PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4297
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
JEFFREY ALEXANDER STERLING,
Defendant − Appellant.
Appeal 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)
Argued: December 6, 2016 Decided: June 22, 2017
Before GREGORY, Chief Judge, and TRAXLER and DIAZ, Circuit Judges.
Affirmed in part and vacated in part by published opinion. Judge Diaz wrote the majority
opinion, in which Chief Judge Gregory joined. Judge Traxler wrote an opinion
concurring in part and dissenting in part.
ARGUED: William James Trunk, ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER, LLP, Washington, D.C., for Appellant. Eric Gary Olshan,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON
BRIEF: Lawrence S. Robbins, ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER, LLP, Washington, D.C., for Appellant. Leslie 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.
2
DIAZ, Circuit Judge:
Jeffrey 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.
We hold 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.
3
I.
A.
Sterling 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 headquarters.
In the 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.
4
B.
In 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.
The 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.
After 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.
5
C.
In 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).
The 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.
Sterling 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
6
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 residence.
At the 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.
After 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.
This appeal followed.
II.
We first address Sterling’s challenges to venue, including his objection to the
district court’s instructions on the issue. Proper venue is a requirement stemming from
the Constitution, which grants criminal defendants the right to a trial in the state where
the crime was committed. U.S. Const. art. III, § 2, cl. 3. Venue must lie as to each count
charged in an indictment. United States v. Engle, 676 F.3d 405, 413 (4th Cir. 2012).
When a criminal statute does not contain a venue provision, we must examine the
criminal offense and the location of the acts constituting it. United States v. Smith, 452
F.3d 323, 334 (4th Cir. 2006). Venue is “proper only in a district in which an essential
7
conduct element of the offense took place.” Id. at 334–35 (quoting United States v.
Villarini, 238 F.3d 530, 533‒34 (4th Cir. 2001)).
Determining where proper venue lies is therefore a two-step process. First, we
must “identify the conduct constituting the offense.” Id. In determining the offense’s
“essential conduct” elements, courts may start by analyzing the key “verbs” or actions
sanctioned by the statute, though this is not the sole consideration. United States v.
Rodriguez-Moreno, 526 U.S. 275, 279‒80 (1999). Second, we must determine where
“the criminal conduct was committed.” Smith, 452 F.3d at 334–35. If essential criminal
conduct takes place in more than one district, the government may prosecute those
offenses “in any district in which such offense was begun, continued, or completed.” 18
U.S.C. § 3237(a). Acts which are merely “preparatory” to the underlying offense and its
essential conduct, however, cannot provide a basis for venue. See United States v.
Ramirez, 420 F.3d 134, 144 (2d Cir. 2005) (finding that for purposes of mail fraud, venue
lies where an individual actually misuses the mails, and not where an individual only
devises a scheme to defraud).
We review de novo whether there was sufficient evidence to support a jury’s
finding of venue. United States v. Burns, 990 F.2d 1426, 1431, 1436‒37 (4th Cir. 1993).
We will uphold the jury’s finding if, viewing the evidence in the light most favorable to
the government, any rational trier of fact could have found venue by a preponderance of
the evidence. Id. at 1437. Importantly, while circumstantial evidence can support a
finding of proper venue, a jury’s inferences “must be supported by some evidence in the
record as a whole.” United States v. Strain, 396 F.3d 689, 695 (5th Cir. 2005).
8
A.
We begin by examining Counts I, II, and IX, which charged Sterling with willfully
causing the disclosure and conveyance of classified information, including a letter used in
the classified program, to the public. The government advances two theories for why
venue was proper as to these counts: first, because Sterling disclosed information to
Risen regarding the program while in the Eastern District of Virginia; and second,
because the book Risen ultimately published was distributed in Virginia. We accept the
government’s first theory and therefore do not address its second, more expansive, theory
of venue.
