No. 96-7554 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 SALOME A. PALOMO, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEBORAH WATSON Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 - 2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether petitioner, an INS employee, violated 18 U.S.C. 1905, which proscribes the disclosure of confidential information by federal employees, when he divulged confidential information concerning an ongoing criminal investigation to another INS employee who was not involved in the investigation, and who was romantically involved with the subject of the investigation. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-7554 SALOME A. PALOMO, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. 14a-15a) is not reported, but the judgment order is noted at 101 F.3d 699 (Table). JURISDICTION The judgment of the court of appeals was entered on October 23, 1996. The petition for a writ of certiorari was filed on January 21, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT Following a jury trial in the United States District Court for the Southern District of Texas, petitioner was convicted of disclosing confidential information, in violation of 18 U.S.C. ---------------------------------------- Page Break ---------------------------------------- 2 1905. 1. He was sentenced to two years' probation with six months' home confinement. The court of appeals affirmed. Pet. App. 14A- 15A. 1. In December 1994, petitioner, an Immigration and Naturalization Service (INS) inspector in south Texas, received information from a confidential informant, who was a member of the Torres drug smuggling organization in Mexico, that Customs Service inspector Lorenzo Lara, Jr., was assisting drug traffickers smuggle drugs into the country through the port of entry in Roma, Texas. Petitioner advised his superiors about the information, and the Department of Justice's Office of Inspector General (OIG) and the Customs Service's Office of Internal Affairs commenced an investigation. Gov't C.A. Br. 2-3; July 31, 1995 Tr. 77-78, 87 132. On February 2, 1995, OIG agent Scott Dennis and petitioner interviewed the confidential informant in Miguel Allemand, Mexico. The informant identified Lara from a photo spread presented to him as the person who was assisting the drug smugglers. Gov't C.A. Br. 3; July 31, 1995 Tr. 135-137. The informant also identified another individual with the Torres organization who would be able to provide more detailed information on Lara's involvement in illegal activity. July 31, 1995 Tr. 87, 138. On February 6, 1995, petitioner, along with OIG Agent Dennis, and Customs Service agents Clinton Povlish and Andreas Funk, ___________________(footnotes) 1 Co-defendant Diana Alaniz was also convicted of disclosing confidential information. ----------------------------------------- Page Break ---------------------------------------- 3 interviewed the second informant in Miguel Allemand, Mexico. That informant advised that a Customs Service inspector at the Roma Port of Entry was passing loads of narcotics into the country. The informant also advised that two border patrol agents were assisting the Lolo Torres drug trafficking organization in Mexico smuggle narcotics through the checkpoints. July 31, 1995 Tr. 83-84, 138- 139. The informant said that Lara's photo, which was included in a photo spread, looked "very familiar." Id. at 84. The OIG agents asked both informants to obtain additional information regarding future narcotics loads. Id. at 84, 139. An OIG agent advised petitioner of the need for limited access to the information provided by the informants, and further instructed petitioner to contact him before contacting anyone else about the investigation. July 31, 1995 Tr. 140-141. On February 8, 1995, petitioner telephoned INS inspector Diana Alaniz, whom he knew to be romantically involved with Lara, and apprised her of the details concerning the investigation of Lara, including the identity of the second informant. Petitioner also told Alaniz about the investigation into the two border patrol agents. August 1, 1995 Tr. 136-139, 161-163; July 31, 1995 Tr. 107. That information was confidential, and petitioner did not have authority to disclose it to persons who, like Alaniz, were not part of the investigative team. August 1, 1995 Tr. 155-157, 166, 176-178; July 31, 1995 Tr. 39-40, 45-46, 71-72, 106. Petitioner also asked Alaniz not to repeat the information. August 1, 1995 Tr. 139. That same evening, Alaniz told Lara about the investigation into ---------------------------------------- Page Break ---------------------------------------- 4 his activities. Id. at 238-240, 260. After the Customs Service learned of the disclosure to Lara, OIG Agent Dennis and Customs Service agent Povlish interviewed petitioner. July 31, 1995 Tr. 86. Petitioner admitted that he had disclosed the information in question to Alaniz, and that he knew it was wrong to do so. Id. at 171. Petitioner and Alaniz were convicted on one count of unlawful disclosure of confidential information in violation of 18 U.S.C. 1905. The indictment charged that they "did * * * disclose and make known in a manner and to an extent not authorized by law, information relating to an on-going investigation including the identity of the person under investigation, to-wit: the defendants advised a United States Customs Service Inspector that he was under investigation for narcotics trafficking activity and that two individuals had identified the United States Custom Service Inspector as the Inspector who allowed loads of cocaine to enter the United States * * *." May 23, 1995 Indictment "par" 8. 