Journalist’s conviction over removal of jet fabric upheld

From the Summer 2000 issue of The News Media & The Law, page 10.

A federal appeals court ruled that the First Amendment-based journalist’s privilege did not shield a reporter from prosecution for conspiring to remove material from the wreckage of TWA Flight 800.

The court denied the reporter’s claims that the lower court had penalized him for exercising First Amendment rights to challenge the government’s official explanation of the disaster and refusing to reveal a confidential source.

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The prosecution of a free-lance reporter and his wife for conspiring to steal airline seat fabric from the wreckage of TWA Flight 800 was not vindictive and did not violate the First Amendment-based journalists’ privilege, the U.S. Court of Appeals in New York (2nd Cir.) held on May 4.

James Sanders, an investigative writer, obtained the seat fabric to test a reddish-orange chemical substance that he speculated might be missile fuel residue. He used test results as evidence in his 1997 book, “The Downing of TWA Flight 800,” in which he argued that the U.S. military had mistakenly hit the commercial airliner with a missile.

Sanders and his wife, Elizabeth, were convicted and sentenced to probation and community service under a statute that makes it illegal to remove, conceal or withhold parts of a civilian aircraft involved in an accident.

Capt. Terrell Stacey, a senior TWA pilot, was one of the airline employees assigned to the Flight 800 reconstruction and investigation. Stacey had formed a “cordial professional relationship” with senior flight attendant Elizabeth Sanders when they worked together in the past.

In the fall of 1996, Elizabeth Sanders called Stacey’s home, asking him to speak to her husband, a former police officer and investigative author, about the investigation. Stacey ultimately agreed to a meeting.

Stacey testified in court that during one of his numerous conversations with James Sanders, he told the reporter about the residue that appeared on some of the seats in the plane’s cabin and noted that the FBI had taken the substance to be tested. Sanders tried to convince Stacey to scrape off a sample of the orangish red residue, stating that “if it came out positive for explosive residue, then it would [be a] ‘slam dunk’ as far as being absolute proof that some outside force affected the airplane.”

In his testimony, Stacey said that he spent three weeks mulling over the decision of whether or not to remove the sample, even though he did not think taking a small amount of the residue was unlawful. During that time, he recalled talking with James Sanders on several occasions.

In addition, Stacey testified that he had one conversation with Elizabeth Sanders in which she allegedly said that it would be very nice to have a sample of the residue. However, the Sanderses believe that documentary evidence shows that the conversation with Elizabeth Sanders actually occurred after the residue was removed.

Ultimately, Stacey removed several strips of foam material, each approximately three inches wide and one inch long, from the backs of two seats. In his testimony Stacey stated that both Sanderses influenced his decision to remove the seat fabric from the wreckage.

In March 1997, the Riverside, Calif., Press Enterprise published a front-page story revealing that James Sanders, through a confidential source, had obtained and tested a residue sample from a section of the passenger cabin.

Shortly after the article was published, the U.S. Attorney in Long Island, N.Y., issued a subpoena for James Sanders’ telephone records. The subpoena was not approved first by the attorney general as required for news media subpoenas, but Attorney General Janet Reno retroactively approved it. (See NM&L, Fall 1997)

Assistant U.S. Attorney Benton Campbell also offered Sanders the option of entering a non-prosecution agreement in exchange for the disclosure of his source. The reporter declined the offer because he did not believe he had committed a crime and that his status as a journalist protected the confidentiality of his source.

In April 1997, Sanders published his book, which detailed the information supporting his conclusion that a Navy missile was responsible for the plane’s explosion.

Two months later, apparently after examining Sander’s subpoenaed telephone records, the government identified Stacey as Sanders’ confidential source inside the investigation. Stacey then entered an agreement with the government in which he could plead guilty to a misdemeanor if he testified against the Sanderses.

The Sanderses were arrested and charged with the unauthorized removal of property that had been on an aircraft involved in an accident, a violation of a federal statute. (See NM&L, Winter 1998)

A Uniondale, N.Y., judge sentenced the reporter to three years of probation and 50 hours of community service and his wife to a year of probation and 25 hours of community service. (See NM&L, Summer 1999)

On appeal to the U.S. Court of Appeals in New York (2nd Cir.), the Sanderses argued that the prosecution was vindictive, as it was intended to penalize and inhibit the exercise of First Amendment rights to challenge the government’s explanation of the disaster and refuse to reveal a confidential source. The court found that “[i]n no way does the evidence show that the prosecution was brought to punish the defendants or to retaliate against them for exercising their rights.” Rather, “it would be too easy for defendants to obtain discovery on vindictive prosecution claims if all that was required was to identify a potential motive for prosecutorial animus.”

The Sanderses also alleged that the court violated the journalist’s privilege, which requires a balancing test to weigh the harm resulting from compelled disclosure of confidential sources against competing interests. But the court ruled that the privilege is intended to protect journalists from being compelled to turn over evidence in court, and is not meant to limit a prosecutor’s discretion in determining when to bring criminal charges.

The Sanderses argued that the amount of fabric taken from the wreckage did not constitute “property” under the statute and thus the evidence was legally insufficient. The Sanderses claimed that “there is no basis for concluding that the statute was intended to reach a case involving such an insubstantial and inconsequential substance.” But according to the appellate court, “A statute is not rendered vague or ambiguous simply because a defendant might speculate that an exception exists, when nothing in the statute suggests such an exception.”

The couple also argued that the evidence was insufficient to convict Elizabeth Sanders for her limited role. Elizabeth Sanders cited evidence, including phone records, that her only involvement after the original contact occurred after Stacey had removed the fabric. The court rejected this interpretation of the evidence.

Finally, the Sanderses argued that the jury in their trial should have been instructed that “guilty intent” was a requirement for a guilty verdict. But the court held that “one who knowingly removes parts or property from an airplane that has been involved in a crash has ‘sufficient knowledge’ to recognize that they have done something culpable.'”