The government presented evidence of numerous phone calls in February and
March 2003, between Sterling’s home in Virginia and Risen’s home in Maryland. These
phone calls occurred right before Risen notified the CIA that he had learned about the
program from confidential sources and was planning to write an article about its
classified operations. Furthermore, all of these calls were made nearly a year after Risen
wrote an article about Sterling’s discrimination lawsuit.
That circumstantial evidence, viewed in the light most favorable to the
government, could have led a rational jury to infer that Sterling discussed some classified
information with Risen during these calls—the longest of which was 91 seconds—or
encouraged Risen to publish the information. Thus, a jury could find that, more likely
than not, Sterling helped “cause” dissemination of the information to the public through
phone communications from his home in the Eastern District of Virginia, making venue
proper for Counts I, II, and IX.
9
As for Count IV, relating to the improper transmission of classified information to
Risen, the same evidence supports finding proper venue. Viewing this evidence in a light
most favorable to the government, a rational jury could have found that Sterling passed
along at least some classified information about the program to Risen, who then
approached the CIA shortly afterwards. Such an inference supports venue because the
transmission of the information, an essential conduct element of the statute, would have
occurred in the Eastern District of Virginia.
Sterling resists this conclusion, relying on Strain, 396 F.3d at 689. In that case, a
defendant in Texas communicated by telephone with her fugitive husband in New
Mexico. Id. at 691. During the defendant’s subsequent trial for harboring or concealing
a fugitive, which took place in the Western District of Texas, the government presented
evidence of the phone call and the defendant was ultimately convicted. Id. at 692–93.
The Fifth Circuit reversed on venue grounds. While the evidence at trial showed
that during the phone call, the defendant made plans to meet with her husband in New
Mexico, it did not show that she actually warned her husband to stay away from law
enforcement. Id. at 695. Without any direct or circumstantial evidence that the
defendant concealed her fugitive husband while she was in Texas, venue was therefore
improper in the Western District. Id. Here by contrast, sufficient circumstantial evidence
exists for the jury to infer that Sterling and Risen, more likely than not, discussed
classified information or its potential publication during their numerous communications
in February and March 2003.
10
We next turn to Counts VI and VII, which are attempt counts and thus proscribe
substantial steps taken by the defendant toward completion of his criminal goal. United
States v. Pratt, 351 F.3d 131, 135–36 (4th Cir. 2003). As such, venue is proper anywhere
Sterling committed a substantial step toward communicating, delivering, and transmitting
information about the Program to the general public.
At trial, the government argued that Sterling gave Risen classified information to
be published in the New York Times, but that intervention by top government officials
prevented its publication. The government also presented evidence that Sterling called
Risen multiple times during this period and sent him an email drawing attention to the
Iran nuclear program, all from his home in Virginia. Based on this evidence, a rational
jury could have inferred that Sterling tried to convince Risen to publish the information,
and since those communications originated in Virginia, also find that venue was proper.
Sterling argues that the government did not request a “substantial step” jury
instruction for the attempt counts, and thus, a jury could not convict him based only on
substantial steps taken in Virginia. Appellant’s Reply Br. at 7. But while such a jury
instruction might be necessary to convict Sterling solely on these steps, it was not
necessary for the jury to find proper venue. A jury could still find that the crime of
attempt was at least “begun” or “continued” in the Eastern District of Virginia based on
some of the steps Sterling took while in the district, such as when he followed up with
Risen about the program during one of their phone calls. See Smith, 452 F.3d at 334
(finding that venue may be proper even if “the gravamen of the wrongdoing took place
elsewhere”).
11
Next we analyze Count III, which charged Sterling with improper retention of
classified information (in this case, a letter used in the program), in violation of 18 U.S.C.
§ 793(e). As to this offense, the Russian scientist testified that he gave Sterling a copy of
the program letter in 2000. Sterling lost access to classified materials after he was fired
in early 2002 (when he was working and living in Virginia), and Risen first notified
authorities that he had seen the letter in April 2003. Finally, the government introduced
evidence that in 2006, Sterling had stored other classified documents in his Missouri
home, after he moved in mid-2003. On this evidence, a jury could therefore reasonably
infer that after Sterling left the CIA in 2002, he unlawfully retained the program letter in
his home—which was then in the Eastern District of Virginia.
