United States v. Ford

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4647

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH WAYNE FORD, JR.,

Defendant - Appellant.

No. 06-4388

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENNETH WAYNE FORD, JR.,

Defendant - Appellant.

Appeals from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge.
(8:05-cr-00098-PJM; 8:05-cr-00235-PJM)

Submitted: June 26, 2008 Decided: August 4, 2008

Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.

Spencer M. Hecht, Silver Spring, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, David I. Salem, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

In these consolidated appeals, Kenneth Wayne Ford

challenges the district court’s order dismissing the indictment

against him without prejudice, pursuant to the Federal Speedy Trial

Act of 1974, 18 U.S.C. §§ 3161-3174 (2000) (Appeal No. 05-4647),

and his subsequent conviction and 72-month sentence for

unauthorized possession of national defense information, in

violation of 18 U.S.C. § 793(e) (2000), and making a material false

statement to a government agency, in violation of 18 U.S.C. § 1001

(2000) (Appeal No. 06-4388). We affirm.

(I) Espionage Act conviction

Ford argues that § 793(e) does not criminalize the

retention, without transmittal, of classified material, despite the

plain meaning of the statute’s language, because this language

contravenes the intent expressed in its legislative history. Ford

contends that the legislative history of § 793(e) does not reveal

an intent to criminalize retention, without transmittal, of

classified material, and that the absence of a lesser statutory

maximum punishment for retention alone indicates that retention

without transmittal does not violate the statute.

We review issues of statutory construction de novo.

United States v. Childress, 104 F.3d 47, 50 (4th Cir. 1996).

Statutory language should be given its ordinary meaning “unless

there is ambiguity or unless the statute as literally read would

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contravene the unambiguously expressed legislative intent gleaned

from the statute’s legislative history.” United States v. Sheek,

990 F.2d 150, 152-53 (4th Cir. 1993) (citations omitted). Criminal

statutes “are to be strictly construed and should not be

interpreted to extend criminal liability beyond that which Congress

has plainly and unmistakably proscribed.” Id. at 153 (citations

and internal quotes omitted). Criminal liability may not be based

upon a statutory construction that would be unforeseeable to the

accused, and “ambiguities in criminal statutes must be resolved in

favor of lenity for the accused.” Id.

Section 793(e) reads:

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 . . . [s]hall be fined
under this title or imprisoned not more than ten years,
or both.

18 U.S.C. § 793(e), (f) (emphasis added). Ford concedes that the

plain language of § 793(e) criminalizes the unauthorized possession

and retention of classified information.

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 We addressed the plain meaning and legislative history of

sections 793(d) and (e) in United States v. Morison, 844 F.2d 1057

(4th Cir. 1988). The defendant in Morison appealed from his

convictions for unauthorized transmittal of classified information,

in violation of § 793(d), and retention of classified information

of which he had unauthorized possession, in violation of § 793(e),

as well as theft of government records, in violation of 18 U.S.C.A.

§ 641 (West 2000 & Supp. 2008). Id. at 1060. Morison argued he

should not have been convicted under §§ 793(d) and (e) because his

conduct involved transmittal of classified information to the

press, rather than to agents of a foreign government, and thus did

not fall within the scope of “classical spying” that Congress

intended to criminalize under the Espionage Act. Id. at 1063.

In rejecting Morison’s argument, we stated, “[i]t is

difficult to conceive of any language more definite and clear” than

§ 793(d)’s prohibition against transmittal of classified

information to any unauthorized recipients and § 793(e)’s

prohibition against retention of classified information pursuant to

unauthorized possession. Id. We held that the plain meaning of

§§ 793(d) and (e), as applied in Morison’s case, did not present

any exceptional circumstance that would justify departing from

literal statutory construction based upon the statute’s legislative

history. Id. at 1064.

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 We were “convinced . . . that the legislative history

[did] not support the defendant’s construction of sections 793(d)

and (e).” Id. We primarily considered the legislative history of

the Espionage Act of 1917, which included § 793(d) but not

§ 793(e), added in the 1950 revision, but noted that “the same

general considerations will apply to (e) since it was intended to

supplement (d) by criminalizing retention.” Id. at 1065 n.9. We

concluded that “[i]t seems abundantly clear from [their]

legislative history that sections 793(d) and (e) were not intended

to be restricted in application to classic spying but were intended

to criminalize the disclosure to anyone not entitled to receive

it.” Id. at 1066 (internal quotes omitted).

The legislative history of § 793(e) shows no

Congressional intent to criminalize transmittal, but not retention,

of classified information by unauthorized possessors. On the

contrary, the Senate Report preceding the statute’s enactment

states:

Existing law provides no penalty for the
unauthorized possession of such items unless a demand for
them is made by the person entitled to receive them. The
dangers surrounding the unauthorized possession of the
items enumerated in this statute are self-evident, and it
is deemed advisable to require their surrender in such a
case, regardless of demand, especially since their
unauthorized possession may be unknown to the authorities
who would otherwise make the demand.

