Argued: December 6, 2016
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)
William James Trunk, ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER, LLP, Washington, D.C., for
Gary Olshan, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Lawrence S. Robbins, ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER, LLP, Washington, D.C., for
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.
GREGORY, Chief Judge, and TRAXLER and DIAZ, Circuit Judges.
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.
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.
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
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.
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.
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.
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.
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).
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.
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
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.
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.