Sterling relies on United States v. Evans, 318 F.3d 1011 (10th Cir. 2003), to
dispute the government’s “venue-by-vicinity” theory. Appellant’s Reply Br. at 8. In
Evans, the government presented evidence of methamphetamine manufacturing at the
defendant’s trailer, but failed to present any actual evidence of where that trailer was
located. 318 F.3d at 1021. In this case, however, government officials proved
conclusively that Sterling’s home and the CIA office where he worked before his
termination were both in the Eastern District of Virginia. The only inference required
was for the jury to believe that Sterling improperly retained the program letter after his
2002 termination, before giving it to Risen by spring 2003. That inference, in turn,
supports the conclusion that venue was proper in the Eastern District of Virginia by a
preponderance of the evidence.
12
Finally, we turn to Count V, which relates to Sterling’s unlawful delivery or
transmission of the program letter to Risen, in violation of 18 U.S.C. § 793(e). Because
both sides agree that Sterling provided Risen with a paper copy of the letter, evidence of
phone and email communications alone cannot support proper venue for Count V. The
government concedes that it did not present direct evidence at trial of how or where this
physical transmission took place. Appellee’s Br. at 27. Sterling says that without such
evidence, the jury could only speculate that the transmission occurred or began in the
Eastern District of Virginia. We agree.
We begin by identifying the essential conduct elements of § 793(e), which
sanctions, among other things, anyone who “willfully communicates, delivers, transmits”
or causes or attempts any such transmission of national defense information “to any
person not entitled to receive it.” Id. § 793(e) (emphasis added). 1 Critically, these
essential conduct elements—“communicates, delivers, transmits”—do not necessarily
encompass every movement of national defense information. Instead, the terms sanction
1
We have examined § 793(e)’s conduct elements for venue purposes before. In
United States v. Truong Dinh Hung, a defendant objected to his conviction under
§ 793(e) on venue grounds, arguing that he should have been tried in the District of
Columbia, where he initially received the sensitive documents. 629 F.2d 908, 919 n.11
(4th Cir. 1980). We found that even though the defendant received “the documents in the
District of Columbia, [he] passed them to [a colleague] in Alexandria, Virginia. Since
[that colleague] was the means by which the documents were carried to [foreign
government agents], the proscribed act, the act of transmission, took place in
Alexandria.” Id. We did not have occasion to consider there whether venue was also
proper in the District of Columbia.
13
movement of such information as part of a process designed to give it to another 2—in this
case to “any person not entitled to receive it.” Id.
Thus, to find proper venue for Count V, a jury needed to determine that “an
essential conduct element” of § 793(e)—here, communication, delivery, or
transmission—occurred in the Eastern District of Virginia. If this essential conduct
continued across state or district lines, 18 U.S.C. § 3237(a) also makes venue proper “in
any district in which” communication, delivery, or transmission of the Program letter
“was begun, continued, or completed.”
Because the government presented no evidence about where Risen actually
received the letter, both parties focus on where the transmission began. The government
asserts that because Sterling kept the classified program letter in his Virginia home, the
process of communicating, delivering, or transmitting the letter’s contents to Risen likely
began within the Eastern District of Virginia.
However, we are not “aware of . . . any rule of law that establishes such a
presumption.” Evans, 318 F.3d at 1022. Nor do we find any “evidentiary hook to which
the jury might attach the [suggested] inference.” Strain, 396 F.3d at 695. The mere fact
that Sterling kept the letter in his Virginia home does not, by itself, mean that the process
of transmission, delivery, or communication to Risen began there. The government
offered no evidence showing how Sterling transmitted or delivered the letter to Risen,
2
See Random House Webster’s Unabridged Dictionary 414, 528, 2011 (2d ed.
