Title: Volume FOIA 071

Release Date: 2014-03-20

Text: 22693

Volume 71 of 111
SJAR ROT
FOIA Version

VERBAT IM 1

RECORD OF TRIAL2

(and accompanying papers)

of
(Name: Last, First, Middie initiai) (Sociai Security Number) (Rank)
Headquarters and
Headquarters Company,
United States Army Garrison U-S- Army FCDIJC Ml/er: VA 22211
(Unit/Command Name) (Branch of Service) (Station or Snip)
By
GENERAL COURT-MARTIAL
Convened by Commander

(Titie of Con vening Authority)

UNITED STATES ARMY MILITARY DISTRICT OF WASHINGTON
(Unit/Command of Con vening Authority)

Tried at

Fort. Meade, MD on see below

(Piace or Piaces of Triai) (Date or Dates of Triai-9

Date or Dates of Trial:

23 February 2012, 15-16 March 2012, 24-26 April 2012, 6-8 June 2012, 25 June 2012,

16-19 July 2012, 28-30 August 2012, 2 October 2012, 12 October 2012, 17-18 October 2012,
7-8 November 2012, 27 November - 2 December 2012, 5-7 December 2012, 10-11 December 2012,
8-9 January 2013, 16 January 2013, 26 February - 1 March 2013, 8 March 2013,

10 April 2013, 7-8 May 2013, 21 May 2013, 3-5 June 2013, 10-12 June 2013, 17-18 June 2013,
25-28 June 2013, 1-2 July 2013, 8-10 July 2013, 15 July 2013, 18-19 July 2013,

25-26 July 2013, 28 July - 2 August 2013, 5-9 August 2013, 12-14 August 2013,

16 August 2013, and 19-21 August 2013.

1 insert ?verbatirri or ?surrimari'zeo? as appropriate. This form be used by the Army and Navy for verbatim records of triai

2 See inside back co ver for instructions as to preparation and arrangement.

DD FORM 490, MAY 2000 PREWOUS OBSOLETE Front Cover

22694

(4) Defense Production of Government Reciprocal Discovery Request
(A) Date: 14September2012
(5) Government Motion to Compel Discovery (if any)
(A) Filing: 28 September 2012
(B) Rcsponsc:3Ocfobcr2012
(C) Articlc39(a):1519Octobcr2012
(6) Defense Notice of Accuseds Forum Selection and Notice ofPleas in Writing^^
(7) Motions ^^^^^^^^ (Supplemental, Including any Classified Information)
j.

Interim Pretrial Motions (22 October 2012 31 October 2012)
(A) Filing: 22 October 2012
(B) Response: 26 October 2012
(C) Articlc39(a): 31 October 2012
(1) Updated Proposed Case Calendar

(2) Production of Compelled Discovery for Government Motion to Compel
Discovery
(A) Date: 22 October 2012
1^^ Pretrial Motions (2 November 2012 30 November 2012)
(A) Filing: 2Novcmbcr2012
(B) Response: 16Noyembcr2012
(C) Articlc39(a): 28 30November2012^^
(1) Pre-0^^^^^^ Government Experts
(2) Requests for JudicialNotice
(3) Supplemental Government Witness List^^
1. Interim Pretrial Motions (7 December 2012 20 December 2012)
(A)selectsapanel,
Filing: 7Dcccmbcr2012
If the accused
the United States proposes the panel be notified no less than sixty days prior to trial,
in order to coordinate fbr extended special duty and traveL
The hearing is scheduled one week later than the default schedule due to theThanksgiving holiday.
The United States will submitasupplemental witness list based solely on any rulings fi^om the government motion
to compel discovery ruling and any disclosures by the defense after the I^September 2012 witness list due date.

22695

(B) Response: 14Deccmbcr2012
(C) Articlc39(a): 19 20 December2012
(1) Litigation ConcerningMRE505(h)andMRE505(i)^^
(A) Filing: 14Noycmbcr2012
(B) Rcsponse:27Noyembcr2012^^
(C) Article39(a): 19 20 December 2012
(2) Updated Proposed Case Calendar (if necessary)
m. PretrialMotions (14 December 2012
(A)
(B)
(C)
(D)

llJanuarv 2013)^^

Filing: 14Dcccmbcr2012
Rcsponsc: 28 December 2012
Rcply:2January2013
Article 39(a):911January 2013

(1) Any Additional Motion that does not have an Identified Deadline
(2) Grunden Hearing for All Classified Information
(3) Voir Dire questions, Flyer,Findings^SentenceWorl^sheet, All CMCOs
(A) Filing fbr Court Review: 2January2013
(B) Articlc39(a):911January2013
n. Trial by Members (l^Januarv2013^Februarv 2013)
(A) VoirDirc: 18January2013
(B) TriaL 21 January 2013 8 Fcbmary 2013

ANGEL MLOVERGAARD
CPT,JA
AssistantTrial Counsel

This includes ^^^^^^^^ proceedings tor Defense Notice to Disclose Classified Information and/or the
Government's Invocation of the privilege for merits and Sentencing Infortnation.The United States estimates that
any Court order to disclose classified information will likely require coordination with multiple federal organisations
and roughly estimates forty-five to sixty days to aggressively coordinatearesponse across all ec^uity holders.
The adjusted date gives the Court additional time to review any discoverable material and was agreed to bythe
defense. The Govemment estimates the review will take no more than fifteen duty days to complete.
There have been numerous unplanned motions submitted throughout the pre-trial process. The prosecution,
therefore, anticipates that several pretrial motions will be filed under the ^^Any Additional motion" timefi^ame.

22696

UNITED STATESOF AMERICA

)

Manning,BradleyE.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
FortMyer, Virginia 22211

)
)
)
^
)
)
)

Prosecution Proposed
Case Calendar
Update
30 June 2012

1. The Court is currently scheduling Article 39(a) sessions with the fbllowing default schedule at
the request ofthe parties: two weeks fbr parties to file motions^ two weeks fbrpartiesfo file
responses^ five days fbr parties to file replies^ and one week fbr the Court to review all pleadings
befbre the start ofthe motions hearing. The time for filing replies was added afterthe ^rst Article
39(a) session on I5-16March 2012 because the Court received reply briefs the day before that
session, the parties desire to continue to file replies, and the Court requires time to considcrthcm.
2. The Prosecution Proposed Case Calendar Update, dated 30 June 2012, is based upon the same
assumptions listed in the Prosecution Proposed Case Calendar(AE I) and all Prosecution Proposed
CascCalcndar Updates and Supplements (incIudingAE XX, XLV,XLVI,CXIIL CLL and the
Prosecution Proposed Case Calendar Updates, dated 22 June 2012and 29 June 2012). Tothe
extent these assumptions prove to be incorrect or too ambitious, the schedule will be
correspondingly longer.
3. Scheduling dates and suspense dates arc set forth below. The trial schedule will be reviewed
and updated as necessary at each scheduled Article 39(a) session.
a. ImmediateAction(21 February 2012 IbMarch 2012)
b. Legal Motions, excludingEvidentiary Issues (29 March 2012 26 A^ril2012)
c. LegalMotionsdO May 2012^June 2012)
d. InterimPretrialMotions (2June 2012 25June 2012)
e. PretrialMotions (7 June 2012 20Julv 2012)
(A)
(B)
(C)
(D)

Filing: 22June 2012
Response: 6July2012
Reply: 11July2012
Articlc39(a):16 20July2012

(I) Defense Motion to Compel Discovery ^2 (Department ofState Material)^

I

See Appellate Exhibit (AE) CXLII. AE CXLVII changed the response date to 9 July 2012.

1

APPELLATE E X H I B I T j ^ ^ .
PAGEREFERENCED:
PAGE
OF
PAGES

22697

(A) Filing:7June2012
(B) Response:9July2012
(C) Reply: llJuly2012
(D) Articlc39(a): 16 20July20I2
(2) Government Initial Witness List
(A) Filing: 22Junc2012
(3) Proposed Members Instructions for All Charged Offenses
(4) Witness Lists for Article 13
(A) Defensc Witness Lists:3July 2012^
(B) Government Objections (ifany): 10July2012
(C) Defensc Motion toCompcl (if any): 13 July 2012
(D) Articlc39(a): 16 20 July 2012
(5) Preliminary DeterminationsonAdmissibility
(6) Defense Motion to Dismiss All Charged Offenses under l^U.S.C.1030(a)(1)^2
(7) Maximum Punishment for Lesser Included Offenses
(8) Government Motion for Substitutions under MRE 505(g)(2) for FBI Impact
Statement
(9) Government Motion for Modification of Court Orders Government Motions
Protective Order(s)dated 24 April 2012
(10) Supplemental Filings on Actual Damage on the Merits
(A) Filings: 21 June 2012
(11) ProposedO^^^tionnaires
(A) Defense Piling; 6July2012
(B) Prosecution Response: 11 July 2012
(C) Article 39(a): 16 20 July 2012^
(D) questionnaires to Detailed Members and Altemates: 24 July 2012
(E) Suspense fbr Detailed Members and Altemates to Respond: 3August2012
(12) Updated Proposed Case Calendars
(A) Filing: N/A
^ The United States moved the date trom^July 2012 to^July 201^ to allow more than one day to contact the
witnesses after the defense providesasynopsis of the expected testimony sufficient to show its relevance and
necessity.
^ Any disagreements between the parties'^uestionnaires will be resolved at thel^20 July 2012 Article ^9(a).
^ The parties will he ready to discuss the case calendar at the1^ 20 July 2012 Article ^9(a) session.

22698

(B) Article 39(a):16 20 July 2012
(13)Defense Notice oflntentto Disclose Classified Information under MRE 505(h)
(Charged Documents)
(A) Filing:6July2012
(B) Response: 11JuIy2012
L

InterimPretrialMotions (10 August20I2 (^ 1300)

g. PretrialMotions (20 July 2012 31 August2012)
(A)
(B)
(C)
(D)

Filing:3August2012
Response: 17August2012
Rcply:22August2012
Article 39(a): 27 31 August2012

(1) Article 13
(A) Filing: 27 July 2012^
(2) Motions ^^^^^^^^
(3) Motions to Suppress (if any)
(4) Due Dillgence^^^^^^ Filing
(A) Filing: 25 July 2012
(5) Notification to the Court ofAnticipated Limited Disclosures under MRE
505(g)(2) or Notification to theCourtofPrivilege under MRE 505(c) for Files underthe
Possession Custody,orControl ofMilitary Authorities based on theCourt's22June2012
Ruling
(A) Filing: 20 July 2012
(6) Notification to the Court of Anticipated Ulmlted Disclosures under MR^
505(g)(2) or Notification to theCourtofPrivilege under MRE 505(c) for FBI Investigative
File based on the Court's 22 June 2012 Rulings
(A) Filing: 25 July 2012
(7) Government Filing for ^^C^B^^r^ Proceeding IAWMRE505(i) with Notice to
Defense (ifPrivilege is Claimed) based on the Court's 22 June 2012 Ruling
(A) Filing: 25 July 2012

^ The defense agreed to the filing date ofone week earlier to give the United States the necessary time to respond.
^ The United States has alreadyprovided the Court with its l^otion for Substitutions under l^R^^0^(g)(2) fbr EBI
Impact Statement.

22699

(8) Disclosure to Defense or Disclosure to the Court under RCM 701(g)(2) or MRE
505(g)(2)ofAllInformationSubjecttotheCourt's22June2012 Rulings
(A)Fi1ing:3August2012
(9) Disclosure of All Remaining Unclassified or Classified (under MRE 505(g)(1))
Brady Material andPisclosure under MRE 701(g)(2) or MRE 505(g)(2) of AllRemaining
ClassifiedBrady Materials
(A)Filing:3August2012
(10) Witness Lists for SpeedyTrial, including Article 10
(A) Witncss Lists: 10August2012
(B) Govertm^cnt Objections (ifany): 17Augusf2012^
(C) Defense Motion to Compel (ifany): 22 August 2012
(D) Articlc39(a):27 31 August2012
(11) Updated Proposed Case Calendar^^
(A) Filing: N/A
(B) Article 39(a): 27 31 August2012
h. Interim PretrialMotions (7 September 2012 19 September 2012)
(A) FiIing:7Scptcmbcr2012
(B) Response: 14Scptcmber2012
(C) Article39(a): 19Scptcmbcr2012
(1) Defense Notice oflntent to Disclose Classified Information under MRE 505(h)
om Subsequent Disclosures)^^
i.

PretrialMotions (7 Se^tember2012 19 October 2012)

^ This disclosure includes allfilesthat involve investigation, damage assessment, ormilitary measures that are under
th^poss^^sion,custody,o^ control ^fmilita^a^thc^rities; all I^BI files th^t involve i^vesti^atio
ormitigation measures; the ODNI/ONCIX damage assessment; and evidence the United States will introduce on the
merits and during sentencing.
^ This production includes any material discovered while searching the files, if any,of the I^resident'slntelligence
Advisory Board, and all material that is not subject to motions to Compel Discovery or I^roduction. Ifthe Court rules
that any of the proposed summaries under ^R^^O^(g)(^)are not acceptable, the prosecution will need additional
time to obtain approval tbradifferent substitution.
^TheCourtand the parties discussed an objection date of22 August 2012 in the 2^ June 2012 R^C^ ^02 Conference;
however, the United States set the date earlier to allowthe defense the opporUinitytofileamotion to compel, if
necessary.
The parties will be readyto discuss the case calendar at the 2731August 2012 Article 39(a) session.
The defense suggestedafiling date of17August2012andaresponse date of22 August 2012; however, the
defense suggested timeline does not take into account the time necessary for the Court to review the l^R^^0^(g)(2)
disclosures. The United States, therefore, proposes the disclosure occur in the interim motions hearing.

4

22700

(A) Filing: I4Scptcmber20I2
(B) Rcsponsc:28 September 2012
(C) Article 39(a): 1519Octobcr2012
(1) Speedy Trial,includingArticlelO
(A)Filing:7Scptember2012
(2) Witness List (Defense and Supplemental Government)
(A) Filing: 14Scptcmber2012
(B) Government Objection to Defense Witnesses: 21 September 2012
(C) Motion to Compel Production:28 September 2012
(D) Rcsponse:3Octobcr2012
(E) Articlc39(a):1519October2012
(3) Defense Notice of its Intent to Offer the Defense of Alibi, Innocent Ingestion, or
Lacl^ OfMentalResponsibilitylAWRCM 701(b)(2)
(4) Defense Production ofGovernmentReciprocalDiscovery Request
(A) Date: 14Septembcr2012
(5) Government Motion to Compel Discovery (if any)
(A) Filing: 28 September 2012
(B) Response: 3Octobcr2012
(C) Article39(a): 1519Octobcr2012
(6) Defense Notice of Accuseds Forum Selection and Notice ofPleas in Writing^^
(A)Filing:7Scptcmbcr2012
j.

InterimPretrialMotions (22 October 2012-31 October 2012)
(A) Filing: 22 October 2012
(B) Response: 26 October 2012
(C) Article 39(a); 3 1 O c t o b e r 2 0 I 2

(1) Updated Proposed Case Calendar (if necessary)
(2) Production of Compelled Discovery for Government Motion to Compel
Discovery
(A) Date: 22 October 2012
1^. PretrialMotions (2 November 2012 30 November 2012)
The defense agreed to the filing date ofone week earlier to give the United States the necessary time to respond.
If the accused selectsapanel, the United States proposes the panel be notified no less than sixty days prior to trial,
in order to coordinate for extended special duty and traveL The7September2012date was suggested by the defense.

22701

(A) Filing:2Noycmber2012
(B) Response: 16November2012
(C) ArticIe39(a): 28 30 November 2012^^
(1) Pre-O^^^^^^^tionofExperts
(2) Requests for Judicial Notice
(3) Supplemental Government Witness List^^ (if necessary)
(4) Motions
necessary)

^^^^^^ (Supplemental, Including any Classified Information) (if

1. InterimPretrialMotions (14 November 2012 20 December 2012)
(A) Filing: 7Dccember2012
(B) Response: 14Dcccmbcr2012
(C) Articlc39(a): 19 20 December 2012
(1) Litigation ConcerningMRE505(h)andMRE505(i)^^
(A) Filing: 14Noycmber2012
(B) Rcsponsc:27Noycmbcr2012^^
(C) Article 39(a): 19 20 December 2012
(2) Updated Proposed Case Calendar (if necessary)
m. PretrialMotions (14 December 2012 11 January 2013)^^
(A) Filing: 14Dcccmbcr2012
(B) Response: 28 December 2012
(C) RepIy:2January2013
(D) Article 39(a);

91IJanuary2013

The hearing is scheduled one week later than the default schedule due to theThanksgiving holiday.
The United States will suhmitasupplemental witness list based solely on any rulings from the govemment motion
to compel discovery ruling and any disclosures by the defense after thel^September 2012 witness list due date.
This includes ^^^^^^^^ proceedings fbr Defense Notice to Disclose Classified Infbrmation and/or the
Govemment's Invocation of the Privilege fbr lyierits and Sentencing Infbrmation.The United States estimates that
any Court order to disclose classified information will likely require coordination with multiple federal organisations
and roughly estimates forty-five to sixty days to aggressively coordinatearesponse across all equity holders.
The adjusted date gives the Court additional time to review any discoverable material and was agreed to by the
defense. The Govemment estimates the review will take no more than fifteen duty days to complete.
There have been numerous unplanned motions submitted throughout the pre-trial process. The prosecution,
therefbre, anticipates that several pretrial motions will be filed under the ^^Any Additional motion" timeframe.

6

22702

(1) AnyAdditional Motion that does not have an Identified Deadline
(2) Grunden Hearing for All Classified Information
(3) Voir Dire questions, Flyer,Findings/SentenceWorl^sheet, All CMCOs
(A) Filing fbr Court Review: 2January2013
(B) Article39(a):911January2013
n. Trial by Members (InJanuary 2013^February 2013)
(A) VoirDirc: 18January2013
(B) TriaL 21 January 2013 8 Fcbmary 2013

ANGELMOVERGAARD
CPT,JA
AssistantTrial Counsel

22703

UNITED STATES OF AMERICA
V.

Manning, Bradley E.
PFC, U.S. Army,
HHC,U.S.ArmyCarrison,
JointBaseMyerHendersonHall
FortMyer,Virginia 22211

Covernment Response
to Defense Witness Request;
Article 13

10 July 2012

The Govemment has reviewed the Defense witness and evidence requests dated 3 July
2012 (Defense Request). Without the benefit of the Defense's Article 13 Motion, the
Govemment does not know the issues the Defense will raise with respect to Article 13, except
for what is apparent in its proffered expected testimony. The Defense Witness Request focuses
on the accused's confinement at the Quantico Pretrial Confinement Facility (Quantico Brig).
The Defense's proffered testimony for all witnesses does not raise any allegation of improper
treatment at the Fort Leavenworth Joint Regional Correctional Facility (JRCF).
Pursuant to Rule for Courts-Martial (RCM) 703(b)(1), the Govemment makes the
following determinations regarding these Defense requested Article 13 witnesses:
1. The Govemment will produce CAPT William J. Hocter. CAPT Hocter, a psychiatrist, treated
the accused and made recommendations regarding the accused and his mental health at Quantico

Brig.
2. The Govemment will produce COL Ricky Malone. COL Malone, a psychiatrisL consulted
with CAPT Hocter and also treated the accused and made recommendations regarding the
accused and his mental health at Quantico Brig.
3. The Govemment will produce CAPT Kevin D. Moore. CAPT Moore served previously as a
Defense expert consultant in psychiatry. CAPT Moore did not treat the accused.
4. The Govemment will produce Col. Robert G. Oltman, U.S.M.C. Col. Oltman was the
Quantico Security Battalion commander and the supervising commander of the Quantico Brig.
5. The Government will produce LCDR David Moulton. LCDR Moulton served previously as a
Defense expert consultant in psychiatry. LCDR Moulton did not treat the accused.
6. The Govemment denies production of LTC Dawn Hilton. The Defense's proffered testimony
of LTC Hilton is not relevant and necessary under RCM 703(b)(1). According to LTC Hilton
and the Defense RequesL LTC Hilton had neither responsibility for nor interaction with the
accused at Quanbco Brig. LTC Hilton was the commander for a U.S. Army confinement
facility. Quantico Brig was a Marine facility under the command and control of the U.S. Marine
Corps. During a telephonic interview with the Govemment in response to the Defense RequesL
LTC Hilton stated that she would not question another commander's decisions at a different
confinement facility, and that she was the JRCF commander when the accused assaulted another
pretrial confinee on 10 December 2011. The Defense Request does not allege that the accused's

APPELLATE EXHIBITlI^^^y.
Page

I ofPage(s) 3

ci%)

22704

confinement at the JRCF violated Article 13 Therefbre, any proffered testimony byLTC Hilton
would be unrelated and irrelevant to the accused'spretrial confinement at Quantico Brig.
7. The Govemment denies production ofMr Juan F.Mended. The Defense's proffered
testimonyofMr.Mende;^ is not relevant and necessary underRCM 703(b)(1). Duringa
telephonic interviewwith the Govemment in response to the Defense RequesL Mr.Mende^
stated that he never met with the accused, spoke with the accused, nor visited Quantico Brig
Mr. Mended informed the Govemment that his only knowledge about the accused and the
accused's confmement conditions was through infbrmation he received from conversations with
Mr Coombs or he received bypublic mailings. Additionally,contraryto what the defense
proffered, Mr. Mende:^ offered to meet with the accused at Quantico Brig even though he would
be monitored: however, the accused declined to meet with him Focused on the accused and his
confinement conditions, Mr.MendeB^ ultimately w^ould testify regarding the accused'srefiisal to
meet with him or about infbrmation Mr Mended leamed through Defense Counsel and public
notifications, neither line oftestimonyis relevanL
Pursuant to Rule for Courts-Martial (RCM) 703(f), the Government makes the fbllowing
determinations regarding the Defense requested Articlel3evidence:
1 The Govemment denies production ofthe Quantico Brig issued suicide prevention smock.
UnderRCM 703(f)(3), the Defense failed to demonstrate the relevance of the suicide prevention
smock. However, assuming the Defense intends to articulate relevance in the future by
explaininganeed fbr the Court to see an actual smock incourL testimony and photographs of
the smock will be sufficient fbr the Couri to understand its purpose, limitations, or possible
effecL The Govemment is working to obtainapictureofthe smock
2 The Govemment denies production ofthe Quantico Brig issued suicide prevention blankeL
UnderRCM 703(f)(3), the Defense failed to demonstrate the relevance ofthe suicide prevention
blankeL However, assuming the Defense intends to articulate relevance in the fixture by
explaininganeed for the Court to see an actual blanket incourL testimony and photographs of
the blanket will be sufficient fbr the Court to understand its purpose, limitations, or possible
effecL The Govemment producedapicture of the blanket to the Defense. See Bates^ 447860.
^. The Government denies production ofthe Quantico Brig issued suicide prevention mattress.
UnderRCM 703(f)(3), the Defense failed to demonstrate the relevance ofthe suicide prevention
bed. However, assuming the Defense intends to articulate relevance in the future by explaininga
need fbr the Court to see an actual mattress in-court, testimony and photographsofthc mattress
will be sufficient for the Court to understand its purpose, limitations, or possible effect The
Govemment producedapictureofthe mattress to the Defense See Bates^ 447860.

ALFXANDFRVO^FLTFI^
CPT,JA
AssistantTrial Counsel

22705

ASHDFNFLI^
MAJ,JA
Trial Counsel

Icertify thatlserved or caused to be servedatme copy ofthe above on Mr.David
Coombs, Civilian Defense Counsel via electronic mail,onlOJuly 2012.

^^^^

ASHDF^^EIN
MAJ,JA
Trial Counsel



IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE NOTICE UNDER
MILITARY RULE OF EVIDENCE
505(h)(3): CHARGED
DOCUMENTS ADDENDUM

V.

MANNING, Bradley E., PFC

U.S. Anny,

Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

DATED: 11 July 2012



1. The Defense previously indicated that Speci?cation 13 of Charge 11 references 125
diplomatic cables it actually only references 124. Additionally, only 8 ofthe 124 cables listed
in the charged documents were not part of the classi?cation review. Bates number

003 77526-29, part of the charged documents, refers to the previously believed missing
07BAGHDAD42 cable.

2. Nothing contained in this notice should be construed in any manner as a concession by PFC
Manning or his Defense that the listed items are appropriately classi?ed pursuant to Executive
Order 13256 or that the disclosure of such information would be detrimental to the national
security.

Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

APPELLATE mo)

Pa?e_l orpagem

0 0 22707

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REPLY TO

GOVERNMENT RESPONSE TO
RENEWED DEFENSE MOTION
TO DISMISS FOR FAILURE TO

MANNING, Bradley E., PFC STATE AN OFFENSE:
u.s. Army,? SPECIFICATIONS 13 AND 14 OF
Headquarters and Headquarters Company, U.S. CHARGE ll

Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211



DATED: ll July 2012
RELIEF SOUGHT

1. PFC Bradley E. Manning, by counsel, pursuant to applicable case law and Rule for Courts
Martial (R.C.M.) requests this Court to dismiss Speci?cations 13 and 14 ofCharge
ll because the Government has still failed to allege that PFC Manning?s alleged conduct
exceeded authorized access within the meaning of 18 U.S.C. Section l030(a)(

ARGUMENT

2. The Government Response to the Defense Renewed Motion to Dismiss [hereinafter
Government Response] clearly demonstrates that the Govemment?s Wget theory on ?exceeds
authorized access" is simply a red herring; it is being put forth solely to muddy the waters long
enough for the Government to present its evidence to the court-martial members. Perhaps the
Government hopes to cling to its assortment of impermissible theories of ?exceeds authorized
access? just long enough to establish a lesser-included offense for Speci?cations I3 and I4 of
Charge ll. Perhaps the Government wishes to prove its case with respect to Speci?cations I3
and I4 in order to increase the likelihood of a guilty verdict on the other speci?cations.
Whatever its motive, the Government cannot escape the fact that it has no cognizable theory of
?exceeds authorized access" that can be applied to PFC Manning?s conduct.

3. As a factual matter, it is undeniable that PFC Manning was authorized to access the
infonnation covered by Speci?cations l3 and I4. In its Response, the Government coyly states
that it did not stipulate to this fact. The Government, however, also avoids disputing this fact,
both in its Response and in all other written and oral representations made to this Court.
Moreover, the undisputed evidence and the Government?s reliance on its novel theories of
?exceeds authorized access? make clear that the Government has no evidence that PFC Manning
was not authorized to access the information he allegedly accessed. The Govemment?s attempt
to manufacture a factual issue where none exists is not only unsupportable; it borders on bad
faith.

4. As to the legal merits of the Government?s Wget theory, the Government Response con?nns
what the Defense anticipated in its Renewed Motion: the Wget theory is simply a new and less

U99)

APPELLATE EXHIBIT
a I



persuasive variant of the worn out (and rejected) expansive interpretation of ?exceeds authorized
access.? The Government fails to identify a single case that supports its theory; this is because
there is no case that has permitted a section 1030 claim to proceed based on a pure contract-
based ?Terms of Use? violation. Moreover, its discussion of the Nasal dicta, Professor Orin
Kerr?s commentary, and the 1996 legislative history is disingenuous. Additionally, the Wget
theory would lead to undeniably absurd results. Finally, the Government?s suggestion that a
court instruction can ?balance? an impermissible theory and a permissible one and allow the
court-marital members to choose which one to accept is utterly senseless.

5. The Government makes no attempt to address the Defense?s argument regarding the

-Govemment theory underlying Speci?cation l4 of Charge 11. Instead, it advocates, in a single

sentence, a ?wait and see? approach. The obvious problem with this approach is that the
Government cannot_be permitted to simply ?re a barrage of prejudicial evidence at the members
and then, after the smoke has cleared, ?gure out whether a permissible theory of ?exceeds
authorized access? ?ts that evidence. Rather, the time to articulate a cognizable legal theory is
now. As the Government has repeatedly demonstrated its inability to articulate such a theory for
Speci?cation 14, the dismissal ofthat speci?cation is long overdue.

6. Finally, both the substance and the tenor of the Government Response shows that the
Govemment?s true objective is not to attempt to state a cognizable legal theory for ?exceeds
authorized access,? but rather to delay the day of reckoning for its theory (or theories) until after
it has put forth its case to the members. For reasons already stated in the Defense Renewed
Motion, any such delay would result in severe prejudice to the accused. The Government offers
no response to these concerns. The implication of its silence is clear: the Government either has
no response or did not bother to come up with one. Either way, this Court, unlike the
Government, cannot cavalierly disregard the concerns of prejudice to an accused.

7. For these reasons, this Court should grant the Defense Renewed Motion and should dismiss
Speci?cations I3 and 14 of Charge II.

A. It is Undeniable that PFC Manning Was Authorized to Access the Information in
Speci?cations 13 and 14 of Charge II

8. It is an undeniable fact that PFC Manning was authorized to access the information in
Specifications 13 and 14 Of Charge II. The Government has never attempted to dispute this fact
in any of its representations to this Court. Moreover, the undisputed evidence and the
Government?s reliance on its novel theories of ?exceeds authorized access? make clear that the
Government has no evidence that PFC Manning was not authorized to access the information he
allegedly accessed. The Government?s lack of candor in manufacturing a factual issue where
none exists is astonishing.

9. To be clear, this section of the Defense Reply only addresses the issue of whether PFC
Manning was authorized to access the information in the ?rst place. It does not deal with the
manner in which he allegedly accessed the information or the purposes for which he accessed it.
Rather, this section addresses the straightforward question of whether PFC Manning had
authority to access the information; in plain terms, was PFC Manning allowed to use his
computer to view to ?obtain? under Section 1030(e)(6)) the information in Speci?cations 13

0 0 22709

and 14 of Charge The Government has steadfastly avoided directly answering this question.
It has instead jumped immediately to talking about the purposes for which the information was
accessed or the precise manner in which the information was downloaded. Since the
Government has refused to answer this question, before addressing the merits of the
Government?s Wget theory, this Reply ?rst demonstrates that PFC Manning was indeed
authorized to access the information in question.

10. In its Response, the Government states that ?the United States has never stipulated to the
fact that the accused was entitled or authorized to access ?each and every piece of information?
the accused allegedly accessed on his government computer.? Government Response, at 1.
However, the Government conveniently neglects to address the Defense assertion that the
Government has not disputed that PFC Manning was authorized to access all of the information
at issue. See Defense Renewed Motion, at 2. Certainly nothing in the Government?s prior
Section 1030 ?lings or representations during oral argument gave any indication that the
Government disputed this fact. Even if not stipulating to a fact equates to disputing that fact,
which it does not, any attempt to dispute that PFC Manning was authorized to view all of the
information in Speci?cations 13 and 14 ofCharge II is belied by the undisputed evidence and by
the Government?s reliance on its ?exceeding authorized access? theories.

1 1. It is undisputed that the Net Centric Diplomacy Database was on SIPRNET and did not
require any password or separate authorization to access. In its 24 May 2012 Response to
Defense Motion to Dismiss Specifications 13 and 14 of Charge II for Failure to State an Offense
[hereina?er Government Response to First Motion to Dismiss], the Govemment states that ?[t]he
Net-Centric Diplomacy Database (NCD), ?nanced by DOD, was developed to provide a full
range of diplomatic reporting (?diplomatic cables?) to any individual with access to the DOD-
controlled SIPRNET. Diplomatic cables were routed to the NCD database or server, and thus
made available to individuals with access to the Government Response to First
Motion to Dismiss, at 2. Thus, it is clear that the cables were freely available to anyone with
SIPRNET access. It is equally undisputed that CPT Steven Lim directed all of the to
look at that database. See Government Response to First Motion to Dismiss, Enclosure 3, at 32
n.152. Therefore, the undisputed evidence demonstrates beyond hope of contradiction that
PFC Manning was authorized to access the information.

12. Moreover, the Government?s own theories for ?exceeds authorized access? make it obvious
that the Government has no evidence that PFC Manning was not authorized to access the
information contained in Speci?cations 13 and 14 of Charge II. Its ?rst theory the now-
rejected explicit purpose-based restriction theory was articulated in the Government?s
Response to the ?rst Defense Motion to Dismiss as follows: ?The Government?s theory is that
the accused ?exceeded authorized access? when he violated the Government?s explicit purpose-
based access restriction on his SIPRNET computer.? Government Response to First Motion to
Dismiss, at 3. As expected, the Government used its most recent Response to articulate its
newest theory: ?The Government?s theory for Speci?cation 13 of Charge II [is] that the accused
?exceeded authorized access? in violation of 18 U.S.C. 1030(a)(l) when he obtained the
information at issue using an unauthorized program.? Government Response, at 3.

13. Both of the Government?s theories are telling. If the Government had even a shred of
evidence suggesting that PFC Manning was not authorized to access the information in the ?rst
place, its theory of ?exceeds authorized access? would be uncontroversial: PFC Manning would

3



have exceeded his authorized access by using his computer to obtain information that he was not
entitled to obtain. Of course, the Government has eschewed any reliance on that straightforward
theory, and it has focused instead on the purposes for which the information was accessed and
the manner in which the information was downloaded. The only conceivable reason why so
much ink has already been spilled on the permissibility of these novel theories is that the
Government has no evidence that PFC Manning was not authorized to access this infonnation.

14. Indeed, if the Government does have such evidence and nevertheless persists in arguing
about the merits of fringe theories of ?exceeds authorized access,? then the Government has
caused considerable delay in PFC Manning?s trial through either incompetence or bad faith,
dilatory tactics. The Government has at no point indicated that it has any evidence showing that
PFC Manning was not allowed to view the information covered by Speci?cations l3 and 14 of
Charge II. The undisputed evidence, the Government?s reliance on various ?exceeds authorized
access? theories, and the Government?s refusal to directly rebut the Defense?s assertions
regarding PFC Manning?s authority to access the information all point unwaveringly to the
conclusion that PFC Manning was in fact authorized to access the information he accessed.

15. The time for being coy has long past. If candor to the tribunal is anywhere on the
Government?s radar, the Government will stop skirting this question and come clean to this
Court and the Defense.

B. The Government?s Wget Theory is Not Permissible Under this Court?s Ruling

16. Returning to the merits of the Wget theory, the Government Response clearly shows that the
Wget theory is simply a new (and much less compelling) variant of the already rejected
expansive interpretation of ?exceeds authorized access.? Unfortunately, the Government still
does not seem to understand the Nasal holding or the Court?s ruling. If it did, it would never
have advanced the argument that it has. The Government says:

Ultimately, if the court thought the issue was black and white- if an individual has
access to the information in some capacity, then they cannot exceed authorized
access - they would have articulated that draconian concept more clearly.

