did it abuse its discretion when it allowed the government to introduce evidence that Sterling kept classified documents in his home. Accordingly, we vacate Sterling's conviction for unauthorized disclosure of the program letter, but otherwise affirm the judgment.

         I. A.

         Sterling worked for the CIA from 1993 to 2002; during that time, he was assigned to a classified program that aimed to disrupt Iran's nuclear capability. Sterling was the program's case manager for almost two years, and served as the primary contact for a Russian scientist. The CIA would pass on realistic but ultimately flawed nuclear plans to the scientist, who would in turn give them to officials in the Iranian government. Sterling's involvement with the program ended in May 2000, after which he moved from New York to Herndon, Virginia to work at the agency's headquarters.

         In the meantime, Sterling's relationship with the CIA had steadily deteriorated. Around the same time that his involvement with the classified program ended, Sterling filed an equal employment opportunity complaint against the agency alleging discrimination on the basis of race. The complaint was dismissed after an internal review. Sterling then filed suit in the Southern District of New York, but the case was later transferred to the Eastern District of Virginia. Following the transfer, the government moved to dismiss the case based on the state secrets doctrine. The district court granted the motion, finding that Sterling would need to disclose classified national security information in order to pursue his claim, and we affirmed this dismissal. See Sterling v. Tenet, 416 F.3d 338, 341‒42 (4th Cir. 2005). Ultimately, the CIA fired Sterling, who left the organization in January 2002. Sterling later relocated to Missouri in August 2003.

          B.

         In April 2003, New York Times reporter James Risen informed the CIA that he had learned about the classified program and intended to publish an article about it. Risen had previously written a story on Sterling's discrimination lawsuit. After top government officials met with the New York Times to express security-related concerns about the article, the Times decided not to run it. Risen then wrote a book, entitled State of War: The Secret History of the CIA and the Bush Administration, which contained classified details about the program and its activities. Among other things, the book included a copy of a letter that the Russian scientist-Sterling's former point of contact in the program-gave to Iranian officials, describing the nuclear plans he was sharing.

         The Federal Bureau of Investigation ("FBI") began investigating Risen's potential sources in April 2003, when Risen first informed the CIA that he intended to publish an article about the program. This investigation yielded circumstantial evidence against Sterling, including evidence of numerous short phone calls between Risen and Sterling from 2003 to 2005, Sterling's past connection with Risen because of the 2002 discrimination lawsuit article, and an email sent from Sterling to Risen in March 2003 linking to a CNN article about Iran's nuclear program.

         After State of War was published in 2006, the government continued its efforts to identify Risen's sources. The government served Sterling with a subpoena on June 16, 2006, commanding him to produce all classified documents in his possession and any other documents concerning CIA operations. And in October 2006, the FBI seized four classified CIA documents from Sterling's Missouri home.

         C.

         In December 2010, a grand jury in the Eastern District of Virginia returned a ten-count indictment charging Sterling with causing unauthorized disclosure of national defense information to the public (Counts I and II), in violation of 18 U.S.C. § 793(d) and (e); unlawful retention of a classified letter relating to the program (Count III), in violation of 18 U.S.C. § 793(e); unauthorized disclosure to Risen of classified information (Count IV) and the program letter (Count V), in violation of 18 U.S.C. § 793(d) and (e); attempted unauthorized disclosure of classified information (Counts VI and VII), in violation of 18 U.S.C. § 793(d) and (e); mail fraud (Count VIII), in violation of 18 U.S.C. § 1341; unauthorized conveyance of government property (Count IX), in violation of 18 U.S.C. § 641; and obstruction of justice (Count X), in violation of 18 U.S.C. § 1512(c)(1).

         The government attempted to force Risen to testify about his sources, and we prevented Risen from exercising a reporter's privilege. United States v. Sterling, 724 F.3d 482 (4th Cir. 2013). Despite that victory, the government implied that Risen would not be punished if he refused to disclose his sources, and in pre-trial proceedings, Risen declined to identify those sources or where he met them to receive classified information. Ultimately, the government chose not to call Risen at trial; rather, the parties stipulated that were he to testify, Risen would refuse to identify his sources.

         Sterling argued at trial that he was not Risen's source, but the government introduced evidence suggesting otherwise, including phone records and testimony from others involved in the classified program. The government also introduced (over Sterling's objection) four classified documents seized from Sterling's Missouri home, under Federal Rule of Evidence 404(b), to establish that Sterling's modus operandi was to store classified CIA materials in his residence.

         At the close of the evidence, Sterling moved for a judgment of acquittal, based in part on insufficient evidence and on improper venue. The district court dismissed Count VIII (mail fraud) but otherwise denied Sterling's motion. It then instructed the jury that it could find that venue was proper in the Eastern District of Virginia so long as "at least one act in furtherance of that [charged] offense" occurred within the district. J.A. 2319.

         After three days of deliberations, the jury convicted Sterling of all remaining counts. The district court later sentenced Sterling to forty-two months of imprisonment on each count, to be served concurrently.

         This ...


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