Citation. 440 Fed. Appx. 894 (11th Cir. 2011) [2011 BL 242533]
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Appellants were former agents of the Drug Enforcement Administration convicted of the unauthorized sale of government property.
Synopsis of Rule of Law.
The sale of information, although an intangible, qualifies as a “thing of value” under the statute forbidding the sale of records or things of value of the United States.
Facts.
In May 1977, Appellant Lambert was an agent of the Drug Enforcement Administration (DEA) and appellant Girard was a former agent. Girard and a man by the name of Bond discussed an illegal venture that involved smuggling marijuana from Mexico into the United States. Girard told Bond that for a certain price per name, he could secure reports from the DEA files that would show whether any participant in the operation was an informant. However, Bond himself was a government informant, and he told the DEA that Girard’s informant was Lambert. Lambert obtained the reports though a computer located in the DEA office. Appellants were charged with and convicted of the unauthorized sale of government property and of conspiring to accomplish the sale. The convictions are based on the sale of information in the proposed deal. Appellants appeal from their convictions.
Issue.
Is the statute only applicable to tangible property or documents and not the sale of information?
Held.
No. Judgments are affirmed.
The applicable statute provides that “whoever without authority sells a record or thing of value of the United States or receives the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, or converted, shall be guilty of a crime.”
Like the district judge this Court is of the opinion that the phrase “thing of value” is generally construed to cover intangibles as well as tangibles. Although the content of a writing is intangible, it is nevertheless a thing of value.
In addition, the statute itself is not vague or overly broad. Appellants, being former employees of the DEA, should have known that the sale of confidential DEA information was prohibited. This case does not involve an exercise of the defendants’ First Amendment rights. The content of the statute legitimately regulates conduct, and any overbreadth that may exist can be cured on a case by case basis.
Discussion.
The government has a property interest in certain private records which can be protected under a statutory scheme. This case is fairly obvious insofar, as the Court pointed out, the Appellants clearly were up to good and knew that their conduct was wrong.
