Any officer or employee of an agency, who by virtue of his
employment or official position, has possession of, or access
to, agency records which contain individually identifiable
information the disclosure of which is prohibited by this
section or by rules or regulations established thereunder, and
who knowing that disclosure of the specific material is so
prohibited, willfully discloses the material in any manner to
any person or agency not entitled to receive it, shall be
guilty of a misdemeanor.

(emphasis added). Section 1306(a) (1), on the other hand, states;
No disclosure ... of any file, record, report, or other paper,
or any information, obtained at any time by the head of the
applicable agency or by any officer or employee of the
applicable agency in the course of discharging the duties of
the head of the applicable agency under this chapter, and no
disclosure of any such file, record, report, or other paper,
or information, obtained at any time by any person from the
head of the applicable agency or from any officer or employee
of the applicable agency shall be made except as the head of
the applicable agency may by regulations prescribe and except
as otherwise provided by Federal law. Any person who shall
violate any provision of this section shall be deemed guilty
of a felony.

(emphasis added). One element of a section 552a(i) (1) violation is

that the defendant was an “officer or employee of an agency,” while

section 1306 applies to “any person,” Thus, section 552a(i) (1)

requires an element not required under section 1306 (that defendant

is an officer or employee of an agency) and is therefore not

“necessarily included” in section 1306. It is irrelevant under

the elements test that Mr. Ploss did in fact satisfy the extra

element of section 552a(i) (1). See Schmuck, 489 U.S. at 716-17

(“comparison [between an offense and a potentially included

offense] is appropriately conducted by reference to the statutory

elements of the offenses in question, and not ... by reference to

conduct proved at trial regardless of the statutory definitions.).

The refusal to give an included offense instruction was proper.



jury where instructions, but not the statute defining the offense,
invoked the term).* This ordinary everyday meaning simply means
that “the person charged .., knows what he is doing.” Sherwood,
770 F.2d 650 (noting that this interpretation of “willfully” in the
bail jumping statute gives the term its ordinary everyday meaning) .
Thus, where, as here, the term “willful” is not used in the statute
defining the offense, there is no difference between an instruction
requiring knowledge and an instruction requiring willfulness.
II. Lesser Included Offense

Mr. Ploss next argues that it was error not to provide a
lesser included offense instruction. Under Fed, R. Crim. P.
Bl(c) (1), a defendant may be found guilty of “an offense
necessarily included in the offense charged.” The Supreme Court
has adopted the so-called “elements test,” which states that

one offense is not “necessarily included” in another unless

the elements of the lesser offense are a subset of the

elements of the charged offense. Where the lesser offense

requires an element not required for the greater offense, no

instruction is to be given under Rule 31(c).
Schmuck v. United States, 489 U.S. 705, 716 (1989). Mr. Ploss

argues that 5 U.S.C. § 552a(i)(1) is an included offense of 42

U.S.C. § 1306. Section 552(a) (i) (1) states:

2 Indeed, the Committee on Federal Criminal Jury Instructions
for the Seventh Circuit expressly recommends that an instruction
defining the term “willfully” not be given unless the term is
contained in the statute defining the offense. Federal Criminal
Jury Instructions of the Seventh Circuit § 4.09. The Committee
discourages use of the term at all when not required by statute.
“Like the drafters of the Model Penal Code, the Committee was
concerned with the confusion resulting from the use of the loose
concept of ‘willfullness’ to define criminal culpability.” Id,

3



III. Spillover Evidence
Finally, Mr. Ploss argues that he was prejudiced by
“spillover” from the mail fraud counts. This argument is quickly
disposed of by citation to United States v. Holzer, 840 F.2d 1343

(7th Cir. 1988).