Government Response, at 4. Unfortunately for the Government, this is not a ?draconian
concept? it is the law. And if the Government needs it ?articulated . . . more clearly,? the
Defense would suggest that it take another look at the Court?s ruling and the cases cited by the
Defense. See Appellate Exhibit at 6 (?Therefore an analysis ofthe legislative history
of the CFAA and the phrase ?exceeds authorized access? reveals that the statute is not meant to
punish those who use a computer for an improper purpose or in violation of the governing terms
of use, but rather the statute is designed to criminalize electronic trespassers and computer
id. at 9 (Court adopting Nasal view of ?exceeds authorized access:? ??[the term]
applies to inside hackers or individuals whose initial access to a computer is authorized but who
accesses unauthorized information or files?); see also United States v. Aleynikov, 737 F. Supp. 2d
173, 191 (S.D.N.Y. 2010) (dismissing CFAA indictment where ?[t]he Government concedes that
Aleynikov was authorized to access the source code for the Trading System that he allegedly
United States v. Zhang, No. CR-05-00812 RMW, 2012 WL 1932843 (N.D. Cal. May
29, 2012) (finding defendant not guilty of Section lO30(a)(4) and violations because



defendant ?had ?authorized access? to the Marvell Extranet when he downloaded the infonnation
from the Marvell Extranet in March 2005 because he had active log-in credentials at that
Ajuba Int L.L.C. v. Saharia, No. 11-12936, 2012 WL 1672713, at 12 (E.D. Mich. May 14,
2012) (holding that ?a violation [of the for ?exceeding authorized access? occurs only
where initial access is permitted but the access of certain information is not permitted.?
(emphasis supplied)); Ryan, LLC v. Evans, No. 2012 WL 1532492, at
*5 (M.D. Fla. March 20, 2012) (?Under a narrow reading ofthe provisions of [Section] 1030, a
violation for exceeding authorized access occurs where initial access is permitted but the access
of certain information is not permitted.? (quotations omitted) (emphasis supplied)).; id. at *6
(?Given that Evans and Espinosa appear to have had unfettered access to the Ryan computers,

22711

data, information, and emails actually accessed, with the right to add to, delete from, and upload.

and download matters therefrom, it is doubtful that their conduct can be brought within the
purview of either [Section] l030(a)(2)(C) or [Section] l030(a)(4) under the narrow reading of
those sections.? (emphasis supplied)); WEC Carolina Energy Solutions, LLC v. Miller, No.
2011 WL 379458, at *4 (D.S.C. Feb. 3, 2011) under the
CFAA, based on an allegation that an employee exceeded authorized access, depends on whether
the employee accessed information he was not entitled to access. WEC has not alleged that
Miller or Kelley accessed information that they were not ?entitled to access.? Therefore its
allegation falls outside the scope ofthis portion ofthe (emphasis supplied)); Nat City
Bank, NA. v. Republic Mortgage Home Loans, LLC, No. 550RSL, 2010 WL 959925, at *3
(W.D. Wash. March 12, 2010) CFAA violation occurs only when an employee accesses
information that was not within the scope of his or her authorization.? (emphasis supplied)); id.
(?It is undisputed that Westmark was authorized to access, view, and utilize the Excel
spreadsheet that forms the heart of plaintiffs CFAA claim against him. There is no indication
that Westmark accessed or obtained any information from National City?s computers after he
resigned his position with National City. If, as is the case here, the employee were entitled to
access the materials at issue, nothing in the CFAA suggests that the authorization can be lost or
exceeded through post-access conduct. On the other hand, if an employee?s access is limited to
certain documents, ?les, or drives, an effort on his part to delve into computer records to which
he is not entitled could result in liability under the (citations omitted) (emphases
supplied)); Lockheed Martin Corp. v. Speed, No. 2006 WL 2683058, at
*5 (M.D. Fla. Aug. 1, 2006) (?By applying the plain meaning of the statutory terms to the facts
of this case, it is clear that the Employees accessed with authorization, did not exceed their
authorization, and thus did not violate [Section] 1030(a)(4). The analysis is not a difficult one.
Because Lockheed permitted the Employees to access the company computer, they were not
without authorization. Further, because Lockheed permitted the Employees to access the precise
information at issue, the Employees did not exceed authorized access. The Employees fit within
the very group that Congress chose not to reach, i. those with access authorization. It follows
that [Section] 1030(a)(4) cannot reach them. The gist of Lockheed?s complaint is aimed not so
much at the Employees? improper access ofthe ATARS information, but rather at the
Employees? actions subsequent to their accessing the information. As much as Lockheed might
wish it to be so, [Section] 1030(a)(4) does not reach the actions alleged in the Complaint.?
(emphasis supplied)).

17. In addition to the reasons identi?ed in the Defense Renewed Motion, there are several other
reasons to reject the Wget theory. First and foremost, the Government fails to identify a single
case that supports its theory. Additionally, the Government uses the language from Nosal and

5



Professor Orin Kerr in a disingenuous attempt to make a violation ofthe Acceptable Use Policy
(AUP) look like the circumvention of security measures. Moreover, the Govemment?s reading
of the 1996 legislative history is incorrect. In addition, the Government?s Wget theory would
lead to absurd results. Finally, the Government?s proposed ?balance? of an impermissible theory
with a permissible one makes no sense.

i) There is Absolutely No Case Law to Support the Government?s ?New? Theory

18. The Government has not identified a single case lending any support to its theory that the
use of an unauthorized program can make otherwise authorized access to information exceeding
authorized access. Not one case. The Government apparently requests that this Court become
the first in the nation to adopt this particular variation of the expansive interpretation of ?exceeds
authorized access.?

19. There are only three conceivable theories of how an accused can exceed authorized access to
a computer. First, the user can exceed non-purpose based contractual restrictions on access. In
other words, this involves the computer user violating any of the various contractual ?terms of
use? that govern computer access aside from those pertaining to the improper or unauthorized
use of information restrictions on how old you need to be to access a website, restrictions on
pennissible software/hardware to be used on the computer, etc.). The expressions ?tenns of use?
are also referred to variously in the case law as ?terms of service,? ?terms of access,? ?acceptable
use policy? and the like. Second, the user can exceed purpose-based restrictions on access
whether explicit or implicit.? That is, the computer user can use the information obtained from
the computer in a way that is contrary to the purposes for which such information is intended to
be used. This second scenario is that contemplated in Nasal, John and Rodriguez. Third, the
user can bypass technical restrictions on access crack a code; guess at a password, etc.),
thereby tricking the computer into giving him greater privileges than he otherwise enjoys.

20. These three scenarios can be seen along a spectrum:

THEORY 1 THEORY 2 THEORY 3
I I I

Violating Violating Bypassing

Contractual Purpose-Based Technical

Terms of Use Restrictions Restrictions
On Access On Access

LEAST OMPELLING MOST OMPELLING

Implicit limitations exist where there is no governing ?Terms of Use" policy which expressly proscribes using the
information for purposes for which the authorization does not extend. Rather, by using agency principles, some
courts have held that there is an implicit limitation on a computer user?s access. such that he loses authorized access
once he uses the computer in a manner contrary to the computer owner?s interests. See, e.g. Int '1 Airport Ctrs.,
LLC, v. Citrin, 440 F.3d 418, 420-2] Cir. 2006) (?Citrin?s breach of his duty of loyalty terminated his agency
relationship (more precisely, terminated any rights he might have claimed as agent-he could not by
unilaterally terminating any duties he owed his principal gain an advantage) and with it his authority to access the
laptop, because the only basis of his authority had been that relationship?).

6



The further one moves to the left of the spectrum, the less compelling thejusti?cation for
maintaining a Section 1030 violation. All courts recognize that if facts fall within Theory 3, then
a Section 1030 violation is cognizable. Courts are split on Theory 2 - i.e. this is the Nosal,
Rodriguez, and John line of cases. No court has ever recognized Theory 1, a pure breach of
contract, as supporting a 1030 violation. The Government has moved from Theory 2, which the
Court (correctly) found to be an impermissible theory, to Theory 1, a theory which is far less
compelling than Theory 2. if a Court has held that Theory 2 is not viable, it follows as a matter
of law that Theory I is not viable.

21. The leading case on Theory 1 is United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009),
which ?raise[d] the issue of whether (and/or when will) violations of an Internet website?s terms
of service constitute a crime under the Computer Fraud and Abuse Act I8 U.S.C.
[Section] 1030.? Id. at 451. Otherwise stated, ?[the] central question is whether a computer

I user?s intentional violation of one or more provisions in an Internet website?s terms of services

(where those terms condition access to and/or use of the website?s services upon agreement to
and compliance with the terms) satisfies the first element of section lO30(a)(2)(C) [exceeds
authorized access]. If the answer to that question is ?yes,? then seemingly, any and every
conscious violation ofthat website?s terms of service will constitute a CFAA misdemeanor.? Id.
at 457.

22. In Drew, the adult defendant created a false MySpace profile of a teenage boy, posted a
picture of a teenage boy to that pro?le without the boy?s consent, used that profile to befriend a
teenage girl, and eventually used that profile to tell that teenage girl that ?the world would be a
better place without her in it.? Id. at 452. The teenage girl took her own life later that day, and
the defendant was soon indicted for felony violations of Section lO30(a)(2)(C) and
Id. The defendant was alleged to have exceeded her authorized access to MySpace.com because
her act of creating the false profile and the posting of a picture of a teenage boy without the
boy?s consent violated MySpace?s terms of service. Id. That is, the defendant violated non-
purpose based contractual terms of service. Thejury acquitted the defendant of the felony
violations but convicted her on misdemeanor violations of Section l030(a)(2)(C). Id. at 453.
The defendant then filed a motion forjudgment of acquittal, contending that the violation of the
terms of service of an intemet provider cannot constitute exceeding authorized access under
Section 1030 and, ifit did, Section I030 was unconstitutionally vague. Id. at 451.

23. The United States District Court for the Central District of California granted the
defendant?s motion, concluding that Section lO30(a)(2)(C), as interpreted by the court and as
applied to the defendant?s conduct, was unconstitutionally vague. Id. at 464-67. First, the court
determined that, as it had interpreted Section 1030, the statute presented serious notice problems:
?[T]he language of [S]ection lO30(a)(2)(C) does not explicitly state (nor does it implicitly
suggest) that [Section 1030] has ?criminalized breaches of contract? in the context of website
terms of service. Thus, while ?ordinary people? might expect to be exposed to civil liabilities
for violating a contractual provision, they would not expect criminal penalties.? Id. at 464.

24. Second, ?if a website?s tenns of _service controls what is ?authorized? and what is ?exceeding
authorization? which in turn governs whether an individual?s accessing information or services
on the website is criminal or not, [S]ection lO30(a)(2)(C) would be unacceptably vague because
it is unclear whether any or all violations of tenns of service will render the access unauthorized,
or whether only certain ones will.? Id. The court further noted that any violation of any

7



term of service is held to make the access unauthorized, that strategy would probably resolve this
particular vagueness issue; but it would, in turn, render the statute incredibly overbroad and
contravene the second prong of the void-for-vagueness doctrine as to setting guidelines to govern
law enforcement.? Id. at 464-65.

25. Third, the court noted the very common sense proposition that ?by utilizing violations of the
terms of service as the basis for the [S]ection 1030(a)(2)(C) crime, that approach makes the
website owner-in essence-the party who ultimately defines the criminal conduct.? Id at 465.
The Drew Court concluded that ?[t]his will lead to further vagueness problems. The owner?s
description ofa term of service might itself be so vague as to make the visitor or member
reasonably unsure of what the term of service covers.? Id. The court further observed that
?website owners can establish terms where either the scope or the application of the provision
are to be decided by them ad hoc and/or pursuant to undelineated standards. For example, the
MSTOS [MySpace Terms of Service] provides that what constitutes ?prohibited content? on the
website is determined ?in the sole discretion of Id. The court also expressed
concern that the terms of service ?may allow the website owner to unilaterally amend and/or add
to the terms with minimal notice to users.? Id.

26. Thus, the Drew court rejected the possibility that contractual terms of service agreements
could provide the factual basis to state a Section 1030 claim. And for good reason. Any lay
person can see the danger in allowing the computer owner to unilaterally define by contract the
scope of a criminal statute which carries with it the possibility of 10 years in prison, To the
Defense?s knowledge, no case has ever accepted that non-purpose-based contractual terms of
service violations can form the basis for a Section 1030 offense. The Government?s ?new?
theory falls squarely in Theory 1 PFC Manning exceeded his authorized access because he
used an unauthorized program, proscribed by the terms of use, in order to download information.

Accordingly, it should be rejected.

ii) The Government is Trying to Con?ise the Court Bv Pretending that PFC Manning
Bvpassed Technical Restrictions on Access

27. Perhaps because it recognizes that Theory 1 is dead on arrival, the Government is attempting
to confuse this Court by arguing that PFC Manning was an ?inside hacker? who ?circumvent[ed]
procedures,? ?hacked the information,? and ?bypassed a code-based restriction.? Government
Response, at 5. In other words, the Government is attempting to make this look like a Theory 3
scenario. This Court should not be fooled by the Government?s continued deceit.

28. By affixing these labels to the conduct at issue, the Government is trying to bring PFC
Manning?s conduct within the Nasal holding and Professor Kerr?s construct of technical or code-
based restrictions Theory 3). Unfortunately, the Government is deliberately distorting
language to make it look like there was a ?circumvention? of technical restrictions, when in
reality as the Government well knows there was no such thing. In its desperate attempt to
keep a non-cognizable specification on the charge sheet, the Government is trying to manipulate
this Court into erroneously believing that to use Wget, one would need to ?hack? the computer
and bypass security restrictions. Nothing could be further from the truth.

29. The Government states:

0 22715



The defense is singularly focused on Congress? explanation that 1030(a)(1)
targets those persons who ?deliberately break into a computer.? See Def. Mot. at
10. However, the Government does not allege the accused hacked ?into the
computer to obtain information he was not authorized to obtain.? Def. Mot. at 10.
Instead, he accessed a computer with authorization and exceeded that
authorization by circumventing procedures and using an unauthorized program to
obtain information-??he ?hacked? the information. When Congress inartfully
summarized l030(a)(l) in the 1996 legislative history, they were clearly
referring to the ?without authorization? prong of 1030(a)(l). See 18 U.S.C.
lO30(a)(l) (?Whoever having knowingly accessed a computer without
authorization. . There is no other logical explanation, because ?exceeds
authorized access? under l030(e)(6) necessarily assumes that the individual has
accessed a computer with authority in the first place?it criminalizes the ?insider?
with rights or privileges who misuses a computer. See Orin S. Kerr, ybercrime ?s
Scope." Interpreting ?Access? and ?Authorization? in Computer Misuse Statutes,
78 N.Y.U. L. Rev. 1596, 1662 (2003) [hereinafter Kerr, Cybercrime 3' Scope];
Nosal, 676 F.3d at 858. Thus, that particular phrase (?deliberately break into a
computer?), is misleading if used solely as a basis for de?ning ?exceeds
authorized access.?

On the other hand, if ?deliberately break into a computer? is merely a guiding
light in making sense of the purpose of the statute as whole, it contributes to our
understanding of ?exceeds authorized access.? As this Court recognized after
considering the legislative history, ?the statute is designed to criminal ize
electronic trespassers and computer hackers.? In other words, the statute is
designed to criminalize individuals who circumvent or bypass some code-based
restriction. See generally Kerr, ybercrime ?s Scope, at 1600 (using trespassing,
hacking, and ?bypassing code-based restrictions? somewhat interchangeably).
Accordingly, the Government?s theory is entirely consistent with the legislative
history and this Court?s ruling. In order for a person to access or obtain a
diplomatic cable on the NCD website, the person has to individually ?click? or
?save? the diplomatic cable after searching for the cable or navigating to the cable
in some manner. As the evidence will show, the accused bypassed the Ordinary
method of accessing information by adding unauthorized software to his
SIPRNET computer and using that software to rapidly harvest or data-mine the
information. Wget was not available on the computers used by the accused or
authorized as a tool to download the information. See Def. Mot. at 3. Thus, the
accused violated a restriction on access to the information he bypassed a code-
based restriction by using Wget to obtain the cables in batches.

Government Response, at 5.
30. Thus, the Government appears to concede that an accused can only be brought within the

purview of the section if the accused bypassed technical or code-based restrictions on access.
The Government cites Professor Kerr twice for this proposition. A look at what Professor Kerr

actually said, however, reveals that the Government could not be more off-the-mark in labeling
the use of unauthorized software a code-based restriction. Professor Kerr distinguishes between
?regulation by code? and ?regulation by contract.? Orin S. Kerr, Cybercrime ?s Scope:
Interpreting ?Access and ?Authorization in Computer Misuse Statutes, 78 N.Y.U. L. Rev.
1596, 1644-46 (2003). An easy way of understanding this distinction is that ?regulation by
code? means that the computer owner has inserted some code programming language) into
the computer which prevents a user from accessing certain information. See id. at 1644-45.
Regulation by contract means that the computer owner regulates access to the computer by
imposing contractual (usually written) limits on the computer user. See id. at 1645-46. It is
critically important to understand the difference between the two because Professor Kerr
maintains (and the case law uniformly bears out) that courts are only concerned with the former
for the purposes of Section 1030.

31. Professor Kerr elaborates on the distinction between ?Regulation by Code Versus
Regulation by Contract? as follows:

Although unauthorized access statutes speak of authorization as if it were a
monolithic concept, there are in fact two fairly distinct ways in which access or
use of a computer can be unauthorized. Each type corresponds to one of the basic
ways that a computer owner can regulate a user?s privileges. A computer owner
can regulate a user?s privileges by code or by contract. Similarly, a computer user
can engage in computer misuse by circumventing code-based restrictions, or by
breaching contract-based restrictions.

When an owner regulates privileges by code, the owner or her agent codes the
computers software so that the particular user has a limited set of privileges on the
computer. For example, the owner can require every user to have an account with?
a unique password, and can assign privileges based on the particular account,
limiting where the user can go and what she can do on that basis. For a user to
exceed privileges imposed by code, the user must somehow ?trick? the computer
into giving the user greater privileges. I label this approach ?regulation by code?
because it relies on computer code to create a barrier designed to block the user
from exceeding his privileges on the network.

Circumventing regulation by code generally requires a user to engage in one of
two types of computer misuse. First, the user may engage in false identification
and masquerade as another user who has greater privileges. For example, the user
can use another person?s password, and trick the computer to grant the user
greater privileges that are supposed to be reserved for the true account holder. If
A knows B?s username and password, A can log in to B?s account and see
information that is entitled to see, but A is not.

Alternatively, a user can exploit a weakness in the code within a program to cause
the program to malfunction in a way that grants the user greater privileges.
Consider a so-called ?buffer overflow? attack, a common means of hacking into a
computer. A buffer overflow attack overloads the victim computer?s memory

10

22716

0 0 22717

buffer, forcing the computer to malfunction and default to an open position that
gives the user ?root? or ?super user? privileges. These privileges give the user
total control over the victim computer: With root privileges, the user can access
any account or delete any ?le. The attack circumvents the code-based restriction
that limited the user to her own account. Such misuse violates the intended
function test introduced in the Morris case; a user who exploits a weakness in
code to trick the victim computer into granting the user extra privileges does so by
using the code in a way contrary to its intended function.

The second way an owner may attempt to regulate computer privileges is by
contract. The owner can condition use of the computer on a user?s agreement to
comply with certain rules. If the user has a preexisting relationship with the
owner/operator, the conditions may take the fonn of Terms of Service. If no such
relationship exists, the conditions may appear as Terms of Use to the service the
computer provides, such as a click-through agreement that might appear prior to
use of a website. For example, an adult website may require a user to promise
that she is at least eighteen years old before allowing her to access adult materials
available through the website. Finally, the restriction may be implicit rather than
stated in the written text.

Regulation by contract offers a signi?cantly weaker form of regulation than
regulation by code. Regulation by code enforces limits on privileges by actually
blocking the user from performing the proscribed act, at least absent
circumvention. In contrast, regulation by contract works on the honor system, or
perhaps more accurately, the honor system backed by contract law

remedies. Consider the adult website that requires users to indicate that they are
at least eighteen years old before it allows users to enter. A seventeen-year-old
can access the adult website just as easily as an eighteen?year-old can. The only
difference is that the seventeen-year-old must misrepresent her age to access the
site. To use a physical-world analogy, the difference between regulation by code
and regulation by contract resembles the difference between keeping a stranger
out by closing and locking the door and keeping a stranger out by putting up a
sign in front of an open front door saying ?strangers may not enter.?

Id. at 1644-46 (footnotes omitted).

32. As is clear from the above passage, the notion of inside hackers who circumvent technical
restrictions refers to a user who ?somehow ?trick[s]? the computer into giving the user greater
privileges.? Id. at 1644. The reason it is called ?regulation by code? is because it relies on
computer code to create a barrier designed to block the user from exceeding his privileges on
the network. Id. at 1644-45. That is, ?[r]egulation by code enforces limits on privileges by
actually blocking the user from performing the proscribed act.? Id. at 1646. Kerr identi?es only
two ways that a user can circumvent regulation by code.

33. First,

ll



the user may engage in false identi?cation and masquerade as another user who
has greater privileges. For example, the user can use another person?s password,
and trick the computer to grant the user greater privileges that are supposed to be
reserved for the true account holder. If A knows B's usemame and password, A
can log in to B?s account and see information that is entitled to see, but A is not.

Id at 1644. There is no evidence the PFC Manning used another user?s privileges to gain
access to the computer or information in question.

34. Second, ?a user can exploit a weakness in the code within a program to cause the program to
malfunction in a way that grants the user greater privileges.? Id. at 1645. Again, there is no
evidence that PFC Manning exploited a technical weakness in the code to cause a program to
malfunction and thereby obtain greater privileges.

35. These are the exact two code-based restrictions that are highlighted in Nosal itself and that
are cited by the Government in its Response:

Suppose an employer keeps certain information in a separate database that can be
viewed on a computer screen, but not copied or downloaded. If an employee
circumvents the security measures, copies the information to a thumb drive and
walks out of the building with it in his pocket, he would then have obtained access
to information in the computer that he is not ?entitled so to obtain.? Or, let?s say
an employee is given full access to the information, provided he logs in with his
usemame and password. In an effort to cover his tracks, he uses another
employee ?s login to copy information from the database. Once again, this would
be an employee who is authorized to access the information but does so in a
manner he was not authorized ?so to obtain.?

United States v. Nosal, 676 F.3d 854, 858 (9th Cir. 2012) (en banc) (emphases supplied); see
Government Response, at 3-4.

36. The first example in the Nosal quote corresponds to Professor Kerr?s second code-based
limitation, while the second example in the Nasal quote corresponds to Professor Kerr?s first
code-based limitation. The bottom line whether one looks to Nasal or Professor Kerr (who the
Defense submits provided the basis for the Nosal holding) is that in order to fall within Section
1030, one must bypass the computer code that creates a barrier between the user and the
information in question. If one does not ?break? the computer code technical barrier, then one
does not exceed authorized access.

37. Apparently, the Government simply does not understand (or is deliberately
?misunderstanding?) what a code-based restriction is. The Government states, ?Thus, the
accused violated a restriction on access to the information - he bypassed a code-based restriction
- by using Wget to obtain the cables in batches.? Government Response, at 5. The passage
shows that the Government has no clue what it means to bypass a code-based restriction. It if
did, the Government would have specified the ?code? the computer programming barrier)
that PFC Manning allegedly circumvented. The reason it did not, of course, is because PFC

l2



0 0

Manning did not need to circumvent a code-based restriction no such restriction existed.

38. The focus on the circumvention of security measures as the touchstone of ?exceeds
authorized access? is in perfect harmony with the holdings of Nasal and other courts, as well as
this Court?s ruling and the 1996 legislative history. Both the Nasal Court and this Court have
held that the tenn ?exceeds authorized access? applies to ?inside hackers." See Nasal, 676 F.3d
at 858 (?exceeds authorized access? would apply to inside hackers (individuals whose initial
access to a computer-is authorized but who access unauthorized information or (second
emphasis supplied)); Appellate Exhibit at 7 (?Nasal de?nes ?exceeds authorized
access? to apply to inside hackers or individuals whose initial access to a computer is authorized
but who accesses unauthorized infonnation or files.? (emphasis in original)); 8 June 2012
Article 39(a) audio (??exceeds authorized access? would apply to ?inside hackers?, individuals
whose initial access to a computer is authorized but who access unauthorized information or
files.? (emphasis supplied)); see also Aleynikov, 737 F. Supp. 2d at 191-92 person who
?exceeds authorized access? has permission to access the computer, but not the particular
information on the computer that is at issue.? (emphasis supplied)). Like these cited cases, the
1996 legislative history explains the concept of ?exceeds authorized access? with reference to a
hacker one who breaks into a computer to obtain infonnation). See S. Rep. No. 104-357, at
6 (1996) (?Section 1030(a)(1) would target those persons who deliberately break into a
computer to obtain properly classi?ed Government secrets then try to peddle those secrets to
others, including foreign governments.? (emphasis supplied)).

39. The Government maintains that its theory is consistent with the 1996 legislative history. It
is not. The Government states:

Additionally, the Government?s theory for Specification 13 is consistent with the
language of the legislative history because it is anchored to the accused?s
egregious use of unauthorized software on a government-owned SIPRNET
computer. As Congress noted in discussing the difference between 793(e) and
1030(a)( ?it is the use of the computer that is being proscribed, not the
unauthorized possession of, access to, or control over the classified infonnation
itself.? Section 793(e) is focused on the unauthorized possession and
transmission of the information, while 1030 is focused on the misuse of a
computer. Wget, despite the wildly erratic defense argument to the contrary, is
focused on the use of the computer, not the use of the infonnation.

Government Response, at 5-6. When Congress notes that ?it is the use of the computer that is
proscribed? this must be viewed in reference to the concept of electronic trespassing referred to
above (?deliberately break into a When one breaks into a computer whether one
is an outside hacker or an inside hacker one has committed a crime against the computer.3 The
use of Wget to download information is not a crime against the computer. It is not electronic
trespassing. It is not hacking. It is not circumventing technical or code-based restrictions.

9 ?4

Accordingly, nothing about the Government new? theory is consistent with the legislative

2 The Government would prefer if we simply ignored the literal meaning ofthis language and used it as ?a guiding
light.? It is not the guiding light; it is the test ultimately adopted in Nasal and by this Court.
3 Just as ifone has committed a trespass, one has committed a crime against the property.

13



history.

40. In this case, it is clear despite the Govemment?s highly disingenuous submission to the
contrary that PFC Manning did not circumvent code-based restrictions to access the
information in question. There was no technical code ?blocking Manning] from
performing the proscribed act.? Kerr, supra, at 1646. The Government, however, is hoping that
by using Kerr-like language to distort the actual facts, this Court will fall into the trap of
believing that the Government has evidence that PFC Manning bypassed technical restrictions.
Of course, the Government has no such evidence.

41. Contrary to its assertions, what the Government is actually alleging is a pure contract?based
theory (what the Defense calls Theory 1). According to Professor Kerr, the ?owner can
condition use ofthe computer on a user?s agreement to comply with certain rules. Ifthe user has
a preexisting relationship with the owner/operator, the conditions may take the form of Terms of
Service.? Id. at 1645 (footnote omitted). Professor Kerr describes the difference between code-
based and contract-based regulation as follows: ?Regulation by code enforces limits on
privileges by actually blocking the user from performing the proscribed act, at least absent
circumvention. In contrast, regulation by contract works on the honor system, or perhaps more
accurately, the honor system backed by contract law remedies." Id. at 1646. Here, PFC
Manning was not permitted to use Wget to download any information on the computer because it
was an unauthorized program under the AUP (for which PFC Manning is already separately
charged under Article 92). This is a textbook example of a contract-based restriction. The only
reason PFC Manning could not use Wget was because it was not on a ?list? of approved software
not because the Army included code in the computer that prevented PFC Manning from using
the software, which he then circumvented.

42. Professor Kerr?s real world analogy for this distinction is instructive: ?the difference
between regulation by code and regulation by contract resembles the difference between keeping
a stranger out by closing and locking the door and keeping a stranger out by putting up a sign in
front of an open front door saying ?strangers may not enter.?? Id. at 1646. In this case, the
analogy can be taken one step further. Here, we have the equivalent of a sign that reads

?strangers may enter, but they may not enter in a particular manner.?

43. The Government has not been forthright with the Court in the past. When asked whether the
Government had evidence aside from the AUP that PFC Manning had bypassed restrictions on
access, the Government said ?yes.? Audio, Oral Argument; Appellate Exhibit at 9.

It did not. All it has is a different section ofthe very same AUP. This is particularly
disheartening because the Court conditioned its ruling upon the Government?s misrepresentation
that it had evidence ?aside from the Appellate Exhibit at 9. In short, the
Defense submits that the Government took great liberties with the truth which, in turn, caused
the Court to not dismiss charges which should have been dismissed. In this respect, the Defense
submits that the Government had once again demonstrated a lack of candor with the Court.

44. As ifthat weren?t enough, the Government is not being forthright with the Court once again.
Rather than properly conceding that PFC Manning did not bypass technical restrictions there
was no code-based computer security gate that PFC Manning had to circumvent to use Wget),
the Government is purposely warping language in order to keep a fatally defective speci?cation

l4

0 22721

alive. The Government, of course, has distorted language in the past.4 It is doing so again. The
Government is trying desperately to use all the right words (?circumvent[ed] procedures,?
?hacked the information,? and ?bypassed a code?based restriction?) so that it can pull the wool
over this Court?s eyes. It cannot be permitted to do this.

45. Under no stretch of the imagination can the Govemment?s Wget theory be squared with this
Court?s adoption of the narrow interpretation of ?exceeds authorized access.? The Government?s
new theory hinges on the use of an unauthorized program to perform what would otherwise be
authorized tasks. The obligation to refrain from using unauthorized programs is created by the
AUP. See Government Response to First Motion to Dismiss, Enclosure 6, at 62 I will use
only authorized hardware and software. I will not install or use any personally owned hardware,
software, shareware, or public domain software?). The Government, spurned in its first attempt
to make a violation of one provision of the AUP ?exceeding authorized access,? has now simply
picked a different provision of the same AUP for its ?new? theory. In short, the Government has
proceeded under Theory 1, even though it tries to dress it up as Theory 3. Since no court has
ever allowed Theory to proceed, and because Theory I provides an even less compelling
rationale than Theory 2 (which has already been rejected by the Court), the specifications must
be dismissed.

The Government?s ?New? Theory Leads to Even More Absurd Results than Its
Previous ?Definitive? Theory

46. The Govemment?s ?new? theory leads to even more absurd results than its prior ?definitive?
theory. To illustrate this point, imagine PFC Manning used Excel 2009 to export download)
the information in Speci?cations 13 and 14 of Charge II. Imagine further that Excel 2009 was an
authorized program and that the 2009 version of Excel was the only version of Excel authorized
to be used on his government computer. Even under the Government?s new theory, his conduct
would not constitute ?exceeds authorized access,? since the Government cannot dispute that PFC
Manning was allowed to view authorized to obtain) this information. See Part A, supra.
However, if PFC Manning had updated the version of Excel on his computer to Excel 2010 an
unauthorized version of Excel - and had downloaded the exact same information in the exact
same way, he would have ?exceeded authorized access? under the Government?s new theory.
Thus, the Government?s theory would make ten years imprisonment based on the exact same
conduct hinge solely on which version of Excel PFC Manning used. See 18 U.S.C.
l030(c)(l)(A) (providing for a maximum often years imprisonment for a violation of Section
l030(a)(l)); see also Defense Renewed Motion, at 6 (providing a similar example using Internet
Explorer and Firefox). Further, if PFC Manning used Excel 2010 to download all the cables for
use in hisjob he did not disclose the cables to unauthorized persons), he could still be
subject to criminal prosecution under Section 1030. See 18 U.S.C. (requiring
only that the defendant ?exceed authorized access? and obtain information from a protected
computer).

47. Moreover, the Government?s new theory is not limited to mere violations ofthis particular
provision of the AUP. Conceivably, any violation of the AUP would render a user?s access to

4 Recall the Government indicating: a) that it was ?unaware? offorensic results; b) that ONCIX did not have an
interim or a ?nal damage assessment; c) that there was a distinction between ?investigation" and ?damage
assessment;? d) that the DOS has not ?completed? a damage assessment, etc.

15

22722

information unauthorized in the Govemment?s view. See Drew, 259 .R.D. at 464-65 a
website?s terms of service controls what is ?authorized? and what is ?exceeding authorization?
which in turn governs whether an individual?s accessing infonnation or services on the website is
criminal or not, section 1030(a)(2)(C) would be unacceptably vague because it is unclear
whether any or all violations of terms of service will render the access unauthorized, or whether
only certain ones will. If any violation of any term of service is held to make the access
unauthorized, that strategy would probably resolve this particular vagueness issue; but it would,
in turn, render the statute incredibly overbroad and contravene the second prong of the void-for-
vagueness doctrine as to setting guidelines to govern law enforcement?).

48. The Government argues that ?the accused bypassed the ordinary method of accessing
information by adding unauthorized software to his SIPRNET computer and using that software
to rapidly harvest or data-mine the information.? Government Response, at 5 (emphasis
supplied). It fails to recognize, however, that any violation of the AUP would bypass the
?ordinary method,? id, of accessing infonnation on a government computer, since the AUP itself
sets forth the ordinary method of accessing information.

49. The very next line of the AUP after the requirement that computer users not install or use
unauthorized software requires the use of virus-checking procedures before a user accesses
information from certain sources. See Government Response to First Motion to Dismiss,
Enclosure 6, at 62 I will use virus-checking procedures before uploading or accessing
information from any system, diskette, attachment, or compact Would failure to use
virus-checking procedures before accessing information from a system constitute exceeding
authorized access? Not under any sensible interpretation of that term. But under the
Govemment?s theory, such a failure would constitute exceeding authorized access because it
would bypass the ?ordinary method of accessing information? as de?ned in the AUP.
Government Response, at 5. And such a failure alone would, under the Government?s view,
subject a user to conviction and up to a year imprisonment under Section lO30(a)(2)(C). See 18
U.S.C. lO30(a)(2)(C) (requiring only that the defendant ?exceed authorized access? and obtain
information from a protected computer);5 id. lO30(c)(2)(A) (providing punishment for a
violation of Section lO30(a)(2)); Nasal, 676 F.3d 859 (explaining that interpretation of ?exceeds
authorized access? chosen by the Court must apply to all provisions of Section 1030 using that
phrase).

