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Journalist's conviction for conspiring to steal aircraft material upheld.

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    NMU         NEW YORK         Press at Home & Abroad         May 12, 2000    

Journalist’s conviction for conspiring to steal aircraft material upheld.

  • A federal appellate court upheld the conviction of author James Sanders for conspiring to obtain material from the wreckage of TWA Flight 800, which he wanted to test for missile residue.

The prosecution of a journalist and his wife over an investigation into the crash of TWA Flight 800 was not vindictive and was not protected by a journalist’s privilege, a unanimous panel of the U.S. Court of Appeals in New York City (2nd Cir.) held on May 4.

A federal judge in Uniondale sentenced journalist James Sanders and his wife to probation and community service in July 1999 after a jury found them guilty of conspiring to steal seat materials from the flight wreckage.

James Sanders wrote in his 1997 book, “The Downing of TWA Flight 800,” that the U.S. military had mistakenly shot down the commercial airliner off of Long Island with a missile. He wanted to test seat fabric from the aircraft to see if residue on the surface was from a missile.

Terrell Stacey, a TWA pilot who was involved in the investigation and who gave Sanders the material, testified against the Sanderses at trial and entered a misdemeanor guilty plea in exchange for the dropping of more serious charges. Stacey knew Elizabeth Sanders from TWA, where she worked as a flight attendant and a flight attendant instructor, and Elizabeth made the first call to Stacey to encourage him to talk to her husband. Stacey testified that James Sanders coerced him into stealing the material. Sanders responded that Stacey handed over the seat fabric swatches without any prompting. Sanders argued that he did not commit any crime by simply accepting the fabric swatches.

After an article in the Riverside, Cal., Press-Enterprise reported on Sanders’ theory, he was questioned by FBI agents who wanted to know who gave him the seat material. He was told that he would not be prosecuted for the theft of the material if he named his source. He refused, and agents tracked down his source after obtaining his telephone records. Sanders alleged that his subsequent prosecution was in retaliation for refusing to name the source, which he was allowed to withhold under a First Amendment-based journalist’s privilege. Prosecution for exercising a First Amendment right is unconstitutional and the charges should have been dismissed, Sanders argued.

But the court disagreed. It found that a reporter’s privilege typically is used by a court to control its own “compulsory discovery processes,” meaning that the court has wide latitude in determining who can be compelled to testify before it. Such a privilege does not give a journalist a right not to be prosecuted, because the determination of whether to prosecute is made by the U.S. Attorney, and is not up to the discretion of the court, the court found. Furthermore, the prosecutors “acted forthrightly” with Sanders by offering him immunity if he would identify the person who violated a federal statute, and the offer was a “legitimate exercise” of the broad discretion given to prosecutors in determining whom they would prosecute, according to the court.

The court also rejected Sanders’ vindictive prosecution claim, finding that he had presented no evidence of any “genuine animus” against him and that the prosecutors could show they were intent on punishing those who removed evidence from an accident scene all along, the court found. Sanders had alleged prosecutors wanted to punish him for challenging the official explanation of the disaster, and for what the government called, in a press release announcing that he would be prosecuted, the “trauma visited upon the bereaved families of those who perished in the crash, whose grief was only exacerbated and prolonged by Mr. Sanders’ dissemination of misinformation.”

The panel also ruled that conviction under a law protecting evidence during an aircraft crash investigation did not require proof of “wrongful intent,” as Sanders had suggested. Intent to violate a particular law is not necessary, if an individual has knowledge “extensive enough to attribute to the knower a ‘guilty mind,’ or knowledge that he or she is performing a wrongful act,” the court held. Someone who removes parts or property from an airplane crash scene knows that he has “done something culpable,” the court held. The court did not address Sanders’ argument that he did not have reason to know that simply accepting such material was illegal.

(U.S. v. Sanders; Media Counsel: J. Bruce Maffeo, New York)

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