2001) (defining “communicate” as “to impart knowledge of” and “to give to another”;
defining “deliver” as “to carry and turn over . . . to the intended recipient or recipients”;
and defining “transmit” as “to send or forward, as to a recipient or destination”).
14
including the procedure and location of any transfer. Thus, the jury could only speculate
that Sterling moved the letter from Virginia as part of his plan to transmit and deliver it to
Risen, and that all of these actions were part of a continuous offense driven “by a single
impulse and operated by an unintermittent force.” Id. at 697 (quoting United States v.
Asibor, 109 F.3d 1023, 1031 (5th Cir. 1997)).
The government’s approach to proving venue for Count III, which charged
Sterling with unlawful retention of the letter, provides a useful contrast. For that count,
the government also had no direct evidence that Sterling committed an essential conduct
element in the Eastern District of Virginia. As we discuss later, however, the government
offered evidence suggesting that Sterling stored CIA documents in his residence. This
allowed the jury to infer that if Sterling unlawfully retained the program letter in 2002, he
did so at his residence, which in 2002 was in the Eastern District of Virginia.
No such evidence was offered for Count V, leaving the jury to speculate about
how and where the letter was transmitted. If, for example, the government had offered
evidence showing how Sterling transmitted classified information in the past, a jury
might have been able to infer that a similar method was used to transmit the letter to
Risen. That, in turn, might have provided a basis for the jury to determine whether the
process of communication, delivery, or transmission began in the Eastern District of
Virginia, thus supporting venue. Absent such evidence, we agree with Sterling that the
government failed to shoulder its burden as to venue with respect to Count V.
15
B.
We next turn to the district court’s jury instructions on venue. The district court
instructed the jury that the government needed to establish venue for each offense
because “a defendant has a right to be tried in the district where the offense was
committed.” J.A. 2319. Over Sterling’s objection, the court went on to instruct the jury
it needed to find that it was “more likely than not that at least one act in furtherance of
that offense occurred in the Eastern District of Virginia.” J.A. 2319 (emphasis added). 3
During the second day of deliberations, the jury asked (for purposes of Count III)
whether there was any significance to the statute’s not requiring Sterling to actually
possess the classified program letter in his residence. The district court, with Sterling’s
approval, instructed the jury it needed to find that “willful retention” of the letter
“occurred in the Eastern District of Virginia by a preponderance of the evidence” in order
to find proper venue. J.A. 2372. The Court also instructed the jury that this explanation
was consistent with its previous instructions on venue.
Both the government and Sterling agree that mere “preparatory acts” cannot
support a finding of proper venue. They dispute, however, whether the district court’s
jury instruction erroneously allowed the jury to find proper venue based on a finding that
any preparatory act occurred in the Eastern District of Virginia. We agree with Sterling
3
In United States v. Ebersole, we approved of a similar “act in furtherance” venue
instruction for the continuing offense of wire fraud. 411 F.3d 517, 525, 531–33 (4th Cir.
2005). Essential conduct elements, and not preparatory actions, remain the focus of
venue analysis, but 18 U.S.C. § 3237(a) allows venue to be proper in more than one
district, when such essential conduct occurs in multiple districts. Id. at 531.
16
that the court’s initial instruction was ambiguous about whether the jury could find venue
based on the location of preparatory acts rather than essential conduct elements.
The court, however, coupled the “act in furtherance” instruction with an earlier
statement to the jury that the defendant must be tried “where the offense was committed.”
J.A. 2319. This appropriately conveyed to the jury how to determine venue for crimes
like unauthorized dissemination and retention of classified information. Similar to fraud,
the essential conduct elements for these crimes can occur in multiple districts.
Furthermore, the district court’s supplemental instruction for Count III helped dispel any
ambiguity, by clarifying that “willful retention” (and not just mere preparation for such
retention) needed to occur in the Eastern District of Virginia for the jury to find proper
venue. 4 With this additional guidance, the district court adequately prevented the jury
from finding venue based on the situs of preparatory acts. Therefore, we find no
reversible error in the court’s jury instructions on venue.
III.
