@ 793. Gathering, transmitting, or losing defense information

(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or

(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or

(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter [18 USCS @@ 792 et seq.]; or

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic 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, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic 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, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of his trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer--

Shall be fined under this title or imprisoned not more than ten years, or both.

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

(h) (1) Any person convicted of a violation of this section shall forfeit to the United States, irrespective of any provision of State law, any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, from any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, as the result of such violation. For the purposes of this subsection, the term "State" includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(2) The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1) of this subsection.

(3) The provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)-(p)) shall apply to--

(A) property subject to forfeiture under this subsection;

(B) any seizure or disposition of such property; and

(C) any administrative or judicial proceeding in relation to such property,

if not inconsistent with this subsection.

(4) Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund in the Treasury all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

HISTORY:

(June 25, 1948, ch 645, @ 1, 62 Stat. 736; Sept. 23, 1950, ch 1024, Title I, @ 18, 64 Stat. 1003; Aug. 27, 1986, P.L. 99-399, Title XIII, @ 1306(a), 100 Stat. 898; Sept. 13, 1994, P.L. 103-322, Title XXXIII, @ 330016(1)(L), 108 Stat. 2147; Oct. 14, 1994, P.L. 103-359, Title VIII, @ 804(b)(1), 108 Stat. 3440.)
(As amended Oct. 11, 1996, P.L. 104-294, Title VI, @ 607(b), 110 Stat. 3511.)

HISTORY; ANCILLARY LAWS AND DIRECTIVES

Prior law and revision:
This section is based on Act June 15, 1917, ch 30, Title I, @@ 1, 6, 40 Stat. 217, 219; March 28, 1940, ch 72, @ 1, 54 Stat. 79 (former 50 U.S.C. @@ 31 and 36
The words "departments or agencies" were inserted twice in conformity with definitive 18 USCS @ 6 to eliminate any possible ambiguity as to the scope of the section. The words "or induces or aids another" were omitted wherever occurring as unnecessary in view of definition of "principal" in 18 USCS @ 2. The mandatory punishment provision was rephrased in the alternative because the court has this discretion by making use of its power to suspend sentence under 18 USCS @ 3651.
Minor changes in phraseology were made.

Amendments:
1950. Act Sept. 23, 1950, in the section heading, inserted a comma after "transmitting"; and substituted the text for text which read:
"Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise obtains information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, or other place connected with the national defense, owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, or stored, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any other prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army or Navy is being prepared or constructed or stored, information as to which the President has determined would be prejudicial to the national defense: or
"Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts, to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or
"Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made or disposed of by any person contrary to the provisions of this chapter; or
"Whoever, lawfully or unlawfully having possession of, access to, control over, or being intrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, willfully communicates or transmits or attempts to communicate or transmit the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or
"Whoever, being intrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, or information, relating to the national defense, through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed--
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.".
1986. Act Aug. 27, 1986 added subsec. (h).
1994. Act Sept. 13, 1994, in the undesignated matter following subsec. (f), substituted "under this title" for "not more than $10,000".
Act Oct. 14, 1994, in subsec. (h)(3), in the introductory matter, substituted "(p)" for "(o)" in two places.
1996. Act Oct. 11, 1996, in subsec. (h)(1), added the sentence beginning "For the purposes of this subsection, the term 'State' includes . . .".

Other provisions:
Limitation of prosecution. Act Sept. 23, 1950, ch 1024, Title I, @ 19, 64 Stat. 1005, provided: "An indictment for any violation of title 18, United States Code, sections 792, 793, or 794, other than a violation constituting a capital offense, may be found at any time within ten years next after such violation shall have been committed. This section [this note] shall not authorize prosecution, trial, or punishment for any offense now barred by the provisions of existing law.".

NOTES: Related Statutes & Rules:
Applicability to Canal Zone, 18 USCS @ 14.
Sentencing Guidelines for the United States Courts, 18 USCS Appx @ 2M3.2, 2M3.3, 2M3.4.
Classified information, disclosure by Government official, or other person, penalty for, 18 USCS @ 798; 50 USCS @ 783.
Letters, writings, etc. in violation of this section as nonmailable, 18 USCS @ 1717.
Activities affecting armed forces--Generally, 18 USCS @ 2387.
Activities affecting armed forces--During war, 18 USCS @ 2388.
Jurisdiction of offenses, 18 USCS @ 3241.
Federal retirement benefits, forfeiture upon conviction of offenses described under this section, 38 USCS @ 6105.
Veterans' benefits, forfeiture upon conviction under this section, 38 USCS @ 6105.
This section is referred to in 5 USCS @ 8312; 8 USCS @ 1101; 22 USCS @ 2778, 38 USCS @ 6105; 42 USCS @ 2000aa; 50 USCS Appx @@ 19, 34, 2410.