50. Similarly, the provision of the AUP that precedes the requirement that computer users not
install or use unauthorized software provides that computer users must have secure passwords.
See Government Response to Defense Motion to Dismiss, Enclosure 6, at 62 I will generate,
store, and protect passwords or pass-phrases. Passwords will consist of at least 10 characters
with 2 each of uppercase and lowercase letters, numbers, and special characters. I am the only
authorized user of this account. (I will not use user ID, common names, birthdays, phone
numbers. military acronyms, call signs, or dictionary words as passwords or
Would failure to use a suf?ciently secure password BradleyManningl234) mean that a user

5 To ?obtain information? includes merely reading information. See Drew, 259 F.R.D. at 457 (?As also stated in
Senate Report No. 104-357, at 7 (1996), reprinted at 1996 WL 492169 (henceforth ?S.Rep. No. 104-3 the
term ?obtaining information? includes merely reading

16

0 0 22723

would exceed authorized access when he then logged onto the computer? Again, under the
Govemment?s theory, the answer would be yes. There is no logical basis for distinguishing
between the various contractual restrictions on computer access/use. Any and all violations of
restrictions outlined in the AUP would be punishable criminally.

51. Moreover, there is no requirement that any of the restrictions be reasonable. If the Army
wanted to, it could write into the AUP that ?Every soldier, prior to accessing a U.S. Army
computer, must sing the national anthem.? See Government Response to First Motion to
Dismiss, Enclosure 6, AR25-2, B-2 (?Anny organizations may tailor the information in the
sample AUP to meet their speci?c needs, as appropriate?). A failure to sing the national anthem
prior to accessing the computer would then subject the soldier tojail time.

52. One need not be Oliver Wendell Holmes to see that the Government?s theory is ?at out
preposterous. It simply replaces one variation of the expansive interpretation of the phrase
?exceeds authorized access? (based on a violation of one provision of the AUP) with another
variation of that same expansive interpretation (based on a different provision of the same AUP).
However, the Government?s theory now is even more ludicrous because it does not depend on a
purpose-based limitation on access. A violation of any contractual term of access/use/service
would be a violation of Section 1030.

53. The Government cannot sensibly explain how this new theory can be reconciled with this
Court?s adoption of the narrow interpretation of the phrase ?exceeds authorized access.? Indeed,
it is beyond comprehension how the Government can still pursue in good faith any theory of
?exceeds authorized access? based on a violation of the AUP a?er this Court de?nitely held that
?the term ?exceeds authorized access? is limited to violations of restrictions on access to
information, and not restrictions on its Appellate Exhibit at 9 (emphasis in
original); see also id. at 6 (?Therefore an analysis of the legislative history of the CFAA and the
phrase ?exceeds authorized access? reveals that the statute is not meant to punish those who use a
computer for an improper purpose or in violation of the governing terms of use, but rather the
statute is designed to criminal ize electronic trespassers and computer hackers?).

iv) The Court is Not Permitted to ?Balance" Legal Theories: Either an Offense is
Cognizable or it is Not

54. Finally, the Government?s argument that its proposed instruction balances the competing
theories of the Government and the Defense makes no sense. Perhaps in denial, the Government
refuses to acknowledge that its expansive purpose-based restriction theory was definitely
rejected by this Court. As explained in this Reply and in the Renewed Defense Motion, the
Government?s Wget theory is even more impermissible than its purpose-based restriction theory.
An impennissible theory cannot be ?balanced? with a permissible theory in ajury instruction, so
that the members decide which legal theory to accept. The members do not decide the proper
interpretation of a statute.

55. For these reasons and the reasons articulated in the Defense Renewed Motion, this Court
should reject the Government?s plea for a revival of the expansive interpretation and should
accordingly dismiss Specifications 13 and 14 of Charge 11.

17

. . 22724

C. The Government Has Offered No Permissible Theory for Speci?cation 14 of Charge
11

56. The Government does not even try to address the Defense?s argument regarding the
Government theory underlying Speci?cation 14 of Charge ll. Instead, it endorses an
impermissible ?wait and see? approach. However, the time to articulate a cognizable legal
theory is now, not at the close of evidence. The reason it has not done so is obvious: it does not
have a cognizable legal theory. As such, Speci?cation 14 must be dismissed.

57. The Defense Renewed Motion clearly explained that the forensic evidence unequivocally
established that PFC Manning did not use Wget to obtain the information in Speci?cation 14 of
Charge 11. See Defense Renewed Motion, at 10-1 1. Since the only theory articulated by the
Government that could therefore be applied to Speci?cation 14 was its now-rejected explicit
purpose-based theory, the Defense Renewed Motion argued that Speci?cation 14 should be
dismissed.

58. The Government responded to the Defense?s contentions in the last sentence of its Response.
It stated that ?[t]he United States maintains that its theory of criminal liability for Speci?cation
14 is dependent upon instructions by the Court.? Government Response, at 7. This is no
response at all.

59. For one thing, the Government has things backwards. While it may prefer tojust present its
Section 1030 case without putting much thought into its theory of ?exceeds authorized access?
for Speci?cation 14 of Charge 11, the prejudice concerns to PFC Manning identi?ed in the
Defense Renewed Motion preclude the Government from doing so. See Defense Renewed
Motion, at 1 1-13. The Government?s theory cannot be dependent upon this Court?s instructions;
rather, this Court?s instructions must be dependent on the Government?s theory, provided it can
articulate a cognizable one.

60. For too long, the Government has refused to fully articulate its theory or theories for
?exceeds authorized access.? When asked as part of the bill of particulars motion what its legal
theory was for section 1030, the Government refused to provide an answer. The Government
?nally did articulate its ?de?nitive? theory in its ?rst Response. Once it lost that motion, the
Government?s ?de?nitive? theory gave way to indications that it had other evidence and
theories. And after all this, the Government continues to be cagey with its theory for
Speci?cation 14. The time to speak is now. Either it has a cognizable legal theory for
Speci?cation 14 of Charge II or it does not. If it does not, it should just say so and stop the delay
that results from its meritless arguments to the contrary.

D. This Court Should Put an End to the Govern ment?s Delay Tactics

61. Both the substance and the tenor of the Government Response shows that the Government?s
true objective is not to attempt to state a cognizable legal theory for ?exceeds authorized access,?
but rather to delay the day of reckoning for its theory (or theories) until after it has put forth its
case to the members. For reasons already stated in the Defense Renewed Motion, any such delay
would result in severe prejudice to the accused. The Government offers absolutely no response
to these concerns perhaps because it knows that its tactics are indeed deliberately designed to

18

. . 22725

cause prejudice to the accused. This Court, unlike the Government, does not have the luxury of
so blithely disregarding the concerns of prejudice to an accused.

62. The Defense Renewed Motion put forth several prejudice concerns that would arise if the
Government is given a free pass on articulating a cognizable legal theory until after the evidence
has been presented. See Defense Renewed Motion, at 1 1-13. Those concerns need not be
reproduced here.

63. In its Response, the Government offers no rebuttal to these prejudice concerns. Instead, the
Government, without even acknowledging these concerns, requests in the alternative that this
Court ?defer ruling on this motion until the presentation of evidence.? Government Response, at
7. The Government?s decision to avoid responding to the prejudice concerns is telling; either the
Government deemed these concerns too insubstantial to even warrant a response or too
insurmountable to even attempt one. Either way, the Government, through its silence, seeks to
sweep these prejudice concerns under the rug, hoping that this Court will overlook them just as
the Government has done.

64. Of course, this Court cannot treat these prejudice concerns as dismissively as the
Government has treated them. There can be no deferment on the issue of whether the
Government has a cognizable theory of ?exceeds authorized access.? No matter how much the
Government may wish it were otherwise, a cognizable legal theory is a prerequisite to the
presentation of even a single piece of evidence on the Section 1030 specifications. The
Government has been challenged to come forward with a permissible theory for ?exceeds
authorized accesscannot now request that the Court wait to see what the
evidence bears out. Given the history of the Government?s conduct in both the Section 1030
motions and argument and other aspects of this case, the Government is not entitled to the
benefit of the doubt that such a ?wait and see? approach would give it. Even if it were so
entitled, deferment of this issue until after presentation of the Govemment?s evidence would
result in irreversible prejudice to PFC Manning. See Renewed Defense Motion, at 11-13. This
Court should not pennit the Government to delay this matter any longer.

E. The Government?s Response to this Motion is the Latest in a Long List of Instances
Where the Government has not been Candid with the Court

65. As may be apparent from recent motions practice, the Defense is increasingly troubled by
the Govemment?s lack of candor. We have seen the lack of candor play out particularly in recent
discovery dispute. However, we have also seen this elsewhere in the Article 104 motion
and the motion for a bill of particulars). It is time for the Government to begin taking its ethical
responsibilities as officers of the Court more seriously.

66. Here, the facts are not in dispute however, the Government is making it look like they are.
The uncontroverted facts are these:

0 Anyone with SIPRNET access had access to the diplomatic cables on the Net-Centric
Diplomacy database;

0 There were no password restrictions on the Net-Centric Diplomacy database;

0 Any and all diplomatic cables could be downloaded by anyone with SIPRNET access;

19





0 There were no restrictions (either technical or contract-based) on the quantity of cables
that could be downloaded from the Net-Centric Diplomacy database;

There were no technical restrictions that electronically blocked users from employing
Wget, or any type of authorized or unauthorized software, from downloading cables from

the Net-Centric Diplomacy database.

67. Thus, there are three basic questions that the Government continually dances around in an
effort to fabricate a factual issue:

Question One.? Did PFC Manning have permission to View the diplomatic cables
on the SIPRNE The answer here is ?yes.? The Government, in an effort to
the Court, states that it did not stipulate to this fact. It doesn?t need to.
There is no factual question that all persons who had SIPRNET access had access
to the diplomatic cables.

Question Two: Did PFC Manning have permission to download the diplomatic
cables? Again, the answer here is ?yes.? As the Government states, PFC
Manning was permitted to download the diplomatic cables though under the
AUP, he should have used an authorized program.

Question Three: Did PFC Manning have to bypass a technical code?based
restriction some sort of electronic gate) to download the cables using Wget?
The answer here is There was no code or programming in the computer that
physically prevented a user from employing an unauthorized program (Wget or
otherwise) to download the infonnation. The source of the restriction on using
Wget is found solely in the contractual terms of use.6

68. If the Government were honest with itself and more importantly with the Court it would
admit the truth of the aforementioned. continued obfuscation, in keeping with its motions
practice in the rest of the case, far exceeds the outer boundaries of zealous advocacy.

69. Not only has the Government continued to play hide the ball with clearly undisputed facts, it
has also played hide the ball with the Court as to the evidence it has in its possession. This
Court?s denial of the Defense Motion to Dismiss Speci?cations l3 and 14 of Charge 11 was
based solely on the Government?s representations that it had evidence aside from the AUP. In
denying the Defense Motion, this Court explained:

Whether the Court should dismiss the Speci?cations before presentation of
evidence depends on whether the issue is capable of resolution without trial on the
issue of guilt. In this case, the Government stated in oral argument that it would
present evidence in addition to the A UP. The Court does not ?nd that the issue is
capable of resolution prior to presentation of the evidence.

6 One might add a fourth question: Is there evidence that PFC Manning used Wget with respect to the cable in
Speci?cation 14? The answer is clearly However, the Defense submits that the answer to that question is
actually irrelevant because even if PFC Manning had used Wget with respect to the information in Speci?cation 14,
this would still not state a cognizable section 1030 offense.

20

22726

. . 22727

Appellate Exhibit, at 9 (emphasis supplied). Well, what is the Government?s
evidence ?in addition? to the There is no such evidence. At the very least, the
Government, instead of waiting idly by for a renewed motion to dismiss from the Defense,
should have alerted the Court to the fact that the ?new evidence? is simply a different section of
the same A UP.

CONCLUSION

70. For the reasons articulated above and in the Renewed Defense Motion, the Defense requests
this Court to dismiss Speci?cations 13 and 14 of Charge [1 because the Government has still
failed to allege that PFC Manning?s alleged conduct exceeded authorized access.

Respectfully submitted,

xv."
2'
1/ -Y
1/



DAVID EDWARD COOMBS
Civilian Defense Counsel

22728

SP 86
For National Security Positions

SF 328
Ccnilicatc Pertaining to Foreign

Appendix
Sample Acceptable Use Policy

Purpose
This appendix provides :1 sumplc AUP that may be used by utganintions to obtain explicit acknowledgements from
individuals. on their responsibilities and limitations using lSs.

B-2. Explanation of conventions in sample acceptable use policy
igurc B-I. below, illustrates a AUP. in this Iigurc, text appearing italicized font should be replaced
with the mfonnanon pertinent to AUP being cxccutcd. Army organizations. may tailor the
infonnaumi the sample AUP lu their speci?c needs. as appropnatc.

AR 25-2 24 October 2007 61

. . 22729

Acceptable Use Poiicy

1. 3 understand that I have the primary rasponsibdity in 5a??'gua'd the
rnrormanon contained in nan-.ork name andfor uncr?assmod ne!wor!r name
from unauthorized or inadvertent. rnodif?carion, drsc?osure, doszructron, deniar of service. and use

THEORY 2:
Purpose-Based Restriction
on Access

2. Access Access to (hrs/these netwodds) is ror o?aciai use and authorized purposes and as set
forth in ?Join: or as further hrnried by ihrs policy?.

3. Access so Army resources rs a ravocao?-2 and is subject content
monitoring and ssconiy testing

4. Classified infomation processing. CNN is the orrmary cfassrfiec for (wear! your
organizarfonj. CNN is a US?oniy system and apnromd to process firrsen? ootiarerat
information as weii as. caveats or CNN is not authorized
Io orocess irnser.? dass?rcation or adc?aona? caveats or spectra? handiing instructions}.

a. CNN orovioes corrtmunrration to exiemar D00 or spear}: omrar appropriate U. 5
Government) organ?zarrons using the SIPRNE T. Prirnanly this is done via eieozronic marl and
in?arnet nerworkiog such as web, ftp, terns? {insert orhers as appropria?ej

b. The CNN is BUIHDIIZEG for SECRE or ioweo?eve? an accordance with
package number. etc.

o. The ciassr?cation boundary behveen CNNand UNN requires wigs ance anc attention by
users. CNN is aiso a Usoniy system and not accredried for of NA. TO marerrai.

d. The u?tirraate respons?b?hry for ERSUTIFQ the protection of information hes with he usor: The
refease of TOP SECRET information through the CNN is a saouriry vsoiatron and w?il be
?nvestigaiad and hano?ed as a semr?ty vioiahon or as 3 cnm?nai offense

5. Unclassi?ed Inforrnatron Process?ng. UNN is the primary uncaassi?ed automated
too! for the {insert your UNN is a Usoniy system.

a. UNIV provrdes unciassi?ed comrnunicaiion to eadernat and other United States
Governmen! organizatrons. Pnmahiy this rs done vaa eleczronic man and mrernet
protocols such as web, rains! (loser? diners as agapropnfatej.

UNN is aooroved to process rnformarion in accordance w?ih
{insert racer? dealing with auromaied information system managemanf
program)?

The UNN and the ?nremei, as Vi??W8d by the {insert your organrza?ion), are synonymous.
maii and attachments are vuinerabte to inzercepr?on as they traverse ?ne MPRNET and intemeir

Figure 8-4, Acceptable use policy

/xii? 25-2 - 2:1 200??

22730

6. Minimum security miss and requirements. As a CNN andlor UNN system user, the
foitowing minimum security rules and requirements appiy:

23. Personnel are not permitted access to CNN and UNN uniess in complete rrornplianoe with the
(insert your organization) personnei security requirement for operating in a TOP SECRET
system-high environment.

b. i have completed the user security? awarenass~irainmg module. 1 writ participate in all training
programs as required finctusive of threat identification. security, acceptabte use policies,
rnalzoious content and togic identi?cation. and nonstandard threats such as social engineering}
before receiving system access.

generate, store, and protect passwords or pass-phrases Passwords wiil consist of at
least 10 characters with 2 eacn of uppercase and iowerrzase ietrers, numbers, and spectra?

characters. I am the onty authorized user of this account, (E witi not use user it). common names,

birthdays. phone numbers, military acronyms, cati signs. or dictionary words as passwords or
pass-phrases.)

d. iwii? use only authorized hardware and software not instaii or use any personally owned
hardware, software, shareware. or puotic domain software.

e. witi use virus--checking procedures before upioading or accessing information from any
system, diskette, attachment. or compact disk.

f. i witl not attempt to access or process data exceeding the authorized ES classification tevet.

g. wilt not alter, change, con?gure. or use operating systems or programs, except as speoificaiiy
authorized

h. 1 will not introduce executable code (such as, but not iimited to, axe, com, vbs, or cat fiiesji
w:thout authorization. nor i write maiicious code.

i. wit? safeguard and mark with the appropriate ciassification tevei as information created.
copied, stored, or disseminated from the IS and wiit not disseminate it to anyone without a
specific need to know

i. not utilize Army? or Dotlprovided 15s for commercial financiai gain or itlegai activities.
it. Mainteriance will be performed by the System Administrator (SA) dniy.

l. i wit: use screen locks and log off the workstation when departing the area.

m. wrti immediately report any suspicious output, fiies, shortcuts. or system probtems to the
(insert your orgariizatron) SA and./or M30 and cease activities on the system.

n. wit: address any questions regarding policy, responsibilities, and duties to {insert your
organization) SA andfor

Figure 8-1. Acceptabie use poiicymcontinued

THEORY 1
Contractual
Terms of Use

2.4 Onint'.ier

53

0. understand that each I5 is the property of the Army and is proi/=ded to me for ofticia? and
authorized uses. I further understand that each I3 is Subgect to monitoring for security purposes
and to ensure that use is authorized. i understand that i do not have a recognized expectation of
privacy in officiai data on the IS and may have oriiy a limited expectation of privacy in personat
data on the 18. i realize that I shoutd not store data on the ES that 5 do not want others to see.

p. I understand that monitoring of witt be conducted for various purposes and
information captured during monitoring may be used for administrative or disciplinary actions or
for criminal prosecution. i understand that the foltow?ng activities define iinacceptatile uses of an
Army lS:

tigsaed?c

- to show what is not acceptabte use

in to show what is acmeptabte during duty.-hon-duty hours

- to show what is deemed proprietary or not releasable (key word or data identi?cation)

- to show what is deemed unethical spam, profanity, sexual content, gaming)

- to show unauthorized sites pornography, streaming video, E-Bay)

- to show unauthorized services peer-to-peer distributed computing}

- to define proper email use and restrictions mass hoaxes, autoforwarding)
to exptain expected results of policy viotations if: etc)

{Note in any criteria can lead to crirninai offenses.)

q. The authority for soiiciling a sociat security number is E0 939, The information oetow
be used to identify you and may be disclosed to taw enforcement authorities for investigating
or prosecuting viotations. Disclosure of information is votuntary; however, faiture to disclose
information could resuit in deniat of access to {insert your organization} information systems.

7. Acknowledgement. I have read the above requirements regarding use of?
access systems. I understand my regarding these systems and the
information contained in them

insertgname here insert date here
Date
irz.ser_t name here insert Rank/Grade and SSH here

Last Name, First, Mi SSN

.. 0/7009 Wmbet hem?
Signature Phone Number

Figure 8-1. use przticy-?Coritinued

6d

AR 25~2 -24 Ocmpoi2007

22731

. 0 22732

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REPLY TO
GOVERNMENT RESPONSE TO
DEFENSE MOTION FOR
SPECIFIC INSTRUCTIONS: THE
MANNING, Bradley E., PFC SPECIFICATION OF CHARGE I
U.S. Anny,

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,

Fort Myer. VA 222!

DATED: ll July 20l2



RELIEF SOUGHT

l. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rule
for Courts Martial (R.C.M.) 920(c), requests this Court to give the instructions requested in the
Defense Motion for Speci?c Instructions: The Speci?cation of Charge I [hereinafter Defense
Motion] and the Defense Requested Instruction: Article 104 [hereinafter Defense Requested
Instruction].

ARGUMENT

2. The Government is incorrect that a ?knowingly and intentionally? requirement for the actual
knowledge element of Article I04, 10 U.S.C. 904, Uniform Code ofMilitary Justice (UCMJ),
would transform Article 104 into a speci?c intent offense. Indeed, it is the Govemment?s
proposed de?nition of ?knowing|y" that would transform Article 104 into something that it is not
namely, an Article that punishes negligent acts. Finally, the Govemment?s attempt to
distinguish the mens rea standard ofOffense 26 ofthe Military Commissions Act from the mens
rea required for Article 104 is meritless.

3. Thus, for these reasons, this Court should give the Article I04 instructions requested by the
Defense.

A. A ?Knowingly and lntentional|y? Requirement Does not Render Article 104 a
Specific Intent Offense

4. The Defense Motion carefully explained that the ?intentionally? component of its proposed
"knowingly and intentionally? requirement was not to be understood as converting Article 104
into a specific intent offense. Nevertheless, the Government, either misunderstanding the
Defense?s arguments to the contrary or disregarding them entirely, spends considerable effort
lambasting the ?intentionally? component of the Defense proposed instruction as converting

8

I

98)

mt. mu



Article 104 into a speci?c intent offense. This effort is fruitless. The Defense has said it once,
and it will say it again: the ?intentionally? component of the ?knowingly and intentionally?
requirement merely seeks to ensure that Article I04 does not impermissibly punish inadvertent,
accidental, or negligent acts.

5. Much of the Government?s Response is dedicated to equating the ?intentionally? aspect of the
Defense?s proposed instruction to a speci?c intent requirement. See Government Response to
Defense Motion for Specific Instructions: The Speci?cation of Charge I [hereinafter Government
Response], at (?The Defense?s proposed instruction transfonns the Government?s burden by
requiring it to prove a speci?c intent to commit the charged offense, in contravention of the law,
statutory text, and this Court?s previous rulings?); id. at 2 (?The Government does not need to
prove that the accused intended to give intelligence to the enemy through indirect means because
Article I04 does not require speci?c id. at 3 (?Any intention, purpose, design, or desire
is only required under a speci?c intent and not under the general intent required for Article 104.
Thus, the Government is not required to prove that the accused desired the speci?c result of the
enemy?s receipt of intelligence.? (citations omitted)); id. (?The Defense?s proposed instruction
requiring the Government to prove speci?c intent is improper. The Defense uses its request for
instructions to raise anew its contention that, as charged in this case, Article 104 requires the
Government to prove a speci?c intent to commit the Perhaps the Government
genuinely misunderstood the reason for the Defense?s inclusion of the ?intentionally? component
of the proposed ?knowingly and intentionally? requirement. Perhaps the Government simply
disregarded the reason for its inclusion and chose instead to argue an issue that was not raised by
the Defense Motion. Either way, the Government?s effort on this score was a wasted one, since
at no point in the Defense Motion did the Defense intimate that Article 104 was or should be a
speci?c intent offense.

6. Rather, the Defense Motion clearly states the reason for including the ?intentionally?
component of the proposed ?knowingly and intentionally? requirement: to prevent Article 104
from impennissibly punishing the inadvertent, mistaken, accidental, or negligent act. Footnote 2
of the Defense Motion stated with unmistakable clarity that:

Saying that an accused acted ?intentionally? in this context is not the same as
saying an accused acted with any type of speci?c intent or motive intent to
aid the enemy). See Appellate Exhibit at 3. Rather, the tenn
?intentionally? here simply means that the accused intended to perform the act
intended to give intelligence to the enemy). In other words, it means that he
did not act ?inadvertently, accidentally, or negligently.? [United States Olson,
20 C.M.R. 464 1955)]; see Appellate Exhibit at 2, 4
person cannot violate Article 104 by acting inadvertently, accidently, or


Defense Motion, at 6 n.2 (emphasis supplied). The Defense maintains in this Reply that if
?knowingly and intentionally? is not the mens rea for the Article 104 offense, then this Court?s
instructions will run afoul of the well-established proposition that Article 104 does not punish the
inadvertent, accidental, or negligent act. See United States v. Batchelor, 22 C.M.R. 144, 157




. . 22734

(C.M.A. 1956); Olson, 20 C.M.R. at 464; Appellate Exhibit, at 2, 4 person cannot
violate Article 104 by acting inadvertently, accidently, or

7. Any of the loose conceptions of knowledge that the Government may wish would suffice
such as knowledge that an enemy might, could, or even would likely receive the intelligence -
cannot prevent Article 104 from punishing the inadvertent, mistaken, accidental, or negligent act
of an accused. For reasons discussed in the Defense Motion and in this Reply, see Part B, supra,
this is especially true where, as here, an Internet-intelligence case is involved. The only way to
ensure that Article 104 does not punish those who have acted inadvertently, accidentally, or
negligently, see Appellate Exhibit at 2, 4, is to require the Government to prove actual
knowledge on the part of the accused that he was giving intelligence to the enemy through
indirect means. And the only sure way to require that actual knowledge be proven is to instruct
the members that the accused must have knowingly and intentionally intending to do the act
or, conversely, not acting inadvertently, accidentally, or negligently) gave intelligence to the
enemy through indirect means.

B. The Government?s Instruction on Knowingly Would Impermissibly Allow Article
104 to Punish Negligent Acts

8. Despite its best efforts to paint the Defense proposed instruction as illegitimate, the
Government is the one who has proposed an impermissible instruction for Article 104. The
definition of?knowingly? anticipated by the Government?s Response is far too lax; it would
impermissibly allow Article 104 to punish inadvertent, accidental, or negligent acts.
Accordingly, this Court should reject the Govemment?s definition of?knowingly? and adopt the
Defense?s ?knowingly and intentionally? standard.

9. In its response, the Government states that ?a ?knowingly?_ standard simply requires awareness
that a result is likely to follow, not a desire to effect that result.? Government Response, at 2.
But simple awareness that a result is likely to follow cannot be the mens rea for an offense that
cannot be consummated through inadvertent, accidental, or negligent acts. See Batchelor, 22
C.M.R. at 157; Olson, 20 C.M.R. at 464; Appellate Exhibit, at 2, 4 person cannot
violate Article 104 by acting inadvertently, accidently, or This is especially true
for lntemet?inteIligence cases like this one.

I0. Today, virtually everyone understands that information posted on a publicly accessible
website can potentially be viewed by anyone with Internet access, including enemies of the
United States. See Reno v. Am. Civil Liberties Union, 521 U.S. 844, 85] (1997); see also
Defense Motion, at 5. Certainly every Army analyst understands this fact. Therefore, under the

Government?s understanding of ?knowingly,? an Army analyst would certainly be aware that the

. enemy might, could, or would likely be able to access intelligence placed on the Internet. Thus,

in the Government?s view, anytime an Army analyst placed any intelligence on the Internet, that
analyst would have committed a capital offense, regardless of whether the analyst acted
intentionally, inadvertently, accidentally, or negligently. This cannot be the proper
understanding of Article 104?s ?knowingly? requirement.

0 0 22735

ll. Indeed, the American Civil Liberties Union (ACLU) has indicated that it would be
?breathtaking? if this were indeed the proper interpretation of Article 104:

The Government?s Overreach on Bradley Manning

Yesterday the militaryjudge overseeing the court martial of Pfc. Bradley
Manning, who is accused of giving government documents to WikiLeaks, heard a
defense motion to dismiss the charge of ?Aiding the Enemy.? (She is expected to
rule on the motion today.) The charge, which is akin to treason and is punishable
by death, is separate from the main accusation against Manning that he leaked
sensitive documents to people unauthorized to receive them. The govemment?s
inclusion of this charge raises enormous problems, and a conviction of Manning
in these circumstances would be unconstitutional.

The key to the government?s case is this simple claim: that posting intelligence
infonnation to the internet aids Al Qaeda because Al Qaeda has access to the
intemet.

The implications of the government?s argument are breathtaking. To understand
why, it helps to recall the experience of another soldier. In December of 2004,
Defense Secretary Donald Rumsfeld held a town-hall style meeting for troops
who were preparing to deploy to Iraq. Following his remarks, Rumsfeld was
confronted by an Army specialist who complained about the inadequacy of the
combat equipment provided by the military.

?Our vehicles are not armored,? said Specialist Thomas Wilson, an airplane
mechanic with the Tennessee Army National Guard. ?We?re digging pieces of
rusted scrap metal and compromised ballistic glass that?s already been shot our vehicles to take into combat. We do not have proper vehicles to
carry with us north."

The soldier?s question and Rumsfeld?s now infamous response that ?you go to
war with the army you have, not the army you might want or wish to have?
were front-page news around the world. And while war cheerleaders like Rush
Limbaugh accused Specialist Wilson of ?near insubordination? for embarrassing
the defense secretary in a public forum, there was no suggestion in serious
quarters that he face punishment much less prosecution for his words.

Yet the government?s decision to prosecute Manning for ?Aiding the Enemy?
threatens to make public comments like Wilson?s grounds for criminal
prosecution. The government does not contend that Manning gave any
information to Al Qaeda, or even that he intended that Al Qaeda receive it.
Rather, it claims that Manning ?indirectly? aided Al Qaeda by causing
intelligence infonnation to be posted on WikiLeaks? website, knowing that Al
Qaeda has access to the intemet. Speci?cally, the government contends that
Manning violated Article I04 ofthe Uniform Code of Military Justice, which
provides that ?any person who . . . gives intelligence to or communicates or
corresponds with or holds any intercourse with the enemy, either directly or

0 0 22736

indirectly; shall suffer death or such other punishment as a court-martial or
military commission may direct.?

Article 104 is not limited to sensitive or classi?ed information it prohibits any
unauthorized communication or contact with an enemy. So, if the government is
right that a soldier ?indirectly? aids the enemy when he posts information to
which the enemy might have access, then the threat of criminal prosecution hangs
over any service member who gives an interview to a reporter, writes a letter to
the editor, or posts a blog to the internet.

For example, there are now more than a thousand enlisted military bloggers.
According to Stars and Stripes, ?Army officials . . encourage troops to blog as
long as it doesn?t break any operational security rules, and they see it as a good
release for servicemembers.?

Are these bloggers aiding the enemy? Prior to Bradley Manning?s case, charging
anyone with that crime in the absence of any allegation or evidence that he had
intended to aid the enemy would have been inconceivable.

The crux of the govemment?s case against Manning that he leaked sensitive
documents without authorization in no way depends on branding him a traitor.
Indeed, some courts have held that leaks may be punished even if the leaker?s
motive was purely patriotic. In its zeal to throw the book at Manning, the
government has so overreached that its ?success? would turn thousands of loyal
soldiers intocriminals.

Which brings us back to Specialist Wilson and, for that matter, Donald
Rumsfeld. Both men spoke openly about the vulnerability of U.S. forces in Iraq.
Both men surely knew that the enemy would watch their exchange on television
or read about it on the internet. The notion that Wilson and Rumsfeld broke the
law by communicating this information to the media and thereby ?indirectly?
aiding the enemy is absurd but no more so than the govemment?s contention
that Bradley Manning did so.

See
manning.

12. This Court has held that Article 104 requires ?actual knowledge? on the part of the accused
that he was giving intelligence infonnation to the enemy through indirect means. See Appellate
Exhibit at 4 (?Article 104(2) requires actual knowledge by the accused that he was
giving intelligence to the enemy.? (emphases supplied)); id. (?The accused must actually know
that by giving intelligence to the 3rd party he was giving intelligence to the enemy through this
indirect means.? (emphases supplied)). This Court did not hold that mere awareness that the
enemy may be able to access the information or mere awareness that it would be likely that the
enemy would access the information could suffice. In fact, by adopting an ?actual knowledge?
requirement this Court implicitly rejected any notion that bare awareness that a particular result



was likely could satisfy the mens rea of Article 104. See id person cannot violate Article
104 by acting inadvertently, accidently, or negligently?). Other Article 104 case law fully
supports this Court?s adoption of the ?actual knowledge? requirement. See Batchelor, 22 C.M.R.
at 157; Olson, 20 C.M.R. at 464.

13. Notwithstanding this Court?s ruling, the Government has attempted to water down beyond
recognition the ?actual knowledge? requirement adopted by this Court. Its Response focused
primarily on unwarranted concerns that the Defense proposed instruction turned Article 104 into
a speci?c intent offense. However, the Government also subtly sought to replace the ?actual
knowledge? mens rea with one requiring mere awareness of a likely result constructive
knowledge). This back door substitution cannot be permitted. Since this Court?s ruling requires
that ?[t]he accused must actually know that by giving intelligence to the party he was giving
intelligence to the enemy through this indirect Appellate Exhibit at 4, an
accused cannot be found guilty of giving intelligence to the enemy where he gives intelligence to
a third party with the mere awareness that the enemy might, could, or even would likely receive
the intelligence. Actual knowledge that the accused was giving intelligence information to the
enemy through indirect means is the requisite mens rea, see id.; mere awareness of a likely result
is not. The Govemment?s proposed standard would impermissibly sweep inadvertent,
accidental, and negligent acts under Article 104?s reach.

14. One must also recall that a prosecution such as this one has never been maintained in the
history of the United States. This will be the first case in American history to consider whether
causing information to be posted on the internet constitutes ?indirectly? giving intelligence to the
enemy. Since there is absolutely no precedent for a prosecution of this nature, this Court should
err on the side of caution and ensure that panel members truly understand that ?actual
knowledge? cannot be satis?ed by showing awareness of a possible, probable or likely result.
Rather, the accused must have intended to give (as in, the act was volitional) intelligence to the
enemy through the indirect means. While the accused did not have to intend to aid the enemy,
he must have intended to give intelligence to the enemy.

15. Accordingly, this Court should reject that loose de?nition of ?knowingly? and adopt the
only sensible alternative: the ?knowingly and intentionally? standard embodied in the Defense?s
proposed instructions.

C. A ?Knowingly and Intentionally? Requirement is Supported by Offense 26 of the
Military Commissions Act

16. Finally, the Government?s attempt to distinguish Offense 26 of the Military Commissions
Act from Article 104 is severely flawed in several respects. In its Response, the Government
identified three ostensibly relevant differences between Offense 26 and Article 104: Offense 26
has a loyalty element absent from Article Offense 26 uses the phrase ?knowingly and
intentionally? while Article 104 does not; and Offense 26 is entitled ?Wrongfully Aiding the
Enemy? while Article 104 isjust entitled ?Aiding the Enemy.? None ofthese three
?distinctions? has even an ounce of merit.