Sterling next challenges his conviction for obstruction of justice under 18 U.S.C.
§ 1512(c)(1), arguing that the evidence was insufficient for the jury to find him guilty of
the offense. A defendant challenging the sufficiency of the evidence “bears a heavy
4
Sterling relies on the First Circuit’s decision in United States v. Georgacarakos,
988 F.2d 1289, 1294 (1st Cir. 1993), where the court held that a similar “act in
furtherance” venue instruction was erroneous because it encouraged finding venue based
on preparatory acts. The jury instructions in that case, however, do not appear to have
included a background statement about the need to try the defendant “where the act was
committed,” nor did the district court there later clarify any ambiguity.
17
burden.” United States v. Wilson, 503 F.3d 195, 197 (2d Cir. 2007). As to this issue, we
“view the evidence in the light most favorable to the government” and will affirm the
verdict “if any rational trier of fact could have found the essential elements of the crime
charged beyond a reasonable doubt.” United States v. Barefoot, 754 F.3d 226, 233 (4th
Cir. 2014).
To secure a conviction under § 1512(c)(1) in this case, the government needed to
prove that the defendant knowingly and “corruptly” altered or destroyed a document or
object with the intent to impair that document or object’s use in an official proceeding or
investigation. Id. The government alleged that Sterling, after receiving a subpoena in
June 2006, deleted an email he had sent to Risen in March 2003. The email provided a
link to a CNN article about the Iran nuclear program, and also included the text: “I’m
sure you’ve already seen this, but quite interesting, don’t you think? All the more reason
to wonder . . . .” J.A. 2801.
The government analyzed two “snapshots” of Sterling’s Hotmail account, one in
April 2006, and one in July 2006, with the March 2003 email present in the former
snapshot but absent in the latter. An agent who analyzed the emails also testified that she
could not “recall there being a considerable difference” between the two snapshots, other
than the missing email from Sterling to Risen. J.A. 1965‒66.
Sterling notes that this specific email “was not among the categories of documents
requested by the grand jury’s [June 2006] subpoena.” Appellant’s Br. at 44. He argues,
therefore, that even if he did delete the email, he could not have done so with the intent to
impair the grand jury investigation. But while the email may not have been explicitly
18
included in the subpoena’s categories, in that it did not directly share information about
the classified program, it did reference Iran’s nuclear development efforts. Furthermore,
the email and its brief comments suggest that Risen and Sterling had previously discussed
Iran’s nuclear program.
We have said that to be culpable of obstructing justice, the actual documents
destroyed “do not have to be under subpoena.” United States v. Gravely, 840 F.2d 1156,
1160 (4th Cir. 1988) (analyzing a conviction for obstruction of justice under 18 U.S.C.
§ 1503). Instead, “it is sufficient if the defendant is aware that the grand jury will likely
seek the documents in its investigation.” Id. A rational jury could infer, based on the
evidence at trial, that Sterling deleted the email between April and July 2006 in order to
conceal it from a grand jury investigation. We therefore reject Sterling’s challenge to this
conviction.
IV.
Finally, Sterling challenges the district court’s admission of evidence under
Federal Rule of Evidence 404(b) showing that he previously and improperly kept four
classified documents, all unrelated to the Program at issue here, in his home. We review
evidentiary rulings for an abuse of discretion. United States v. Singh, 518 F.3d 236, 254
(4th Cir. 2008).
The government contends that the evidence was relevant to show that Sterling
“willfully retained” classified information in violation of 18 U.S.C. § 793(e), as charged
in Count III of the indictment. Sterling responds that his intent was never at issue in this
19
case; instead, Sterling argued throughout the trial that he never retained or transmitted
classified material. We agree with the government.