Research Guide: Federal Procedure:
3 Fed Proc L Ed, Armed Forces, Civil Disturbances, and National Defense @ 5:605.
14 Fed Proc L Ed, Foreign Trade and Commerce @@ 37:946, 1009.

Am Jur:
3B Am Jur 2d, Aliens and Citizens @@ 1841, 1862.
3C Am Jur 2d, Aliens and Citizens @ 2824.
70 Am Jur 2d, Sedition, Subversive Activities, and Treason @@ 18-25, 30-33, 37, 39, 41, 44.
70B Am Jur 2d, Social Security and Medicare @ 1666.

Am Jur Trials:
20 Am Jur Trials, Handling the Defense in a Conspiracy Prosecution, p. 356.
70 Am Jur Trials, The Defense of a Computer Crime Case, p. 435.

Forms:
3 Fed Procedural Forms L Ed, Armed Forces, Civil Disturbances, and National Defense (2002) @ 5:239.

Immigration:
6 Immigration Law and Procedure (Matthew Bender rev. ed.), Relief From Deportation @ 74.07.

Texts:
Bailey and Rothblatt, Defending Business and White Collar Crimes (2d Ed.) Ch. 23 Conspiracy.

Law Review Articles:
Edgar and Schmidt. The Espionage Statutes and Publication of Defense Information. 73 Columbia L Rev 929.
The Constitutionality of Section 793 of the Espionage Act and Its Application to Press Leaks. 33 Wayne L Rev 205, Fall 1986.

Interpretive Notes and Decisions:

I. IN GENERAL 1. Generally 2. Constitutionality 3. Construction 4. Relation to other laws 5. Duty and power of Congress 6. Power of states

II. ELEMENTS OF CRIME 7. National defense, generally 8. --Property or information related to national defense 9. "Lost" documents 10. Injury of United States or advantage of foreign nation 11. Scienter

III. PARTIES 12. Who may commit crime

IV. PROSECUTION AND PUNISHMENT 13. Search and seizure 14. Jurisdiction 15. Grand jury proceedings 16. Indictment 17. Pretrial discovery 18. Pleas 19. Evidence 20. --Admissibility 21. --Sufficiency 22. Exclusion of public from trial 23. Questions of law 24. Defenses 25. Instructions 26. Judgment and sentence

I. IN GENERAL

1. Generally
Government's contention that 18 USCS @ 793 proscribes publication of 47 volume study of Viet Nam classified as Top Secret and Secret by the New York Times is without merit since the language and Congressional history of 18 USCS @ 793 indicates that newspapers were not intended by Congress to come within its purview. United States v New York Times Co. (1971, SD NY) 328 F Supp 324, remanded (1971, CA2) 444 F2d 544, revd (1971) 403 US 713, 29 L Ed 2d 822, 91 S Ct 2140, 1 Media L R 1031.

2. Constitutionality
Construction of Espionage Act as embracing obtaining and divulging of information related to and connected with national defense, does not render it unconstitutional as violative of due process because of indefiniteness. Gorin v United States (1941) 312 US 19, 85 L Ed 488, 61 S Ct 429, reh den (1941) 312 US 713, 85 L Ed 1144, 61 S Ct 617.
In cases involving statute making it crime to possess certain types of printed, filmed, or recorded materials, such as 18 USCS @ 793 (d), making criminal otherwise lawful possession of materials which possessor has reason to believe could be used to injury of United States or to advantage of any foreign nation, compelling reasons may exist for overriding constitutional right of individual to possess those materials. Stanley v Georgia (1969) 394 US 557, 22 L Ed 2d 542, 89 S Ct 1243.
Phrase "relating to the national defense" in 18 USCS @ 793 is not unconstitutionally vague since phrase has well-understood connotation; @ 793 is not unconstitutionally vague for lack of scienter requirement in that subsection (f)(2) requires, knowledge of document's illegal abstraction, and certain injury to United States could be inferred from such conduct; @ 793 is not overbroad in violation of First and Fifth Amendments, and even assuming that it is, problem of overbreadth may be cured by limiting instruction of subsection (f); neither is statute unconstitutional as applied to defendant since, although defendant is neither in military nor government employee, statute applies to whomever is entrusted with or has lawful position or control of any document or writing. United States v Dedeyan (1978, CA4 Md) 584 F2d 36.
Term "relating to the national defense" in 18 USCS @ 793 was neither unconstitutionally overbroad nor vague as applied to naval intelligence employee who sold classified defense information to press, where judge narrowed sweep of statute by jury instructions defining "national defense," "willfully;" charging that government must prove that photos involved were potentially rather than actually damaging did not create vagueness problem; phrase "entitled to receive" was not vague, since phrase was limited and clarified by Classification Regulations, 18 USCS App. 1. United States v Morison (1988, CA4 Md) 844 F2d 1057, 15 Media L R 1369, 25 Fed Rules Evid Serv 647, reh den, en banc (1988, CA4) 1988 US App LEXIS 8299 and cert den (1988) 488 US 908, 102 L Ed 2d 247, 109 S Ct 259.
Term "relating to the national defense," found in 18 USCS @ 793 is not unconstitutionally vague for failing to give fair warning of what documents are covered. United States v Morison (1985, DC Md) 604 F Supp 655, 11 Media L R 1731, dismd without op (1985, CA4 Md) 774 F2d 1156.
Provisions of 18 USCS @ 793 do not unconstitutionally require sacrifice of Fifth Amendment right against self-incrimination, since individual would not incriminate himself by publicly returning document to proper official. United States v Morison (1985, DC Md) 604 F Supp 655, 11 Media L R 1731, dismd without op (1985, CA4 Md) 774 F2d 1156.