S. Rep. No. 80-427, at 7 (1949). Ford identifies no portion of the

legislative history that contradicts the Senate Report’s indication

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that Congress intended to criminalize unauthorized possession and

retention of classified information, within the plain meaning of

§ 793(e). We reject Ford’s argument that Congress’ failure to

provide a lesser maximum statutory penalty than that provided for

transmittal evidences its intent not to criminalize retention. As

discussed further below, the statute provides only a maximum

penalty, not a minimum, and the specifics of the offense conduct

may properly be addressed at the sentencing phase, as they were in

this case. Accordingly, we hold that the district court did not

err in convicting Ford under § 793(e) for retention of classified

information that he was not authorized to possess.

(II) Speedy Trial Act

Ford presents two arguments under the Speedy Trial Act.

First, he asserts that the district court erred in its computation

of excludable time between his arrest and the filing of the

indictment. He contends that he was presented with a criminal

complaint on January 12, 2004, but was not indicted until March 7,

2005, and that the Government’s delay was not based upon any

recognized exception to the Speedy Trial Act’s 30-day rule. He

argues that the district court erred in finding excludable as “plea

negotiations” the portion of the delay during which the Government

sought security clearances for Ford’s attorneys and authorization

from the Department of Justice (“DOJ”) to proceed with the

prosecution.

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 The Federal Speedy Trial Act of 1974, 18 U.S.C. §§ 3161

- 3174 (2000), requires that an indictment be filed within thirty

days of the defendant’s arrest. 18 U.S.C. § 3161(b) (2000).

Certain delays “resulting from other proceedings concerning the

defendant” are excludable when computing the time within which a

defendant must be indicted. 18 U.S.C. § 3161(h). Specifically,

delays resulting from plea negotiations, and pretrial motions, from

the time of their filing through their disposition, are excludable.

18 U.S.C. § 3161(h)(1)(F); see United States v. Bowers, 834 F.2d

607, 610 (6th Cir. 1987); United States v. Montoya, 827 F.2d 143,

150 (7th Cir. 1987). A defendant may not prospectively waive his

statutory right to a speedy trial. Zedner v. United States, 547

U.S. 489, 500-03 (2006). We review de novo a district court’s

interpretation of the Speedy Trial Act, and review the court’s

related factual findings for clear error. United States v. Bush,

404 F.3d 263, 272 (4th Cir. 2005).

Here, the Government presented its criminal complaint

against Ford to the district court on January 12, 2004, but did not

initially indict him until March 7, 2005 - 419 days later. Ford

concedes that sixty-five days were properly excluded for

disposition of his pretrial motions, but contends that the district

court should have excluded only eighteen days for plea negotiations

and other proceedings.

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 We hold that the district court did not err, as a matter

of law, by excluding as time spent on plea negotiations the time

necessary for Ford’s attorneys to obtain security clearances.

Although Ford’s January 22, 2004, letter indicating that he wished

to discuss resolution of the charges against him did not waive his

rights under the Speedy Trial Act, the district court did not

clearly err in finding that the letter expressed Ford’s intent to

pursue plea negotiations, and that obtaining security clearances

for Ford’s attorneys was a necessary prerequisite to conducting the

negotiations. Ford could not reasonably have expected his attorney

to advise him concerning the Government’s plea offer without having

reviewed the evidence against him, which first required obtaining

a security clearance.

Despite the district court’s proper exclusion of these

periods, the court found that a violation of the Act occurred, and

dismissed the indictment without prejudice. Ford’s second argument

is that the district court erred in failing to dismiss with

prejudice. We review a district court’s decision to dismiss an

indictment for noncompliance with the Speedy Trial Act with or

without prejudice for abuse of discretion. United States v. Jones,

887 F.2d 492, 494 (4th Cir. 1989). Neither type of dismissal is

“the presumptive remedy for a Speedy Trial Act violation.” United

States v. Taylor, 487 U.S. 326, 334 (1988). Section 3162(a)(1)

lists the specific factors that a court must consider when deciding

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whether to dismiss a case with or without prejudice due to a Speedy

Trial violation: “the seriousness of the offense; the facts and

circumstances of the case which led to the dismissal; and the

impact of a reprosecution on the administration of this chapter and

on the administration of justice.” “[A] district court must

carefully consider those factors as applied to the particular case

and, whatever its decision, clearly articulate their effect in

order to permit meaningful appellate review.” Taylor, 487 U.S. at

336. The Supreme Court has held that “the presence or absence of

prejudice to the defendant” is also “relevant for a district

court’s consideration.” Id. at 334. “[W]hen the statutory factors

are properly considered, and supporting factual findings are not

clearly in error, the district court’s judgment of how opposing

considerations balance should not lightly be disturbed.” Id. at

337. However, when a district court “has ignored or slighted a

factor that Congress has deemed pertinent to the choice of remedy,”

it has abused its discretion under the limits of the Speedy Trial

Act. Id.