Rule 404(b) allows admission of evidence of the defendant’s past wrongs or acts,
as long as the evidence is not offered to prove the defendant’s predisposition toward
criminal behavior. United States v. Wilson, 624 F.3d 640, 651 (4th Cir. 2010). Rule
404(b) is a rule of inclusion, and its list of permissible uses, including motive,
opportunity, and intent, is not exhaustive. United States v. Queen, 132 F.3d 991, 994–95
(4th Cir. 1997). To be admissible under Rule 404(b), the evidence must be (1) relevant to
an issue other than the general character of the defendant, (2) necessary to prove an
essential claim or element of the charged offense, and (3) reliable. United States v.
Siegel, 536 F.3d 306, 317–19 (4th Cir. 2008). Additionally, Rule 403 demands that the
evidence’s probative value not be substantially outweighed by its unfair prejudice to the
defendant. Id. at 319.
Turning to the first Rule 404(b) factor, “[a] not-guilty plea puts one’s intent at
issue and thereby makes relevant evidence of similar prior crimes when that evidence
proves criminal intent.” United States v. Sanchez, 118 F.3d 192, 196 (4th Cir. 1997).
Just because the charged crime includes an intent element, however, “does not throw
open the door to any sort of other crimes evidence.” United States v. Bailey, 990 F.2d
119, 123 (4th Cir. 1993). We instead conduct a case-by-case analysis to determine
whether intent is at issue in a manner that allows Rule 404(b) evidence. United States v.
Hernandez, 975 F.2d 1035, 1040 (4th Cir. 1992).
20
Evidence is relevant “if it has any tendency to make the existence of any
determinative fact more probable than it would be absent the evidence.” United States v.
Van Metre, 150 F.3d 339, 349 (4th Cir. 1998). When determining relevance, we also
examine how closely the prior acts relate to the charged conduct. United States v.
McBride, 676 F.3d 385, 397 (4th Cir. 2012). While the past conduct “need not be
identical” to the crime charged, United States v. McLaurin, 764 F.3d 372, 382 (4th Cir.
2014), the mere fact that a defendant may have been involved in prior criminal activity
does not itself provide “a sufficient nexus to the charged conduct” if the prior activity “is
not related in time, manner, place, or pattern of conduct,” United States v. Johnson, 617
F.3d 286, 297 (4th Cir. 2010).
Although the Rule 404(b) evidence was fairly old in this case, it did bear sufficient
similarity in terms of pattern of conduct to justify its admission. An FBI search of
Sterling’s Missouri home in 2006 uncovered four classified documents, which Sterling
had improperly kept. And Sterling’s improper retention of these documents occurred
during the same timeframe as his improper retention of files concerning the Program.
Furthermore, the prior bad acts were exactly the same as the act Sterling was charged
with under Count III. Finally, as we discuss below, the prior acts were also relevant to
Sterling’s intent.
We next consider whether the prior bad acts evidence was necessary. We have
found that evidence is necessary when it is “probative of an essential claim or an
element” in a manner not offered by “other evidence available to the government.”
Queen, 132 F.3d at 997‒98. Importantly, we have declined to adopt the rule of some
21
other circuits that “evidence of other crimes may not be offered when the defendant
unequivocally denies committing the acts charged in the indictment.” Hernandez, 975
F.2d at 1040. Therefore, Rule 404(b) evidence may still be relevant to prove intent or
knowledge, even if the defendant does not base his defense on scienter. Queen, 132 F.3d
at 997.
In this case, Sterling pleaded not guilty to all charges. The government did not
know whether the jury would have to decide whether to convict Sterling on Count III
(willful unauthorized retention of classified documents), should it decide to acquit him on
the other counts involving unauthorized transfer of this information. To address that
possibility, the Rule 404(b) evidence allowed the jury to infer Sterling’s intent to
unlawfully retain the documents, even if the jury found that Sterling did not transfer them
to Risen. The evidence also allowed the government to prove venue for Count III, based
on the inference that Sterling stored classified documents in his residence. “[T]he
government, which has the burden of proving every element of the crime charged, must
have the freedom to decide how to discharge that burden.” Id.