3. Construction
18 USCS @ 793 (d), which makes it criminal offense for anyone who has possession of documents or information relating to national defense to communicate same to any person not entitled to receive it, should be given broad interpretation, as it expresses public policy which must override rights of private litigants. Posen v United Aircraft Products, Inc. (1952) 201 Misc 260, 111 NYS2d 261.

4. Relation to other laws
With respect to delivery of instrument relating to national defense, there are sufficient differences between 18 USCS @ 793 and 18 USCS @ 794 to justify conclusion that legal bar to prosecution under 18 USCS @ 793 would not prevent prosecution under 18 USCS @ 794, although there may be question of res judicata as to particular facts; provisions of 18 USCS @ 793 closely correspond to those of 18 USCS @ 794, but penalty is different, since 18 USCS @ 793 carries maximum punishment extending only to imprisonment for term of 10 years, yet 18 USCS @ 794 authorizes death penalty, and court-martial has no jurisdiction over offense defined in general Federal Penal Code that authorizes death sentence. United States v Soblen (1962, CA2 NY) 301 F2d 236, cert den (1962) 370 US 944, 8 L Ed 2d 810, 82 S Ct 1585; United States v Coplon (1949, DC NY) 88 F Supp 910; United States v French (1959) 10 USCMA 171, 27 CMR 245; United States v Kirsch (1964) 15 USCMA 84, 35 CMR 56.
40 USCS @ 484, which provides for disposal of surplus government property was intended to protect purchasers against peril of failure on part of selling officers of government to take all preliminary steps required by statute to make property available for sale to public, and it could not have been intended to make it lawful, in face of 18 USCS @ 793, for one to hold onto national defense devices which he had purchased because of mistake on part of selling official. Dubin v United States (1961) 153 Ct Cl 550, 289 F2d 651.
18 USCS @ 3486 confers upon United States attorney, power, with approval of Attorney General, to apply, in case under 18 USCS @ 793 and other enumerated statutes, to "court of the United States", for order directing prospective witness to testify, and witness may not then assert privilege against self-incrimination, but he cannot be prosecuted for offenses to which his testimony may be linked. United States v Kirsch (1964) 15 USCMA 84, 35 CMR 56.

5. Duty and power of Congress
Congress has power and authority to break down into separate offenses various aspects of espionage activity and to make each separate aspect punishable as provided separately in 18 USCS @ 793 and 18 USCS @ 794. Boeckenhaupt v United States (1968, CA4 Va) 392 F2d 24, cert den (1968) 393 US 896, 21 L Ed 2d 177, 89 S Ct 162.

6. Power of states
War powers of Congress under federal Constitution do not exclude states from also enacting consistent statutes restraining their inhabitants from conduct, in time of war, tending to obstruct the federal government in raising military forces and prosecuting war criminals. Gilbert v Minnesota (1920) 254 US 325, 65 L Ed 287, 41 S Ct 125.