2. The court of appeals affirmed. Pet. App. 14a-15a. The court held that the evidence was sufficient to support petitioner's conviction. Id. at 14a. The court also concluded that although the jury was permitted to convict petitioner based on his disclosure to Alaniz, and not to Lara, as alleged in the indictment, "[t]here was no constructive amendment to the indictment because the requested addition to the jury charge was not an element of the offense." Id. at 15a. ---------------------------------------- Page Break ---------------------------------------- 5 ARGUMENT 1. Petitioner contends (Pet. 8-12) that 18 U.S.C. 1905 does not prohibit the disclosure of confidential agency information by one government employee to another government employee. The text of Section 1905, however, encompasses the unauthorized disclosure that occurred in this case. Section 1905 of Title 18, a misdemeanor provision commonly known as the Trade Secrets Act, prohibits a federal employee from disclosing "in any manner or to any extent not authorized by law" any information "coming to him in the course of his employment or official duties or by reason of any * * * investigation made by * * * such department or agency or officer or employee thereof, which information concerns or relates to * * * the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association * * *." 2. Thus, Section 1905 prohibits ___________________(footnotes) 2 18 U.S.C. 1905 provides in full: Whoever, being an officer or employee of the United States or of any department or agency thereof, any person acting on behalf of the Office of Federal Housing Enterprise Oversight, or agent of the Department of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311-1314), publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such department or agency or officer or employee thereof, which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; ---------------------------------------- Page Break ---------------------------------------- 6 a federal employee from disclosing confidential information coming to him in the course of his employment or official duties that concerns or relates to the identity of any person, including the identity of confidential informants and subjects under investigation by the government. Section 1905, enacted as part of the 1948 Criminal Code, represented a consolidation of three earlier provisions that restricted the disclosure of certain commercial and financial information. Act of June 25, 1948, ch. 645, 62 Stat. 791; see Chrysler Corp. v. Brown, 441 U.S. 281, 296-298 (1979); CNA Financial Corp. v. Donovan, 830 F.2d 1132, 11347 n.2, 1144-1145 (D.C. Cir. 1987), cert. denied, 485 U.S. 977 (1988). One of those predecessor statutes, 15 U.S.C. 176a (1940), proscribed the Director of the then Bureau of Foreign and Domestic Commerce from "permit[ting] any statistics of domestic commerce to be published in such manner as to reveal the identity of the individual, corporation, or firm furnishing such data" to the Bureau. 3. In ___________________(footnotes) or permits any income return or copy thereof or any book containing any abstract of particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than 1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment. 3 The other two earlier statutes were 18 U.S.C. 216 (1940) and 19 U.S.C. 1335 (1940). Section 1335 of Title 19 made it a misdemeanor for any federal employee to divulge "the trade secrets or processes of any person, firm, copartnership, corporation, or association embraced in any examination or investigation conducted by the [United States Tariff Commission] * * *." 19 U.S.C. 1335 (1940). Section 216 of Title 18, also a misdemeanor statute, prohibited a federal employee from disclosing "the operations, style of work, or apparatus of any manufacturer or producer visited by him in the discharge of his official duties" and proscribed that ---------------------------------------- Page Break ---------------------------------------- 7 enacting Section 1905, however, Congress broadened the scope of the statute to prohibit, as the enacted title conveys, "[d]isclosure of confidential information generally." 18 U.S.C. 1905 (emphasis added); see CNA Financial Corp. v. Donovan, 830 F.2d at 1151 ("the scope of [Section 1905] is not delimited by that of its three predecessor statutes"). Thus, unlike the old Section 176a, Section 1905 applies to all federal employees, and encompasses "any information * * * relating * * * to the identity * * * of any person" coming to a public employee in the course of his employment, so long as the information is confidential. Petitioner argues that "although INS policy is that confidential information should not be disclosed to the public" (Pet. 11), his disclosure to Alaniz did not violate any regulation that had "the force and effect of law" under this Court's decision in Chrysler Corporation v. Brown, supra. That contention is without merit. Section 1905 prohibits any disclosure of certain confidential information "to any extent not authorized by law." 18 U.S.C. 1905. In Chrysler Corporation v. Brown, this Court held that in order for a regulation to have the "force and effect of law" that would authorize disclosure, and thus exempt the disclosure from Section 1905's prohibition, the regulation must be a substantive or legislative-type rule promulgated by the agency. 