UNITED STATES OF AMERICA v. JEFFREY ALEXANDER STERLING
US Court of Appeals for the Fourth Circuit, Gregory, June 22, 2017,
Venue- The Government failed to establish venue when it failed to prove where the physical hand-off of a classified document occurred.
(Concur in part, dissent in part- Traxler- There is venue because the document was stored at one point in Sterling’s home in Virginia)
Facts: Jeffrey Sterling worked for the CIA from 1993 to 2002. Until 2000, he was involved in a program to keep Iran from obtaining nuclear weapons and was working in New York. During this time, Sterling filed EEOC complaints and a lawsuit against the CIA. In 2000, Sterling’s involvement in the CIA’s anti-Iranian-nuclear-program ended and Sterling transfered to CIA headquarters in Virginia. Sterling left the CIA in 2002.
A New York Times reporter, James Risen, wrote about Sterling’s lawsuit in 2002. The next year, Risen had mysteriously obtained classified information about the program that Sterling was involved in and was going to write an article about it in the newspaper. When the CIA convinced the New York Times not to publish the article, Risen decided to write a book instead. The book was published in 2006, and contained classified information directly related to Sterling’s work at the CIA, including a letter from Sterling’s contact: a Russian scientist working for the CIA and feeding bad information to Iranian scientists.
An FBI investigation revealed numerous phone calls between Risen and Sterling from 2003 to 2005. In 2006, a search warrant at Sterling’s home in Missouri revealed four classified CIA documents.
In 2010, a federal grand jury in the Eastern District of Virginia charged Sterling with numerous counts related to disclosing and possessing classified information. Sterling was also charged with obstruction of justice for deleting an e-mail after he received a grand jury subpoena regarding the case.
At trial, the government introduced evidence of the numerous short phone calls made from Sterling’s home in VA to Risen’s home in MD (including right before Risen notified the CIA that he had learned about the program from “confidential sources”). The government also introduced an email sent from Sterling’s home in Virginia to Risen drawing attention to the Iran nuclear program. The government argued that Sterling lost access to classified information when he was fired in 2002 while living in Virginia, and so the classified documents seized from Sterling’s new home in Missouri must have been transported there from Virginia when he moved. Moreover, the government used the classified information stored by Sterling in his Missouri residence to prove that Sterling was in the habit of keeping classified information at his home (and therefore did so while he was in Virginia).
However, in one of the charges the government claimed that Sterling illegally gave Risen a paper copy of the letter that Risen subsequently put in his book. No evidence was presented at trial regarding where that physical hand-off occurred.
With regard to the obstruction of justice claim, the government showed two “snapshots” of Sterling’s e-mail account: April 2006 and July 2006. In June 2006, Sterling received a grand-jury subpoena seeking documents in his possession. A 2003 e-mail from Sterling to Risen showed up in the April 2006 snapshot, but was gone from the July 2006 snapshot. This showed that Sterling had deleted the e-mail after receiving the subpoena.
Sterling was convicted after a jury trial and sentenced to 42 months in prison.
Sterling then appealed, arguing that the government failed to prove a connection to the Eastern District of Virginia, and so venue was improper for the charges.
Held: The Fourth Circuit held that the jury was entitled to find venue for most of the charges, but not the physical hand-off charge because no evidence was presented at trial regarding where it occurred.
Venue- As stated in the US Constitution, a federal trial must occur “in the State where the said Crimes shall have been committed.”
Venue- For each count of a criminal case, an “essential conduct element of the offense” must have taken place in the State where the trial is being held.
Venue- If essential conduct of the offense occurs in more than one district, then the crime can be prosecuted in any district where the essential conduct occurred.
Venue- An act must be “in furtherance” of a crime to allow venue to exist. Acts done to prepare for a crime aren’t enough for venue to exist.
Obstruction of Justice- Destruction of evidence “that the grand jury will likely seek” qualifies as obstruction under 18 USC 1512, even if it hasn’t yet been subpoenaed.