102 

### Trials of Newspaper Personnel
Accused of Disclos ing Naval Secrets

It is probable that the newspaper personnel accused of violating the Espionage Act by disclosing naval secrets can each be tried in any district in which the newspaper containing the secrets was received by a subscriber or newsstand.

The newspaper personnel would be entitled to separate trials unle ss a conspiracy to violate the Espio nage Act can be shown

.

June 16, 1942

M EMORANDUM O PINION FOR THE A TTORNEY G ENERAL

In an accompanying memorandum of today ’ s date, * the substantive aspects of

certain disclosures of naval information are discussed. A sh ort statement of facts is there given. This memorandum discusses the following questions:

(1) Assuming a violation of law by the reporter, the managing editor

of B newspaper, the company publishing it, and the publisher, can they be tried in any district in wh ich the newspaper was received by

a subscriber or newsstand?

(2) Can these trials be combined?

(3) Assuming a violation of the law by the managing editors of B

and C newspapers, and a conspiracy between them and A , the repor ter, can all be tried j ointly in a certain district in which subscribers to

both B and C can be found? If no conspiracy exists?

The answers appear to be as follows:

(1) Each defendant can probably be tried in any district in which the newspaper was received.

(2) The trials will be separa te, in the absence of proof of conspiracy.

(3) Assuming a conspiracy, the trial of all can be held j ointly in a

common district.

* Editor’s Note: That memorandum opinion precedes this one ( Criminal Liability for Newspaper Publication of Naval Secrets , 1 O p. O.L.C. Supp. 93 (June 16, 1942) )

.Trials of Newspaper Personnel Accused of Disclosing Naval Secrets

103 I. Problems of Venue; P lace of T rial

Assuming a violation of the law by the reporter and his superiors

— managing editor, publisher, and newspaper company

— it is probable that each defendant can

be tried (whether separately or jointly will be discussed below) in any district in which a copy of the newspaper containing the criminal dispatch was received by a

subscriber or newss tand.

The Constitution of the United States provides that

“The trial of all C rimes

. . . shall be held in the State where the said

C rime s shall have been committed

. . . ,” A rt icle III, Section 2

,

and that

“ In all criminal prosecutions, the accused shall e njoy the right to

a

. . . trial

, by an impartial jury of the S tate and district wherein the

crime shall have been committed

. . . ,” Amendment VI

.

These constitutional provisions do not give a defendant a constitutional right to be tried only in the distri ct of his residence or principal place of business. Haas v.

Henkel

, 216 U.S. 462 (1909). His right is to a trial in the district where the crime

was committed. It seems to be reasonably well established by the Supreme Court that a “ crime, ” which involves a sequence of acts crossing district boundaries, is committed in any district in which any substantial act in the sequence took place. Hyde v. United

States , 225 U.S. 347 (1911); United States v. Lombardo

, 241 U.S. 73 (1915). The

discretion of the Attorney General and the constant supervision of the courts are regarded as sufficient safeguards against double jeopardy and unnecessary multiplicity of suits. The most significant act in the crime of “ communicating ” or “ transmitting ” a document r elating to national defense to “ any person not entitled to receive it ”

under s ection 1 (d) of the Espionage Act 1 must be the actual presentation of the contents of such a document to the person not entitled to receive it. When such

communication or transmis sion is effected through the medium of a newspaper, that act occurs only when the recipient of the newspaper has it in his control. The factual chain of events which constitute the le g al crime begins of course when the reporter first illegally scans the fo rbidden document, but it does not end until the whole institutional apparatus of newspaper publication has deposited the finished paper in the hands of the subscriber or purchaser. To seize upon any one factual

event in the crime chain

— such as the physical rolling of the papers off a press

— and to say that such an event only is “ the crime ” and that the crime is “ committed ” only at the locus of that event would be as unrealistic as it would be subversive of

1 Act of June 15, 1917, ch. 30, § 1(d), 40 Stat. 217, 218, codified at 50 U.S.C. § 31(d) (1940).Supplemental Opinions of the Office of Legal Counsel in Volume 1

104 the policy of the statute. It is not some physical step in the publishing process which is prohibited but the communication of defense information to unauthorized recipients. The fact that there may be unauthorized recipients in many districts only aggravates the crime. It would put an insuperable burden u pon the gover nment to require it to show which unauthorized reci pients actually passed the

information on to the enemy and, hence, to fix its venue there. Direct case authority to support this reasoning is scant. Helpful analogies can, however, be found in cases involving the unlawful t ransmission of goods and fraudulent mail practices. Charles C. Montgomery, M anual of Federal Jurisdiction

and Procedure § 1150 ( 4th ed. 1942). The famous old c ase of In re Palliser

, 136 U.S. 257 (189 0 ), which held that the of fense of tendering a contract for the payment of money in a letter mailed in one district and addressed to a public

officer in another, to induce him to violate his official duty, could be tried in t he district in which the letter was received by that offi cer, is squarely in point. The opinion contains excellent supporting language. Opposing authority is equally scant. The federal criminal libel cases are old, by lower courts, not numerous, and poorly reasoned. They have been often criticised.