441 U.S. at 294-309. Section 1905 does not require, however, that ___________________(footnotes) employee from divulging "the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any income return * * *." 18 U.S.C. 216 (1940). See Chrysler Corp. v. Brown, 441 U.S. at 296 n. 21; CNA Financial Corp. v. Donovan, 830 F.2d at 1133-1145 & nn. 79-80. ---------------------------------------- Page Break ---------------------------------------- 8 such a regulation must expressly prohibit the disclosure of confidential information in order for the disclosure to be illegal under the statute. See United States v. Wallington, 889 F.2d 573, 577 (5th Cir. 1989) (Section 1905 prohibits the disclosure of information that is confidential "in the sense that it is the official policy of the agency in question (or is otherwise required by statute or regulation) that the information not be released") . Petitioner also argues that under this Court's decision in Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), and the Third Circuit's decision in Tri-Bio Laboratories v. United States, 836 F.2d 135 (3d Cir. 1987), cert. denied, 488 U.S. 818 (1988), Section 1905 does not prohibit the disclosure of confidential information by one agency employee to another agency employee. Pet. 11-12. Those decisions establish that Section 1905 does not apply to internal agency use of information submitted to the agency. Ruckelshaus, 467 U.S. at 1009; Tri-Bio Laboratories, 836 F.2d at 141 n.7. In this case, however, petitioner's improper disclosure of confidential information was not for an internal agency use. 2. Petitioner also appears to argue (Pet. 10-11) that there was a constructive amendment to the indictment because the evidence at trial failed to establish that petitioner made the unauthorized disclosure to Lara, as alleged in the indictment. The court of appeals correctly held (Pet. App. 15a) , however, that there was no constructive amendment to the indictment, because disclosure to Lara, as opposed to Alaniz, was not an element of an offense under ---------------------------------------- Page Break ---------------------------------------- 9 Section 1905. 4 A constructive amendment of an indictment occurs when the evidence at trial or the jury instructions so modify essential elements of the offense charged that there is a substantial likelihood that the defendant has been convicted of a different offense than the one charged in the indictment. See, e.g., United States V. Miller, 471 U.S. 130, 138-145 (1985); Stirone v. United States, 361 U.S. 212, 218-219 (1960). "As long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, " however, "the right to a grand jury is not normally violated by the fact that the indictment alleges * * * other means of committing the same crime." United States v. Miller, 471 U.S. at 136. In determining whether an "essential element" of the offense has been modified, the courts of appeals have "permitted significant flexibility in proof, provided that the defendant was given notice of the 'core of criminality' to be proven at trial." United States v. Delano, 55 F.3d 720, 729 (2d Cir. 1995) (quoting United States v. Patino, 962 F.2d 263, 266 (2d Cir.), cert. denied, 506 U.S. 917 (1992)). In this case, the indictment charged petitioner with violating Section 1905 by "disclos[ing] and mak[ing] known in a manner and to an extent not authorized by law, information relating to an on- going investigation including the identity of the person under ___________________(footnotes) 4 The court of appeals stated that "the requested addition to the jury charge was not an element of the offense." Pet. App. 15a. In fact, petitioner did not request the trial court to instruct the jury that it had to find that defendants disclosed confidential information to Lara. See August 1, 1995 Tr. 280-285. ---------------------------------------- Page Break ---------------------------------------- 10 investigation." May 23, 1995 Indictment "par" 8. Petitioner's liability under Section 1905 did not depend on the disclosure of confidential information to any particular person. Thus, petitioner's liability was complete upon his disclosure of the confidential information to Alaniz, and the indictment's allegation of a disclosure to Lara was not necessary for his conviction. See United States v. Miller, 471 U.S. at 136 ("A part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as a 'useless averment' that 'may be ignored.' " (quoting United States v. Ford, 273 U.S. 593, 602 (1927)). Even if a variance occurred in this case between the proof and indictment, petitioner has not argued that any such error affected his substantial rights. Berger v. United States, 295 U.S. 78, 82 (1935). Petitioner's conviction was based on his unauthorized disclosure of confidential information regarding Lara. The indictment clearly placed petitioner on notice as to the acts and events that were the subject of the trial, and the proof at trial centered on those same events. ---------------------------------------- Page Break ---------------------------------------- 11 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General DEBORAH WATSON Attorney MARCH 1997