I7. First, the Government argues that Offense 26 is appreciably different from Article 104
because Offense 26 has a loyalty element absent from Article I04. The Government Response
states: ?In fact, Congress further heightened the requirements of Offense 26 in comparison to
Article 104 by adding a loyalty element. See 10 U.S.C. 950t(26) (requiring, among other
elements, a ?breach of an allegiance or duty to the United Government Response, at 4.
This contention is nonsense. For one thing, as the Government itself acknowledges, Soldiers
already owe a duty of loyalty to the United States. See id. at 4 n.3 Government notes
that Soldiers . . . owe a duty of loyalty to the United This duty of loyalty is implicit
in the UCMJ. For another thing, the loyalty element whether explicit or implicit has
absolutely nothing to do with the mens rea of either Offense 26 or Article 104. The fact that
Offense 26 makes one non-mens rea element explicit while Article 104 makes it implicit is
irrelevant to the purpose for which the Defense compared the two offenses: to show that because
Offense 26, which was modeled after and came from the same common law source as Article
104, has a ?knowingly and intentionally? mens rea, Article I04 must have the same mens rea.?

18. Second, the Government attempts to distinguish Offense 26 from Article 104 by pointing out
that Offense 26 contains a ?knowingly and intentionally? mens rea while Article 104 does not.
See Government Response, at 4 (?The Military Commissions Act comparison made by the
Defense fails because Congress explicitly chose to add the ?knowingly and intentionally?
standard to Offense 26, yet the Dra?ers declined to change the language of Article 104 to include
the ?knowingly and intentionally? standard in both 2008 and While superficially
appealing, this ?distinction? breaks down upon closer examination. As was fully explained in
the Defense Motion, Offense 26 does not create a new offense out of thin air. See Defense
Motion, at 7. On the contrary, Section 950p(d) makes clear that the offenses currently listed in
Section 950t, including Offense 26, are not new offenses, but are instead codifications of
offenses traditionally triable by military commission. See 10 U.S.C. 950p(d) (?The provisions
of this subchapter codify offenses that have traditionally been triable by military commission.
This chapter does not establish new crimes that did not exist before the date of the enactment of
this

I9. Therefore, Congress did not simply make up the ?knowingly and intentionally? mens rea for
Offense 26; it had to come from somewhere. Like Article 104, Offense 26 is based on the
common law of war offense of aiding the enemy, which has remained substantially unchanged

I The Government also relies on this loyalty element to portray as foolish the Defense?s suggestion that a terrorist
could receive a friendlier mens rea standard under Offense 26 than a Soldier would receive under Article I04. See
Government Response, at 4 n.3 Defense neglects to consider that the loyalty element, discussed infra,
presumably would not apply to a terrorist because he would lack an ostensible allegiance or duty to the United
States. Therefore, a terrorist would not be subject to Offense 26. Accordingly, the terrorist would not benefit from a
?friendlier? mens rea than a Soldier charged with an Article 104 violationf?). However, the Government neglects to
consider that the loyalty element upon which it relies can be satis?ed by mere citizenship or resident alien status.
See Manual for Military Commissions (MMC), Part IV, at 21 (2010 ed.) (?The requirement that conduct be
wrongful for this crime necessitates that the accused owe allegiance or some duty to the United States of America.
For example, citizenship, resident alien status, or a contractual relationship in or with the United States is sufficient
to satisfy this requirement so long as the relationship existed at a time relevant to the offense Therefore,
the Government is plainly mistaken that a terrorist would not be subject to Offense 26; a terrorist who is either a
citizen of the United States or who has resident alien status would indeed be subject to Offense 26. Accordingly, in
such a case, the terrorist would benefit from a friendlier mens rea than a Soldier charged with an Article 104
violation. provided, of course, that Article 104 does not require a ?knowingly and intentionally? mens rea.

7

22738

for the past 235 years. See Defense Motion, at 8. Given the similarities between Article 104 and
Offense 26 and their shared common law roots, the unmistakable conclusion is that Article 104
and Offense 26 share the same ?knowingly and intentionally? mens rea, derived from the

- common law of war offense that has remain unchanged for 235 years. See id.

20. Finally, the Government seeks to distinguish Offense 26 from Article 104 by comparing the
names of the two offenses. See Government Response, at 4 name of the offense cited by
the Defense, ?Wrongfully Aiding the Enemy,? also indicates an increased standard. Here, the
accused is charged with aiding the enemy, not ?wrongfully? aiding the enemy.?) This contention
is barely deserving of a response. Article 104(2), the provision under which PFC Manning has
been charged, punishes ?[a]ny person who -- (2) without proper authority, knowingly harbors or
protects or gives intelligence to, or communicates or corresponds with or holds any intercourse
with the enemy, either directly or 10 U.S.C. 904(2) (emphasis supplied).
Likewise, the MMC offers the following explanation of the meaning of ?wrongfullyz? ?The
requirement that conduct be wrongful for the crime necessitates that the accused act without
proper authority.? MMC, Part IV, at 21 (emphasis supplied). In this respect, then, the two
offenses are exactly the same, notwithstanding the Government?s silly name game.

Therefore, as Offense 26 is obviously modeled after Article 104, derives from the same
common law roots as Article 104, and cannot be effectively distinguished from Article 104, its
?knowingly and intentionally? mens rea must also be contained in Article ]O4?s mens rea.
Accordingly, Offense 26 offers yet another reason for this Court to adopt the ?knowingly and
intentionally? standard for the actual knowledge element of Article 104.

CONCLUSION

22. For these reasons and those articulated in the Defense Motion, the Defense requests that this
Court give the instructions requested in the Defense Motion and the Defense Requested
Instruction for the Specification of Charge I.

Respectfully submitted,

/If/5
,4 i/
sK/- 9" a?
DAVID EDWARD COOMBS
Civilian Defense Counsel

22739

0 22740

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REPLY TO
GOVERNMENT RESPONSE TO
DEFENSE REQUESTED
INSTRUCTION:
SPECIFICATIONS CHARGE II

MANNING, Bradley E., PFC

U.S. Army,

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

DATED: ll July 20l2



RELIEF SOUGHT

l. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rule
for Courts Martial (R.C.M.) 920(c), requests this Court to give the instructions requested in the
Defense Requested Instruction: Speci?cations Charge ll [hereinafter
Defense Requested Instruction].

ARGUMENT

2. The Government objects to the language of various proposed instructions. That language
comes virtually verbatim from the Federal Jury Instructions published by Matthew Bender
Co., Inc. Those jury instructions are attached in full with this motion, and the relevant language
has been highlighted in yellow for ease of reference.

3. Specifically, the Government objects to the Defense?s proposed stealing, purloining, and
conversion instructions. With regards to the stealing instruction, the Government states that
?steal? does not mean to take someone?s property with the intent to deprive the owner of the

12% of that property.? Government Response to Defense Requested Instruction: Speci?cations

Charge ll [hereinafter Government Response], at 2 (emphasis in original).
However, this is the precise definition provided by the attached jury instructions. See Federal

Jury Instructions (attached), at l0.

4. Additionally, the Government offers a similar objection to the Defense's purloining
instruction: ??purloin? is also not linked to the intent to permanently deprive the owner of the
of the property.? Government Response, at 2 (emphasis in original). However, as the
Government points out, to purloin is to steal with the added element of stealth. See id (?See
United States v. Morissetle, 342 U.S. 246, 270 (I952) commonly used to denote
any dishonest transaction whereby one obtains that which belongs to another, and deprives the
owner of the rights and benefits of ownership, but may or may not involve the element of stealth

CKQISL

EXHIBIT
p% 1?

(53



cm)



usually attributed to the word Therefore, while the Federal Jury Instructions do not
provide a definition of ?purloin,? the Defense maintains that its de?nition of purloin properly
combines an acceptable definition of ?steal,? see Federal Jury Instructions (attached), at 10, with
the extra element of stealth.

5. Finally, the Government also objects to the Defense?s conversion instruction as follows: ?in
the ?conversion? instruction, the United States is not required to prove that the accused ?knew?
that the property belonged to the United States, only that he knew that he [sic] property was not
his.? Government Response, at 2. However, the Federal Jury Instructions provide otherwise.
See Federal Jury Instructions (attached), at 10.

6. Therefore, the Defense maintains that its requested instructions are entirely proper and that
the Govemment?s objections are without merit.
CONCLUSION

7. For these reasons, the Defense requests this Court to give the instructions requested in the
Defense Requested Instruction.

Respectfully submitted,







DAVID EDWARD COOMBS
Civilian Defense Counsel

22742

1 23A.01

23A-2

FEDERAL JURY INSTRUCTIONS

1 23A.01. Theft of Government Property (18 U S C. § 641)

Instruction 23A-1
The Indictment and the Statute
The indictment charges the defendant with stealing (or embezzling or
knowingly converting) money or property belonging to the United States
government. The indictment reads as follows:
[Read Indictment]
The indictment charges the defendant with violating section 641 of Title
18 of the United States Code. That section provides in relevant part:
Whoever embezzles, .steals, purloins, or knowingly converts to his use or
the use of another, or without authority, sells, conveys, or disposes of any
record, voucher, money, or thing of value of the United Sta^-is or of any
department or agency thereof, or any property made or being nade under
contract for the United States or any department or agency th ;reof [shall
be guilty of a crime].

Comment
The first two paragraphs of section 641 create different crimes with different
elements: the first paragraph applies to the unlawful taking of government
property, while the second concerns the unlawful possession ofthat property after
it has been stolen. The Supreme Court has specifically held that a defendant may
not be convicted under section 641 for both stealing and receiving the same
property, * although the indictment may charge the defendant with both. ^
The offense paragraphs of section 641 each provide for both a felony and a
misdemeanor offense depending on the value ofthe property stolen. In its original
version, the dividing line between the felony and misdemeanor offenses was set
at S100. That was increased to $1,000 in 1996.3
iMilanovich v. United Slates. 365 U.S. 551, 554-55, 81 S. Ct. 728, 5 L. Ed. 2d 773 (1961).
2 United States v. Bauer, 713 F,2d 71, 75 (4th Cir. 1983).
3 Economic Espionage Act of 1996, P L. No, 104-294, Title VI, § 606(a), 110 Stat. 3511 (1996).

(Rd.'(5b-!l/04 PukW)

22743

23A-3

THEFT OF GOVERNMENT PROPERTY

Inst. 23A-2

Instruction 23A-2
Elements of the Offense
In order to prove the defendant guilty of stealing {or embezzling or
knowingly converting) money or property belonging to the United States
government, the government must prove each of the following elements
beyond a reasonable doubt:
First, that the money or property described in the Indictment belonged
to the United States govemment;
Second, that the defendant stole (or embezzled or knowingly converted)
that property;
Third, that the defendant acted knowingly and willfully with the intent
to deprive the govemment of the use and benefit of its property; and
Fourth, that the value of the property was greater than $1,000.
Authority
Fifth Circuit: United States v. Dien Due Huynh, 246 F.3d 734 (5th Cir. 2001);
United States v. Aguilar, 967 F.2d 111 (5th Cir. 1992); Fifth Circuit Pattern
Criminal Jury InsU'UCtion 2.33.
Sixth Circuit: United States v. McGahee, 257 F.3d 520 (6th Cir. 2001).
Seventh Circuit: United States v. Howard, 30 F.3d 871 (7th Cir. 1994);
Seventh Circuit Pattem Criminal Jury Instruction to 18 U.S.C. § 641.
Eighth Circuit: Eighth Circuit Model Criminal Jury Insttuction 6.18.641.
Ninth Circuit: United States v. Seaman, 18 F.3d 649 (9th Cir. 1994).
Tenth Circuit: United States v. Hill, 835 F.2d 759 (10th Cir. 1987).
Eleventh Circuit: United States v. McRee, 7 F.3d 976 (11th Cir. 1993), cert,
denied, 511 U.S. 1074 (1994); United States v. Lanier, 920 F.2d 987 (11th Cir.
1991); Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction
21.

Comment
There is wide agreement on the elements of a violation of section 641, with
some courts and circuit pattem instructions treating the value of the property
as a separate element, i and others treating it as part of the first element. ^ Both
1 United States v. McOahce. 257 F.^d 520. 528-29 (6th Cir. 2001): United Slate: v. Seaman.
18 F.3d 649, 650 (9th Cir. 1994); United Slates v. McRee. 7 F.3d 976, 980 (11th Cir. 1993), cert,
denied. 511 U.S. 1074 (1994); United States v, Medrano. 836 F.2d 861. 864 (5th Cir.), ceri. denied,
(Re!.4SK. 11«4 l>ub.*S5>

22744

Inst. 23A-2

FEDERAL JURY INSTRUCTIONS

23A-4

formulations are equally acceptable; the former is recited here only because it
simplifies instruction on the lesser included misdemeanor offense of stealing
property with a value of $1,000 or less.
The Ninth Circuit pattern instructions join the second and third elements as
follows:
First, the defendant knowingly stole [money] [property of value] with tlie
intention of depriving the owner of the use or benefit of the [money] (property);
Second, the [money] [property] belonged to the United States; and
Third, the value of the [money] [property] was more than $1,000. =
In practice, the Ninth Circuit has approved both the version in the pattern
instructions* and the recommended fonnulation.'
488 U.S. 818 (1988). See Eleventh Circuit Pattem Criminal Jury Instmctions, Offense Instruction
21.
2 United States v. Dien Due Huynh, 246 F.3d 734, 745 (5th Cir. 2001): United States v. Howard,
30 F.3d 871. 875 (7th Cir. 1994); United States v. Burton. 871 F.2d 1566, 1570 (11th Cir. 1989):
United Stales v. Hill, 835 F.2d 759, 762 n.2 (10th Cir. 1987). See Fifth Circuit Pattem Criminal
Jury Imtruction 2,33; Seventh Circuit Pattem Criminal Jury Instruction to 18 U.S.C. § 641; Eighth
Circuit Model Criminal Jury Instruction 6.18.641.
3 Ninth Circuit Model Criminal Jury Instruction 8.31.
* United States v. Campbell. 42 R3d 1199. 1204 (9lh Cir. 1994), cert, denied, 514 U.S. 1091
(1995).
5 United States v. Seaman, 18 F.3d 649, 650 (9th Cir. 1994).

(RBI 45h-11/04 PuM83)

22745

23A-5

THEFT OF GOVERNMENT PROPERTY

Inst 23A-3

Instruction 23A-3
First Element Money or Property Belonged to United States
Tlie first element the government must prove beyond a reasonable doubt
is that the money or property described in the Indictment belonged to the
United States government.
To satisfy this element, the government must prove that [describe property] was a "thing of value of the United States." That means that at the
time the property was allegedly stolen (or embezzled or knowingly converted)
the United States govemment or an agency of the United States government
had either title to, possession of or control over the property (or the property
was made under contract for the United States).
{If appropriate, except in the Ninth Circuit: Property includes other things
of value beside money and tangible objects. It also includes intangible things
like the value of an employee's time and services.)
Except when knowing conversion of the property is charged: The govemment is not required to prove that the defendant knew that the property
was a "thing of value of the United States."

Comment
The requirement that the property allegedly stolen was a "thing of value of
the United States" provides the link which establishes federal jurisdiction, i
Instruction 23A-3 sets forth a basic charge for the usual case when it is alleged
that the govenunent owned the property. As discussed below, the phrase "thing
of value of the United States" has been interpreted to apply to interests beyond
ownership and possession, so the instruction will need to be revised to address
those other interests when appropriate.
Despite some statements by the Ninth Circuit that the determination whether
the property involved is a "thing of value of the United States" is a question
of law,2 it is strongly recommended that this issue be submitted to the jury. All
of the circuit pattem instructions include a charge on this element, ^ and there
has been no discussion of this issue outside the Ninth Circuit, suggesting that
it is routinely charged to the jury. The better view is that this is a factual question
1 United Slates v. Ca.seslorentc, 220 F.3d 727, 732 (6th Cir. 2000).
2 United State; v. Lawson, 925 F2d 1207, 1209 (9th Cir, 1991); United States v. Eden, 659
F.2d 1376. 1378 (9th Cir. 1981), cert, denied, 455 U.S. 949 (1982).
3 See Fifth Circuit Pattern Criminal Jury Instruction 2.33; Seventh Circuit Pattem Criminal Jury
Instruction to 18 U.S.C. § 641; Eighth Circuit Model Criminal Jury Instmction 6.18.641; Ninth
Circuit Model Criminal Jury Insmiction 8.31; Eleventh Circuit Pattem Criminal Jury Instructions.
Offense Instmction 21.
(Krf.45l)-11/IM Pub 4851

22746

Inst. 23A-3

FEDERAL JURY INSTRUCTIONS

23A-6

for the jury subject to review on appeal whedier the interest alleged and found
by the jury is sufficient as a matter of law.*
As noted above, the phrase "thing of value of the United States" has been
interpreted to extend beyond actual ownership to include any situation in which
the govemment has "title to, possession of or control over" the properly.* The
courts have tended to group these property interests into four categories: (I) when
the government has clear ownership of the property; (2) when the govemment
is the custodian or bailee of the property; (3) when a govemment employee or
agent has possession of the property; and (4) when possession of the property
has passed to an intermediary but the government retains supervision and control
over the property.*
The first situation, when the government is alleged to have clear ownership
of the property, is the simplest. Ownership of the property in question obviously
satisfies the requirement that it be a "thing of value of the United States."^ In
addition to the garden variety items which would undoubtedly fall within this
category without discussion, several types of property have been the subject of
repeated discussion in the courts. Thus, it is now clear that natural resources on
public lands are things of value,* as is merchandise for sale on military post
exchanges.®
At least six courts of appeal have held that section 641 applies to intangible
property such as govemment employee time and confidential infonnation. Only
^See United States v. Lanier. 920 R2d 887, 896 (11th Cir. 1991).
5 United States v. Tailan. 161 F.3d 591. 592 (9th Cir. 1998).
United States v. Caseslorente, 220 F.3d 727, 732 (6th Cir. 2000).
7 See. e.g.. United States v. Caseslorente, 220 F.3d 727, 732-33 (6th Cir. 2000) (govemment
owned recyclablcs at time of conversion by defendant); United States v. Faust, 850 F 2d 575, 579
{9th Cir. 1988) (govemment had clear ownership interest in insurance check made out jointly to
defendant iuid govemment).
8 See United States v. Newsome, 322 F.3d 328. 333 (4th Cir. 2003) (trees); United States v.
McPhilomy. 270 F.3d 1302, 1307-08 (lOth Cir. 2001), cert, denied, 535 U.S, 966 (2002)
(commercial grade stone); United Slates v. Larson, 110 F.3d 620, 624 (8th Cir. 1997) (fossils);
United SiaKs v. Cam^lL 42 F.3d 1199. 1203 (9th Cir. 1994). wrf. (Wrf(trees).
9 United States v. Tailan, 161 F.3d 591, 592 (9th Cir. 1998); United States v. Towns, 842 F.2d
740. 741 (4th Cir ). cert, denied, 487 U.S. 1240 (1988); United States v. Sanders, 793 F.2d 107,
108-09 (5th Or. 1986).
10 United States v. Collins, 56 F..3d 1416, 1419-21 (D.C. Cir. 1995) (computer time and services);
United States v. Matzkin, 14 F.3d 1014, 1020 (4th Cir. 1994) (confidential bid infonnation); United
States V. Barger, 931 F,2d 359, 368 (6th Cir. 1991) (confidential law enforcement information);
United States v. Croft, 750 R2d 1354, 1359-62 (7th Cir. 1984) (employee time); United States
V. Wilson. 636 F.2d 225, 227-28 (8th Cir. 1980) (employee time); United States v, Girard, 601
F.2d 69. 71 (2d Cir.), cert, denied, 444 U.S. 871 (1979) (confidential law enforcement information).
See also Seventh Circuit Pattern Criminal Jury Instruction lo 18 U.S.C. § 641 (Definition of Value):
Eighth Circuit Model Criminal Jury Instmction 6.18.641. But see Chappell v. United Stales, 270
F.2d 274, 276 (9th Cir. 1959).
(Rcl 451.11(04 Pi*4S!>)

22747

23 A - 7

THEFT OF GOVERNMENT PROPERTY

Inst. 23A-3

the Ninth Circuit disagrees, having held in an early case that section 641 does
not apply to the theft of employee time." As the DisQ-ict of Columbia Circuit
explained. "Congress intended to enact a broad prohibition against the misappropriation of anything belonging to the government unrestrained by the fine and
technical distinctions of the common law."" However, the defendant's actions
must seriously interfere with the government's ownership rights. Thus, in the
case just quoted, the court held that keeping personal documents on a govemment
computer did not interfere with the government's use of the computer."
A government chcclc remains the property of the government until the check
is received and deposited by the intended beneficiary, i * Once the funds are
deposited by the intended payee, however, title to the funds passes and is no
longer property "of the United States."
The government must be the owner of the property at the time of the alleged
unlawful act. Once the government sells the property, the govemment becomes
a creditor widi respect to payment for that property and it is no longer property
of the United States, This rule is particulariy important with respect to stolen
government bonds. When bonds are purchased by a third party, they become
the property of that purchaser, and are no longer property of the United States.
However, if the bonds are subsequently stolen from the owner, under the
applicable Treasury regulations the govemment will provide relief to the owner
by replacing the bonds, and upon the granting of that relief, the stolen bonds
become property of the United States. As a result, the original theft of the bonds
does not violate section 641, but retaining the bonds after relief has been granted
to the owner is covered. In that situation, the govemment must introduce
evidence of when relief was granted, as the bonds became property "of the United
States" at that time."
11 Chappell V, United States, 270 F.2d 274, 276 (9th Cir. 1959). See also United States v. Tobias,
836 F.2d 449, 451 (9th Cir. 1988) (dictum reaffirming Ninth Circuit's view on this subject).
12 United States v. Collins, 56 F,3d 1416, 1419 (D.C. Cir. 1995).
13 Id. at 1420-21. Note that the court affirmed defendant's conviction because he had also taken
substantial quantities of office supplies in addition to the use of the computer. Id.
!• United States v. Gill, 193 F.3d 802, 804 (4th Cir. 1999) (mother deposited sons SSI disabiUty
check into unauthorized joint account over which son had no control, so title to funds never passed
to intended beneficiary); United States v. O'Kelley. 701 F.2d 758, 760 (8th Cir.), cert, denied,
464 U.S. 838 (1983) (unendorsed check remains property of the United Stales even after receipt
by beneficiary); United States v. Forcellati, 610 F.2d 25, 31 (1st Cir. 1979), cert, denied, 445 U.S.
944 (1980),
15 United Stales v. Howard. 787 F Supp. 769, 771 (S.D. Ohio 1992).
16 United States v. Gwin, 839 F.2d 427, 429-30 (8th Cir. 1988).
^7 .See 31 CF R §§ 315.25, 315.28(b).
18 United States v. Stuart, 22 F.3d 76, 80 (3d Cir. 1994): United States v. Bauer, 713 F.2d 71,
73 (4th Cir. 1983); United States v. Carr. 706 F.2d 1108. 1109-11 (llth Cir. 1983).
19 United States v. Stuart, 22 F.3d 76, 80 (3d Cir. 1994).
(Rel.4.^b-I1A>4 Pub 4851

22748

Inst. 23A-3

FEDERAT JURY INSTRUCTIONS

23A-8

The second form of interest that satisfies the "thing of value of the United
States" standard is that at the time of the alleged taking, the govemment was
the custodian or bailee of the property such that the government had possession
of and control over the property.For example, the government is the custodian
of property seized or otherwise held as evidence in a criminal proceeding, so
the government's possession of that evidence satisfies this clement.21
The third category which constitutes a "thing of value of the United States"
is property in the possession of a government employee or agent prior to
conveyance to the govemment itself Property which is in the possession of a
government employee in his or her capacity as such is property of the United
States. 22 Thus, a cashier at a military NCO club who stole the collective tip jar
was found guilty of a violation of section 641 because at the time of the theft,
she had possession of the funds in her role as an employee of the club.^a
Non-employee agents of the government present a more complex problem.
In that situation, the question to be determined is whether at the time of the theft
the agent was a bailee of the property or a debtor of the govemment, 24 For
example, in one case the defendant was an auctioneer contracted by the
government to sell property repossessed from companies that had defaulted on
govemment loans. Defendant sold the property as agreed, but then failed to tum
the proceeds over to the govemment. The court of appeals noted that with respect
to the property prior to the sale, the defendant was a consignee and the
govemment retained ownership of the property. After the sale, however, under
state law the sale of consigned property creates a debtor-creditor relationship
between con.signor and consignee with respect to the proceeds of the sale. As
a result, the proceeds of the sale was not property of the United States at the
time of the taking. =
The situation of an agent of the govemment must be distinguished from an
agent of a third party who is holding money intended to be paid to the
government. In that circumstance, the agent who converts the principal's funds
20 5ef United States v. Milton, 8 F.3d 39, 42-43 (D.C. Cir. 1993), cert, denied, 513 U.S. 919
(1994) (money in account to be monitored and controlled by EEOC pending disbursement to
aggrieved employees of the company involved was a bailment).
Zl United Slates v. Perez, 707 F.2d 359, 361-62 (Sth Cir. 1983) (money introduced as exhibit
at criminal trial); United States v. Gordon, 636 F.2d 886, 888-89 (Sth Cir. 1981) (seized evidence
in a drug case).
22 United States v. Caseslorente, 220 F.3d 727, 732-33 (6th Cir. 2000) (proceeds of sale of recyclablcs was property of the United States); United States v. Benefield, 721 F.2d 128. 130 (4th Cir.
1983) (collective tip money at NCO club was govemment property until disbursement to staff).
23 United States v. Benefield, 721 F.2d 128. 130 (4th Cir. 1983).
2* United States v. Lawson. 925 F.2d 1207, 1209-10 (9th Cir. 1991).
25 Id,
( R c l l Q ^ l l f M IMi-4S,
22749

23A-9

THEFT OF GOVERNMENT PROPERTY

hist. 23A-3

to his or her own use does not violate section 641 because the government has
no legal interest in the funds prior to delivery by the agent.26
The fourth category of property interests, and certmnly the most contentious,
is when possession of the property has passed to an intermediary but the
govemment retains supervision and control over the property. This arises in the
common situation when the federal government sends block funds to a state
agency or private entity for eventual disbursement to the intended third-party
beneficimies. In that circumstance, the courts are unanimously agreed that the
property remains a thing of value of the United States after the transfer to the
intermediary "so long as the government exercises supervision and control over
the funds and their ultimate use."27 Supervision and control requires a comprehensive set of regulations and contractual agreements governing the use and
expenditure of the funds by the intennediary,28 although it is not required that
the govemment have a reversionary interest in the funds.29 However, once the
funds pass to an intended third-party beneficiary who has authority to expend
it without federal supervision, it ceases to be property of the United States.^
Section 641 also applies to property "made under contract for the United
States." Prosecutions involving this provision are rare, and tend to center on the
26 United States v. KUnger, 61 F.3d 1234, 1238-41 (6th Cir. 1995) (customs broker converted
checks intended to be paid as customs fees and duties): United States v. Howard, 30 F.3d 871,
875-76 (7th Cir. 1994) (govemment had only security interest in insurance proceeds paid directly
to defendant): United States v. Morris, 541 F.2d 153, 154 (6th Cir. 1976) (funds of daycare center
intended to pay for federal school lunch program); United States v. Reed, 851 F. Supp. 1296,
1311-12 (W.D. Ark. 1994), aff'd, 47 F.3d 288 (8th Cir. 1995) (attorney converted funds intended
by client to pay income taxes).
27 United Slates v. McKay. 274 F.3d 755. 758-59 (2d Cir. 2001). Mr*, demiat 535 U.S. 1028
(2002) (HUD section 8 funds). See United States v. Lanier, 920 F.2d 887, 896-97 (11th Cir. 1991)
(SBA small vendor program); United States v. Reynolds, 919 F.2d 435, 437-38 (7th Cir. 1990),
cert, denied, 499 U.S. 942 (1991) (HUD community block grant funds); United States v. Foulks,
905 F.2d 928, 930 (6th Cir. 1990) (FEMA emergency food program funds); United States v,
Littriello, 866 F.2d 713,714-15 (4th Cir. 1989) (federal employee health benefit plan funds); United
States V. Wheadon, 794 F.2d 1277, 1284-85 (8th Cir. 1986), cert, denied. 479 U.S. 1093 (1987)
(HUD grants to construct low-income housing); United States v. Largo, 775 F.2d 1099. 1101-02
(lOUi Cir. 1985), cert, denied, 474 U.S. 1105 (1986) (Bureau of Indian Affairs grants); United
States V. Von Stephens, 774 F.2d 1411, 1413 (9th Cir. 1985) (AFDC vouchers); United States
V. Mcintosh, 655 F.2d 80, 84 (Sth Cir. 1981), cert, denied. 455 U.S. 948 (1982) (FmHA loan
funds prior to closing).
28 United States v. McKay, 274 F.3d 755, 758-59 (2d Cir. 2001). cert, denied. 535 U.S. 1028
(2002).
29 United States v. Wheadon. 794 F.2d 1277, 1285 (8th Cir. 1986), cert, denied. 479 U.S. 1093
(1987) (lack of reversionary interest is evidence that govemment had no property interest, but it
is not decisive of the question).
30 United States v. Kristofic, 847 F.2d 1295, 1297-99 (7th Cir. 1988) (even though SBA loan
was made for specific purpose, once funds passed to small business, govemment bad only a creditor
relationship).
(Rel4"rti-il/04 Piih.4R.'i)

22750

Inst 23A-3

FEDERAL JURY INSTRUCTIONS

23A-10

connection between the property and the federal govemment at the time of the
theft. Thus, if the govemment had substantial supervisory control over the
manufacture and handhng of the items stolen, then this element has been held
to be satisfied. 31 On the other hand, i f the government did not have such
supervision, then i l is likely that this element will not be satisfied even if the
government had nominal tide under the contract. ^2
The last paragraph of the Instmction correctly states that there is no mens rea
requirement to this element so that the government need not prove that the
defendant knew that the property belonged to the United States, at least when
the defendant is charged with stealing or embezzling. ^3 When the defendant is
charged with knowing conversion, knowledge that the property belonged to the
United States is an clement of the offense, so the last paragraph should be omitted
in those cases.
The instruction does not include language requiring proof that the federal
govemment suffered a loss as a result of the theft. In an early case, the Ninth
Circuit stated that proof of loss is an "essential element" of an offense under
section 641.34 At least six other courts of appeal have since rejected that
position.35 Even the Ninth Circuit has rcu-cated. stating more reccntiy diat the
earlier case stands for the proposition that lack of proof of a loss is evidence
that the property was not a "thing of value of the United States." 36 The Ninth
Circuit pattern instruction makes no reference to this issue. 37
31 United States v. Robie, 199 F.3d 444, 452-53 (2d Cir. 1999) (misprinted stamps stolen from
govemment printing contractor).
32 United States v. Hartcc Enterprises, Inc., 967 F.2d 130,133-34 (5th Cir. 1992) (nonconfonning
wire mesh screens sold by manufacturer for scrap).
33 United States v. Stuart, 22 F.3d 76. 81 (3d Cir. 1994); United States v. Sivils, 960 F.2d 587,
595-96 (6th Cir.), cert, denied. 506 U.S. 843 (1992); United Slates v. Bauer, 713 F.2d 71, 73 n.4
(4th Cir. 1983); United States v. Baker, 693 F.2d 183. 186 (D.C. Cir. 1982); United States v. Speir,
564 F.2d 934, 938 (lOth Cir. 1977) (cn banc), cert, denied, 435 U.S. 927 (1978); United States
V, Jermendy, 544 F.2d 640, 641 (2d Cir, 1976), cert, denied. 430 U.S. 909 (1977); United States
V. Smith, 489 F.2d 1330, 1332 (7th Cir. 1973). cert, denied, 416 U.S. 994 (1974); Baker v. United
States, 429 F.2d 1278, 1279 (9lh Cir. 1970), cert, denied, 400 U.S. 957 (1971).
34 United States v. Collins. 464 F.2d 1163, 1165 (9th Cir. 1972).
35 United Stales v, Milton. 8 F.3d 39, 44 (D.C. Cir. 1993), cert, denied 513 U.S. 919 (1994);
United States v. Medrano, 836 R2d 861, 864 (5th Cir.), cert, denied, 488 U.S. 818 (1988); United
States V. Largo, 775 F.2d 1099, 1101-02 (10th Cir. 1985), cert, denied, 474 U.S. 1105 (1986);
United States v. Bailey, 734 F.2d 296, 301-05 (7th Cir.). cert, denied, 469 U.S. 931 (1984); United
States V. Santiago, 729 F.2d 38, 40 (1st Cir. 1984); United States v, Benefield. 721 F.2d 128.
130 (4th Cir. 1983).
36 United States v, Faust, 850 F.2d 575, 580 (9th Cir. 1988).
37 Se? Ninth Circuit Model Criminal Jury Instmction 8.31.
(I!(:1.4.1b-tl/04

Plib.485)

22751

23A-11

THEFT OF GOVERNMENT PROPERTY

Inst. 23A-4

Instruction 23A-4
Second Element Defendant Stole or Embezzled Property i
The second element the government must prove beyond a reasonable
doubt is that the defendant stole (or embezzled or knowingly converted) that
property.
I f stealing is charged: To steal money or property means to take someone
else's money or property without the owner's consent with the Intent to
deprive the owner of the value of that money or property.
// embezzlement is charged: To embezzle money or property means to
voluntarily and intentionally take or convert to one's own use money or
property of another after that money or property lawfully came into the
possession of the person taking it by virtue of some office, employment or
position of trust.
If conversion is charged: To knowingly convert money or property means
to use the property in an unauthorized manner in a way which seriously
interfered with the govemment's right to use and control its own property,
knowing that the property belonged to the United States, and knowing that
such use was unauthorized.
Authority
United States Supreme Court: Morrissette v. United States, 342 U.S. 246,
72 S. Ct. 240, 96 L, Ed. 2d 288 (1952).
Third Circuit: United States v. Oliver, 238 F.3d 471 (3d Cir. 2001).
Fourth Circuit: United States v. Maisel, 12 F.3d 423 (4th Cir. 1993); United
States V. FogeL 901 F,2d 23 (4th Cir.). cgr(.
498 U.S. 939 (1990).
Fifth Circuit: United States v. Aguilar, 967 F.2d 106 (5th Cir. 1992).
Tenth Circuit: United States v. Hill, 835 F.2d 759 (10th Cir, 1987).