II. ELEMENTS OF CRIME

7. National defense, generally
Words "national defense" as used in Espionage Act refer to military and naval establishment of United States and related activities of national preparedness; Gorin v United States (1941) 312 US 19, 85 L Ed 488, 61 S Ct 429, reh den (1941) 312 US 713, 85 L Ed 1144, 61 S Ct 617.
For purposes of prosecution under Espionage Act ( 18 USCS @ 793) , "national defense" information need not be classified information under security criteria. United States v Safford (1967, US) 40 CMR 528.
For purposes of determining whether information and documents involved in espionage prosecution were "connected with national defense", quoted phrase was adequately defined by instructions stating that this term relates to military and naval establishments and related activities of national preparedness, and includes all matters directly and reasonably connected with defense of our nation, but does not include information which comes from sources lawfully accessible to anyone willing to take pains to find, to sift and collate it. United States v Harris (1967, US) 40 CMR 588.
Term "national defense" within meaning of 18 USCS @ 793 is not strictly limited to information concerning military establishment and military preparedness for defending territory of United States; national defense is generic concept of broad connotation. United States v Boyce (1979, CA9 Cal) 594 F2d 1246.
Words "national defense" as used in 18 USCS @ 793 do not limit reach of statute to purely military matters. United States v Truong Dinh Hung (1980, CA4 Va) 629 F2d 908, cert den (1982) 454 US 1144, 71 L Ed 2d 296, 102 S Ct 1004.
The term "relating to national defense" as used in 18 USCS @ 793 is broader than "United States defense information" as used in the general regulations issued under 10 USCS @ 934, and the dismissal of a specification asserting the violation of a general regulation limited to "United States defense information" does not require dismissal of charges of wilfully delivering a document "relating to national defense" to an unauthorized recipient. United States v Attardi (1971) 20 USCMA 548, 43 CMR 388.

8. --Property or information related to national defense
Information and documents involved in prosecutions in military courts under Espionage Act ( 18 USCS @ 793) need not be of type requiring classification under security criteria within defense establishment. United States v Harris (1967, US) 40 CMR 588.
Defendant's argument that trial court refused to grant defendant's motions for judgment of acquittal on ground that document in question in prosecution for violation of 18 USCS @ 793 was not properly classified according to relevant Executive Order and was lawfully available pursuant to Freedom of Information Act, and therefore not properly subject of criminal prosecution was without merit, since evidence shows that information contained in document abstracted was secret information related to national defense and Freedom of Information Act does not apply to matters required by Executive Order to be kept secret "in the interest of national defense". United States v Dedeyan (1978, CA4 Md) 584 F2d 36.
There is no requirement in either 18 USCS @ 793 nor @ 794 that documents involved be marked "Top Secret" or for that matter that they be marked secret at all; it is enough that they relate to national defense and that they are transmitted with intent to advantage foreign nation or injure United States. United States v Lee (1979, CA9 Cal) 589 F2d 980, 4 Fed Rules Evid Serv 326, cert den (1979) 444 US 969, 62 L Ed 2d 382, 100 S Ct 460.
Document relating to study commissioned by Central Intelligence Agency dealing with worldwide communication satellite system to be used by American agents "in denied areas" of world contained information relating to national defense within meaning of 18 USCS @ 793. United States v Boyce (1979, CA9 Cal) 594 F2d 1246, cert den (1979) 444 US 855, 62 L Ed 2d 73, 100 S Ct 112.
18 USCS @ 793 was not limited to conduct considered "classic spying," but extended to transmittal of national security secret materials by naval employee to military press, since clear meaning of statutes, buttressed by legislative history, supported this construction. United States v Morison (1988, CA4 Md) 844 F2d 1057, 15 Media L R 1369, 25 Fed Rules Evid Serv 647, reh den, en banc (1988, CA4) 1988 US App LEXIS 8299 and cert den (1988) 488 US 908, 102 L Ed 2d 247, 109 S Ct 259.
Radar receivers, dynamotor power unit, radar transmitter-receiver units and power supply units repossessed from plaintiff by navy department were "instruments" or "appliances" "relating to the national defense" within meaning of 18 USCS @ 793. Dubin v United States (1966) 176 Ct Cl 702, 363 F2d 938, cert den (1967) 386 US 956, 18 L Ed 2d 103, 87 S Ct 1019.
Material transmitted, copies of diplomatic cables and other classified papers procured from employee of United States Information Agency, related to "national defense" within meaning of 18 USCS @@ 793 and 794. United States v Truong Dinh Hung (7/17/80, CA4) 27 Cr L 2418.

9. "Lost" documents
Secret documents were "lost" within meaning of 18 USCS @ 793 (f)(1) not when airman negligently placed them in friend's desk pending return to duty station but when they were removed from desk by third party who found documents and turned them over to authorities. United States v Gonzalez (1983, CMA) 16 MJ 428.