When, as is often the case (it was here}, the jury acquits a
defendant of some counts of a multi-count indictment, the
defendant is not entitled to a new trial on the counts of
which he was convicted, on the theory that the conviction was
tainted by evidence, which the jury heard, relating to the
counts on which it acquitted. It is not like a case where
evidence of other crimes is admitted in violation of Fed. R,
Evid. 404 and the question is whether the error is harmless.
No rule of evidence is violated by the admission of evidence
concerning a crime of which the defendant is acquitted,
provided the crime was properly joined to the crime for which
he was convicted and the crimes did not have to be severed for
purposes of trial.... As explained in [United States v.
DiCaro, 772 F.2d 1314 (7th Cir. 1985)], the time to decide
whether it is fair to subject a defendant to a single trial
for a variety of crimes, given the risk that evidence
introduced to support some of these crimes may infect the
jury’s consideration of the others, is before trial, when the
defendant can complain of misjoinder under Fed. R. Crim. P.
8(a) or move for a severance under Rule 14. There is no
doctrine of retroactive misjoinder, with possible exceptions
that are inapplicable to this case,

Id. at 1349-50 (internal citations omitted). For the reasons
explained in Holzer, Mr. Ploss is not entitled to a new trial on
the unlawful disclosure counts based on alleged spillover of
evidence relating to the mail fraud counts.
IV. Conclusion
Defendant's motion for a new trial on counts eight through
twelve is DENIED.

ENTEW ORDERS 4-7
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Elaine E. Bucklo
United States District Judge

Dated: June 39, 2003



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CASE NUMBER O1CR1141-1 DATE 6/30/2003
CASE USA vs. *Ploss
TITLE

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Vv.

No, 01 CR 1141-01
THOMAS H. PLOSS,

Defendant.

MEMORANDUM OPINION AND ORDER

The United States indicted Thomas Ploss on seven counts of
mail fraud in violation of 18 U.S.C. §§ 1341, 1346; five counts of
disclosing Social Security information in violation of 42 U.S.C.
§ 1306; and three counts of theft of government records in
violation of 18 U.S.C. § 641. A jury found Mr. Ploss not guilty of
the mail fraud counts, and guilty of the others. Mr. Ploss now
moves for a new trial on the five counts of unlawful disclosure of
Social Security information, claiming that an improper instruction
regarding mens rea was given, that it was error to omit a lesser
included offense instruction, and that he was prejudiced by
Spillover of evidence relating to the mail fraud counts. I deny
the motion.

I. Mens Rea

42 U.S.C. § 1306 contains no express mens rea requirement.

Consistent with the Supreme Court’s decision in Staples v. United

States, 511 U.S. 600, 605-06 (1994) noting that some indication of



Congressional intent beyond silence is required to dispense with a
mens rea requirement, the jury was instructed that in order to
sustain the charge of unlawful disclosure of Social Security
records, the government must prove that Mr. Ploss “knew” that the
disclosures were not authorized by law or regulations. Mr. Ploss
argues that it was error to use “knowledge” instead of
“willfulness” in the instructions.

Mr. Ploss’ contention that it was error not to include
‘“willfulness” in the instructions is wrong for two reasons. First,
when discussing the mens rea element that is presumptively
incorporated into all federal criminal statutes, the Court in
Staples described it simply as “requir[ing] that the defendant know
the facts that make his conduct illegal.” Id. at 605. Second, the
Seventh Circuit has recognized that the term “willful” has (at
least)’ two meanings: “an ordinary, everyday meaning [and] a
legalistic meaning that incorporates the notion of specific
intent.” United States v. Sherwood, 770 F.2d 650, 654 (7th Cir.
1985). When a criminal statute does not contain the term “willful”
but the word is included in the instruction, it takes on only its
ordinary everyday meaning, and not the legalistic meaning. See
United States v. Valencia, 907 F.2d 671, 682-83 (7th Cir. 1990)

{finding no error in trial court’s failure to define “willfully” to

1 See Spies v. United States, 317 U.S. 492, 497 (1943)
(*willful, as we have said, is a word of many meanings, its
construction often being influenced by its context.”), cited in
United States v. Valencia, 907 F.2d 671, 682 n.13 (7th Cir. 1990).

2