MEMORANDUM OPINION DENYING DEFENDANT'S MOTION TO FIND 18 U.S.C. §793(E) UNCONSTITUTIONALLY VAGUE AS APPLIED
RE DOCUMENT NO. 40.
RUDOLPH CONTRERAS, District Judge.
Defendant, Mr. Hitselberger, has been charged by the United States of America on three counts of violating 18 U.S.C. §793(e), for willfully removing and retaining documents relating to the national defense. He has also been charged on three counts of violating 18 U.S.C. §2071(a), for willfully and unlawfully removing public documents from their secured location. Count one charges Mr. Hitselberger for the unlawful retention of two documents containing information relating to the national defense, found in his backpack on April 11, 2012. Count two charges Mr. Hitselberger for the unlawful retention of a third document containing information relating to the national defense, found in Mr. Hitselberger's room on April 11, 2012 and dated March 8, 2012. Count three charges Mr. Hitselberger for the unlawful retention of a fourth document containing information relating to the national defense, dated February 13, 2012. Defendant now argues that 18 U.S.C. §793(e) is unconstitutionally vague as applied. Specifically, Mr. Hitselberger argues (1) that the phrase "relating to the national defense" covers too much information to draw a clear line between criminal and non-criminal conduct, (2) that the statute fails to specify what constitutes a culpable mens rea, and (3) that the phrase "used to the injury of the United States" has no judicial gloss and is unconstitutionally vague.
II. FACTUAL BACKGROUND
James Hitselberger is a 56-year-old linguist. He is fluent in Arabic, Farsi, and Russian. In June 2011, he was hired by Global Linguist Solutions, which assigned him to work for the United States Navy at a base in Bahrain. Mr. Hitselberger regularly worked with classified information. After being hired as a linguist, Mr. Hitselberger underwent training on the different types of classified information and the proper handling of such materials. Govt's Mem. in Supp. of Detention, 4, Dec. 12, 2012, ECF No. 13. At that time, Mr. Hitselberger was instructed that information classified at the Confidential level or higher could cause grave damage to the United States. Id. at Ex. 1
At the end of his training, Mr. Hitselberger signed a non-disclosure agreement, which acknowledged in relevant part, "I agree that I shall return all classified materials which have or may come into my possession or for which I am responsible because of such access." Govt's Mem. in Supp. of Detention, Ex. 4, at ¶7. Since his initial training, Mr. Hitselberger attended regularly scheduled security briefings in the Restricted Access Area. Govt's Mem. in Opp'n to Def's Mot. for Vagueness, 3, April 5, 2013, ECF No. 51. These sessions reiterated that classified information must not be removed from Restricted Access Areas. Id; Govt's Mem. in Supp. of Detention, Exs. 4-6. As of September 2011, Mr. Hitselberger worked as a linguist for the Joint Special Operations Task Force in Bahrain. Tr. of Mot. Hr'g, Morning Session, 105, Sept. 6, 2013. His workplace was located in a Restricted Access Area. Hr'g Tr. 10.
The Government alleges that on April 11, 2012, two supervisors observed Mr. Hitselberger checking his email in a Restricted Access Area and then printing multiple pages clearly marked as SECRET from a SECRET printer. Compl. ¶¶12-13, Aug. 6, 2012, ECF No. 1. The Government contends that Mr. Hitselberger was observed taking the classified documents from the printer, placing them into an Arabic-English Dictionary, and attempting to leave the building with the SECRET documents. Id. at ¶12. Mr. Hitselberger was stopped by his supervisor and his commanding officer after exiting the building and was asked to produce the documents he just printed. Id. The documents recovered from Mr. Hitselberger's backpack were marked as SECRET in red, bold type in the header and footer of each page. Tr. of Mot. Hr'g, Morning Session, 24-25. The documents contained the availability of improvised explosive devices in Bahrain, schedule for the monthly travel of a high-ranking commander in Bahrain and information about the locations of U.S. armed forces in the region and their activities. Govt's Mem. in Supp. of Detention, 7, Ex. 7.
On April 11, 2012, NCIS Special Agents conducted a Command Authorized Search and Seizure of Mr. Hitselberger's living quarters in Bahrain. Compl. ¶14. Inside, Special Agents found documents classified as SECRET with the SECRET warning label cut off the top and bottom of the pages. Compl. ¶14. This document contained information about the location of U.S. forces and their undisclosed activities in the region. Govt's Mem. in Supp. of Detention, at 8, Exs. 10-11. The last document, located in the Hoover Institute's public library, was originally classified as SECRET. Govt's Mem. in Supp. of Detention at 10-11, Ex. 13. This document discusses gaps in U.S. intelligence with respect to the political situation in Bahrain. Id. at 10-11, Ex. 14. After investigation, it was determined that Mr. Hitselberger received the documents as an e-mail attachment sent to several persons on a distribution list. Compl. ¶14.
Defendant now asks this Court to dismiss Counts One through Three, arguing that 18 U.S.C. §793(e), is unconstitutionally vague as applied. Specifically, Mr. Hitselberger argues that (1) the phrase "relating to the national defense" covers too much information to draw a clear line between criminal and non-criminal conduct, (2) the statute fails to specify what constitutes a culpable mens rea, and (3) the phrase "used to the injury of the United States" has no judicial gloss and is unconstitutionally vague.
Mr. Hitselberger argues that 18 U.S.C. §793(e) violates the fair warning requirement under the Due Process Clause of the Fifth Amendment because the clauses are vague, and thus do not provide him notice as to what conduct is criminalized under the statute. See United States v. Lanier, 520 U.S. 259, 266 (1997). The Fifth Amendment imposes a clarity requirement on criminal statutes, requiring the legislature to set "reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent arbitrary and discriminatory enforcement.'" Smith v. Goguen, 415 U.S. 566, 572-3 (1974) (citations omitted). "[T]he touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal." Lanier, 520 U.S. at 267. This clarity, however, does not need to come from the statutory language alone. "[C]larity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute." Lanier, 520 U.S. at 266; see also United States v. Morison, 844 F.2d 1057, 1071 (4th Cir. 1988) ("[A]ll vagueness may be corrected by judicial construction which narrows the sweep of the statute within the range of reasonable certainty.").
18 U.S.C. Section 793(e) states:
Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photograph negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates... or willfully retains the same and fails to deliver it to the officer of employer of the United States entitled to receive it... Shall be fined under this title or imprisoned not more than ten years, or both.
Mr. Hitselberger takes particular issue with the clauses: "relating to the national defense, " "reason to believe could be used to the injury of the United States, " and "willfully retains." As is discussed further below, courts have uniformly held that the judicial gloss on these clauses provides sufficient notice of what conduct is criminalized under 18 U.S.C. §793(e). See generally, United States v. Morison, 844 F.2d 1057 (4th Cir. 1988); United States v. Kiriakou, 898 F.Supp.2d 921 (E.D.Va. 2012); United States v. Drake, 818 F.Supp.2d 909 (D.Md. 2011); United States v. Kim, 808 F.Supp.2d 44 (D.D.C. 2011); United States v. ...