10. Injury of United States or advantage of foreign nation
In prosecution for alleged violation of Espionage Act which explicitly describes crime as act of obtaining information relating to national defense to be used to advantage of any foreign nation, it is not necessary to prove that information obtained was to be used to injury of United States. Gorin v United States (1941) 312 US 19, 85 L Ed 488, 61 S Ct 429, reh den (1941) 312 US 713, 85 L Ed 1144, 61 S Ct 617.
In order to establish violation of 18 USCS @ 793 (b) it is essential to establish not only unauthorized seeking or gathering of national defense information, but also intent or reason to believe that information "is to be used" to injury of United States or to advantage of some foreign nation, thus, specifications substituting words "could be used" for statutory language were insufficient. United States v Perkins (1973, US) 47 CMR 259.
Convictions would be sustained on evidence that defendants entered military reservation in Canal Zone, giving false answers to inquiries of sentry as to their destination and their possession of camera, and took pictures of secret defenses which could be used to injury of United States and advantage of foreign nation. Schackow v Government of Canal Zone (1939, CA5 Canal Zone) 108 F2d 625.

11. Scienter
Prohibitions were not simple prohibitions against obtaining or delivering to foreign powers information which jury could have considered relating to national defense, but required those prosecuted to have acted in bad faith and sanctions applied only when scienter was established. Gorin v United States (1941) 312 US 19, 85 L Ed 488, 61 S Ct 429, reh den (1941) 312 US 713, 85 L Ed 1144, 61 S Ct 617.
Plaintiff, although lawfully in possession of radar equipment because of mistake of government employee, had no right to keep possession; but he was entitled to refund of his out-of-pocket expenditures for property purchased from government and subsequently surrendered to government when demanded on grounds that property related to national defense. Dubin v United States (1961) 153 Ct Cl 550, 289 F2d 651.
Corporation can form and manifest necessary specific intent to violate predecessor to 18 USCS @ 793. United States v American Socialist Soc. (1919, DC NY) 260 F 885, affd (1920, CA2 NY) 266 F 212, cert den (1920) 254 US 637, 65 L Ed 451, 41 S Ct 12.
Scienter, that is, intent or reason to believe that information to be obtained is to be used to injury of United States or to advantage of any foreign nation, is essential element under 18 USCS @ 793. United States v Enger (1978, DC NJ) 472 F Supp 490.

III. PARTIES

12. Who may commit crime
Word "whoever" includes corporations as well as human beings. United States v American Socialist Soc. (1919, DC NY) 260 F 885, affd (1920, CA2 NY) 266 F 212, cert den (1920) 254 US 637, 65 L Ed 451, 41 S Ct 12.
In prosecution for acts of espionage under 18 USCS @ 793, certification by Department of State that defendant did not enjoy diplomatic status was dispositive fact on issue of diplomatic status, since it is political question and matter of state. United States v Coplon (1950, DC NY) 88 F Supp 915.
Certificates from United States Department of State's Chief of Protocol, who was responsible for registering and maintaining records of State Department concerning official status of officers and employees of foreign governments in United States who were entitled to diplomatic immunity, conclusively established that defendants were not ministers within definition of 22 USCS @ 288, and, thus, entitled to protection in prosecution for violation of 18 USCS @ 793. United States v Enger (1978, DC NJ) 472 F Supp 490.

IV. PROSECUTION AND PUNISHMENT

13. Search and seizure
Defendants have standing to contest legality of search and seizure prior to prosecution for violation of 18 USCS @ 793, since indictment charged possession of photographic film of document and writing connected with national defense of United States provided defendant with sufficient interest in material, possession of which was ingredient of offense, to establish standing. United States v Enger (1978, DC NJ) 472 F Supp 490.