Here, the district court found that Ford’s alleged

offense was serious, and that the parties had conceded its

seriousness, although Ford disputes this finding on appeal.

Regarding the prejudice to Ford from the delay, the court found

“that it has been problematic and difficult for the defendant in

terms of his seeking and maintaining employment.” The court found

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the facts and circumstances leading to dismissal to be the

dispositive factor, because the Government exceeded the statutory

thirty-day limit by “only a few days” based upon plausible

arguments for exclusion of further time. The district court did

not specifically address the impact of reprosecution on the

administration of the Speedy Trial Act and the administration of

justice.

We find that the district court did not abuse its

discretion in dismissing the indictment without prejudice. The

statutory factors support the district court’s decision. Ford’s

alleged offense conduct constituted a serious violation of the

Espionage Act. The facts and circumstances leading to dismissal

consisted of the Government’s delay in indicting Ford for over a

month beyond the statutory limit while it sought approval for

prosecution from the DOJ. Although the amount of time by which the

Government exceeded the statutory limit was modestly greater than

the district court acknowledged, the Government had an arguable

basis for its belief that the time during which it sought DOJ

approval was excludable. Furthermore, the periods that were

excluded by the district court resulted from the need for Ford’s

attorneys to get security clearances and from their scheduling

conflicts, rather than from any affirmative delay by the

Government.

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 The final factor is the impact of reprosecution on the

administration of the Speedy Trial Act and the administration of

justice. While reprosecution might harm the administration of the

Speedy Trial Act by failing to adequately penalize the Government

for its delay in bringing the indictment, it favors the

administration of justice by ensuring that Ford does not escape

prosecution for a serious offense. Finally, although Ford was

prejudiced by the delay because he was unable to work in his field

of expertise while the charges were pending, he may have

permanently lost any chance of working in that field as a result of

the charges and the circumstances surrounding them. Accordingly,

on balance, the statutory factors support the district court’s

decision to dismiss the indictment without prejudice; the court,

therefore, did not abuse its discretion.

(III) Sentence

Ford argues that the district court committed three

errors in sentencing him to 72 months’ imprisonment on Count 1 and

36 months’ concurrent imprisonment on Count 2. First, Ford

contends that the district court erred in enhancing his offense

level by two levels for abuse of public trust, based upon U.S.

Sentencing Guidelines Manual (“U.S.S.G.”) § 3B1.3 (2005). He

argues that his conduct does not justify this enhancement and that

the offense characteristics of § 793(e) already incorporate an

abuse of trust enhancement. Second, Ford argues that his 72-month

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sentence for Count 1 is substantively unreasonable because the

district court overemphasized the nature and seriousness of his

offense conduct and created an unwarranted sentencing disparity

between Ford and similarly-situated defendants. Third, Ford argues

that his 36-month sentence for Count 2 is unreasonable because the

district court incorrectly calculated the Guidelines range for

Count 2 and sentenced Ford above the correct Guidelines range

without stating any reasons for the alleged variance.

A. Abuse of Public Trust Enhancement

Following United States v. Booker, 543 U.S. 220 (2005),

a district court must engage in a multi-step process at sentencing.

First, it must calculate the appropriate advisory Guidelines range.

It must then consider the resulting range in conjunction with the

factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp.

2008), and determine an appropriate sentence. United States v.

Davenport, 445 F.3d 366, 370 (4th Cir. 2006)(overruled in part on

other grounds by Irizarry v. United States, 128 S. Ct. 2198,

2201-02 (2008). The appellate court reviews the sentence for abuse

of discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007).

The appellate court must first ensure that the district court

committed no procedural error, such as “failing to calculate (or

improperly calculating) the Guidelines range, treating the

Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing

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to adequately explain the chosen sentence--including an explanation

for any deviation from the Guidelines range.” Id.

We review de novo a district court’s legal interpretation

of whether a defendant abused a position of trust under U.S.S.G.

§ 3B1.3, and review its factual findings for clear error. United

States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir. 2005). Section

3B1.3 provides:

If the defendant abused a position of public or
private trust, or used a special skill, in a manner that
significantly facilitated the commission or concealment
of the offense, increase by 2 levels. This adjustment
may not be employed if an abuse of trust or skill is
included in the base offense level or specific offense
characteristic.

An adjustment under § 3B1.3 is warranted “if the district court

determines that [the defendant] abused a position of trust and that

abuse significantly contributed to the commission or concealment of

the crime.” Ebersole, 411 F.3d at 536 (internal quotation marks

and citations omitted).

