                         Trials of Newspaper Personnel
                       Accused of Disclosing 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 unless a conspiracy to violate the
  Espionage Act can be shown.

                                                                                        June 16, 1942

                 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

   In an accompanying memorandum of today’s date,* the substantive aspects of
certain disclosures of naval information are discussed. A short 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 which 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 report-
        er, can all be tried jointly 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 separate, in the absence of proof of conspiracy.

        (3) Assuming a conspiracy, the trial of all can be held jointly in a
        common district.




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




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               Trials of Newspaper Personnel Accused of Disclosing Naval Secrets


                              I. Problems of Venue; Place of Trial

   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 newsstand.
   The Constitution of the United States provides that

          “The trial of all Crimes . . . shall be held in the State where the said
          Crimes shall have been committed . . . ,” Article III, Section 2,

and that

          “In all criminal prosecutions, the accused shall enjoy the right to
          a . . . trial, by an impartial jury of the State 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 district 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 relating to national defense to “any person not entitled to receive it”
under section 1(d) of the Espionage Act1 must be the actual presentation of the
contents of such a document to the person not entitled to receive it. When such
communication or transmission 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 legal crime begins of course when the
reporter first illegally scans the forbidden 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).




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           Supplemental Opinions of the Office of Legal Counsel in Volume 1


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 upon the govern-
ment to require it to show which unauthorized recipients 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 transmission of goods and
fraudulent mail practices. Charles C. Montgomery, Manual of Federal Jurisdiction
and Procedure § 1150 (4th ed. 1942). The famous old case of In re Palliser, 136
U.S. 257 (1890), which held that the offense 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 the
district in which the letter was received by that officer, 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);
Comment, 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, United
States v. Smith, 173 F. 227 (D. Ind. 1909), could easily be distinguished or
discredited.
   One section of the judicial code, 28 U.S.C. § 103, could be construed as rele-
vant. 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, deter-
       mined, and punished in either district, in the same manner as if it had
       been actually and wholly committed therein.

Rev. Stat. § 731 (2d ed. 1878), 18 Stat. pt. 1, at 139 (repl. vol.), as amended by Act
of Mar. 3, 1911, ch. 231, § 42, 36 Stat. 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 the
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,”




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           Trials of Newspaper Personnel Accused of Disclosing Naval Secrets


involving a sequence of acts crossing state boundaries, is physically “located” on
some one 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 should be frankly recognized by courts and no at-
       tempt should be made to cover them with legal fictions.

Wendell Berge, Criminal Jurisdiction and the Territorial Principle, 30 Mich. L.
Rev. 238, 269 (1931).

                                 II. Separate Trials

   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 related 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 § 1238; William T. Hughes,
Federal Practice, Jurisdiction & Procedure § 7084 (1931 & 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 nationwide outcry from the press, and prevent
the public from reaching an understanding of the merits of the case.

                                                    OSCAR S. COX
                                               Assistant Solicitor General



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