14. Jurisdiction
Court-martial had jurisdiction of offense in violation of 18 USCS @ 793 (c) which was charged under Article 134 of Uniform Code of Military Justice, as offense not capital, even though law officer instructed only on elements of civil offense and failed to instruct on conduct of nature to bring discredit on armed forces; offense described in 18 USCS @ 793 (c) could be charged as offense not capital without regard to whether it might also be charged as purely military offense, and instructions on military facet were therefore unnecessary, so that failure to give such instructions did not mean that court-martial was trying purely civil offense over which it had no jurisdiction. United States v Rhodes (1958, US) 28 CMR 427; United States v French (1959) 10 USCMA 171, 27 CMR 245.
Court-martial had jurisdiction to try accused on specification alleging espionage offense in violation of 18 USCS @ 793 (e), since unauthorized possession of classified military documents was involved. United States v Perkins (1973, US) 47 CMR 259.
Espionage Act (18 USCS @@ 792--99) applies to extraterritorial acts of espionage committed by citizens and noncitizens inasmuch as espionage is offense threatening national security of United States; thus court has jurisdiction over prosecution against East German citizen for alleged act of espionage committed in Mexico and German Democratic Republic. United States v Zehe (1985, DC Mass) 601 F Supp 196.
Offense of conspiracy to obtain and deliver to foreign agent instruments connected with national defense in violation of 18 USCS @ 793 is not capital offense, and is, consequently, subject to court-martial jurisdiction under Article 134 of Uniform Code of Military Justice. United States v Kirsch (1964) 15 USCMA 84, 35 CMR 56.
Although charge of conspiracy to violate 18 USCS @ 793 (c) and (g) is cognizable in federal courts, court-martial had jurisdiction to try accused on such charge where it appeared conspiracy contemplated delivery to foreign power of documents which, although not containing security classification, involved operation of military establishment and there was evidence that accused's military duties played major role in his participation in conspiracy and that military members of conspiracy were acquainted with each other from prior military assignments and that accused sought to recruit others from within Army who may be sources for obtaining classified information. United States v Harris (1969) 18 USCMA 596, 40 CMR 308.
Court-martial had jurisdiction to try accused on charges of permitting 2 classified messages to be lost through gross negligence, in violation of 18 USCS @ 793 (f), notwithstanding accused's discharge and subsequent reinlistment during time messages were out of Government's possession, since violation was continuing and lasted from one enlistment into next while messages were within constructive control of accused, who could have taken steps to safeguard them. United States v Gonzalez (1981, AFCMR) 12 MJ 747, affd (1983, CMA) 16 MJ 428.

15. Grand jury proceedings
Neither Senator nor his aide may be subpoenaed to answer grand jury questions concerning the introduction of the "Pentagon Papers" into the public record at a Congressional sub-committee meeting, except as to information relevant as to third party crime; however, they may be compelled to answer inquiries concerning alleged arrangements for private publication of the same classified documents, since such arrangements are potentially violative of 18 USCS @ 793. Gravel v United States (1972) 408 US 606, 33 L Ed 2d 583, 92 S Ct 2614, reh den (1972) 409 US 902, 34 L Ed 2d 165, 93 S Ct 98.
If a description of what the grand jury is investigating is required under 18 USCS @ 2514 in an application for immunity to be granted a witness, the requirement is fulfilled if the application states, for example, that "a duly constituted grand jury is presently inquiring into alleged violations of Ch. 37 of Title 18 of the US Code" and if the US Attorney advises the court at the time of the application that one of the crimes being investigated under Ch. 37 is 18 USCS @ 793. In re Russo (1971, CA9 Cal) 448 F2d 369.

16. Indictment
Absent request at trial for more particulars, specification alleging espionage offense in violation of @ 793(e) in substantially exact language of statute was sufficient although "person not entitled to receive classified documents" as was alleged, was not identified by name. United States v Perkins (1973, US) 47 CMR 259.
Trial court did not err in denying defendant's motion to strike words "classified 'Secret' " from indictment for violation of 18 USCS @ 793 since words were not surplusage in indictment and were relevant to charge, since they tended to show or make more probable that document does relate to national defense within meaning of @ 793(f). United States v Dedeyan (1978, CA4 Md) 584 F2d 36.
Indictment for violation of 18 USCS @ 793 which alleged that defendants conspired "to obtain information respecting the national defense of the United States, that is, photographs, photographic negatives, documents, and other writings connected with the national defense of the United States" and that they "for the purpose of obtaining information respecting the national defense of the United States, did knowingly and willfully obtain photographic film of a document and writing connected with the national defense of the United States," was sufficient; there was no need for indictment to allege that documents were of secret, nonpublic nature. United States v Enger (1978, DC NJ) 472 F Supp 490.
17. Pretrial discovery
Trial court properly denied defendant's discovery motions where in prosecution for violation of 18 USCS @@ 793 and 794 government introduced 8 of some 35 documents relating to project from which information was gathered and transmitted; defendant completely failed to show how documents given were inadequate to substantiate his theory that project involved did not relate to "national defense" as required by statutes and government had stipulated that defendant's representative would be permitted to view documents in offices of United States Attorney and defendant had full opportunity to cross-examination government witness who authorized project and testified that project related to "national defense". United States v Lee (1979, CA9 Cal) 589 F2d 980, 4 Fed Rules Evid Serv 326, cert den (1979) 444 US 969, 62 L Ed 2d 382, 100 S Ct 460.