Justin Miller

, Handbook of Criminal Law 495 (1934); Recent Cases

, Criminal

Law

— Jurisdiction

—

Locality of Publication of Libel

, 23 Harv

. L. Rev. 309 ( 1910 ) ; Com ment, Copies of a Printed Criminal Libel as Separate Offenses

, 26 Yale L.J.

308 ( 1916

– 17 ) . Many state court decisions are to the contrary. Annotation, Venue of Action for Libel in Newspaper

, 37 A.L.R. 914 ( 1925 ). The leading case, U nited

States v. Smith

, 173 F. 227 ( D. Ind. 1909 ) , could easily be distinguished or

discredited.

One section of the j udicial c ode, 28 U.S.C. § 103, could be construed as rel evant. This provides that:

When any offense against the United States is begun in one judicial district and completed in another, it shall be deemed to have been committed in either, and may be dealt with, inquired of, tried, dete rmined, and punished in either district, in the same manner as if it had been actually and wholly committed therein.

R ev

. S tat

. § 731 (2d ed. 1878) , 18 Stat. pt. 1, at 139 (repl. vol.)

, as amended by Act of Mar. 3, 1911, ch. 231, § 42, 36 S tat. 1087, 1100. If the argument above that a significant act of the chain “ crime ” was “ committed ” in the district where the newspaper was received is accepted, an equally plausible argument could be made

under this section that the offense was “ completed ” in such district. The argument

from the facts and from policy would be substantially the same. For determining the place of trial, and allocating power between courts, the concept of “ venue ” serves the same function for different federal districts that th e concept of “

jurisdiction ” serves for the states. State courts are

— it should be noted by way of analogy

—

rapidly getting away from the naive notion that a “ crime, ”Trials of Newspaper Personnel Accused of Disclosing Naval Secrets

105 involving a sequence of acts crossing state boundaries, is physically “ located ” on

some on e spot. Thus Mr. Berge observes:

[T] he conclusion is irresistible that if the constituent acts of a given

crime occur in more than one state, each such state has an equally valid claim to jurisdiction over the whole crime. Such extra

- terri

torial elements sh ould be frankly recognized by courts and no a ttempt should be made to cover them with legal fictions.

Wendell B erge, Criminal Jurisdiction and the Territorial Principle , 3 0 Mich. L. Rev. 238, 2 6 9 (1931).

II. Separate T rials

Where two or more defendants are accused of the same crime , i.e., if they are conspirators, or principal and accessory, they may be tried together. Even here, however, the court may in its discretion order separate trials, upon proper motion.

Where the crimes are different, though relate d in nature or linked by events, the defendants are entitled to separate trials, if the objection is seasonably raised. See Montgomery

, Federal Jurisdiction and Procedure § 123 8 ; William T

. Hughes

, Federal Practice , Jurisdiction & Procedure § 7084 (1 931 & Supp. 1941)

. In the instant case, unless the conspiracy theory is relied upon, the defendants would appear to be entitled to separate trials.

III. Conspiracy

If a conspiracy to violate the Espionage Act can be shown (which does not appear probable on the facts now known to me), the defendants can be tried together in any district in which the conspiracy was formed or in which an act was

done to effectuate the object of the conspiracy. Hughes, Federal Practice § 6849.

IV. Questions of Policy

The newspapers usually stand together on questions affecting their common

interest. The locus of a suit against reporters, editors and proprietors is a matter of major importance to the publishing trade. If it is established that suits based on libel or violations of the Espionage Act can be brought at any point at which even a single subscriber receives the publication, the trade would feel itself in grave jeopardy. Accordingly, an attempt to start a prosecution at a point remote from the place of publication might raise a nation wide outcry from the press, and prevent the public from reaching an understanding of the merits of the case.

OSCAR S. COX

Assistant Solicitor General