Conunent
More than a half century ago, in Morrissette v. United States,^ the Supreme
Court stated that "(tjo steal means to take away from one in lawful possession
without right with the intention to keep wrongfully." 3 Instruction 23A-4 adopts
a standard definition of stealing which is widely accepted.* Stealing includes
1 The definition of knowing conversion is adapted from the charge of Judge Legg in United
States V. Maisel. 12 F.3d 423 (4th Cir. 1993).
Z 342 U.S. 246. 72 S. Cl. 240. 96 L. Ed. 2d 288 (1952).
3 Id at 271.
4 United States v. Aguilar, 967 F.2d 106, 112 (Sth Cir. 1992): United States v, Hill, 835 F.2d
759. 763 (10th Cir. 1987).
(Rtl.45t^llAM PtiM85l

22752

Inst. 23A-4

FEDERAL JURY INSTRUCTIONS

23A-12

obtaining property by misrepresentation.' It also includes writing bad checks with
no intention to pay.® The definition of embezzling is also a standard definition
used throughout this Treatise.'
In discussing the meaning of stealing and the distinctions between the stamtory
terms embezzle, steal, purloin and knowingly convert, the Morri.^sette Court
commented that "fp]robably every stealing is a conversion, but certainly not every
knowing conversion is a stealing." The court continued:
Conversion . . . may be consummated without any intent to keep and
without any wrongful taking, where the initial possession by the converter was
entirely lawful. Conversion may include misuse or abuse of property. It may
reach use in an unauthorized manner or to an unauthorized extent of property
placed in one's custody for limited use. Money rightfully taken into one's
custody may be converted without any intent to keep or embezzle it merely
by commingling it with the custodian's own, if he was under a duty to keep
it separate and intact. It is not difficult to think of intentional and knowing
abuses and unauthorized uses of govemment property that might be knowing
conversions but which could not be reached as embezzlement, stealing or
purioining. Knowing conversion adds significandy to the range of protection
of govemment property without interpreting it to punish unwitting conversions.*
Thus, in modem practice, the courts have tended to apply the knowing conversion
provision in cases where defendant lawfully came into possession of the property
but afterwards exercised dominion and control over the property knowing that
he or she had no right to do so.* A common example is a govemment check
mistakenly issued to defendant. In that situation, there is no question that
defendant, the named payee, lawfully obtained possession of the check, but
cashing the check knowing that he or she had no right to the underlying funds
is a conversion. 10 The same is true for cashing social security checks sent to
a recipient who has recently died."
5 United Slates v. Oliver, 238 F.3d 471 (3d Cir. 2001) (defendant was working full time at another
job while receiving full disability benefits from his government job).
6 United States v. Aguilar, 967 F.2d 106, 114-15 {5th Cir. 1992).
7 See Instructions 24A-6 and 27A-5, helow.
8 346 U.S. at 271-72.
9 See United States v, Maisel, 12 F.3d 423, 425 (4th Cir. 1993); United Stales v. Hill. 835 F.2d
759, 764 (10th Cir. 1987). See atw United States v. Scott, 789 F.2d 795. 798 (9th Cir. 1986)
(dictum).
10 United States v. Irvin, 67 F.3d 670, 672 (8th Cir. 1995) (clerical ertor in paycheck); United
States v. .McRee, 7 F.3d 976, 982 (11th Cir. 1993). ceri. denied, 511 U.S. 1074 (1994) (erroneous
IRS refund).
11 United States v. Spear. 734 F.2d 1, 2 (8th Cir. 1984): United States v. Miller, 200 F. Supp.
2d 616. 618-19 (S O W. Va . 2002).
lRcl.4.51i-11/04 l'al>.4»3)

22753

23A-13

THEFT OF GOVERNMENT PROPERTY

In.sL 23A-5

Instruction 23A-5
Third Element Intent
The third element the government must prove beyond a reasonable doubt
is that the defendant acted knowuigly and willfully with the intent to deprive
the govemment of the use and benefit of its property.
To act knowingly means to act intentionally and voluntarily, and not
because of ignorance, mistake, accident or carelessness.
To act willfully means to act with knowledge that one's conduct is unlawful
and with the intent to do something the law forbids, that is to say with the
bad purpose to disobey or disregard the law.
Whether the defendant acted knowingly and willfully may be proven by
the defendant's conduct and by all of the circumstances surrounding the
case.
Authority
United States Supreme Court: Morrissette v. United States, 342 U.S. 246,
72 S. Ct. 240, 96 L. Ed. 2d 288 (1952).
Fourth Circuit: United States v. Fowler, 932 F.2d 306 (4th Cir. 1991).
Fifth Circuit: United States v. Shackleford, 677 F.2d 422 (5th Cir. 1982),
cert, denied, 494 U.S. 899 (1983).
Sixth Circuit: United States v. McGahee, 257 F.3d 520 (6th Cir. 2001).
Seventh Circuit: United States v. Croft. 750 F.2d 1354 (7th Cir. 1984).
Eighth Circuit: United States v. Wilson, 636 F.2d 225 (Sth Cir. 1980).
Ninth Circuit: United States v. Scott. 789 F.2d 795 (9Ui Cir. 1986); United
States V. Eden, 659 F.2d 1376 (9th Cir. 1981), cert, denied, 455 U.S, 949 (1982),
Eleventh Circuit: United States v. McRee. 7 F.3d 976 (11th Cir. 1993), cert,
denied. 511 U.S. 1074 (1994); United Stales v. Burton, 871 F.2d 1566 (11th Cir.
1989).

Comment
In Morrissette v. United States,^ the Supreme Court specifically held that
despite the lack of mens rea language in the statute, section 641 requires proof
of intent, z Decided shortly after the end of Worid War II, Morrissette involved
a defendant who was charged with a violation of section 641 after he removed
1 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 2d 288 (1952).
2W. at 260-61.
(Rel.45b ILW Puh.48.1)

22754

Inst. 2.3A-5

FEDERAL lURY INSTRUCTIONS

23A-14

spent bomb casings from a fonncr bombing range with the intention of melting
the casings down for scrap. At trial, defendant argued that he believed the casings
were abandoned, and that he had no intent to deprive the government of its
property. The trial court rejected that argument, holding that abandonment of
the property is not a defense because the statute does not require an intent to
steal. In a decision with wide-ranging implications beyond section 641, the
Supreme Court decided otherwise, and reversed defendant's conviction.
Even though the statute contains no stated intent element, the Court rejected
the suggestion that the "mere omission from a criminal enactment of any mention
of criminal intent [should be interpreted] as dispensing with it."3 While certain
regulatory offenses may dispense with an intent element, "stealing, larceny and
its variants and equivalents, were among the earliest offenses known," and courts
have always "consistently retained the requirement of intent in larceny-type
offenses."*
Following Morrissette, it is now universally agreed that the defendant must
act knowingly and willfully and with the specific intent to deprive the government
of the use and benefit of its property. ^ Because of this requirement, several
defenses may arise which tend to negate the necessary specific intent. In addition
to abandonment of the property, which the Morrissette Court recognized as a
potential defense,* a defendant would be entitled to an instruction on good faith,'
or to the related defense that he or she had a claim of right to the property, =
when the evidence supports such a defense.
3 Id. at 250.
4 W. at 260-61.
5 United States v. McGahee, 257 F.3d 520, 531 (6th Cir. 2001); United States v, McRee, 7 F.3d
976, 983 (11th Cir. 1993), cerr denied 511 U.S. 1074 (1994); United States v. Fowler, 932 F.2d
306, 316-17 (4th Cir. 1991); United States v. Scott. 789 R2d 795, 798 (9th Cir. 1986); Umted
States v. Croft, 750 F.2d 1354, 1362-63 (7th Cir. 1984); United Slates v. Shackleford, 677 F.2d
422, 425 (5th Cir. 1982), cen. denied 494 U.S. 899 (1983); United States v. Wilson, 636 F.2d
225, 228 (8th Cir. 1980),
6 342 U.S. at 271. See United States v. Shackleford, 677 R2d 422, 425 (Sth Cir. 1982), cert,
denied 494 U.S. 899 (1983): United States v. Bess, 593 F.2d 749, 752 (6th Cir. 1979).
7 United States v. Fowler, 932 F.2d 306, 317-18 (4th Cir. 1991) (approving good faith insUiiction).
8 United States v. Heatliershaw, 81 F.3d 765, 768-69 (8th Cir. 1996); United States v. Hill, 835
F.2d 759, 768-69 (Sth Cir. 1996),

CRcl.45b-llfl)4 P„h IKS)

22755

23A-15

THEFT OF GOVERNMENT PROPERTY

Inst. 23A-6

Instruction 23A-6
Fourth Element Value of Property
The fourth and final element the government must prove beyond a
reasonable doubt is that the value of the property stolen (or embezzled or
knowingly converted) was greater than $1,000.
The word "value" means face, par or market value, or cost price, either
wholesale or retail, whichever is greater. "Market value" means the price
a willing buyer would pay a willing seller at the time the property was stolen.
(// appropriate: In determining the value of the property stolen, you may
consider the aggregate or total value of the property referred to in the
Indictment. I f you find that the aggregate value is $1,000 or less, then you
must find the defendant not guilty. On the other hand, if the you find that
the aggregate value to be greater than $I,0O0, then this element is satisfied.)
Authority
Second Circuit: United States v. Robie, 166 F.3d 444 (2d Cir. 1999),
Fifth Circuit: United States v. Medrano, 836 F.2d 861, 864-65 (5th Cir.), cert.
(fenW, 488 U.S. 818 (1988); United States v. Jeter. 775 F.2d 670. 680 (6di Cir.
1985), cert, denied, 475 U.S. 1142 (1986); Fifth Circuit Pattern Criminal Jury
Instmction 2.32.
Seventh Circuit: United States v. Oberhardt, 887 F.2d 790 (7th Cir. 1989);
United States v. Watkins, 709 F.2d 475 (7th Cir. 1983); Seventh Circuit Pattem
Criminal Jury Instruction lo 18 U.S.C. § 641 (Definition of Value).
Eighth Circuit: Eighth Circuit Model Criminal Jury Instmction 6.18.641.
Ninth Circuit: United States v. Bigelow, 728 F.2d 412, 414 (9th Cir.), cert.
^fMffd: 469 U.S. 868 (1984).
Tenth Circuit: United States v. McPhilomy. 270 F.3d 1302 (10th Cir. 2001),
cert, denied, 535 U.S. 966 (2002); United States v. Alberico. 604 F.2d 1315 (10th
Cir.), cert, denierl, 444 U.S. 992 (1979).
Eleventh Circuit: United States v. Langston, 903 F.2d 1510 (11th Cir. 1990);
Eleventh Circuit Pattem Criminal Jury Instructions, Offense Instruction 21.

Comment
The term "value" is specifically defined in section 641 to mean "face, par or
market value, or cost price, either wholesale or retail, whichever is greater." i
Numerous courts have upheld instructions quoting that definition verbatim, 2 The
118 u s e. § 641.
2 See. e.g,. United States v. McPhilomy, 270 F.3d 1302, 1311 (10th Cir. 2001), cm. denied.
(Ki-1.45l.-l!/04

Puli4S.1l

22756

Inst. 23A-6

FEDERAL JURY INSTRUCTIONS

23A-16

recommended instruction goes slightiy further, including a standard definition
of market value as well. 3
The broad definition of value allows thejury to choose among several different
methods of valuation, choosing the greatest value among those possibilities. Thus,
the face value of the property is always relevant, even when the defendant could
not have obtained that amount by selling it." The courts are agreed that the value
of the property in a "thieves' market" is an acceptable measure of value.' This
means that the amount that defendant received for the property is evidence of
its value.G This is so even when the commercial value of the property or the
price at which the govemment would have sold the property is lower that the
amount received by defendant. ^ Evidence of what die defendant believed he or
she could get for the property, usually evidenced by an offering price, is also
a legitimate measure of value for die purposes of this element. =
Valuation is measured as of the time of the unlawful act committed by
defendant. Thus, if defendant is charged with stealing the property, then value
is measured at the time of the theft.» On the other hand, if defendant is charged
with concealing or retaining the property, then value can be measured at any
time during defendant's possession.lo
535 U.S. 966 (2002); United Slates v. Robie, 166 F.3d 444, 449 (2d Cir. 1999): United States
V. Watkins, 709 F.2d 475, 480 (7th Cir. 1983). See Fifth Circuit Pattem Criminal Jury Instmction
2.32; Eighth Circuit Model Criminal Jury Instruction 6.18.641; Eleventh Circuit Pattem Criminal
Jury Instructions, Offense Instruction 21.
3 See Seventh Circuit Pattem Criminal Jury Instruction to 18 U.S.C. § 641 (Definition of Value).
See also United States v. Brookins, 52 F.3d 615, 619 (7th Cir. 1995) (approving this language
in a case involving 18 U.S.C. § 659).
4 United Slates v. Alberico, 604 F.2d 1315, 1321-22 (lOlh Cir.), cert, denied 444 U.S. 992 (1979)
(face value of checks made out to military post was legitimate measure of value even though
defendant could not have obtained that value).
5 United States v. Robie, 166 F.3d 444, 451 (2d Cir. 1999); United States v. Langston. 903
F.2d 1510, 1514 (11th Cir. 1990): United States v. Oberhardt, 887 F.2d 790. 792-93 (7lh Cir. 1989);
United States v. Jeter, 775 F.2d 670, 680 (6th Cir. 1985), cert, denied, 475 U.S. 1142 (1986);
United States v. Bigelow, 728 F.2d 412.414 (9th Cir.), cert, denied. 469 U.S. 868 (1984); United
States V. Gordon, 638 F.2d 886, 889 (5th Cir.), cert, denied, 452 U.S. 909 (1981).
« United States v. McPhilomy, 270 F.3d 1302, 1311 (10th Cir. 2001), cert, denied, 535 U.S.
966 (2002); United States v. Medrano, 836 F.2d 861. 864-65 (Sth Cir.). cerr denied. 488 U.S.
818 (1988); United States v. Jeter, 775 R2d 670, 680 (6th Cir. 1985), cert, denied. 475 U.S. 1142
(1986): United States v. Bigelow, 728 F.2d 412, 413-14 (9th Cir,), cert, denied. 469 U.S. 868
(1984).
7 United States v. McPhilomy, 270 F.3d 1302, 1311 (10th Cir. 2001), cert, denied, 535 U.S.
966 (2002): United States v. Oberhardt, 887 F.2d 790, 792-93 (7Ui Cir. 1989).
8 United Slates v. Robie, 166 F.3d 444, 449 (2d Cir. 1999).
9 United Stales v. Robie, 166 F.3d 444, 449 (2d Cir. 1999).
10 United States v. Kramer, 289 F.2d 909. 921 (2d Cir. 1961).
(Rcl,4.
22757

23A-17

THEFT OF GOVERNMENT PROPERTY

hist 23A-6

Finally, the instruction contains optional language allowing the jury to
aggregate die value of stolen items charged in die indictment to reach die $1,000
level. 11 If diere is a legitimate question as to whether die value of the stolen
property exceeded $1,000, the court should give a lesser included offense
instruction allowing the jury to consider whether defendant is guilty of the
misdemeanor offense of theft of govemment property less than $1,000."
"Identity Theft Penalty Enhancement Act of 2004, PL. No. 108-275. § 4118 Stat. 831
(2004)(effective July 15, 2004). Even before this amendment of section 641 specifically allowing
aggregation, several courts had reached the same result. See United States v. Smith, 373 F.3d 561,
565-68 (4th Cir. 2004); United States v. Rotrie. 166 F.3d 444, 449 (2d Cir. 1999).
12 See Committee Comment to Seventh Circuit Pattern Criminal Jury Instmction 18 U.S.C. § 641;
Notes on Use to Eighth Circuit Model Criminal Jury Instruction 6.18.641 n.4; Eleventh Circuit
Pattem Criminal Jury InstructitMis, Annotations and Comment to Offense Instruction 21.

(Rel.461>-«A)J Pub.4W)

22758

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REPLY TO

v. GOVERNMENT RESPONSE TO
DEFENSE REQUESTED
INSTRUCTION:

SPECIFICATIONS CHARGE II

MANNING, Bradley E., PFC

us. Army.

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221

DATED: ll July 2012



RELIEF SOUGHT

l. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rule
for Courts Martial (R.C.M.) 920(c), requests this Court to give the instructions requested in the
Defense Requested Instruction: Speci?cations Charge 11
[hereinafter Defense Requested Instruction].

ARGUMENT

2. The Government Response speci?cally objected to particular instructions in the Defense
Requested instruction. For simplicity?s sake. this Reply states the Defense?s responses in similar
fashion.

A. Information Related to the National Defense

3. The Government?s assertion that the Defense Requested Instruction for this element ?is an
inaccurate characterization of the law" is unfounded. Government Response to Defense
Requested Instruction: Speci?cations Charge ll [hereinafter
Government Response], at 2.

4. The first sentence of the instruction for this element that was objected to by the Government
(?However, only information of the type which, if disclosed, could threaten the national security
of the United States meets the de?nition of information ?related to the national defense? for the
purpose of this section.?) is based on the instructions approved by the Fourth Circuit in United
States v. Morison, 844 F.2d I057, 107] (I988), and United States v. Dedeyan, 584 F.2d 36, 39-
40 (1978), and the instruction given by the Court in United States v. Rosen, 445 F. Supp. 2d 602,
622 (E.D. Va. 2006).

5. The next two sentences of this instruction (?The connection must not be a strained one or an
arbitrary one. The relationship must be reasonable and direct.?) are taken verbatim from the

APPEILATE EXHIBIT


pct?.

instruction approved by the United States Supreme Court in Gorin v. United States, 312 U.S. 19,
31 (1941).

6. The Government is correct that the remainder of that paragraph in the proposed instruction is
based on language used by Judge Wilkinson in Morison, 844 F.2d at 1082, and by Justice
Brennan in New York Times Co. v. United States, 403 U.S. 713, 726-27 (1971). However, the
Defense maintains that this language is necessary to cure any unconstitutional vagueness,
substantial overbreadth, or First Amendment implications that would result if the phrase
?relating to the national defense? is defined as the Government has de?ned it. See Appellate
Exhibit at 2-8.

7. With respect to the Defense Requested Instruction regarding the necessity of the Government
showing that the infonnation was closely held, the Defense maintains that, in order to cure any
unconstitutional vagueness and substantial overbreadth in the phrase ?relating to the national
defense,? the Government must prove that the information was classified. Id. at 8. Moreover, in
Specifications Charge 11, the Government has alleged that the infonnation
was classified. See Charge Sheet. The Government must therefore prove that this information
was in fact classi?ed.

B. Information Could be Used to the Injury of the United States

8. With regards to the Government?s objections to the Defense Requested Instructions for the
?could be used to the injury of the United States" element, the Defense maintains its position that
the phrase ?could be used? cannot be given its literal meaning. See Appellate Exhibit CLXIV, at
5-6. If the phrase ?could be used? is given its literal meaning, so that a remote, hypothetical,
speculative, far?fetched or fanciful possibility of injury to the United States would suffice,
Section 793(e) would likely be unconstitutionally vague, especially when combined with the
other borderline vague tenns in that section. See Appellate Exhibit at 2-7; Appellate
Exhibit CLXIV, at 5-6. While the Defense concedes that the legitimate danger standard
articulated in the Defense Requested Instruction has not yet been used in a court instruction,
some safeguard must be put in place to prevent this element from covering the remote,
hypothetical, speculative, far?fetched or fanciful possibility of injury to the United States.

CONCLUSION

9. For these reasons, the Defense requests this Court to give the instructions requested in the
Defense Requested Instruction.

Respectfully submitted34-

DAVID EDWARD COOMBS
Civilian Defense Counsel

22759

. . 22760

Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221

DATED: ll July 2012

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITEDSTATES
DEFENSE REPLY TO
v. GOVERNMENT RESPONSE TO
DEFENSE REQUESTED
INSTRUCTION:
MANNING, Bradley E., PFC SPECIFICATIONS 13 AND 14 OF
U.s. Army, CHARGE II




RELIEF SOUGHT

1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rule
for Courts Martial (R.C.M.) 920(c), requests this Court to give the instructions requested in the
Defense Requested Instruction: Specifications 13 and I4 of Charge ll [hereinafter Defense
Requested Instruction].

ARGUMENT

2. The Government objects to the language of various proposed instructions. That language
comes virtually verbatim from the Federal Jury Instructions published by Matthew Bender
Co., Inc. Those jury instructions are attached in full with this motion, and the relevant language
has been highlighted in yellow for ease of reference.

3. The Defense Reply to the Government Response to the Defense Renewed Motion to Dismiss
Speci?cations I3 and I4 of Charge ll covers all responses to the Govemment?s objections to the
Defense?s proposed instruction on the ?exceeds authorized access? element.

CONCLUSION

4. For these reasons, the Defense requests this Court to give the instructions requested in the
Defense Requested Instruction.

Respectfully submitted,


I


.

DAVID EDWARD COOMBS
Civilian Defense Counsel

970?
I ofPage(s) I5

I?msro)

22761

H 40A.01.

FEDERAL JURY INSTRUCTIONS

40A-^

1 40A.01. Obtaining Protected or Restricted Information (18 U.S.C.
§ 1030(a)(1))

Instruction 40A-1
The Indictment and the Statute
The indictment charges that the defendant knowingly accessed a computer, either without authorization or outside the scope of authorization, and
by means of such conduct obtained [state information named in indictment]
and willfully communicated (or delivered or transmitted) that information
to another person who was not entitled to receive it.
The indictment reads as follows:
[Read Indictment]
The relevant statute on this subject is section 1030(a)(1) of Title 18 ofthe
United States Code. It provides:
Whoever having knowingly accessed a computer without authorization
or exceeding authorized access, and by means of such conduct having
obtained information that bas been determined by the United States
Govemment... to require protection against unauthorized disclosure
for reasons of national defense or foreign relations . . . with reason to
believe that such information so obtained could be used to the injury of
the United States, or to the advantage of any foreign nation willfully
communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit, or
cause to be communicated, delivered, or transmitted the same to any
person not entitled to receive it, or willfully retains the same and fails
to deliver it to the officer or employee of the United States entitled to
receive it [shall be guilty of a crime].

Comment
Secdon 1030(a)(1) was substantially revised by the Economic Espionage Act
of 1996.1 Prior to the 1996 Act, the focus of this section was to prevent the
knowing accessing of a computer without proper authorization for the purpose
(Text continued on page 40A-5)
iPub. L. No. 104-294, § 201(1)(A), 110 Stat. 3501 (1996).

22762

*



40A-5

COMPUTER FRAUD

Inst. 40A-1

of obtaining protected information. As the legislative history indicated, the statute
was analogous to "breaking and entering" rather than using the computer to
commit an offense: Congress' analogy is that section 1030 is similar to
burglarizing a home rather than u.sing a gun to threaten the inhabitants. 2
The 1996 Act refocuses the proscribed conduct by incorporating an additional
element that the defendant must willfully communicate, deliver, or transmit the
misappropriated information. Extending Congress' analogy, the statute as revised
requires that the defendant trade in the stolen goods after burglarizing the home.
2H.R. Rep. No. 98-894, 98th Cong., 2d Scss. 4 (1984).

(Matthew licndcr & Co.. Inc )

[Rct.40b-V02 Ptih.48.S)

22763

Inst. 40A-2

FEDERAL JURY INSTRUCTIONS

40A-6

Instruction 40A-2
Purpose of the Statute
Congress passed this law providing criminal penalties for certain abuses
of computer technology in response to society's increased dependence on
computers and the criminal element's enlarged capacity to carry out
computer frauds.

Authority
H.R. Rep. No. 98-894. 98th Cong.. 2d Sess. 4 (1984).

Comment

Prior to the passage of 18 U.S.C. § 1030, no specific federal legislation
governed the area of computer-related crime. The only relevant federal statutes
were those governing mail and wire fraud.i Accordingly, the success of a
prosecution for "computer fraud" rested upon fitting the alleged wrongdoing into
the language of either of those two laws.
For example, in United Stales v. Seidliiz,^ the owner of a computer company
stole the confidential software of a previous employer by accessing the software
from a remote computer terminal. As the House Report points out. "[hjad the
defendant not made two of the fifty access calls across State lines—there would
have been no basis for Federal prosecution." ^
The inadequacy of the criminal law to deal with computer-related fraud became
apparent to Congress. First, the use of the mails or the use of interstate wires
was not integral to the success of a computer fraud scheme. Moreover, conventional legal doctrine was largely inapplicable to computer crime, for "much of
1 18 U.S.C. §§ 1341. 1343. See Chapter 44. Mail. Wire and Hank Fraud.
2 589 F.2<1 152 (4th Cir. 1978), cert, denied. 441 U.S. 922 (1979). See also United States v.
Ciovengo. 637 F.2d 941 (3d Cir. 1980). cen. denied. 450 U.S. 1032 (1981) (communication with
out-o1-siaic computer was necessary tor successful execution of wire fraud scheme): United States
V. Computer Sciences Corporation, 511 F. Supp. 1125 (E.D. Va. 1981), rev'd and remanded, 689
F.2d 1181 (4lh Cir. 1982), cert, denied. 459 U.S. 1105 (19831 (fraud theory based on transmission
of computer signals over interstate wires).
3 H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 6 (1984).
(MatUlew Bcnslcr & Co., Inc.)

(Rcl.40b-Vn2 I»uI).4S3l

22764

40A-7

COMPUTER FRAUD

Inst. 40A-2

the property involved does not fit well into categories of property subject to abuse
or theft; a program, for example, may exist only in the form of magnetic impulses.
Also, when a program of substantial commercial value is misappropriated, the
person from whom it is stolen almost always remains in possession of the
original."''
Faced with the cmcial role that computer technology plays in the day-to-day
operation of both the public and private sectors, the heightened sophistication
of criminals in the computer crime area, and the enormity of the losses incurred
as a result of computer fraud. Congress decided to provide "a clearer statement
of proscribed activity" to the law enforcement community, owners and operators
of computers, and those who might be tempted to commit crimes by unauthorized
access to computers. ^
4 H.R. Rep. No. 98.S94, 9«th Cong.. 2d Sess. al 9 (1984).
5H.R. Rep. No. 98-894. 98th Cong.. 2d Sess. at 6-9 (1984). The legislative history indicates
chat the statute is not limited to highly sophisticated criminals. So-called "hackers" are also within
the purview of the statutory' language. Id. at 10-11.

(Matthew Bentkr & Co., Inc.)

(Ile!.40h-5A)2 Pii().485)

22765

Iust.^^A^

FEDERAL lURY INSTRUCTIONS

40A^

Instruction ^ A ^ ^
I^lementsofthel^Ifense
In order to prove the defendant guilty of the crimecharged in the
indictment, the government must establish each of the following elements
beyondareasonable doubts
First, that without authorization, the defendant accessedacomputer (^r
accessed a computer with authorization, but exceeded his authority in
accessing the information in question)^
Second, that the defendant knowingly accessed that computers
Third, thatthe defendant obtained information protected against unauthorized disclosure for reasons of national deft^nse or foreign relations, or any
restricted data,with the intent to t ^ such information against the interests
of thel^nited States^ and
Fourth, that the defendant willfully communicated (^^ delivered
transmitted ^rcausedto be communicated, delivered, or transmitted ^r
attempted to communicate, deliver, transmit) the information obtained to
any person not entitledtoreceive it (^r willfully retained that information
and failed to deliver it to the officer or employee of the I.^nited States entitled
to receiveit).

Authority
18 U.S.C. § 1030(a)(1).

Comment

The four elements of the offense generally focus on the defendant's behavior,
rather than on whether the device at issue is a computer which will rarely be
in issue. However, because the statute provides a specific definition of a
computer.i the jury is asked to decide whether the device in question is a
computer in connection with the first element of the offense. 2 The fourth element
was added by the Economic Espionage Act of 1996.3
i & e 18 U.S.C. § 1030(e)(1).
2 See Comment to Instruction 40A-4, infra.
3Pub, L. No. 104-294, § 201(l)(A)(vi), 110 Stat. 3501 (1996).
(Mallhcw Bciukir A Co., Inc.)

(Rel.4(lt>-5A)2 Pub.485)

22766

40A-9

COMPUTER FRAUD

Inst. 40A-3

Note that there is no interstate commerce or monetary threshold element in
18 U.S.C. §§ 1030(a)(1), (2), (3) or (4), although Congress proposed both in
eariier versions of the bill.* There are such requirements in section 1030(a)(5)
cases. 5
The Ninth Circuit pattem instructions contain a slightiy different formulation:
First, the defendant knowingly [accessed without authorization] [exceeded
authorized access to] a computer:
Second, by [accessing without authorization] [exceeding authorized access
to] a computer, the defendant obtained [information that had been determined
by the United States Govemment to require protection against disclosure for
reasons of national defense or foreign relations] [data regarding the design,
manufacture or use of atomic weapons];
Third, the defendant acted with the intent or reason to believe that the
information or data obtained could be used to the injury of the United States
or to the benefit of a foreign nation; and
Fourth, the defendant willfully [[caused to be] [[communicated] [delivered]
[transmitted]] to any person not entitled to receive it] [retained and failed to
deliver to an officer or employee of the United States entitled to receive it]
such information or data, s i
4H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 20-22 (1984).
5 .See 1 40A.05, below.
5.1 Ninth Circuit Model Criminal Jury Instruction 8.77.

(Mauhcw BciiUci & Co.. Inc.)

(Ilcl.4flli-M)2 Pub4«5)

22767

Inst.40A^

FEDFRAL JURY INSTRUCTIONS

40A10

Instruction ^ A - ^
FirstElement—Unauthorized Access of a Comptiter
The tirst element that the government must prtive beyondareasonable
doubt is that the defendant accessedacomputer without authorization, (^r
accessed a computer with authorization, but exceeded bis authority in
accessing the informationin question).
As detined in the statute,a^^computer^^ means ^^an electronic, magnetic,
optical, electromechanical, or other high speed data processing device
performing logical, arithmetic, or storage functions, and includes any data
storagefacility orcommunicationsfacility directiy related to or operating
inconjunction withsnchdevice.^^Thestatute makesclear thatthe term
^^computer^^ does not include an automated typewriter or typesetter, a
portablehand-held calculator,or other similar devices.
(^^^^^^^^^^^: Inthiscase, the government charges that the defendant,
while authorized to access the computer,e:^ceeded his authority in accessing
the information in question. Tinder the statute, this requires the govemment
toprove beyondareasonabledoubt that the defendanthadaccesstothe
computer, and used that access to obtain or alter information in the
computer that thedefendant wasnot entitled to obtain or alter.)

Authority
l8U.SC^1030(e).
Hl^l^ep No 98 894. 98tiiCong,2d Sess 22(1984).

Comment

Instruction 40A-4 is intended to establi,^h both components of thefirstelement
of the offense:tiiatthe device in question wasacomputer.and that the defendant
accessed that device without authorization.
According to the House l^eport, defining the word ^^computer'^ has been
problematic from the early days of computer crime legislation, given die rapid
(Matihcw Bender & Co.. Inc.)

(RcI,40b.-5«2 Pub.4«5)

22768

40A-

COMPUTER FRAUD

Inst. 40A-4

technological advances in computer technology, i The original version of 18
U.S.C. § 1030 contained a dictionary definition of "computer." The more specific
definition found in section 1030(e)(1) was chosen in orderto avoid constitutional
attacks upon the statute for vagueness. 2
Sections 1030(a)(1), (2) and (4) contain specific language making the provision
applicable to one who exceeds authorized access to a computer in addition to
one who accesses the computer without any authorization. Accordingly, the last
optional paragraph of the instruction contains language for those cases in which
it is alleged that the defendant exceeded authorized access. 3 This paragraph
basically tracks the statutory language.*
In United States v. Morris,^ a case involving a previous version of section
1030(a)(5), the Second Circuit held that it is unnecessary to provide the jury with
a definition of "authorization," because the word is of common usage and does
not have an ambiguous meaning, thereby precluding the need for an instruction
on its definition.* In those cases where a definition of authorization may be
helpful, the following, adapted from the 1994 amendment to subsection (a)(5),
is recommended:
This element requires that the govemment prove that the defendant's access
of the computer was unauthorized. This means that the defendant accessed
the computer without the permission of the person or entity who owns or is
responsible for the computer.
1 H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 23 (1984), citing Computer Systems Protection
Act of 1979, S. 240: Hearing before the Subcommittee on Criminal Justice of the Senate Committee
on the Judiciary, 96th Cong., 2d Sess. 8 (1980).
2 H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 23 (1984).
3See. e.g.. United States v. Czubinski, 106 F.3d 1069, 1078 (1st Cir. 1997).
*See 18 U.S.C. § 1030(e)(6).
5 928 F.2d 504 (2d Cir.), cert, denied. 502 U.S. 817 (1991).
6 928 F.2d at 511.

(MaKhcw BcndcT & Co.. Inc.)

(Ri;1.40b-.V02 Piih.485)

22769

Inst.40A^

FEDERAL .lURY INSTRUCTIONS

40A I ^

Instruction ^ A - ^
Second Element—I^nowingConducti
The second element that the government must prove beyondareasonable
doubt isthat the defendant actedknowingly in accessing the computer
without authorization(^^ outside the scope of his authority).
^^I^nowingly^^ means to act voluntarily and deliberately, ratherthan
mistakenly or inadvertently.
The question of whetheraperson actedknowingly isaquestion of fact
for you to determine, like any other fact question.The question involves
one s state of mind.
f^irectproofofknowledgeis almost never available. It would bearare
case where it could be shown thataperson wrote or stated that as ofagiven
time in the pa^t hecommittedan act with knowledge.Such proof is not
required. The ultimate fact of knowledge, though subjective, may be
established by circumstantial evidence, based upon a person s outward
manifestations, his words, his conduct,his acts and allthe surrounding
circt^mstances disclosed by the evidence and the rational or logical inferences
that may be drawn from them.
Circumstantial evidence, if believed, is o f n o less value than direct
evidence. Ineither case, the essentialelements of the crimecharged must
be established beyondareasonable doubt.
Asa practical matter, then,inorder to sustain thechargesagainstthe
defendant,the government must establishbeyondareasonabledtiubt that
he knew that Ids accessing ofacomputer was unauthorized (^^ that he knew
hisaccessingofacomputerwasoutside the scope of authorization granted).
The government can also meet its burden of showing thatadefendant
had actual knowledge of the accessing ofacomputer without authorization
il^l^^^t^I^ll^h^^bey^^u^l ^ re^^^uable d^ubt t^b^t beached wlt^hdeliberate
disregardof whether he was so authorized, or withaconscious purpose to
avoid learning the nature and scope of his authorization. Alternatively, the
government may satisfy it^ burden of proving knowledge by establishing
beyondareasonable doubt that the defendant acted with an awareness of
the high probability that he was acting without authorization, unless the
defendant actually believed that he had authorization to accessacomputer
in the manner described in the indictment.This guilty knowledge, however,
cannot be established by demonstrating that the defendant was merely
negligentor foolish.
lAdapted from the charges of Judge Weinfeld in United Statesv.Ranney,82 Cr. 771 (S.O.N.Y.
1983), and United States v. I^llaRocca, 72 Cr. 217 (S I^ N Y 1972)
(Matthew Bender & Co., lac.)