18. Pleas
Plea of guilty of Espionage Act violations was not shown to be improvident by accused's testimony in extenuation and mitigation emphasizing that information involved was not classified, that he intended no injury to United States, and that his motive was to obtain funds to relieve financial pressures, where there was no attempt to deny that information concerned could be used to disadvantage of United States or to advantage of some foreign nation and trial defense counsel conceded that fact that information was not classified did not mean it was not national defense information. United States v Safford (1967, US) 40 CMR 528.

19. Evidence
Evidence of secret nature of documents is relevant to element of scienter in prosecution for violation of 18 USCS @ 793. United States v Enger (1978, DC NJ) 472 F Supp 490.

20. --Admissibility
Trial court did not improperly refuse to permit defendant's opinion testimony with respect to abuses of government's system of classification of information in prosecution for violation of 18 USCS @ 793; examination of record reveals that court was very lenient in allowing testimony on unreliability of classification system of government and such limitations as were imposed by court and its instructions to disregard evidence of unrelated specific instances of abuses were proper. United States v Dedeyan (1978, CA4 Md) 584 F2d 36.
Army intelligence officer who betrayed 5 double agents to Soviet Union in exchange for $11,000 may produce classified information to support his claim that he was directed by CIA officers to reveal that information to KGB officers, and even though such claim is inherently incredible, in that although CIA officers by necessity may reveal classified information in order to establish credibility of double agent, revelation of specific details of actual double agent operations is highly counterproductive, where inherent incredibility of story is irrelevant to admissibility of evidence, where story if believed can be defense to charge, and accuracy of alleged CIA officers' knowledge of intelligence operations is crucial to defendant's belief of their apparent authority and resultant negation of defendant's intent to injure United States. United States v Smith (1984, ED Va) 592 F Supp 424, 16 Fed Rules Evid Serv 10, affd (1984, CA4 Va) 750 F2d 1215, 16 Fed Rules Evid Serv 846, different results reached on reh, en banc (1985, CA4 Va) 780 F2d 1102, 19 Fed Rules Evid Serv 1.
Evidence of patriotism of defendant charged with willfully transmitting photographs relating to national defense to person not entitled to receive them and with willfully retaining documents and failing to deliver them on demand to officer or employee of United States entitled to receive them is inadmissible as irrelevant to issues raised. United States v Morison (1985, DC Md) 622 F Supp 1009.

21. --Sufficiency
Evidence was sufficient to sustain defendant's conviction for violation of 18 USCS @@ 793 and 794 where he was arrested by Mexican authorities in front of Russian Embassy in Mexico when he stuck his head through Embassy fence and discarded some "trash" from his pockets, at time of arrest pockets contained business envelope with strips of photographic negatives of documents marked "Top Secret", trial evidence shows that he and codefendant worked closely together in selling defense secrets to Russian agents and evidence was also introduced to show that he and codefendant were seen numerous times together where they worked together and had made many trips to Mexico, defendant always traveled under alias and returned from trips with large amounts of money, and witness testified that defendant had told her he was Russian spy who filmed top secret documents. United States v Lee (1979, CA9 Cal) 589 F2d 980, 4 Fed Rules Evid Serv 326, cert den (1979) 444 US 969, 62 L Ed 2d 382, 100 S Ct 460.
Evidence was sufficient to sustain defendant's conviction for violation of 18 USCS @@ 641, 793(e) and 794(a) where evidence established that defendant had been living in Greece at time in question, that defendant received large sum of money at that time, that he had access to classified material involved, and defendant admitted meeting with Soviet agent in Greece during which time he received sum of money. United States v Kampiles (1979, CA7 Ind) 609 F2d 1233, 5 Fed Rules Evid Serv 922, cert den (1980) 446 US 954, 64 L Ed 2d 812, 100 S Ct 2923.

22. Exclusion of public from trial
District court's refusal to instruct jury on multiple espionage conspiracies, if error, did not prejudice defendants, where evidence of single conspiracy was strong; district court properly instructed jury that closely-held information must be made available to public by government before it loses its status as national defense information. United States v Squillacote (2000, CA4 Va) 221 F3d 542.
Accused, charged with attempt to transmit classified material to persons not entitled to possession in violation of 18 USCS @ 793 (d), was entitled to have trial judge determine scope of exclusion of public from trial even where prosecution had met burden as to proof of nature of classified materials since it is error of constitutional magnitude to exclude public from all of given witness' testimony where less than whole is devoted to classified material. United States v Grunden (1977, CMA) 2 MJ 116.
Military judge properly exercised discretion in holding trial in secure location because of extremely sensitive nature of classified documents which accused was charged with losing, in requiring spectators to be escorted, and in excluding public from portions of trial when classified matters were discussed, since procedures established were reasonable and no person was barred who wished to attend. United States v Gonzalez (1981, AFCMR) 12 MJ 747, affd (1983, CMA) 16 MJ 428.