“The sometimes difficult inquiry into what constitutes a

‘position of trust’ is guided to some extent by the commentary to

§ 3B1.3 . . . . ” Id.

“Public or private trust” refers to a position of public
or private trust characterized by professional or
managerial discretion (i.e., substantial discretionary
judgment that is ordinarily given considerable
deference). Persons holding such positions ordinarily
are subject to significantly less supervision than
employees whose responsibilities are primarily non-
discretionary in nature. For this adjustment to apply,
the position of public or private trust must have
contributed in some significant way to facilitating the

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 commission or concealment of the offense (e.g., by making
the detection of the offense or the defendant’s
responsibility for the offense more difficult).

U.S.S.G. § 3B1.3 cmt. n.1. Notwithstanding Application Note 1, the

adjustment applies to “[a]n employee of the United States Postal

Service who engages in the theft or destruction of undelivered

United States mail.” Id. at cmt. n.2(A).

We have identified several factors that a district court

should consider in determining whether a defendant held a position

of trust:

First, courts ask whether the defendant had special
duties or “special access to information not available to
other employees.” Second, the defendant’s level of
supervision or “degree of managerial discretion” is
relevant. Bank tellers who embezzle from their employers
provide an example of a situation where there is little
trust to abuse because the employees are closely
supervised, and it is expected that wrongs they commit
will be readily detected. Third, the analysis also
entails an examination of “the acts committed to
determine whether this defendant is ‘more culpable’ than
others who hold similar positions and who may commit
crimes.”

United States v. Glymph, 96 F.3d 722, 727 (4th Cir. 1996) (citation

omitted). “It is certainly also important to inquire into the

level of harm occasioned by the breach of trust.” United States v.

Pitts, 176 F.3d 239, 246 (4th Cir. 1999).

Here, the district court did not err in enhancing Ford’s

sentence pursuant to U.S.S.G. § 3B1.3. As an initial matter,

although the court stated that it would “revisit” the issue of the

abuse of trust enhancement when it determined Ford’s sentence

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pursuant to § 3553(a), the district court was required to properly

calculate the advisory Guidelines range before moving on to

determine Ford’s ultimate sentence. The district court did not

commit clear error in finding that Ford held a position of public

trust. Ford held a top secret security clearance as an employee of

the National Security Agency and he was able to remove classified

documents from his office without detection by his supervisors.

Ford’s actions exposed classified information to discovery by a

person without a security clearance and created a potential for

serious harm to our nation’s security.

The district court also did not err in finding that Ford’s

advisory Guidelines sentence should be enhanced because his abuse

of his position of public trust contributed significantly to his

commission of the offense. Ford simply would not have been able to

commit the offense of retaining classified documents without

permission if he had not held a top secret security clearance as an

employee of NSA.

B. Reasonableness of Sentence on Count 1

In determining a reasonable sentence pursuant to § 3553(a),

one of the factors the sentencing court must consider is “the need

to avoid unwarranted sentence disparities among defendants with

similar records who have been found guilty of similar conduct. . .”

18 U.S.C.A. § 3553(a)(6). Following the Supreme Court’s decision

in Booker, “it is unquestioned that uniformity remains an important

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goal of sentencing.” Kimbrough v. United States, 128 S. Ct. 558,

573 (2007). However, the Supreme Court has “recognized that some

departures from uniformity were a necessary cost” of the advisory

Guidelines remedy adopted in Booker. Id. at 574.

The district court did not abuse its discretion in sentencing

Ford to 72 months’ imprisonment, a sentence below the advisory

Guidelines range of 108 to 135 months’ imprisonment. The court

properly considered the advisory Guidelines range and the factors

in § 3553(a), including the seriousness of Ford’s offense and the

need to avoid the unwarranted sentencing disparity that might

result from sentencing Ford, who was convicted only of retaining

classified information that he was not authorized to possess, at

the same level as defendants who are convicted of transmitting

classified information to unauthorized recipients.

C. Calculation of Guidelines Sentence on Count 2

We briefly address Ford’s other claim that the district

court procedurally erred in calculating his sentence. Pursuant to

U.S.S.G. § 3D1.4, “[t]he combined offense level is determined by

taking the offense level applicable to the [Count] with the highest

offense level and increasing that offense level” based upon the

seriousness of the other Counts. A Count that is nine or more

levels less serious than the Count with the highest offense level

is disregarded for the purpose of computing the combined offense

level, “but may provide a reason for sentencing at the higher end

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of the sentencing range for the applicable offense level.”

U.S.S.G. § 3D1.4(c). Here, the district court correctly assigned

the offense level applicable to Count One and did not increase the

combined offense level based upon Count Two. Accordingly, the

district court did not commit a procedural error.

Accordingly, we affirm the district court’s dismissal

without prejudice of the original indictment against Ford, and

Ford’s subsequent conviction and sentence. We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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