I did not make up that title — just tweaked it from the Court of Appeals decision on the Horn v. Huddle case heard before ROGERS, BROWN and GRIFFITH, Circuit Judges in the U.S. Court of Appeals for the District of Columbia Circuit. I am reprinting excerpts from the decision below. This seems like a convoluted way to get somebody’s assignment involuntary curtailed, don’t you think?
Concurring and dissenting opinion filed by Circuit Judge BROWN(excerpt):
Once the privileged material is removed, Horn is essentially left with three pieces of circumstantial evidence — a cable, a table, and Huddle’s apparent lie. I question whether a reasonable person would seriously entertain the possibility, based on that evidence alone, that Huddle learned of Horn’s statement via a wiretap. One wonders if the atmosphere of government intrigue in this case — an atmosphere carefully cultivated by Horn and unfortunately only exacerbated by the government’s invocation of the state secrets privilege — is in fact doing much of the work in the majority’s determination that Horn has established a prima facie case on such skimpy evidence. Would a reasonable person really think Horn had established a prima facie case with the same circumstantial evidence if he was an OSHA inspector in Hoboken?
Opinion for the Court filed by Circuit Judge ROGERS (excerpt).
[…] Horn’s basic claim is straightforward: Late at night on August 12, 1993, he placed a phone call from his personal residence to a DEA subordinate, David Sikorra. He expressed concern that Huddle was trying to expel him from Burma and that DEA might respond by closing its Burma office. Soon thereafter, Horn learned of a cable, since declassified in part, that Huddle sent to State Department officials in Washington, D.C. This cable, which is dated August 13, 1993, contains an unclassified paragraph that reads:
Finally, Horn shows increasing signs of evident strain. Late last night, for example, he telephoned his junior agent to say that “I am bringing the whole DEA operation down here.” “You will be leaving with me . . . We’ll all leave together.” In this context, he then went on to note talks with [DEA officials] Greene and Maher without explicitly drawing a connection.
Cable from Franklin Huddle, American Embassy, Rangoon, Burma, to Secretary of State, Washington, D.C. ¶ 6 (Aug. 13, 1993) (“Huddle Cable”) (ellipses in original). On the basis of this cable, which Horn claims quotes him verbatim, Horn concluded that someone was eavesdropping on his personal conversation with Sikorra.
In an unclassified and unprivileged affidavit submitted to the district court, Huddle insisted instead that Horn’s conversation had spread by word of mouth. Huddle averred that he told the IG investigators that the information in the cable was provided to him by DEA Special Agent Bruce Stubbs. Special Agent Stubbs, for his part, denied, in the declassified portion of the IG report, telling anything to Huddle about Horn’s conversation with Sikorra. According to unclassified and unprivileged information, Stubbs was on official travel during the relevant time period and told IG investigators that he neither saw Huddle in person nor contacted him by telephone. Stubbs insisted that he did not learn of Horn’s conversation with Sikorra until he returned to Rangoon on August 26, 1993, almost two weeks after Huddle sent the cable to the State Department.
Further, Stubbs swore in an unclassified and unprivileged affidavit that Huddle had contacted him while the IG investigation was pending to discuss how Stubbs had told Huddle about Horn’s statement. Stubbs averred that he had no such recollection and that Huddle’s telephone call was improper, to which Huddle responded that he was merely “prescreening [Stubbs] to determine [his] recollections of Horn’s allegations.” Stubbs Aff. para. 8. This aspect of Stubbs’ affidavit is supported by a file memorandum that he wrote on September 22, 1994, the day after he was contacted by Huddle. When confronted with Stubbs’ affidavit, Huddle told investigators in writing that he “stand[s] by [his] statement.” Huddle Stmt. (Nov. 7, 1995).
Horn thus contends, in view of the unclassified and unprivileged materials, that he has demonstrated a prima facie case because the district court found that the redacted cable showed eavesdropping as the source of information, and the declassified interviews with personnel then stationed at the Embassy in Rangoon establish that Huddle did not learn of Horn’s conversation, either verbatim or otherwise, from Stubbs or anybody else, leaving unconstitutional surveillance as the only remaining option. Although Horn has no direct evidence that Huddle participated in an unlawful surveillance, he relies on the following circumstantial evidence:
First, in November 1992 there was a suspicious entry into his apartment in Burma when, unsolicited, his government issued rectangular coffee table was swapped for an oval replacement while he was out of town. He was advised that his “original coffee table was needed to complete a sofa set at another residence.” Memorandum from Richard A. Horn on Questionable Furniture Movement para. 3 (Feb. 27, 1995). Horn characterized this conduct as “peculiar” and notes that “[a] telephone was located in this room within close proximity to the aforementioned coffee table.” Id. para. 4.
Second, Horn traces the limited spread among Embassy personnel of his conversation with Sikorra, emphasizing that Huddle’s source was specific enough to allow Huddle to use quotation marks and ellipses in the cable. In declassified statements, Sikorra explained that he told only a secretary, Mary Weinhold, about the disturbing telephone call; Mrs. Weinhold explained that no one could have overheard her conversation with Sikorra and that she does not recall having told her husband, who also worked at the Embassy, about Horn’s conversation; Mr. Weinhold corroborated his wife’s recollection; and Huddle’s deputy at the Embassy stated his belief that Huddle was aware of the conversation between Horn and Sikorra before he was.
The district court “verified that indeed, [the Huddle cable] is a verbatim reproduction of parts of Horn’s conversation with Sikorra, using quotation marks and ellipses, and a paraphrasing of other parts — evidence that Horn’s conversation had been wiretapped.” Mem. Op. of Feb. 10, 1997, at 4. Nonetheless, the district court found Horn’s allegations insufficient to establish a prima facie case. Mem. Op. of July 28, 2004, at 10. The district court reasoned that Defendant II’s identity is protected and that there is no unprivileged evidence connecting him to Horn’s allegations.
No. 04-5313 IN RE: SEALED CASE | Appeal from the United States District Court for the District of Columbia (No. 94cv01756)
Argued December 14, 2006 | Decided June 29, 2007 | Unsealed July 20, 2007