23. Questions of law
Whether information, obtaining and delivery of which to agent of foreign government is alleged to constitute violation, was connected with or related to national defense, is question of fact for determination of jury, under instruction that connection must be reasonable, direct, and natural. Gorin v United States (1941) 312 US 19, 85 L Ed 488, 61 S Ct 429, reh den (1941) 312 US 713, 85 L Ed 1144, 61 S Ct 617.
Accused, charged with attempt to transmit classified material to persons not entitled to possession in violation of 18 USCS @ 793 (d), was entitled to have jury resolve ultimate questions of whether such materials were related to national defense. United States v Grunden (1977, CMA) 2 MJ 116.

24. Defenses
Military intelligence employee could not seek protection under First Amendment, where he purloined secret information and sold it to press, since First Amendment did not confer license to violate valid criminal laws. United States v Morison (1988, CA4 Md) 844 F2d 1057, 15 Media L R 1369, 25 Fed Rules Evid Serv 647, reh den, en banc (1988, CA4) 1988 US App LEXIS 8299 and cert den (1988) 488 US 908, 102 L Ed 2d 247, 109 S Ct 259.

25. Instructions
Whether information, obtaining and delivery of which to agent of foreign government is alleged to constitute violation, was connected with or related to national defense, it is question of fact for determination of jury, under instruction that connection must be reasonable, direct, and natural. Gorin v United States (1941) 312 US 19, 85 L Ed 488, 61 S Ct 429, reh den (1941) 312 US 713, 85 L Ed 1144, 61 S Ct 617.
Trial court's charge in prosecution for violation of 18 USCS @ 793 properly left to jury issue of government document classification and its bearing, if any, upon whether documents abstracted related to national defense; court also properly read to jury parts of Executive Order by which classification of document involved was controlled and clearly and correctly-defined phrase "relating to national defense" as used in @ 793. United States v Dedeyan (1978, CA4 Md) 584 F2d 36.
Instructions were adequate in prosecution for violation of 18 USCS @@ 793 and 794 where trial court repeatedly explained what intent jury had to find in order to support guilty verdict under each of counts of indictment; defendant was not deprived of opportunity to present defense based on alleged Central Intelligence Agency employment or reasonable belief in such employment. United States v Lee (1979, CA9 Cal) 589 F2d 980, 4 Fed Rules Evid Serv 326, cert den (1979) 444 US 969, 62 L Ed 2d 382, 100 S Ct 460.
District court's refusal to instruct jury on multiple espionage conspiracies, if error, did not prejudice defendants, where evidence of single conspiracy was strong; district court properly instructed jury that closely-held information must be made available to public by government before it loses its status as national defense information. United States v Squillacote (2000, CA4 Va) 221 F3d 542.
Assuming all elements of offense under 18 USCS @ 793 (d) had to be found where that statute was basis for charge of wilfull delivery of document relating to national defense in violation of Article 134, Uniform Code of Military Justice (10 USCS @ 934), instructions making no reference to accused's knowledge that person to whom document was delivered was not authorized to receive it were sufficient where such instructions did require findings that accused lawfully had access to document which related to national defense, that he had reason to believe it could be used to injury of United States or to advantage of any foreign nation, and that he wilfully delivered copy to named person who was not authorized to receive it. United States v Attardi (1971) 20 USCMA 548, 43 CMR 388.

26. Judgment and sentence
Defendant was properly sentenced to consecutive sentences on each count where he was convicted by jury on counts 1 and 2 of 3-count indictment, where count 1 charged violation of 18 USCS @ 794(c) and count 2 charged violation of 18 USCS @ 793 (a). Boeckenhaupt v United States (1968, CA4 Va) 392 F2d 24, cert den (1968) 393 US 896, 21 L Ed 2d 177, 89 S Ct 162.
Charge that accused violated Navy regulation and that he conveyed to agents of foreign government certain documents containing information pertaining to Department of Defense which might be of possible assistance to foreign power is multiplicious for findings purposes with charge that accused violated @ 793(d), since to prove latter offense, government necessarily had to prove all essential ingredients of charged violation of regulation. United States v Crowell (1985, NMCMR) 21 MJ 760.