(Rcl.-«Hv.5rtJ2 l»ub.4S5)

22770

40A-13

COMPUTER FRAUD

Inst. 40A-5

To conclude on this element, i f you find that the defendant did not know
he was acting without authorization, then you should find the defendant not
guilty.
However, i f you find that the government has established beyond a
reasonable doubt not only the first element, namely, the accessing of a
computer, but also this second element, that the defendant acted knowingly
without authorization, and i f the government also establishes the third
element, as to which I am about to instruct you, then you have a sufficient
basis upon which to convict the defendant.

Authority
18 U.S.C. § 1030(a)(1).

Comment

The second element addresses the scienter requirement for the crime of
computer fraud. The language differs in one important aspect from the language
in the credit card fraud statute, where a defendant must have acted "knowingly
and with intent to defraud."2 in contrast, the first three subsections of 18 U.S.C.
§ 1030(a)require the defendant to commit the acts specified in the indictment
merely "knowingly" or "intentionally."
Thejury is instructed as to the definition of "knowingly." "Knowingly" is given
its meaning in the language of the Model Penal Code, namely, acting voluntarily
and deliberately, rather than by accident. The "knowing" state of mind in section
1030(a) parallels that in 18 U.S.C. § 1029(a), the credit card fraud statute. = In
its legislative history. Congress referred to Model Penal Code § 2.02(7) and
stated that il intended a "knowing" state of mind to mean "(1) an awareness of
the nature of one's conduct, and (2) an awareness of the nature of or a firm belief
in the existence of a relevant circumstance such as whether [the device is a
computer]."*
The jury is also charged that the scienter element may be satisfied by proof
of deliberate disregard for whether the defendant has actual knowledge of the
2 18 U.S.C. § 1029(a).
3 H.R. Rep. No. 98-894, 98th Cong.. 2d Scss. 20 (1984).
4 H.R. Rep. No. 98-894, 98th Cong., 2d Scss. 16 (1984).
(MaulKw BciKlCT & Co.. Inc.)

(Rcl.40ti-.S/«2 Pub,48.^)

22771

Inst. 40A-5

FEDERAL JURY INSTRUCTIONS

40A-I4

accessing of a computer either without authority or outside the scope of authority.
This instruction is consistent with the congressional intent that a "knowing" state
of mind could be satisfied by proof that the defendant "was aware of a high
probability of the existence of the circumstance."' Instruction 40A-5 properly
balances the "awcireness of the high probability" standard with the "unless the
defendant actually believed" counterpoint, as prescribed by United States v.
Cano. G
A successful defense, however, may rest upon proof that the defendant
"actually believed that the circumstance did not exist after taking reasonable steps
to warrant such belief."'' In Congress' view, "willful blindness" exists only when
the defendant is aware of a high probability of the existence of a relevant
circumstance "but does not satisfy himself that it does not in fact exist.''^ Thus,
a defendant is held responsible for negating his own suspicions of illegality; by
not doing so, he will be considered to have acted with the requisite knowledge.
Nonetheless, care must be taken not to shift the burden of proof to the defendant
on this issue. Thus, Instruction 40A-5 properly imposes the burden on the
govemment to satisfy this element beyond a reasonable doubt.^
5 United States v. Morris, 928 F.2d 504 (2d Cir.), ceri. denied. 502 U.S. 817 (1991).
6 702 F.2d 370 (2d Cir. 1983). See also United States v. Kallash, 785 F.2d 26 (2d Cir. 1986).
7 H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 20 (1984).
8 H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 17 (1984), cmn^ United States v. Jewell, 532
F.2d 697. 700 n.7 (9th Cir.). cert, denied. 426 U.S. 951 (1976).
9 United States v. Kallash. 785 F.2d 26 (2d Cir. 1986).

(Mallhcw lictiila & Co.. Incl

(Rcl.40b...')/02 Piib.4S5)

22772

40A-15

COMPUTER FRAUD

Inst. 40A-6

Instruction 40A-6
Third Element—Obtaining of Protected or Restricted Information
The tiiird element that the government must prove beyond a reasonable
doubt is that the defendant obtained information protected against unauthorized disclosure for reasons of national defense or foreign relations or any
restricted data, with the intent to use such information against the interests
of the United States.
The United States may determine that information requires protection
against unauthorized disclosure for reasons of national defense or foreign
relations either by Executive Order or by statute.
"Restricted data" is defined as all data concerning (1) the design, manufacture, or utilization of atomic weapons; (2) the production of special nuclear
material; or (3) the use of special nuclear material in the production of
energy.
This element requires that at the time be obtained the protected or
restricted information, the defendant must have had reason to believe that
the information could be used against the interests of the United States or
to the advantage of a foreign nation.

Authority
18 U.S.C. § 1030(a)(1).
42 U.S.C. § 2014(y).
H.R, Rep. No. 98-894. 98th Cong.. 2d Sess. 21 (1984).

Comment
In the legislative history, Congress noted the substantial federal interest in
protecting against the unauthorized access of highly sensitive material, i Resuicted data does not include data declassified or removed from the resuicted
data category pursuant to 42 U.S.C. § 2162.2
1 H.R. Rep. No. 98-894. 98th Cong., 2d Scss. 20 (1984).
2 42 U.S.C. § 2014(y).
IMMIlK* Bcrvdn & Co..

0
22773

Inst. 40A-6

FEDERAL JURY INSTRUCTIONS

40A-16

Congress intended the definition of classified information to parallel that of
the federal espionage laws.3 According to Gorin v. United States,* to act "with
the intent or reason to believe" that the classified information is to be used against
the interests ofthe United States requires that the defendant acted with bad faith."
This element was substantially altered by the amendments contained in the
Economic Espionage Act of 1996.^ Prior to the 1996 amendments, this element
contained a substantial mens REA element: that the defendant intended to use
the information to the detriment of the United States or to the advantage of a
foreign nation. The 1996 Act eliminated the scienter requirement with respect
to this element, but incorporated a new willfulness element with respect to the
communication of the information to another person.'
This subsection of the Act contains neither a monetary threshold amount nor
a requirement that the access affects interstate or foreign commerce, although
eariier versions of the Act contained such provisions.^
3H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 20 (1984). See 18 U.S.C. § 793.
4312 U.S. 19, 61 S. Ct. 429. 85 L. Ed. 488 (1940).
5 312 U.S. at 28. See also United States v. Trong Dinh Hung, 629 F.2d 90S. 918-19 (4th Cir,
1980); United States v. Smith, 592 F. Supp. 424. 429-30 (E.D. Va. 1984).
6 Pub. L. No. 104-294, § 20l( l)(A)(iv), 110 Stat. .3501 (1996).
7 See Instruction 40-7, below. See also Instruction 3A-3, above.
8 H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 20 (1984).

t.Mallhc'w Rentier & D j . . Inc.)

(Kcl.40l>-5«2 Puh.4S.'il

22774

40A-17

COMPUTER FRAUD

Inst 40A-7

Instruction 40A-7
Fourth Element—Willful Communication of Improperly Obtained
Information
The fourth element that the government must prove beyond a reasonable
doubt is that the defendant willfully communicated (or delivered or transmitted or caused to be communicated, delivered, or transmitted or attempted
to communicate, deliver, transmit) the protected or restricted information
obtained to any person not entitled to receive it (or willfully retained that
information and failed to deliver it to the officer or employee of the United
States entitied to receive it).
To act willfully means to act knowingly and purposely, with an intent to
do something the law forbids, that is to say, with a bad purpose either to
disobey or disregard the law. There is no requirement tiiat the defendant
acted for financial gain. (// applicable: While proof of financial gain may
be considered by you as evidence of the defendant's bad purpose, it is not
necessary that the government prove such financial gain in order to satisfy
this clement.)

Authority
18 U.S.C. § 1030(a)(1)

Comment

The fourth element was added by the Economic Espionage Act of 1996.1
1 Pub. L. No. 104-294, § 201(l)(A)(vi), 110 Stat. 3501 (1996).

(Matthew Bcndci & Co.. bit.)

ai<>.4tlb-.Vn2 pBh-dS5)

. . 22775

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE REPLY TO
v. GOVERNMENT
SUPPLEMENTAL RESPONSE
TO DEFENSE MOTION TO
MANNING, Bradley E., PFC COMPEL DISCOVERY #2
U.S. Anny, .
Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211 DATED: ll July 2012

RELIEF SOUGHT

l. The Defense requests that this Court order the Government to disclose discovery from the
State Department in accordance with R.C.M. 70l(a)(2), 70l(a)(6) and 703, as discussed herein.
Further, the Defense requests that this Court deny the Govemment?s request for 45-60 days to
produce relevant records or claim a privilege or move for substitutions. lnstead, the Defense
requests that this Court order that for all remaining discovery, the Government should consult
with equity holders to coordinate the claiming of a privilege (or other course of action)
simultaneous with its review of the documentation such that the Government is prepared to
proceed immediately upon a discovery ruling.

ARGUMENT

A. The Government Fails To Indicate Whether Any of the State Department Records
Contained Brady Material

2. The Govemment?s submission overlooks a critical issue: Do any of the State Department
records contain Brady material? Now that it has reviewed all these records, it is in a position to
state whether the records contained Brady. Nowhere in its submission does it say whether it
found Brady material. Instead, it says ?absent that which is discoverable under Brady or RCM
70l(a)(6), information that predated, and contributed to, the Department?s draft damage
assessment is cumulative, and thus not subject to production under RCM 703.? Prosecution
Supplemental Response to Defense Motion to Compel Discovery at p. 4 [hereinafter
?Government Response"]. First things first. Do any of the records reveal Brady material? If
so, these records need to be immediately disclosed to the Defense. Moreover, based on the tenor
of the Govemment?s submissions, the Defense would like to be clear: information can be
discoverable Brady material even if it is cumulative.

3. The Defense is not clear why the Government failed to overlook this critical issue in its
submission. However, it would venture to guess that some material which it describes as

aw)

of Papa)

0 0 22776

f?predating? the State Department damage assessment actually constitutes Brady material. Thus,
the Defense believes that the Government is hoping that if the Court rules that anything
predating the damage assessment does not need to be produced, it will get out of its Brady
obligations that way.

B. The Court Should Deny the Government?s Request to Not Produce Records that
Predate the State Department Damage Assessment

4. The Government wants this Court to rule that anything that predated the State Department
damage assessment should not be produced because it is cumulative and not relevant and
necessary. It states in this respect:

The following categories contain information that predated, and likely contributed
to, the Department?s draft damage assessment, and therefore are cumulative:

(1) Written assessments produced by the Chiefs of Mission used to formulate a
portion of the draft damage assessment completed in August of 201 l;

(2) Written Situational Reports produced by the WikiLeaks Working Group
between roughly 28 November 2010 and 17 December 2010;

(3) Written minutes and agendas of meetings by the Mitigation Team;
(4) Information Memorandum for the Secretary of State produced by
(5) Matrices produced by WPAR to track identi?ed individuals; and

(6) Formal guidance produced by WPAR and provided to all embassies,
including authorized actions for any identi?ed person at risk.

The Government is asking for permission to simply exclude from discovery anything with a date
that preceded the State Department damage assessment which would, in effect, be practically
everything at the State Department. It would have the Court do so on the sheer conjecture that
this information ?likely contributed to[] the Department?s draft damage assessment.?
Government Response, at p. 5.

5. The Govemment?s request is breathtaking. It would have the Court deny discovery of facially
relevant information because this information was ?likely? considered by the State Department
in compiling the damage assessment. The Government does not even bother to try to make the
argument that the discovery is actually cumulative it is duplicative of information in the
damage assessment). That argument would not be true. Instead, it makes the argument that
based on the fact that this material predates the damage assessment, it must be cumulative it
is defacto cumulative). The Government?s lack oflogic continues to dumbfound the Defense.

6. Consider the implications ofthis request. All an agency would need to do to avoid discovery
is to compile some type of ultimate assessment and then claim that anything that predated that



0 0 22777

assessment was ?off limits? because it was somehow ?considered? in developing the assessment.
The contention is ludicrous.

7. Further, the volume of information that the Government would seek to have the court exclude
from its discovery obligations is in the ballpark of 5000 pages. The Government believes that
these 5000 pages must have ?likely contributed to? the 150 page State Department damage
assessment.? It is hard to believe that the damage assessment is cumulative when, page-wise,
there are thirty-three times more pages in the disputed discovery than in the damage assessment
itself.

8. The State Department?s ?interim" damage assessment is not the be-all-and-end-all of
discovery from the State Department in this case. If there are other documents dealing with
mitigation efforts, the damage from the charged cables, etc., this is all evidence that is material to
the preparation of the defense under R.C.M. 70l(a)(2), and thus, relevant and necessary under
R.C.M. 703. lt does not matter whether it predated the damage assessment or was considered by
those drafting the damage assessment.

9. Let?s look at a couple of the categories of information that the Government would have the
Court rule ?off-limits? because they temporally predate the State Department damage
assessment. The Government would seek to preclude the Defense from having access in
discovery to the ?Formal guidance produced by WPAR and provided to all embassies, including
authorized actions for any identi?ed person at risk.? Because this predated the damage
assessment, according to the Government, it is overcome by events. However, the formal
guidance provides insight into the degree of remediation that was necessary and the true
seriousness of the alleged leaks. If the guidance, for instance, indicated that major remediation
measures needed to be taken, this is something that would clearly be material to the preparation
of the defense the Defense would then know not to argue that this did not cause much
disruption at the State Department). It would also be information that would not be discoverable
under Brady. Thus, if this Court accepts the Govemment?s request, this evidence would never
see the light of day simply because it predated the damage assessment.

10. The Government would also seek to prevent the Defense from having access to the written
assessments by the Chiefs of Mission review. Assume, for instance, that the Ambassador from
Country A indicated that the leaks did little to no damage in his country. Assume further that the
State Department damage assessment downplays this fact and does not accurately portray the
actual assessment by the Ambassador from Country A. How is this information not material to
the preparation of the defense (or relevant and necessary) simply because it predated the damage
assessment? The Defense would clearly want to know if the State Department damage
assessment overstated the damage, or potential for damage, from the alleged leaks.

1. Much like the testimony of the Original Classi?cation Authorities (OCAs), the Government
would have the Defense and Court treat the ?interim? State Department damage assessment as
absolute gospel that cannot be questioned. It would have everyone pretend that nothing that
happened before the creation of the damage assessment was important or relevant.

This is the Defense?s estimate based on only reviewing the damage assessment on one occasion. The Defense does
not have its own copy of the damage assessment.

0 0 22778

12. The Govemment?s request to have this Court order outright exclusion of all discovery that
predates the State Department damage assessment is particularly egregious in light of the
Government listing twenty-two witnesses from the State Department. How can the Government
in good faith plan on calling twenty-two witnesses from the State Department and refuse to turn
over documentation on the sole basis that because it predates the damage assessment, it is
?likely? cumulative? See Government Response, p. 5 (?The following categories contain
information that predated, and likely contributed to, the Department?s draft damage assessment,
and therefore are cumulative?). This would certainly make it easier for the Government to
prepare their witnesses. After all, the Defense would be limited in its cross examination to
basically one document the damage assessment which the Defense does not have the ability
to even view absent coordination with the Government.

I3. And the Defense need not remind the Court that, to the extent that the Defense does use the
damage assessment against the Government and its State Department witnesses, we already
know that the Government is planning on arguing that the assessment is only ?interim? or, in
the words of the Government, it represents ?a snapshot in time.? Thus, the Government plans on
downplaying the significance of the document that now contends is the only document that the
Defense should have from the State Department. How can the Government be permitted to talk
out of both sides of its mouth say that the damage assessment is only ?interim? and therefore
not particularly significant, but that it is signi?cant enough that all other infonnation that
predates it should not be produced to the Defense?

14. What is funny is ifthe Government was planning on going this ridiculous route, why did it
even need to review the documentation? It knew on 7 June (over one month ago) that virtually
all the information speci?cally listed by the Defense predated the damage assessment. The only
information that did not predate the damage assessment is the information collected by the
Director of the Office of Counter Intelligence and Consular Support. So why wait a month to
make this argument? Nothing in this argument actually relies on the content of the documents
the Government has reviewed. Instead, it simply relies on the dates at the top of the document.
Given this, the argument could have been presented (and disposed of) much earlier.

15. The Govemment?s argument that anything that predates the dra? damage assessment is not
discoverable is so weak that it is reminiscent of the Giles argument. This Court will recall that
the Government insisted that the State Department damage assessment was not discoverable
based on dicta in a second concurring opinion from a 50-year old case. The Government
acknowledged that its argument was made at the behest of the State Department; when the
Defense questioned the Government on this, it adopted the position as its own. Here, the
Government has once again adopted a litigation position that is so untenable that it should be
embarrassing. One _is left to wonder the obvious question: Is the Government actually making
these arguments of its own accord, or is the State Department the puppet master in this case?
The Defense would venture to guess that it is the latter. If so, this is clearly a con?ict of interest;
a third party government- agency cannot be permitted to dictate the litigation positions of the
prosecutor in a criminal proceeding. The agency?s role is limited to claiming a privilege if
discovery is ordered by a Court. An agency cannot be ?in cahoots? with the Government to
formulate trial strategy that would be best for that agency. As the Defense has said before, the
Government?s litigation positions are always borne of convenience and not of principle. This is
yet another example of the Government taking a preposterous litigation position in order to

4

0 22779

champion the interests of the State Department the organization that will provide, incidentally,
nearly a quarter of the witnesses in this case. .

C. The Court Should Deny the Government?s Request to Not Produce ?Purely
Administrative? Records

16. The Government requests that the Court relieve it from the obligation to provide ?purely A
administrative records without any substantive value or that have no identifiable connection with

,the relevant mitigation effort.? Government Response, at p. 5. The Defense does not understand

the second part of the sentence (?without any substantive value or that have no identifiable
connection with the relevant mitigation effort?), and how that sentence is intended to modify the
scope of ?purely administrative records.? Normally, the Defense would trust that the
Government could distinguish between a pure administrative record and something else.
Unfortunately, that is not so in this case. Given the liberties that the Government has taken with
all definitions in this case, the Defense does not understand what the Government means by
?purely administrative records? much less what it means by ?purely administrative records
without any substantive value or that have no identifiable connection with the relevant mitigation
effort.? Id.

17. Moreover,_ even purely administrative records might be material to the preparation of the
defense. If there is, for instance, a log book that chronicles how many times a group met and for
how long, that can be used to show the extent of the concern that the disclosure of the cables
caused at the State Department. While this isjust one example, the Defense simply does not
believe that the Government will distinguish between administrative and non?administrative
records in good faith.

D. The Court Should Deny the Government?s Request to Not Produce Information
About Persons at Risk

18. The Government makes a beyond-feeble attempt to resist production of information related
to persons at risk:

PII of persons negatively affected by the accused?s charged misconduct,
particularly those persons put at risk based on the released Department cables, is
not discoverable under Brady or RCM 701 Further, such information is not
relevant and necessary under RCM 703 because such information, inter alia,
would not ?contribute to a party?s presentation of the case in some positive way
on a matter in issue.? Even if material to the preparation of the defense, any PII
of persons put at risk based on the released Department cables is not material to
the preparation of the defense to the extent that it is relevant and necessary.

Government Response, at p. 6. While the Government does a good job of parroting back
discovery rules, it fails to explain why the information is not material to the preparation of the
defense or relevant and necessary. It seems somewhat obvious to the Defense that if the
Government is going to show, either in the merits or sentencing, that the disclosures put certain
people at risk, then the Defense is entitled to information pertaining to those people apparently
put at risk. lfthe Government wishes to claim a privilege over this information, it is entitled to

0 0 22780

do so. However, it appears highly disingenuous to claim that this information is not material to
the preparation of the defense.

19. If the Government refuses to produce this information to the Defense, the Defense will move
to preclude the Government from making any reference in this case to the release of the
diplomatic cables putting people at risk. The Government wants to have its cake and eat it too.

It wants to call twenty?two witnesses from the State Department who will opinion on how
catastrophic the leaks were and how they put innocent lives at risk all while refusing to provide
underlying documentation regarding those individuals apparently put at risk. The Defense
submits that this is the equivalent of entering a boxing ring with your hands tied behind your
back. How can the Defense attempt to rebut any allegation that these individuals were not put at
risk without any underlying documentation?

E. The Government?s Contention that a Written Statement of Ambassador Kennedy?s
Testimony Does Not Exist is Not Believable

20. The Government states:

The Department did not ?nd any prepared written statements for the
Department?s reporting to Congress on 7 and 9 December 2010. Based on those
dates and Under Secretary Kennedy?s testimony, only informal discussions would
have occurred between Department of?cials and members of Congress, therefore
there are no written statements or other documents.

Government Response, at p. 4. The Defense submits that it is likely that neither the Government
nor the State Department tried hard enough.

21. Notably, the Government does not state definitively that no written statement exists. Rather
it states, ?[b]ased on those dates and Under Secretary Kennedy?s testimony, only informal
discussions would have occurred between Department of?cials and members of Congress,
therefore there are no-written statements or other documents.? Id. So it appears to be sheer
conjecture that no such statement exists. Indeed, it defies logic that Ambassador Kennedy would
appear before Congress and simply ?wing it.? Moreover, why would Ambassador Kennedy have
a written statement on 10 March 201 1 for the Senate Committee on Homeland and
Governmental Affairs, but not for his reporting to Congress?

22. Neither the Government nor the State Department has an incentive to lookvery hard for any
written statement that Ambassador Kennedy made to Congress. In the end, we are left with the
million dollar question is: Did anybody ask Ambassador Kennea?/?

F. The Defense Requests That the Court Order the Government to Be Prepared to
Claim (or Not Claim) a Privilege Immediately Upon a Discovery Ruling

23. Perhaps the most troubling aspect of the Govemment?s motion is its request on p. 6:

Assuming, arguendo, the Court orders production of the above records or some
portion thereof, the prosecution requests no less than 45-60 days to notify the
Court whether the Department will seek limited disclosure under MRE 505(g)(2)

6

0 0 22781

or claim a privilege under MRE 505(c) and to produce the documents under RCM
701(g), MRE 505(g)(2), or MRE 505(c), if necessary.

This is the Government?s not-so-subtle attempt to hold the Court and the Defense hostage to its
timeline. This simply cannot continue.

24. This case has been ongoing for 26 months (approximately 800 days). The Government
would seek to add on time to the case calendar as if it were nothing. Lest it forget, PFC Manning

is still in pretrial con?nement. And the only reason why the parties are currently still in the

?discovery phase? of litigation (as stated by MAJ Fein in his letter to the General Counsel of
ONCIX) is because the Government has been grossly negligent in ful?lling its discovery
obligations.

25. Consider for a moment what the Government?s request means in practical terms. The
Government ?led this motion on 9 July 2012. The Defense?s Response will be ?led on 11 July
2012. The issue will likely be litigated at the next motions argument on 16-20 July -- assuming
the Government does not ?le a motion opposing the Defense?s request to have the Court deny
the Government an additional 45-60 days. Ifthe Court rules on, say, 20 July 2012 that the
evidence is discoverable, the Government would then have until 20 September to ?seek limited
disclosure under MRE 505(g)(2) or claim a privilege under MRE 505(c) and to produce the
documents under RCM 701(g), MRE 505(g)(2), or MRE 505(c), if necessary.? Litigation would
then ensue over the limited disclosure or privilege, which would bring the parties to November
or December.

26. The Defense cannot fathom why the Government cannot multi-task i.e. why can?t the
Government review the documents and simultaneously consult with the equity holder about what
documents would be subject to a claim of privilege or limited disclosure? If the Government
would simply apply some common sense, it would be in a position (even under its timeline) to
proceed within the next few weeks.

27. The Government will undoubtedly say that the Defense simply does not understand how
complicated this process is, etc. We have heard this all before. At some point, the Government
cannot continue to hide behind the complexity of this case as an excuse for everything. It has the
entire resources of the United States government behind it including the ability to contract out
work to lawyers who are not even detailed to this case (which the Defense is aware that the
Government is currently doing). The Government cannot continue to requests months upon
months to produce discovery that should have, in fact, been produced well over a year ago.

28. The Defense would also like this Court to take note of the dif?cult position that the
Government has put the Court in a position that the Defense submits was designed to
manipulate the Court into ruling in the Government?s favor. If the Court rules in the Defense?s
favor and orders the Government to produce some or all of the records, it will not be until likely
November or December that this issue is settled. It might be that, after reviewing these records,
the Defense becomes aware of other discovery that should have been produced. After all, the
purpose of discovery is to ?discover? information. Thus, we may be well into the New Year and
still mired in discovery battles regarding the State Department. The one sure-?re way to avoid
all this would be to rule in the Government?s favor a quick and easy The Defense is

0 0 22782

clearly not saying that the Court will be persuaded by the Government?s tactics; it is simply
saying that it was the deliberate intention of the Government to lord discovery delays over the
Court and the Defense in hopes of avoiding its discovery obligations.

29. The Defense incorporated dates for disclosure of State Department documents into its case
calendar because it knew that the Government would seek to drag out the process as long a
conceivably possible. The Government resisted putting any such dates on its calendar, saying
instead, ?No disclosure is scheduled for documents because the motion has not been
litigated. The Discovery litigation is scheduled for the 16-20 July 20l2 session.? 30 June
2012 Email from MAJ Fein to the Court. The Government?s position is typical in that it adopts
the most protracted, nonsensical way of doing things. Rather than planning ahead in order to
expedite the discovery process, the Government proceeds as if things simply cannot, or should
not, be done simultaneously. Given how long has elapsed since PFC Manning has been placed
in pretrial con?nement, the Government?s cavalier attitude in constantly requesting ?at a
minimum, an additional 45-60 days? is disquieting.

G. The Defense Requests That The Government Be Required to Provide All
Documentation it has Received from the State Department

30. The Government simply cannot be trusted to make decisions regarding discovery in this
case. This latest motion shows that the Government believes that anything that predates an
interim damage assessment is defacto cumulative and therefore not discoverable. If the
Government is prepared to make such an inane argument, it is clear that the Government simply
cannot be trusted to sift through what is Brad)? and what is material to the preparation to the
defense and/or "relevant and necessary.

31. At a certain point, the Government should have to ?own? its litigation positions. It cannot
continue to make arguments that are so far out in left ?eld that they raise questions about the
basic ability of the Government to recognize what is material to the preparation of the defense
and/or what is relevant and necessary. A blanket exclusion of all discovery based on an arbitrary
date (the date of the State Department damage assessment) is not an intelligent, reasonable

. litigation position. And when prosecutors continue to take widely unreasonable litigation

positions, at a certain point, they can no longer be trusted.

32. As a reminder, here are but a few of the highly untenable legal positions the Government has
taken in this case, just with respect to discovery:

a) Maintaining that Brady did not apply to punishment;

b) Maintaining that R.C.M. 70l did not apply to classi?ed discovery;

c) Disputing the relevance of facially relevant items (such as damage assessments);

d) Maintaining that R.C.M. 703 applied to discovery, instead of the appropriate R.C.M. 701
standard;

e) Resisting production of the Department of State damage assessment under the ?authority?
of Giles (which provided no legal support for its position);

Debating with the Court on whether the Government needed to provide documents that
were obviously material to the preparation of the defense absent a speci?c request;



. I . 22783

g) Maintaining that the FBI investigative ?le was not material to the preparation of the
defense, to which the Court quizzically asked, ?How could the investigative ?le not be
material to the preparation of the defense??

h) Maintaining that the Defense did not provide the requisite level of speci?city for
?les that could not conceivably have been described any more speci?cally)

33. The Defense understands that whether certain things are discoverable may be the subject of
litigation. However, the Government has taken such extreme and unsupported positions over the
course of this litigation that the Defense and the Court are left to wonder whether: a) the
Government has any idea what it is doing; and b) in light of past events, the Government can be
trusted to do what the Court orders.

34. Accordingly, the Defense submits that the only way to ensure that the Defense gets the
discovery it is entitled to is for the Court to order that all documentation from the State
Department be produced to the Defense. Alternatively, the Government should be required to
segregate all discovery that it does not believe needs to be produced and order that the
Government be required to produce it to the Court for in camera review.

CONCLUSION

35. For the reasons outlined herein, the Defense requests that this Court deny the Govemment?s
request to not be required to produce the following information:

(1) Information that predated the State Department draft damage assessment dated
August 2011;

(2) Purely administrative records; and

(3) Personally Identifiable Information (PII) of persons negatively affected by the
unauthorized disclosures, to include those persons identi?ed by the WikiLeaks Persons at Risk
Group (WPAR) as being put at risk.

36. The Defense renews its motion for production of information from the State Department in
accordance with R.C.M. 701(a)(2), 70I(a)(6) and 703, as discussed herein. Further, the Defense
requests that this Court deny the Government?s request for 45-60 days to produce relevant
records or claim a privilege or move for substitutions. Instead, the Defense moves for this Court
to order that for all remaining discovery, the Government should consult with equity holders to
coordinate the claiming of a privilege (or other course of action) simultaneous with its review of
the documentation such that the Government is prepared to proceed immediately upon a
discovery ruling.

Respectfully submitted,





DAVID EDWARD COOMBS
Civilian Defense Counsel



0 22784

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REPLY TO

GOVERNMENT RESPONSE TO

V.

DEFENSE REQUESTED

INSTRUCTION:
MANNING, Bradley PFC SPECIFICATION 1 OF CHARGE
u.s. Army, -

Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 222ll

DATED: I 1 July 20l2



RELIEF SOUGHT

I. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rule
for Courts Martial (R.C.M.) 920(c), requests this Court to give the instructions requested in the
Defense Requested Instruction: Speci?cation I of Charge II [hereinafter Defense Requested
Instruction].

ARGUMENT

2. Each of the Govemment?s responses to the Defense Requested Instructions is meritless. They
are discussed in turn.

A. Wantonly

3. The Government first takes issue with the Defense?s proposed de?nition of ?wantonly.? The
Defense Requested Instruction de?nes ?wantonly? as follows: ??Wanton? or ?wantonly? includes
?Reckless? but may connote willfulness, or a disregard of probable consequences, and thus
describe a more aggravated offense.? Defense Requested Instruction, at 2. This de?nition of
wantonly is taken nearly verbatim from the only two places in the entire Manual for Courts-
Martial (MCM) where that term is de?ned.

4. The MCM does not de?ne the term ?wanton" in the context of disclosure of information, but
it does de?ne the term in two other contexts. See MCM, Part IV, para. 3S.c(8) (de?ning
?wanton? for purposes of Article I I id., Part IV, para. 100a.c(4) (de?ning ?wanton? for
purposes of Article I34, offense of ?reckless endangerment?). Both de?nitions provided by the
MCM are essentially the same: ??Wanton? includes ?Reckless? but may connote willfulness, or a
disregard of probable consequences, and thus describe a more aggravated offense.? 1d,, Part IV,
para. see id., Part IV, para. 3S.c(8) (??Wanton? includes ?reckless?, but in describing
the operation or physical control of a vehicle, vessel, or aircraft ?wanton? may, in a proper case,
connote willfulness, or a disregard of probable consequences, and thus describe a more
aggravated offense").

APPHLATE EXHIBITCQI I 1 (2023)


0 0 22785

5. In its Response, the Government states merely that it ?maintains that ?wantonly? does not
necessarily describe a more aggravated offense than ?recklessness.?? Government Response to
Defense Motion for Requested Instruction: Speci?cation 1 of Charge II [hereinafter Government
Response], at 1. For one thing, the Government misunderstands the de?nition of?wantonly?
provided by the Defense. That de?nition does not state that ?wantonly? necessarily describes a
more aggravated offense than recklessness. It merely states that wantonly ?may connote
willfulness, or a disregard of probable consequences, and thus describe a more aggravated
offense [than recklessness].? Defense Requested Instruction, at 2 (emphasis supplied). For
another thing, the Government offers no reason for disregarding authoritative de?nitions of
wantonly provided in the MCM. In its own proposed instruction for ?wantonly,? the
Government cites the Military Judges Benchbook, DA Pam 27-9 [hereinafter Benchbook],
paragraph 3-35-1, n. 10. The Government conveniently omits from its proposed instruction the
following line contained in the de?nition of ?wanton? provided by this Benchbook paragraph:
?Wantonness also includes willful conduct.? Benchbook, para. 3-35-1, n. 10. Thus, the
Govemment?s own source supports the de?nition proposed by the Defense, and undermines the
Govemment?s de?nition. Therefore, this Court should adopt the Defense?s proposed de?nition
of ?wantonly.?

B. Caused to be Published

6. The Government also objects to the Defense?s proposed instruction to the ?caused to be
published? element. The Defense Requested Instruction proposed the following instruction for
?caused to be published:?

A person causes intelligence to be published on the Internet when the person
personally publishes the intelligence on the Internet or knowingly or intentionally
induces or sets in motion acts by an animate or inanimate agency or
instrumentality which result in the publication of the intelligence on the Internet.

Defense Requested Instruction, at 2.

7. The Government complains that ?[t]his instruction will confuse the fact ?nder. There is no
requirement that the act be carried out ?knowingly or intentionally.? The act must be done
wrongfully and wantonly.? Government Response, at 1. The Government is incorrect. The
Government has itself necessitated an instruction on ?cause to be published? by including this
language in Speci?cation 1 of Charge See Charge Sheet. Moreover, the Government alleged
that PFC Manning caused this intelligence to be published on the Internet having knowledge that
infonnation published on the Internet is accessible to the enemy. See id. The Defense Requested
Instruction has de?ned the phrase ?caused to be published? for the court-martial members. The
Government, in its proposed instructions, failed to de?ne this phrase. The Government cannot
charge a particular phrase in the Speci?cation and then simply invite the Court to refrain from
de?ning that phrase for the members.

C. Maximum Punishment

8. Finally, the Government objects to the Defense?s characterization of this offense as being
most closely related to a violation of Article 92. Identifying a single additional element that
Speci?cation of Charge 11 contains that a violation of Article 92 does not, the Government

0 0 22786

concludes, with no analysis of how this additional element compels its conclusion, that ?[t]he
offense is more closely-related to a violation of 18 U.S.C. Government Response, at
1. This cursory argument stands in stark contrast to the argument made in the Defense
Requested Instruction.