Looking at the third factor, reliability, the evidence must be sufficient to allow the
jury to “reasonably conclude that the act[s] occurred and that the defendant was the
actor.” United States v. Powers, 59 F.3d 1460, 1467 (4th Cir. 1995) (alteration in
original) (quoting Huddleston v. United States, 485 U.S. 681, 689 (1988)). Here, the
government’s evidence showed that the classified documents were found in Sterling’s
home pursuant to a valid search warrant, and there was no dispute that they were in fact
22
classified or that Sterling had stored them in that location. Thus, the challenged evidence
meets the standard for reliability.
Finally, the probative value of the evidence was not substantially outweighed by
unfair prejudice to the defendant. All probative evidence may be prejudicial to the
defendant in some way, but we have found Rule 404(b) evidence to be unfairly
prejudicial when it inflames the jury or encourages them to draw an inference against the
defendant, based solely on a judgment about the defendant’s criminal character or wicked
disposition. McBride, 676 F.3d at 399; Hernandez, 975 F.2d at 1041.
Here, evidence showing that Sterling had improperly retained four classified
documents in the past encouraged the proper evidentiary inference that any subsequent
retention of classified documents was, if proven, intentional. And contrary to Sterling’s
argument on appeal, the government’s references to this evidence during closing
argument did not depict him as a serial leaker or inherent criminal. Instead, the
government merely noted that Sterling intentionally kept these documents in his home;
the inference this encouraged was certainly prejudicial, but not unfairly so. Additionally,
the court’s jury instructions explicitly prohibited the jury from using this prior bad act
evidence as proof that Sterling committed the acts charged in the indictment. See United
States v. Lespier, 725 F.3d 437, 448 (4th Cir. 2013) (finding that limiting instruction
effectively mitigated “any risk of unfair prejudice”).
Because the government’s use of Rule 404(b) evidence satisfies our test for
admissibility, we conclude that the district court did not abuse its discretion in admitting
it.
23
V.
For the reasons given, we vacate Sterling’s conviction for unauthorized disclosure
to Risen of a letter relating to the classified Program (Count V), but otherwise affirm the
convictions. As for sentencing, the district court imposed forty-two months
imprisonment for each conviction, to be served concurrently. Because the district court
also made clear that Sterling’s sentence was appropriate for any single count of
conviction, we discern no reason to remand for resentencing.
AFFIRMED IN PART
AND VACATED IN PART
24
TRAXLER, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority opinion, with the exception of its holding that the
government failed to prove proper venue for Sterling’s conviction on Count V. I would
affirm the judgment in its entirety.
Count V relates to Sterling’s unlawful delivery or transmission of the Merlin letter
to Risen, in violation of 18 U.S.C. § 793(e), which in pertinent part provides as follows:
Whoever having unauthorized possession of, access to, or control over any
document . . . 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 . . . the same to any person not entitled to receive it . . .
[s]hall be fined . . . or imprisoned not more than ten years, or both.
Id. (emphasis added). Unlike in the case of the counts brought under 18 U.S.C. § 793(d),
which involve Sterling’s unlawful disclosure of general classified information about the
Iran nuclear program that he was “lawfully” in possession of as a former CIA agent, id., a
violation of § 793(e) consists of at least two essential elements: the defendant must (1)
“hav[e] unauthorized possession of, access to, or control over” the classified information
or document at issue; and (2) have “willfully communicate[d], deliver[ed], or
transmit[ted]” the information or document “to any person not entitled to receive it.” Id.
(emphasis added). And if this offense continued across state or district lines, 18 U.S.C.
§ 3237(a) makes venue proper “in any district in which such offense was begun,
continued, or completed.”
As the majority notes in connection with Count III, there was ample evidence from
which the jury could reasonably infer that Sterling took “unauthorized possession of” the
25
Merlin letter when he left his employment with the CIA in the Eastern District of
Virginia and illegally retained it in his home in the Eastern District of Virginia, before
giving it to Risen by spring 2003. That inference also supports the jury’s conclusion that
Sterling, at a minimum, began the process of communicating, delivering, or transmitting
the stolen copy of the Merlin letter to Risen from the Eastern District of Virginia.
26