9. The Defense identi?ed three reasons why a violation of Article 92 is the offense most closely
related to the offense alleged in Speci?cation 1 of Charge 11. See Defense Requested Instruction,
at 3 (?First, Speci?cation 1 of Charge 11 and a violation of AR 380-5 have similar mens rea
requirements: the charged speci?cation requires that an accused act wrongfully and wantonly
(including recklessness, willfulness, or a disregard of probable consequences), and AR 380-5
punishes one who ?knowingly, willfully, or negligently? discloses covered information, AR 380-
5, para. Second, the intelligence information covered by Speci?cation 1 of Charge II is
likely within the de?nitions of ?classi?ed information? or ?sensitive infonnation? contained in
AR 380-5. Finally, the conduct underlying the offense alleged in the charged speci?cation is
closely related to the conduct that would constitute a violation of AR 380-5: the disclosure of
information to an unauthorized person or In addition to not providing any thought out
reasons to support its own conclusory assertions, the Government has offered no rebuttal to any
of the three reasons offered by the Defense.

10. Therefore, a violation of Article 92 is the offense that is most closely related to the offense
alleged in Speci?cation 1 of Charge II, and the maximum punishment for both offenses is two
years imprisonment.

CONCLUSION

11. For these reasons, the Defense requests this Court to give the instructions requested in the
Defense Requested Instruction.

Respectfully submitted,


7?
gr??


DAVID EDWARD COOMBS
Civilian Defense Counsel

22787

UNITED STATES OF AMERICA
GOVERNMENT RESPONSE TO
DEFENSE NOTICE UNDER
MILITARY RULE OF EVIDENCE
505(h)(3): CHARGED DOCUMENTS

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

llJuly2012
RELIEF SOUGHT

COMES NOW the United States of America, by and through undersigned counsel, and
respectfully requests this Court order the defense to supplement portions of its Notice Under
Military Rule ofEvidence (MRE) 505(h)(3): Charged Documents, dated 6 July 2012. Where the
defense has identified the charged document or other document by Bates Number, with notice of
its intent to discuss the content of the document and/or the Original Classification Authority's
(OCA) classification determination, the United States agrees that the defense has provided
adequate notice of the specific classified information, but requests the defense identify witnesses
in accordance with the Protective Order.

BURDEN OF PERSUASION AND BURDEN OF PROOF
As the moving party, the United States has the burden of persuasion on any factual issue
the resolution of which is necessary to decide the motion. Manual for Courts-Martial (MCM),
United States, Rule for Courts-Martial (RCM) 905(c)(2) (2012). The burden of proof is by a
preponderance of the evidence. RCM 905(c)(1).

FACTS
1. On 6 July 2012, the defense notified the Court and Govemment under MRE 505(h)(3) of the
information it "intends to present" during trial, either tlirough cross-examination of Govemment
witnesses or during the defense presentation. See Def. Not. at 1. The notice provided by the
defense was organized by paragraph, with each paragraph corresponding to a charged document
or set of documents. Id. at 1 -4.
2. In paragraph 2a, the defense provided notice of its intent "to discuss, in general, the
Afghanistan SIGACT reports that are the subject of Specification 6 of Charge I I . " Id. at 1. The
defense used a variation of this language to provide notice to the Govemment in paragraphs 2b,
2e, and 2h. Id. at 1-4.
3. In each paragraph, the defense notified the Govemment that it intends to discuss the charged
documents "either on cross-examination or through the testimony of a defense witness." No
witness was identified. See id. at 1-4. The defense provided similar notice under MRE

l^'^

APPELLATEEXHIBIT
PAGE REFERENCED:
PAGE
OF
PAGES

22788

505(h)(3)prior to the Article 32 investigation, but identified the witness it intended to discuss the
information with during the hearing. .^^^ Enclosure.

WITNESSES^E^IDENCE
The United States rec^uests this Court considerthe Enclosure and Appellate Exhibit
X ^ ^ I I in suppori ofits motion.

LEGALAUTHORITY AND ARGUMENT
Under MRE 505(h)(1), ifthe accused reasonably expects to disclose or to cause the
disclosure of classified information in any manner in connection withacouri-mariial proceeding,
he must provide notice to the trial counsel in writing ofhis intention. MRE 505(h)(1). This
notice must includeabrief description ofthe classified information and "must state,with
pariicularity,which items of classified inf:^rmation[the accused] reasonably expects will be
revealed by his defense." MRE 505(h)(3). Ageneral statement "ofthe areas about which
evidence may be introduced" is not sufficient.
The accused'snotice under MRE 505(h)
allows the Governmentto consider the relevance ofthe classified information and, if required,
motion the couri for an ^^^^^^^^ proceeding conceming the use at any proceeding ofthe
classified information identified by the accused. .^^^MRE 505(i)(2). In order to obtain an
^^^^^^ proceeding, the Govemment must be able to demonstrate that disclosure ofthe
infiormation reasonably could be expected to cause damage to the national security. MRE
505(i)(3). This showing is typically achieved throughaclassification review ofthe infiormation
identified by the defense notice to the Govemment. .^^^ MRE 505(i)(3)("The affidavit shall
demonstrate that disclosure ofthe information reasonably could be expected to cause damage to
the national security in the degree required to warrant classification under the applicable
executive order, statute, or regulation."). Classified infiormation is not subject to disclosure
unless the information is relevant and necessary to an element ofthe offense oralegally
cognizable defense and is otherwise admissible in evidence. MRE505(i)(4)(B).
I.

PORTIONS OFTHE DEFENSE NOTICE UNDER MRE 505(h)(3) DO NOTPROVIDE
ENOUGH SPECIFICITYTO THE GOVERNMENT.

The United States objects to the notice provided in paragraphs 2a, 2b, 2e^, and 2h^
specifically,theporiion of each paragraph providing notice in the following terms: "The Defense
also intends to discuss, in general,the[records]that are the subject of[Specification^] of
Charge I I . "
Def. Not. atl 4. Those poriions provide insufficient notice ofthe classified
information the accused intends fo disclose or cause the disclosure ofunder both the plain
IanguageofMRE 505(h)and(B^^^^^^^^^^^^C^^^^^.^,720E2dII^5(IlthCirI^^^^
' The United States has the same objection to paragraph 2e, although the defense notice is articulated somewhat
differently.
^ Subsection (h)(3) was amended in 1993 to require specificity in detailing the items of classified information
expected to be introduced, based on the Collins case. See MRE 505 analysis, at A22-41.

2

22789

Writfennotice under MRE 505(h) is the "central document" in MRE 505 .^^^C^^^^^^,^,
720F.2d atll99(discussing MRE 505'scounterpart in the Classified Information Procedures
Act). The notice must be sufficient because it is "essential to put into motion the other [MRE
505] procedures."^^.atII9^. In this case, the defense has stated it "intends to discuss, in
general" the documents orrecords that are the subject ofSpecifications4, 6,^,and 12 of Charge
II. Although this is indeeda"brief'description of the information or material at issue, it is the
functional equivalent ofreferring the United States to the Charge Sheet. "Brief does not mean
notice to the United States may be "vague." ^^^^^.atll^^. The notice in this case does not
state, v^ith any soriofpariicularity, which items ofclassified information the accused intends to
repeal in his defense.
MRE 505(h)(3). These databases, in total, contain hundreds of
thousands ofdocuments or records.
Def Not. atI-4^ Charge Sheet. Each document or
record is marked differently. The notice provided by the defense is inadequate because it fails to
provide the United States withastariing point. In this case, the stariing point could beaunique
repori key for CIDNE records oraunique message record number for Depariment ofState
cables.^ In any event, i f i t is unclear as to which specific items ofclassified information are at
issue, the United States cannot makeadetermination whether to concede the relevance,
neeessity,or admissibility ofthe information or, in the altemative, requestaclassification review
^om the relevant OCA and move the court for an ^^^^B^^^^ proceeding under MRE 505(i). If
the ^^^^^^^^ proceeding under MRE 505(i) is where all roads lead under MRE 505, the
defense^s lack ofpariicularity drops the United States in the middle ofaforest with no hope of
finding home.
Adequate notice drives the procedures under MRE 505. It focuses the issues for the
pariies and the Couri and contributes to the efficiency ofthe proceedings. Without adequate
notice, the United States is leff to guess what the accused means by the notice provided and
delays the Government'sdecision whether to invoke the privilege. That unceriainty delays the
classi^cation review process,which in tum delays the ability of the United States to motion the
Couri to hold an ^^^^^^^^ proceeding under MRE 505(i). Most imporiantIy,adequate notice
contributes to this Couri'stimely resolution of the issues prior to trial.
^I.

THE DEFENSE NOTICE IS ALSO INADEQUATE BECAUSE ITDOES NOT
I D E N T I F Y WITNESSES

The United States also objects to the notice provided in paragraphs 2a-2j because it does
not identify the names ofany witnesses it intends to discuss classified information with during
triaL Prior to the Ariicle 32 investigation, the defense provided notice under MRE 505(h)(3)of
its intent to disclose classified information during the hearing.
Enclosure. In that notice, the
defense specifically identified the witness it intended to discuss classified information with
during the hearing.
The Couri signed the Protective Order for Classified Information o n l ^
March 2012. .^^^ Appellate Exhibit ^^^^^IL Under paragraph 3(1), the defense is required "to
provide the trial counsel with the names of any intended recipient(s)andnoticeofthe classified
^TheUnited states has only conductedaclassitication review for the charged documents identified by 8ates
l^umber. The vast majority ofthe other records referred to by the defense were provided on digital media in
classified discovery because they originated from classified databases. Their classification has not been determined
byacompetent authority.

22790

information that is expected to be disclosed or elicited pursuant to MRE 505(h)(3)." Appellate
Exhibit ^^^^C^II, at ^. The defense has acknowledged this requirement in writing and should be
required, at this time, to identify the Govemment witnesses it intends to elicit classified
information from during trial to promotejudicial economy and efficiency.^ Furiher,withouf
knowing the witnesses the defense intends to use to disclose classified information during trial,
the United States is not fully able to contemplate what other classified information may he
revealed by cross-examination,whieh could potentially vary by witness.

CONCLUSION
The United States respectfully requests this Couri order the defense to supplement its
Notice Under MRE 505(h)(3)with respect to paragraphs 2a, 2b, 2e, and 2h by identifying,with
pariicularity,the items of classified information the defense intends to reveal during triaL
AdditionalIy,the United States requests the Couri order the defense to supplement its notice by
identifying the witness or witnesses the defense intends to use to elicit classified information.

TWi-^
JCDDFAN MORROW
TT, JA
Assistant Trial Counsel

I ceriify that I served or caused to be served a true copy of the above on Mr. David E.
Coombs, Civilian Defense Counsel, via electronic mail, on 11 July 2012.

/u.-^
MORROW
Assistant Trial Counsel
End
Article 32 Notice

" The United States acknowledges the defense has likely not finalized its own witness list and therefore would be
unable to provide adequate notice with respect to defense witnesses at this time.

4

. . 22791

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT
UNITED STATES

v. DEFENSE NOTICE UNDER
MILITARY RULE OF EVIDENCE
MANNING, Bradley 12., PFC
.8. Army,
Headquarters an ea quarters Company, U.S.
Army Garrison. Joint Base Myer-Henderson Hall, DATED 22 November 201 1
I

Fort Myer, VA 22211

1. Pursuant to Military Rule of Evidence PFC Manning. by and through counsel,
provides notice to the government that the defense intends to present, either through cross-
examination of the government's wimesses or during the defense's presentation, the following
evidence during the Article 32 hearing:

a. CIDNE Afghanistan Signi?cant Activity Reports The CIDNE Afghanistan
consist of 91 ,73l documents covering a period from 1 January 2004 to 31 December
2009. The defense intends to discuss each individual SIGACT report that is the subject of
Specification 7 of Charge II with Vice Admiral Robert S. Harward. Specifically, the defense
intends to discuss Vice Admiral Harward?s classi?cation detennination and his determination
regarding the impact on national security from having this information released publically. The
defense also intends to discuss. in general, the Afghanistan SIGACT reports that are the subject
of Speci?cation 6 of Charge II with Vice Admiral Harward;

b. CIDNE Iraq SIGACTS. The CIDNE Iraq SIGACTs consist of 391,832 documents
covering a period from 1 January 2004 to 31 December 2009. Again, the defense intends to
discuss each individual SIGACT report that is the subject of Specification 5 of Charge 11 with
Vice Admiral Robert S. Harward. Specifically, the defense intends to discuss Vice Admiral
Harward's classi?cation determination and his determination regarding the impact on national
security from having this information released publically. The defense also intends to discuss, in
general, the Iraq SIGACT reports that are the subject of Specification 4 of Charge II with Vice
Admiral Harward;

c. Other Brie?ngs as well as the Granai Airstrike Video and accompanying 15-6
Investigation Report. This information contains a video of an airstrike that took place on 4 May
2009 along with the resulting I5-6 investigation and numerous other brie?ngs. The airstrike
involved the dropping of 5001b and l.00Olb bombs on a suspected militant compound. The
bombing resulted in anywhere between 80 to 140 civilians being killed. The defense intends to
discuss each individual item listed on page 14 and 15 of Vice Admiral Harward?s classi?cation
review. Some of this information also appears to be the subject of Rear Admiral Kevin M.
Donegan's classi?cation review. Speci?cally, the defense intends to discuss Vice Admiral

HIV. om. EXHIBIT ze



Harward?s and Rear Admiral Donegan?s classi?cation determinations and their determinaion
regarding the impact on national security from having this infomtation released publically. The
items referenced are the subject of Speci?cations 10 and 11 of Charge 11;

d. A diplomatic cable known as Reykjavik?I3. This diplomatic cable was from the embassy
in Reykjavik detailing the fmancial difficulties of aprivately owned Icelandic bank called
Landsbanki, which offered online savings accounts under the ?Icesave? brand. The bank was
placed into receivership bythe Icelandic Financial Supervisory Authority on 7 October 2008.
The defense intends to discuss the diplomatic cable that is the subject of Speci?cation 14 of
Charge II with Mr. Patrick F. Kennedy. Speci?cally, the defense intends to discuss Mr.
Kennedy?s classi?cation determination and his determination regarding the impact on national
security from having this information released publically;

e. Diplomatic cable database. This database contains 251,287 documents. The contents of
the cables describe international affairs from 300 embassies dating from 1966 to 2010. Over
130,000 of the documents are unclassi?ed, some 100,000 are labeled ?con?dential?, about
15,000 documents are classi?ed as ?secret?, and none are classi?ed as ?top secret.? The defense
intends to discuss each diplomatic cable that is the subject of Speci?cation 13 of Charge 11 with
Mr. Patrick F. Kennedy. Speci?cally, the defense intends to discuss Mr. Kennedy's
classi?caion determination and his determination regarding the impact on national security from
having this information released publically. The defense also intends to discuss the diplomatic
cables in general that are the subject of Speci?caion 12 of Charge 11 with Mr. Kennedy;

f. Apache Helicopter Video. A thirty?nine minute Apache cockpit gun-sight video depicting

a series of air-to?ground attacks conducted by a team of two U.S. Army AH-64 Apache
helicopters in Al-Amin al-Thaniyah, in the district of New Baghdad in Baghdad. The attacks
took place on 12 July 2007. In the first strike, 30mm cannon fire was directed at a group of nine
men; two were war correspondents for Reuters Saeed Chmagh and Namir Noor-Elden. Eight
men were killed, including Noor~Eldeen. Chmagh was wounded. In the second airstrike, 30mm
cannon ?re was directed at Chmagh and two other unanned men and their unmarked van as they
were attempting to help Chamgh into the van. Two children inside the van were wounded, three
more men were killed. including Chmagh. In a third airstrike, an Apache helicopter team ?red
three AGM-114 Hell?re missiles to destroy a building after they had observed men enter the
building. The defense intends to discuss the Apache helicopter video that is the subject of
Speci?caion 2 of Charge II with CPT James Kolky. Speci?cally, the defense intends to discuss
CPT Koll-ty's classi?cation determination and his determination regarding the impact on national
security from having this information released publically;

g. U.S. Army's Threat Assessment. A thirty?two page document prepared by the Cyber
Counterintelligence Assessments Branch of the Army?s Counterintelligence Center along with
the National Ground Intelligence Center to assess the counterintelligence threat posed to the U.S.
Army by Wikileaks. Thisdocument is the subject of Speci?cation 15 of Charge I I. The defense
intends to discuss the threat assessment with the individual who is identi?ed as compleing the
classi?cation review. Speci?cally, the defense intends to discuss the classi?cation determination
and the detemtination regarding the impact on national security from having this information
released publically;



h. The Guantanamo Files. This database consists of 779 Secret case ?les. These memoranda
contain information about each prisoner to include their background; how they were captured;
whether they are regarded as low; medium or high risk; whether they should be released or not.
The defense intends to discuss each document that is the subject of Speci?cation 9 of Cha rge II
with Rear Admiral David Woods. Speci?cally, the defense intends to discuss the classi?cation
detennination of Rear Admiral Woods and the determinaion regarding the impact on national
security from having this information released publically. The defense also intends to discuss, in
general, the Guantanamo ?les that are the subject of Specification 8 of Charge 11;

i. Government Intelligence Agency Memorandums. Speci?cation 3 of Charge II alleges that
between 22 March 2010 and 26 March 2010 PFC Manning unlawfully disclosed ?more than one
classi?ed memorandum produced by a United States government intelligence agency.? The
defense intends to discuss each document that is the subject of Speci?cation 3 of Charge II with
Mr. Robert L. Roland. Specifically, the defense intends to discuss Mr. Roland?s classi?cation
determination and his determination regarding the impact on national security ?om having this
information released publically.

j. Chat Log. A text log of a computer chat session allegedly between Mr. Adrian Lamo and
PFC Manning. Although the log has no classi?cation markings, according to Mr. Robert E.
Betz, it contains national security information properly classi?ed at the SECRET level. The
defense intends on exploring the subject matter of the text log with Mr. Betz. Speci?cally, the
defense intends to discuss Mr. Bet7.?s classi?cation determination and his determination
regardingthe impact on national security from having this information released publically.

2 Nothing contained in this notice should be construed in any manner as a concession by PFC

Manning or his defense that the listed items are appropriately classi?ed pursuant to Executive
Order 13256 or that the disclosure of such information would be detrimental to the national

security.
4% /ax
I. Vll) EDWARD (TO MBS

Civilian Defense Counsel

22794

UNITED STATES OF AMERICA
Prosecution Response
to Defense Proposed
Court Memi^er questionnaire

Manning,Bra^leyE.
PFCUS.Army,
HHC, US.Army Garrison,
,Ioinl Base Myer-Henderson Hall
FortMyer,Virginia 22211

ll,Inly2D12

1, The prosecution recommends that the Couri adopt the prosecution'sFroposed Couri Member
Supplemental questionnaire (hereinafler "Supplemental questionnaire"). See Enclosure 2, The
Supplemental questionnaire includes the questions asked bythe defense and the prosecution that
elicit information relevant toamember^spariicipation in this ease or information that could be
used to inform the exercise ofchallenges or expedite voir dire. The Supplemental questionnaire
excludes the questions that are cumulative, confusing, misstatements ofIaw,or impermissibly
attempt to convey factual material to the couri members to argue the defense'scase,
2, The purpose ofthe couri member questionnaires is to provide counsel with general
information relevant toamember^spariicipationinapariicular case. Rules ofPractice Before
Army Couris-Mariial, dated 2^ March 2012 (hereina^er "Rules ofPractice"), Appendix E,p,25,
Using questionnaires can also expedite voir dire and be used to permit more informed exercise of
challenges. Rule for CourisMariial(RCM)9I2(a)(I), Discussion; Rules ofFractice, Rule 13,1,
p^
3, Voir Dire exists so pariies can intelligently exercise both challenges for cause and peremptory
challenges, SeeRCM^I2(d), Discussion ("The opporiunity for voir dire should be used to
obtain information for the intelligent exercise of challenges,"); United Statesv,Bra^^,^^M,J,
325, 327 (C,A,A.F. 200^) ("The purpose ofvoir dire and challenges is, in pari, to ferret out facts,
to make conclusions about the members'sincerify,and to adjudicate the members^ability to sit
as pari ofafair and impariial panel."). Voir dire should not purposely be used "fo present factual
matters which will not be admissible or to argue the case." RCM^I2(d), Discussion; see. e,^„
United Statesv,Nieto.^^M,J,I4^(C,A,A,F,200^)(discussin^ the difference between
appropriate hypothetical questions and commitment improper commitment questions); United
Statesv,RevnoIds.23M,J,292.2^4(CMA 19^7) (^^NeithertheGovemmentnorthe accused
is entitled toacommitmentfi^om the triersoffact about what they will ultimately do,''); United
StatesvSmith. 2007 WL 3025072 ( N M C L Crim App)(findin^defenseexcluded questions
"misstated the Iaw,wereconft^sing, cumulative, or appeared principally crafied to convey factual
material to the members rather than to elicit information upon which to base challenges"); United
Statesv,Moran.l^^^WL219759(A,FCLCrim,App,)(callin^defensecounsel's
"objectionable question,,,apooriyveiled attempt fo argue forno punitive discharge").
Similarly, questionnaires should not purposely be used to present factual matters which will not
be admissible or to argue the case as such questions neither assist in providing counsel with
relevant information about the members nor assists in voir dire and the informed exercise of
challenges See United StatesvAnderson,3^MJ9^3(AFCMR1^^3),affd.3^MJ43I
(C,M,A,1994) ("When the inquiry seeks more than the public hasaright to know,the matter lies
within the judge^s discretion,,,,"),
1

APPELLATEE^1^181T^^
PAGEREFERENCED:
PAG^
GF
PAGES

22795

4, RCM912(f) enumerates the bases forchallenges for cause, RCM912(f)(1)(A)(M) spell out
bases for removal for cause, RCM912(f)(l)(N) states thatacouri member shall be excused for
cause when the removal is "in the interest ofhaving the courimariialfi^eefr^om substantial doubt
astolega1ity,faimess,andimpariia1ity." RCM912(f)(1)(N). For example, an individual hasa
direct personal interest in the result of the trial; hasafriendly or hostile attitude towardapariy;
ot^ has an inelastic opinion conceming an appropriate sentence for the of^nses charged. RCM
^12(f)(1)(N), Discussion. Case law has defined two sepat^afe tests to define what types of
opinions may cause substantial doubt as to 1egality,faimess, and impariiality—actual and implied
bias. Actual bias is bias that,viewed subjectively, through the eyes ofthe military judge,"^wi11
not yield to the evidence presented and the judge^s instructions,'" United Satesv,Napo1eon,4^
MJ27^,2^3(CAAF1997)(quotin^Revno1ds.23MJat294)Imp1iedbias is viewed
objective1y,through the eyes ofthe public, and "exists when ^most people in the same position
v^ould bet^reiudiced,^" United StatesvDaulton, 45 M,J,212.217(C,A.A,F199^)(quotin^
UnitedStatesvSmari,21MJ15.20(CMA19^5)); see United StatesvStrand,59MJ 455,
459(C,A,A,F,2004) ("In makingjudgments regarding implied bias, this Couri looks at the
totality ofthe factual circumstances,")
5, RCM912(g) addresses peremptory challenges and gives examples of reasons for which
peremptory challenges are not allowed. See RCM912(g), Discussion,
^, IAWRCM912(a)(1), upon application ofthe defense, the prosecution shall ask the following
information ofcouri members in written questionnaires: date ofbirih; sex; race; marital status
and sex, age, and number ofdependents; home ofrecord; civilian and military education,
induding,when available, major areas of study,name of school or institution, years of
education, and degrees received; current unit to which assigned; past duty assignments; awards
and decorations received; date ofrank; and whether the member has acted as accuser, counsel,
investigating officer, convening authority,or legal officer or staff judge advocate for the
convening authority in the case, or has forwarded the charges witharecommendation as to
disposition, RCM912(a)(1), Additional questions may be asked with the approval ofthe
military judge, Id^
7. Pand members on the standing MDW panel have completed the standard MDWCourt

Member questionnaire (hereinafier"MDW questionnaire"). See Enclosurel, Several ofthe
questions requested bythe defense were already asked on the MDW (questionnaire; however, not
all defense requested questions were included. The attached Supplemental (questionnaire,
therefore, includes the nonobjectionable defense questions that were not previously answered by
panel members, as well as additional prosecution requested questions. See Enclosure 2, Some
ofthe included defense requested questions were rephrased for consistency,c1arity,and^or to
include more or less information,
a. The following is the prosecution'sresponse to the defense questionnaire by corresponding
question number:
1) The prosecution included this question on the Supplemental questionnaire.

22796

2) Fanel members already answered the question regarding theirplace and date ofbirih
on the MDW questionnaire. The prosecution included the questions regarding the sex and race
of couri members on the Supplemental questionnaire,
3) The prosecution included this question on the Supplemental questionnaire,
4) Fanel members already answered the question regarding their current duty station and
phone number on the MDW questionnaire; however, the prosecution included an updated
request in the Supplemental questionnaire to ensure the pariies have the most current
information,
5) Fanel members already answered these questions on the MDW questionnaire;
however, the prosecution included an updated request in the Supplemental questionnaire to
ensure the pariies have the most current information,
^) Fanel members already answered the quesfion regarding MOS andjob title on the
MOW (questionnaire. The prosecution included the questions regarding description ofjob,
length ofpresent assignment and name and titleof supervisor on the Supplemental
questionnaire,
7) This question elicits no information relevant toamember^spariicipation in this case,
nor elicits information that could be used to inform exercise ofchallenges or expedite voir dire.
Every Soldier will answer yes to the first pari ofthe question, and reviewing the couri members'
ORBs^ERBs will be more instructive on the couri member'sleadership experience thenayes or
no question. The second pari ofthe question elicits no information relevant toamember^s
pariieipation in this case, nor elicits information that could be used to inform exercise of
challenges or expedite voir dire. The onlyreason to ask this question, therefore, is to
impermissibly convey factual material to the couri members to argue the defense'scase,
^9) These questions elicit no information relevant toamember^s pariieipation in this
case, nor elicit information that could be used to inform exercise ofchallenges or expedite voir
dire. The onlyreason to ask these questions, therefore, is to impermissibly convey factual
material to the court members to argue the defense'scase,

10-11) The prosecution included these questions on the Supplemental questionnaire,
12-13) These questions elicit no information relevant toamember^s pariieipation in this
case, nor elicit information that could be used to inform exercise of challenges or expedite voir
dire. The onlyreason to ask these questions, therefore, is to impermissibly convey factual
material to the couri members to argue the defense^scase,
14) Panel members already answered this question on the MDW (questionnaire. Any
additional inquiry can be explored during individual voir dire.

22797

15) The prosecution objects to this quesfion because it is confusing. The prosecution is
not sure what the defense means by combaf Ifthe defense means deployments, panel members
deployments are listed on their ERBs^OR8s,
1^) This question elicits no information relevant toamember^s pariieipation in this case,
nor elicits information that could be used to inform exercise of challenges or expedite voir dire.
The only reason to ask this question is to impermissibly convey factual material to the couri
members to argue the defense'scase,
171^) Panel members already answered these questions on the MDW questionnaire,
19) Panel members already answered this question on the MDW (questionnaire. Any
additional inquiry can be explored during individual voir dire,
20) The prosecution included this question on the Supplemental questionnaire, but has
restricted the question from "have you ever" to the lastlOyears, This is in line with the
questionnaire in the Rules ofFractice which limits the past duty assignment inquiry to the past
lOyears,
21 22) This question elicits no information relevant toamember^s pariieipation in this
case, nor elicits information that could be used to inform exercise of challenges or expedite voir
dire.
23) The prosecution included this question on the Supplemental (questionnaire,
24 2^) Panel members already generally answered these questions on the MDW
(questionnaire. Any additional inquiry can be explored during individual voir dire,
29) Panel members already generally answered this question on the MDW
(questionnaire. Any additional inquiry can be explored during individual voir dire.
30-31) The prosecution consolidated these questions and included the question on the
Supplemental questionnaire,
32) Fanel members already generally answered this question on the MDW questionnaire
and have the opportunity to elaborate their answer in the question asked based on defense
requested 30-31, Any additional inquiry can be explored during individual voir dire,
33) The prosecution included this question on the Supplemental questionnaire,
34) Fanel members already generally answered this quesfion on the MDW
(questionnaire. Any additional inquiry can be explored during individual voir dire.
35) The prosecution objects tothis question because it is confusing. The prosecution is
not sure what the defense means by combat. In the event that the defense is asking about
deployments, the prosecution included this question on the Supplemental questionnaire.

22798

3^) The prosecution included this question on the Supplemental questionnaire,
3^-39) The prosecution consolidated these questions and included the questions on the
Supplemental questionnaire,
40) Fanel members already generally answered this question on the MDW questionnaire
and have the opporiunity to elaborate their answer in the question asked based on defense
requested 39. Any additional inquiry can be explored during individual voir dire.
41) Fanel members already generally answered this question on the MDW
questionnaire. Any additional inquiry can be explored during individual voir dire.
42-43) The prosecution consolidated these questions and includedaquestion on the
Supplemental (questionnaire. Any additional inquiry can be explored during individual voir dire.
44) Fanel members already generally answered this question on the MDW
(questionnaire. Any additional inquiry can he explored during individual voir dire.
45) The prosecution included this question on the Supplemental questionnaire.
4^) Panel members already generally answered this question on the MDW
questionnaire. Any additional inquiry can be explored during individual voir dire,
47) The prosecution objects to this question because it is confdsing. The prosecution is
not sure what the defense means by combaf In the event that the defense is asking about
deployments, the prosecution included this question on the Supplemental questionnaire,
4^-54) These questions elicit no information relevant toamember^s pariieipation in this
case, nor elicit information that could be used to inform exercise of challenges or expedite voir
dire,
55) This question elicits no information relevant toamember^s pariieipation in this case,
nor elicits information that could be used to inform exercise of cballenges or expedite voir dire.

The only reason to ask this question is to impermissibly convey factual material to the couri
members to argue the defense^scase,
5^-5^) The prosecution included these questions on the Supplemental questionnaire,
5^) This question elicits no information relevant toamember^s pariieipation in this case,
nor elicits information that could be used to inform exercise of challenges or expedite voir dire.
The only reason to ask this question is to impermissibly convey factual material to the couri
members to argue the defense^scase,
59)This quesfion elicits no infoi^ation relevant toamember^s pariieipation in this case,
nor elicits information that could beusedto inform exercise of challenges or expedite voir dire.

22799

^0) The prosecution included this question on the Supplemental questionnaire,
61-62) These questions elicit no information relevant toamember^s participation in this
case, nor elicit information that could be used to inform exercise ofchallenges or expedite voir
dire,
^3-^^) The prosecution included these questions on the Supplemental (questionnaire,
^7-^9) These questions elicit no information relevant toamember^s pariieipation in this
case, nor elicit information that could be used to inform exercise ofchallenges or expedite voir
dire,
^0) The prosecution included this question on the Supplemental questionnaire,
71-74) These questions elicit no information relevant toamemher^s pariieipation in this
case, nor elicit information that could be used to inform exercise ofchallenges or expedite voir
dire,
75) Fanel members already answered this question on the MDW questionnaire,
7^-^2) These questions elicit no information relevant toamember^s pariieipation in this
case, nor elicit information that could be used to inform exercise of challenges or expedite voir
dire. The onlyreason to ask this question is to impermissibly convey factual material to the
couri members to argue the defense'scase,
^3) The prosecution included this question on the Supplemental questionnaire.
^4-^5) These questions elicit no information relevant toamember^s pariieipation in this
case, nor elicit information that could be used to inform exercise of challenges or expedite voir
dire,
^^) The prosecution included these questions on the Supplemental questionnaire,
^7-^S) These questions elicit no information relevant toamember^s participation in this
case, nor elicit information that could be used to inform exercise of challenges or expedite voir
dire,
^9 91) Fanel members already generally answered this question on the MDW
questionnaire. Any additional inquiry can be explored during individual voir dire,
92) The prosecution included this question on the Supplemental (questionnaire,
93) Panel members already generally answered this question on the MDW
questionnaire. Any additional inquiry can be explored during individual voir dire.

22800

^4) This question elicits no information relevant toamember^s pariieipation in this case,
nor elicits information that could be used to inform exercise of challenges or expedite voir dire,
95) These questions elicit no information relevant toamember^s pariieipation in this
ease, nor elicit information that could beusedto inform exercise ofchallenges or expedite voir
dire. Defense requested question ^92 and any additional voir dire will reveal sufficient
information to determine ifthe couri member has any biases towards the mental health
profession,
9^) This question elicits no information relevant toamember^s pariieipation in this case,
nor elicits information that could be used to inform exercise ofchallenges or expedite voir dire,
97-100) This question elicits no information relevant toamember^s pariieipation in this
case, nor elicits information that could be used to inform exercise ofchallenges or expedite voir
dire. There is no credible evidence that the Accused suffered from abuse,
101-102) The prosecution included these questions on the Supplemental (questionnaire,
103) This question elicits no information relevant toamember^s pariieipation in this
case, nor elicits information that could be used to inform exercise of challenges or expedite voir
dire,
104-105) The prosecution included these questions on the Supplemental (questionnaire,
10^) This question elicits no information relevant toamember^s pariieipation in this
case, nor elicits information that could be used to inform exercise of challenges or expedite voir
dire. The only reason to ask this question is to impermissibly convey factual material to the
couri members to argue the defense'scase,
107 109) Fanel members already generally answered these questions on the MDW
(questionnaire. Any additional inquiry can be explored during individual voir dire,
IIO) This question elicits no information relevant toamember^s participation in this

ease, nor elicits infot^afion that could be used to inform exercise ofchallenges or expedite voir
dire.
111-115) Panel members already generally answered these questions on the MDW
questionnaire. Any additional inquiry can be explored during individual voir dire
11^) The prosecution included this question on the Supplemental questionnaire,
117-11^) The prosecution included these questions on the Supplemental (questionnaire,
119) The prosecution objects to the introductory statements in this question. The
prosecution, therefore, made the statements more neutral and less communicative ofthe facts of
the case, and still included the defense requested question on the Supplemental (questionnaire.

22801

120121) The prosecution included these questions on the Supplemental questionnaire,
I^^) The prosecution included these questions on the Supplemental (questionnaire,
123) This question indudesamisstatement oflaw, UCMJ action could never be
initiated based on sexual preference,
124-130) The prosecution included these questions on the Supplemental (questionnaire,
131) This question elicits no information relevant toamember^s pariieipation in this
case, nor elicits information that could be used to inform exercise of challenges or expedite voir
dire.
Gender Identify Disorder paragraph. The prosecution objects to defense'sdefinition of
gender identity disorder as the alleged disorder is irrelevant to this case. The only reason to
discuss the alleged disorder is to impermissibly convey factual material to the couri members to
argue the defense^scase,
132-134) These questions elicit no information relevant toamember^s pariieipation in
this case, nor elicit information that could be used to inform exercise ofchallenges or expedite
voir dire. The onlyreason to ask this question is to impermissibly argue the defense'scase,
135) The prosecution included this question on the Supplemental questionnaire,
13^137) These questions elicit no information relevant toamember^s pariieipation in
this case, nor elicit information that could be used to inform exercise ofchallenges or expedite
voir dire. The onlyreason to ask this question is to impermissibly argue the defense^scase,
13^) Fanel members deployments are listed on their ERBs^ORBs,
139 140) These questions elicit no information relevant toamember^s pariieipation in
this case, nor elicit information that could be used to inform exerciseof challenges or expedite

voir dire. The onlyreason to ask this question is to impermissibly argue the defense'scase,
141) The prosecution made this defense requested question broader and included the
question on the Supplemental questionnaire.
Punishment paragraph. The prosecution objects to defense'spunishment description.
The military judge defines the law and instructions for the couri members, not the defense.
142) The prosecution included this question on the Supplemental (questionnaire.
143) The prosecution changed the objectionable wording ofthe question ("noble.,,
goal") and included this defense requested question on the Supplemental (questionnaire.

22802

144) The prosecution included this question on the Supplemental (questionnaire,
145) The prosecution changed the objectionable wording ofthe question ("who has
given classified information to an unauthorized person") and included this defense requested
question on the Supplemental questionnaire,
14^) The prosecution included this question on the Supplemental questionnaire,
14^) See^145 above. This is the same question.
14^) The prosecution included this quesfion on the Supplemental ^uestiottnaire.
149) These questions elicit no information relevant toamember^s pariieipation in this
case, nor elicit information that could be used to inform exercise of challenges or expedite voir
dire.
150) The prosecution included this question on the Supplemental questionnaire.
151) The prosecution included this question on the Supplemental (questionnaire,
b. The prosecution recommends adding the following questions which elicit information
relevant toamember'spariicipation in this case without impermissibly conveying factual
material or arguing the prosecution^scase:
1) Have you ever hadaSIFRNETaccount or worked onaclassified computer?
2) Have you ever handled dassified information in any form?
3) Have you ever printed classified information or saved classified information toaCD
or other removable media?
4) Have you ever worked inaSensitiveComparimented Information Facility(SCIF)?
5) Have you ever worked inafacility that authorized open storage of classified
information?
^) Have you ever removed classified information fi^omagovemment facility?
7) Have you ever been an authorized courier of classified information?
^, The prosecution recommends the Couri adopt the prosecufion^sproposed questionnaire,
which accounts for the questionnaires already completed by all panel members, incorporates the
questions requested bythe defense which are relevant and permissible, and incorporates the
questions requested bythe prosecution which elicit information that will assist in voir dire
without conveying impermissible argument or factual materiaL

^

22803

ANGELMOVERGAARD
CFT,JA
AssistantTrial Counsel
Iceriifythatlserved or caused to be servedatrue copy ofthe above on Defense Counsel via
electronic mail, o n l l J u l y 2012,

ANGELMOVERGAARD
CFT,JA
AssistantTrial Counsel
2Endosures
1, MDW Standard ^uestiottnaire
2, Prosecution Proposed Additional questions

10

22804

UNITED STATES OF AMERICA

Manning, Bradley E.
PFCUS.Army,
HHC, U.S.Army Garrison,
,Ioint Base Myer-Henderson Hall
FortMyer, Virginia 22211

Prosecution Response
to Defense Proposed
Court Member questionnaire
Enclosurel
ll.Iuly2012

22805

DATARE^UIRED BYTHE PRIVACY ACT OF1974
AUTHORITY:THECOMMONLA^ANDRCM 923,MANUALFORCOURTSMARTL^L,2005
(HEREAFTERREFERREDTOASMCM)
PURPOSE: INFORMATION PROVIDED IS USED BYTHE TRIAL COUNSEL AND DEFENSE
COUNSEL TO PREPARE FOR THE VOIRDIRE EXAMINATION OF COURTMEMBERS,
ROUTINE USES:THE INFORMATION PROVIDED BYTHE COURTMEMBER INTHIS
QUESTIONNAIRE ^ILLBEONLYUSEDBYTHETRIALCOUNSEL, THE DEFENSECOUNSEL,AND
THEIRASS1STANTS,AND IN SOMECASES,BYTHE STAFF JUDGEADVOCATEAND THE
CONVENF^GAUTHORITY,TOSELECTFAIRANDIMPARTIALCOURTMEMBERS FOR COURTS
MARTL^L COUNSEL ^ I L L USE THE INFORMATION PROVIDED INTHE PREPARATION OF
QUESTIONS TO BE USED DURING THE VOIRDIRE EXAMINATION OF COURTMEMBERS
COUNSEL MAYALSO USE INFORMATION PROVIDED INTHESE QUESTIONNAIRES ANDTHE
RESULTING ANSWERS GIVEN IN OPEN COURTTOCHALLENGECOURTMEMBERS FOR CAUSE
UNDER THE FROVISIONSOFPARAGRAPH912(F),MCM THE INFORMATION PROVIDED ^ I L L
NOTBE RELEASEDTOOTHERTHANTHECONVENf^GAUTHORITY,THESTAFF JUDGE
ADVOCATE, COUNSEL,ANDTHEIRASSISTANTSNOTE,HO^EVER,THATANY INFORMATION
PROVIDED BYACOURT MEMBER IN OPEN COURT ISAMATTER OF PUBLIC RECORD
COMPLETION OFTHE QUESTIONNAIRE IS VOLUNTARY AND YOUMAYELECTNOTTO
ANSWER CERTAIN ^UESTIONSYOU DEEM ARE TOO PERSONAL HOWEVER, IFTHE
QUESTIONNAIRE IS NOT COMPLETED, COUNSELATACOURTMARTIALMAYSEEK THE SAME
INFORMATION DURING THEVOIRDIRE EXAMINATION

22806

COURTMEMBER OUESTIONNAIRE
(PLEASE PRINT CLEARLY)

NAME:
RANK:

SSN:
DATEOFRANK:

UNIT ASSIGNMENT:
4

PRESENTDUTYPOSITION:

5

(FOR OFFICERS ONLY)
A,

FRIMARYSPECIALTY:

B

SECONDARYSPECL^LTY:

C,

SOURCE OF COMMISSION:

D

HAVEYOUHAD ANY ENLISTED SERVICE?

YES

NO

6

(FORENLISTEDONLY)MOS^JOBTITLE:

7

BRANCH OF SERVICE:

8

HAVEYOU SERVED IN ANOTHERARMEDFORCESORBRANCH OFSERVICE?
YES
NO (IFYES, PLEASE INDICATE):

9

YEARSOF ACTIVE DUTY:

10

DATEOFBIRTH:

11

HOMEOFRECORD:

12

MARITAL STATUS:

13

AGE AND SE^ OF CHILDREN (E G ,12, MALE):

PLACE OF BIRTH:

22807

COURT MEMBER QUESTIONNAIRE (CONTINUED)

14. WHAT, IF ANY, IS YOUR RELIGIOUS PREFERENCE?
15, TOTAL YEARS OF CIVILIAN EDUCATION:
A. ARE YOU A HIGH SCHOOL GRADUATE?

YES

NO

B. HAVE YOU ATTENDED COLLEGE (UNDERGRADUATE)?

YES

NO

(IF YES, INDICATE THE FOLLOWING):
1ST COLLEGE

2D COLLEGE

NAME OF COLLEGE:
YEARS OF ATTENDANCE:
FIELD OF STUDY:
MINOR FIELD(S):
DEGREE(S) AWARDED:
C. HAVE YOU ATTENDED GRADUATE SCHOOL?

YES

NO

(IF YES, INDICATE THE FOLLOWING):
1ST UNIVERSITY

2D UNIVERSITY

NAME OF UNIVERSITY:
YEARS OF ATTENDANCE:
FIELD OF STUDY:
DEGREE AWARDED:
16. HAVE YOU ATTENDED LAW SCHOOL OR TAKEN ANY LAW COURSES? (INCLUDE
MILITARY SCHOOLS):
YES
NO
SCHOOL
A.
B,
C,

DATE

COURSE/TOPIC

22808

COURTMEMBER QUESTIONNAIRE (CONTINUED)
17 SUMMARY OFMILITARYEDUCATION COMPLETED:
NAME OF SCHOOL

COURSE

YEAR COMPLETED

A,
B
C
D
E
(CONTINUEONLASTPAGE IFNECESSARY)
18 SUMMARY OFMILITARY CAREER (LASTTENYEARS, PLUS ANY SIGNIFICANTOR
UNUSUALASSIGNMENTS):
FROM^TO

COMMAND

B,
C,
D,
E,
F,
G,
H.

J.
(CONTINUE ON LAST PAGE IF NECESSARY).

DUTY ASSIGNMENT

22809

COURTMEMBER QUESTIONNAIRE(CONTINUED)
19 HAVEYOU ORANY CLOSE RELATIVES OR CLOSE FRIENDS EVER BEEN INVOLVED IN ANY
OFTHE FOLLOWING AREAS?
YES
N0(1FYES,CHECKAPPL1CABLEAREAAND
EXPLAIN BRIEFLY)
CRIME PREVENTION (POLICE, SHERIFF,DETECTIVE,ETC)
MEDICINE(DOCTOR, NURSE, PHARMACIST,ETC)
MENTAL HEALTH (PSYCHIATRIST,PSYCHOLOGIST,ETC)
LAW(JUDGE,ATTORNEY,LAWSTUDENT,ETC)
CAREERMILITARY (CLOSE RELATIVESONLY)
A
B

(CONTINUEONLASTPAGE IFNECESSARY)
20 HAVEYOU EVER SERVED ASALEGAL OFFICER?

YES

NO

(IF YES, INDICATE THE FOLLOWING):
DATE

COMMAND

DESCIFTION OF DUTIES

A
B
21 HAVEYOU (AS OIC^COMMANDINGOFFICER) EVER CONVENED:
NUMBER

YEAR(S)

A,

SUMMARY COURTS MARTL^L:
YES
NO

B

SPECIAL COURTS MARTIAL:
YES
NO

C,

ARTICLE32 INVESTIGATIONS:
YES
NO

D

HAVEYOU EVER IMPOSED NONJUDICIAL PUNISHMENT UNDERARTICLE 15?
YES
NO

22810

COURTMEMBER QUESTIONNAIRE(CONTINUED)
22,HAVEYOUEVERSERVEDASASUMMARY COURTMARTIAL OFFICER?
YES

N0(IFYES,1NDICATETHE FOLLOWING):

NUMBER OFTIMES:

DATES (YEARS ONLY):

23 HAVEYOU EVERSERVEDASATRIALCOUNSELORDEFENSE
YES

COUNSEL?

NO(IF YES, INDICATE THE FOLLOWING):

NUMBER OFTIMES:

DATES(YEARSONLY):

24 HAVEYOUBEEN APPOINTED ASAMEMBER 0FAGENERAL0RSPEC1ALC0URTMARTIAL
WITHINTHELAST12M0NTHS?
YES
NO(IF YES, INDICATETHE FOLLOWING):
CASENAME

MOB^R

SPCM

GCM

B

25 HAVEYOU HAD E^FERIENCEASAMEMBEROFAGENERALORSPECIALCOURTMARTIAL
PRIOR TO THE LAST 12M0NTHS?
YES
NO
(1FYES,FLEASE INDICATETHE FOLLOWING):
HOWMANYTIMES

DATE(YEARSONLY)

SPCM:
GCM:
26 HAVEYOU, ORANY CLOSE RELATIVE, EVERBEENAVICTIMOFACRIME? (DO NOT
INCLUDE MINORINCIDENTS):
YES
NO(IFYES, INDICATE NATURE OFTHE
CRIME, HOWLONG AGO IT OCCURRED, THE RELATIONSHIPOFTHE VICTIM TO YOU,
WHETHER THE PERPETRATORWASARRESTEDOR CONVICTED),

B
C
(CONTINUEONLASTPAGE IFNECESSARY)

22811

COURTMEMBER QUESTIONNAIRE(CONTINUED)
27 HAVEY0UEVERSERVEDASAJUR0RINACIVILIANTR1AL(EITHER STATE ORFEDERAL)?
YES
NO (IF YES, INDICATE AS FOLLOWS):
YEAR CIVILOR CRIMINAL CASE

STATEORFEDERALCOURT

B
C,
28 HAVEYO0EVERBEENAW1TNESSATACOURTMARTIAL?
29

YES

NO

ISTHEREANYTHINGINYOURBACKGROUNDORE^FERIENCETHATMIGHTAFFECTYOUR
ABILITYTO SERVEASAMEMBER OFTHE COURT?
YES
NO
(IFYES,E^PLAIN BRIEFLY)

30 PLEASE PROVIDE THE FOLLOWING INFORMATION TO ENSURE THATWE ARE ABLE TO
CONTACTYOU:
A

DUTY PHONE:

B

HOME PHONE:

C

CELLUARPHONE:

D

PAGER:

E

E MAIL ADDRESS:

F DUTYFA^:
F

DUTY MAILING
ADDRESS

22812

UNITED STATESOF AMERICA

Manning,BradleyE.
PFCUS.Army,
HHCU.S.ArmyGarrison,
.loint Base Myer-Henderson Hall
FortMyer,Virginia 22211

Prosecution Response
to Defense Proposed
Court Member Questionnaire
Enclosure2
ll.Iuly2012

22813

COURTMEMBER
SUPPLEMENTAL OUESTIONNAIRE
(FLEASEFRINT CLEARLY)
This questionnaire is submitted to detailed court members under Rule fbr Courts-Martial912(a)(l),
Manual fbr Courts-Martial,Its purpose is to provide counsel with general infbrmation relevant toamember^s
pariieipation inaparticular case,This infbrmation will be made available to trial and defense counsel befbre
trial so that they may have general infbrmation aboutamember^s background befbre assembly ofthe court and
is also available to the military judge,Disclosureofthis infbrmation is voluntary,Nondisclosure may requirea
member to provide such matters at trial,By requesting this infbrmation onaonetime basis befbre you actually
serve asamember,repetitive questions and unnecessary delay can be avoided,Your responses should be
forwarded to the Office ofthe StaffJudgeAdvocate,ATTN: Chief Criminal Law Division,
1, Name:
2, Rank:

3, Date ofrank:

4, Sex:

5, Race:

6. Unit Assignment:
7, Present Duty Position and Description:
8, Length ofPresent Assignment:
9, Name and Title ofSupervisor:
10, Summary ofresidences for past three years:
FROM^TO

CITY.STATE. COUNTRY

A
B
C
D
(Continue on last page ifnecessary)
11, Have you ever hadaSIFRNETaccount or worked onaclassified computer?
12, Have you ever handled dassified infbrmation in any fbrm?
1

YES

YES
NO

NO

22814

13. Have you ever printed dassified infbrmation or saved classified information toaCD or other removable
media?
YES
NO
14. Have you ever worked inaSensitive Compartmented InfbrmationFacility (SCIF)?

YES

NO

15. Have you ever worked inafacility that authorized open storage of classified infbrmation?
YES
NO
16. Have you ever removed classified information fromagovernment facility?
17. Have you ever been an authorized courierof classified infbrmation?

YES
YES

18. Have you ever been deniedasecurity clearance or hadasecurity clearance revoked?
Ifyes, please indicate when and the reason:

NO

NO
YES

NO

19. Are you aware ofSoldiers who have been denied security clearances or had security dearances revoked?
YES
NO Ifyes, please indicate when, the reason,and your involvement (ifany):

20, Summary ofdvilian employment fbr past ten years (ifany):
FROM^TO

EMPLOYER

TITLE^UTIES

A
B

D
(Continue on last page ifnecessary)
21, Do you have any difficulty reading or writing the English language?
explain:

YES

NO Ifyes, please

22, Do you have any dependants besides your children and spouse (listed on original questionnaire)?
YES
NO Ifyes, please list their relationship to you, as well as their sex and age:

23, Summary of current and^or former spouse'semployment fbr past ten years (if any):
FROM^TO
A

EMPLOYER

TITLE^UTIES

22815

B
C,
D
E,
F
G
(Continue on last page ifnecessary)
24, What special recognitions, awards, medals, or commendations did your current and^or former spouse
receive (if any)?
25, Has your current and^orfbrmer spouse deployed?
locations:

YES

26. Is your current and^or former spouseahigh school graduate?

NO Ifyes, please give dates and
YES

NO

27. Has your current and^or former spouse attended anytechnical or trade schools or college, as an
undergraduate or graduate student?
YES
NO Ifyes, indicate the fbllowing:
1STSCHOOL

2D SCHOOL

3D SCHOOL

Name of school:
Location:

^^^^

Years Attended:
Major:
Minor:
Degree(s)
Received (ifany):
28. Has your current and^or former spouse attended anymilitarytraining^education?
Ifyes, indicate the fbllowing:

YES

NO

22816

NAME OF SCHOOL COURSE^AREA OF STUDY YEARSATTENDED DEGREESAWARDED
A.
B
C.
D
(Continue on last page ifnecessary)
29. How many individuals lived in the household in which you were raised?
relationship to you(e.g.,father,stepbrother, etc,)?

What was their

30, Did any family member receive any special recognitions, awards, medals, or commendations fbr serving in
any branch ofthe Army Forces?
YES
NO Ifyes, please list them:
31, Have any ofyour family members deployed?
locations:

YES

NO Ifyes, please give dates and

32, What newspapers do you regularly read or subscribe to (if any)?
33, What magazines, joumals, or other periodicals do you regularly read or subscribe to (ifany)?
34, How ofien do you listen to the radio?

Towhich stations and^or programs do you listen?

35, What is your main source of news?
36, Which television news programs do you watch?
37, Are you most interested in local, state, national, or world news?
38, Do you typically watch any news magazine programs (Dateline NBC,20^20, 60 Minutes,48 Hours, etc,)?
YES
NO If yes,which programs?
39, How would you describe yourself on sodal issues(e,g,,very conservative, conservative, moderate, liberal,
very liberal) and why?

22817

40, How would you describe yourself on religious issues(e,g,,very conservative, conservative, moderate,
liberal, very liberal) and why?^
41, How would you describe yourself on political issues(e,g,,very conservative, conservative, moderate,
liberal, very liberal) and why?
42, What is your general opinion about psychiatrists, psychologists, sodal workers, counselors, or other mental
health professionals?
43, Have you, any family member or closefi^iendever been accused, arrested or convicted ofacriminal
oflense?
YES
NO Ifyes, please explain:
44, Do you know anyone who has been confined injail or incarcerated in prison?
yes, please explain:

YES

NO If

45, What is your personal opinion about the militaryjustice system (ifany)?
46. Do you believe that the militaryjustice system is fair?

YES

NO Please explain your answer:

47. What is the first thing that comes to your mind when you think ofthe following:
a. Criminal Defense Attomey:
b. Prosecuting Attorney:
48. What criminal cases have you followed in the media and why did you follow those cases?
49, What is your opinion about the accuracy ofmediareporis about crimes in general?
50, The Accused in this case is PFC Bradley Manning, The website WikiLeaks is also involved in this case.
Do you know,or believe you know,anything about this case, from any source, including the newspaper, radio,
television, or discussions with others?
YES
NO If yes, from which sources,what have you
heard, read, seen, or talked about concerning this case and what is your reaction to that infbrmation?

51, Based on what you have heard, read, seen, or discussed concerning this case, have you formed any opinions
conceming the people involved in this case?
YES
NO Ifyes, please explain those opinions:

22818

52, Based on what you have heard, read, seen, or discussed conceming this case, have you formed any opinions
on how the case is being handled and what the outcome should be?
YES
NO Ifyes, please
explain those opinions:

53, Have you ever counsdedaSoldier regarding his^er sexual preference?
please explain when and what prompted your counseling ofthe Soldier:

YES

NO Ifyes,

54, Have you ever initiated administrative separation againstaSolider based on his^er sexual preference?
YES
NO If yes, please explain when,why,and what happened to the Soldier:

55, Have you ever recommended separation ofaSoldier based on his^er sexual preference?
YES
NO If yes,when and approximately how manytimes?

56. Do you agree with the repeal ofDADT? Why or why not?
57, Have you seen any negative impact from the repeal ofDADT?
you seen?

YES

NO Ifyes, what have

58, Have you seen any positive impact from the repeal ofDADT?
you seen?

YES

NO lfyes,whathave

59, Are any members ofyour immediate family homosexual?
60, Are any ofyour dose friends homosexual?

YES

61, What do you think when you seeacross-dresser on the street?

YES
NO

NO

22819

62, Have you worked with Department ofState personnel?

YES

NO If yes,when and where?

What was your attitude towards Department ofState personnel?
63, Please rank in order ofimportance to you the following purposes fbr punishment inacriminalcase(l being
the most important and5being the least important):
Closure
Deterrence
Punishment
Rehabilitation
Revenge
Please explain your answer:
For the following four statements, please indicate whether you strongly agree, moderately agree, slightly agree,
strongly disagree, moderately disagree, or slightly disagree and explain your answer:
64, An Accused'smotive in committingacrime is relevant to punishment:
65. If the case isahigh profile case, it is important to ensure the punishment is severe to send the
appropriate message:
66, Aperson should receiveaharsh sentence in order to deter othersfi^omcommittingasimilaroffense:
^7. It is possible thatacriminal act can actually provideabenefit to an individual oragroup of people:
68, Asaresult ofyour having been asked to fill out this questionnaire, have you formed any opinions about this
case?
YES
NO If yes,what opinions?
69, Is there anything that was not asked that you believe is important to know about you?
NO Ifyes, please explain?
70, Is there anything that you would like to discuss privately with the court?
please explain?

YES

YES

NO Ifyes,

22820

71, Please provide any updated contact infbrmation:
Duty Phone:
Home Phone:
Cellular Phone:
E-mail address:

Signature

22821

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE MOTION TO
V. COMPEL PRODUCTION

OF WITNESSES AND EVIDENCE
FOR ARTICLE 13 MOTION

MANNING, Bradley E., PFC

Us. Army.

Headquarters and Headquarters Company, U.S.
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer. VA 22211

DATED: 13 July 2012



RELIEF SOUGHT

l. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rule
for Courts Martial (RCM) 703(b)( 1) and 703(f)(1), requests this Court to compel production of
the below listed witnesses and evidence.

BACKGROUND

2. On 29 May 2010, PFC Manning was detained by agents from the Anny?s Criminal
Investigation Division (CID). The CID agents held PFC Manning in a secured area on Forward
Operating Base Hammer. Iraq until he could be transported to the Theater Field Con?nement
Facility (TFCF) at Camp Arifjan, Kuwait. After 59 days, PFC Manning was transported from
the TFCF and arrived at Marine Corps Base Quantico (MC BQ) Pretrial Con?nement Facility
on 29 July 2010.

3. Once at the MC BQ PCF, PFC Manning was placed in Maximum (MAX) custody and under
the special handling instructions of Suicide Risk (SR). Over the course of the following few
weeks, PFC Manning was seen and treated by mental health professionals at the PCF. On 6
August 2010, one of these professionals, Capt. William Hocter, determined that PFC Manning
was no longer a suicide risk. Capt. Hocter recommended that PFC Manning be moved from
Suicide Risk to Prevention of Injury (POI) status. On 1 I August 2010, the PCF commander,
CWO4 James Averhart directed PFC Manning be moved from Suicide Risk to POI.

4. Over the course of the following three weeks. PFC Manning was observed by the Brig staff
and received regular treatment from the Brig PFC Manning did not receive any
disciplinary reports or adverse spot evaluations; he was respectful, courteous and well spoken;
and was evaluated as an average detainee that presented no problems to the staff or other
inmates.

5. On 27 August 2010, Capt. Hocter determined that PFC Manning was no longer considered a
risk of self-harm. Capt. Hocter recommended that PFC Manning be taken off of POI status and

APPELLATE EXHIBIT
PAGE

0 0 22822

that his con?nement classi?cation be changed from MAX to Medium Detention-In (MDI). The
PCF Commander did not follow Capt. Hocter?s recommendation.

6. Over the course of the next eight months, Capt. Hocter as well as other mental health
professionals made recommendations to remove PFC Manning from POI status. Despite their
consistent and repeated recommendations, PFC Manning remained in MAX and POI. On two
occasions, the Brigplaced PFC Manning on MAX and SR. The upgrade of PFC Manning from
POI to SR was done over the recommendations of PCF mental health professionals.

7. PFC Manning ?led several complaints regarding his custody status of MAX and POI. He
?led a complaint directly to CWO4 Averhart; ?led an RCM 305(g) request to the Special Court-
Martial Convening Authority; ?led an Article 138, Uniform Code of Military Justice (UCMJ)
complaint; and sought to complain to Mr. Juan Mendez, the United Nations (UN) Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. All of
PFC Manning?s efforts were unsuccessful.

ARGUMENT

8. The Defense?s Article 13, UCMJ, motion will be ?led on 27 July 2012. Although the Court
does not have the bene?t of the Defense?s motion, the underlying facts, and the supporting
documentation at this time, the Defense nonetheless requests that the Court grant the Defense?s
motion to compel production of these witnesses because their testimony is relevant and
necessary to the motion at issue.

9. The Defense has been eminently reasonable in its request for witnesses. It has only requested
that a total of seven witnesses be produced in support of its motion. Given the duration of the
unlawful pretrial punishment (approximately 8 months) and the number of witnesses that the
Defense could potentially have called (several dozen), the Defense ?nds it disingenuous that the
Government would resist production of these two witnesses. Lest it remind the Government, the
Government plans on calling twenty-two witnesses from the Department of State alone.

10. The Defense should be entitled to present its theory or theories of pretrial punishment in the
manner of its choosing. That the Government does not agree with the theory, or the evidence
presented, is of no moment. The Government can ultimately argue that the evidence is not
persuasive or does not convincingly support the Defense?s argument. However, that does not
mean that the Defense should not be entitled to present that evidence to the Court.

1 1. There is an asymmetry in the military justice system, whereby the Government can call any
witness that it would like in support of its motions while the Defense must ?run its witnesses
by the Govemment? for the Government?s approval. This must, of course, ultimately rest on the
good faith of the prosecutor to not willy-nilly challenge Defense witnesses in order to: a) erect
unnecessary hurdles for the Defense; and b) to use the challenges to ?ush out the Defense?s
theory before its time. Here, there was no reason for the Government to oppose production of
these two particular witnesses. Their testimony is facially relevant to the unlawful pretrial
punishment issue. Moreover, the Defense suspects that the Government will likely call at least

0 0 22823

double the number of witnesses that the Defense has put on its witness list to rebut allegations of
unlawful pretrial punishment. The stark imbalance cannot be tolerated.

A. The Government Must Produce All Witnesses and Evidence Relevant and Necessary to
the Defense.

12. The Defense is entitled to production of witnesses whose testimony ?would be relevant and
necessary? to a matter in issue. RCM 703(b)(1). In determining relevance of the witness, a court
must turn to the Military Rules of Evidence. See, United States v. Breeding, 44 M.J. 345,
351 (C.A.A.F. 1996). A witness is necessary when the witness is not cumulative, and when the
witness would contribute to a party?s presentation of the case in some positive way on a matter in
issue.? United States v. Credit, 8 M.J. 190, 193 (CMA 1980); see also United States v. Williams,
3 M.J. 239 (C.M.A. 1977).

i. LTC Dawn Hilton

13. LTC Hilton is the commander of the Fort Leavenworth Joint Regional Correctional Facility
(J RCF). LTC Hilton can describe the process of PFC Manning being transferred from the
MCBQ PCF to the JRCF on 19 April 2011. She can discuss the nine days PFC Manning spent
going through the normal indoctrination process. She can also discuss why, after completing the
indoctrination process, PFC Manning was held in medium custody will all privileges of a normal
pretrial detainee. LTC Hilton can testify regarding the determination that PFC Manning
did not need to be held in a POI status. Finally, LTC Hilton can testify regarding PFC
Manning?s behavior since being held in medium custody status. Speci?cally, that PFC Manning
has not engaged in any self-harm behavior, engaged in any assaultive behavior towards the
guards, or made any attempt to escape from custody.

14. Contrary to the Government?s representation to the Court, LTC Hilton is not being called by
the Defense to question another commander?s decision at a different con?nement facility.
Additionally the Government wholly misses the mark when it believes LTC Hilton is not
relevant because the Defense ?does not alleged that the accused?s con?nement at the RCF
violated Article 13.? See Appellate Exhibit CXCV at 1-2. The Government, in bad faith, also
uses its opportunity to oppose the production of LTC Hilton to bring up an incident between PFC
Manning and another pretrial detainee on 10 December 2011. The Government fails to note that
this incident occurred eight months after PFC Manning?s arrival at the RCF and in response to a
verbal threat. The Government also does not mention how PFC Manning was reprimanded for
his conduct but then was subsequently returned to medium custody with all normal privileges.
The Government also fails to mention that the other pretrial detainee involved in the altercation
was a repeated disciplinary problem and spent the majority of his remaining time in
administrative segregation.

15. ?Relevant evidence? means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence. MRE 401. LTC Hilton?s testimony is directly relevant to one
aspect of the Defense?s theory of why PFC Manning?s con?nement at the MCBQ PCF
constituted unlawful pretrial punishment. The Defense will present evidence that PFC

0 22824

Marming?s custody status at the MCBQ PCF was the result of a direct order by Col. Robert G.
Oltman, the Security Battalion Commander and senior rater of the Brig Commander, CWO4
James Averhart . Although the Defense believes Col. Oltman may deny giving this order, a
subsequent reiteration of this order was witnessed by Capt. Hocter and Capt. Brian Moore. The
fact that PFC Manning was immediately downgraded to Medium Custody with no POI
restrictions after completing his indoctrination period at the JRCF makes it more likely that his
custody status while at the MCBQ PCF was not for a legitimate non-punitive basis. In other
words, the fact that PFC Manning went from MAX and POI at MCBQ to Medium Custody (with
no POI restrictions) at the RCF virtually overnight is evidence that he was improperly held in
MAX and P01 to begin with. Courts are permitted to consider after-the-fact events to determine
the reasonableness and legitimacy of custodial classi?cations. See United States v. Kinzer, 56
M.J. 739, 741 (N -M. Ct. Crim. App. fact that the appellant was released from special
quarters the very next day after securing a pretrial agreement that limited his post-trial
con?nement to only three years is strong evidence that his assignment to special quarters was
based primarily upon a length-of-sentence policy, and not upon other appropriate factors.
Accordingly, we ?nd that the decision to place the appellant in special quarters was based on an
arbitrary policy and resulted in the imposition of conditions more rigorous than necessary to
insure his presence for

16. The Defense does not object to LTC Hilton testifying by telephone. RCM 703(b)(1) (stating
that the military judge may authorize any witness to testify via remote means).

ii. Mr. Juan Mendez

17. Mr. Mendez is the United Nations Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment. Mr. Mendez will testify about his communications with the
U.S. Government regarding the con?nement conditions of PFC Manning. He will testify that he
was told that the con?nement conditions were imposed on PFC Manning due to the seriousness
of the offenses. He will also testify that the U.S. Government informed him that PFC Marming
was not being held in ?solitary confinement? but was being held in ?prevention of harm watch?
but would not offer any details about what harm was being prevented by such a status. He will
also testify regarding his efforts to meet with PFC Manning for an unmonitored conversation.
Despite his numerous requests, he will testify that he was informed that his conversation would
be monitored. Mr. Mendez will testify that the U.S. Govemment?s refusal to allow unmonitored
conversations with PFC Manning violates international norms and U.N. requirements, as
documented in an of?cial report he prepared. Due to the U.S. Govemment?s continued refusal to
allow unmonitored conversations, Mr. Mendez had to decline the opportunity to meet with PFC
Manning. Mr. Mendez will also testify that he was aware, through Mr. Coombs, that PFC
Manning also believed that an umnonitored meeting was not in his best interests. The reason
unmonitored visits were not in PFC Manning?s best interest was due to the fact that he would
likely face a reprisal for anything that he said to Mr. Mendez.

18. Contrary to the Government?s representation to the Court, Mr. Mendez did not decline to
meet with PFC Marming due to PFC Manning?s refusal to have an unmonitored conversation.
The attached report by Mr. Mendez clearly states:

0 0 22825

The US Government authorized the visit but ascertained that it could not ensure
that the conversation would not be monitored. Since a non-private conversation
with an inmate would violate the terms of reference applied universally in fact-
?nding by Special Procedures, the Special Rapporteur had to decline the
invitation.

See Attachment A (emphasis added).

19. ?Relevant evidence? means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable than it
would be without the evidence. MRE 401. Mr. M?ndez?s testimony is directly relevant to
several aspects of the Defense?s unlawful pretrial punishment argument. First, the Defense will
use Mr. Mendez?s testimony?s to support its argument that PFC Manning was held under unduly
onerous con?nement conditions owing solely to the seriousness of the charges against him.
Of?cials told Mr. Mendez that this was the primary reason for the onerous conditions of PFC
Marming?s con?nement. Second, the Defense will argue that the failure to allow PFC Manning
to have access to Mr. M?ndez for an unmonitored visit where PFC Manning could freely discuss
the conditions of his con?nement in the hopes of getting some type of reprieve from them itself
amounts to unlawful pretrial punishment. Because everyone at the MCBQ PCF was abiding by
Col. 0ltman?s unlawful order to not remove PFC Manning from MAX or POI, there was
nowhere for PFC Manning to go other than outside the chain of command to potentially get
relief. Case law has repeatedly emphasized the importance of the accused seeking out any and
all forms of relief in an Article 13 claim. The failure to permit PFC Manning an unmonitored
visit with the UN Special Rapporteur on Torture was designed to cover up from public view the
wrongs that were being perpetrated at MCBQ. Extensive documentation will be introduced
showing how brig rules were being deliberately read in an absurd manner (by both the
Government and officials at MCBQ) in order to deny Mr. Mendez?s visit. Third, Mr. Mendez
will testify that the Government?s refusal to allow unmonitored visits was surprising to him and
was in violation of international norms. Mr. Mendez will also testify generally about his
knowledge of solitary con?nement being in violation of international law. The Defense believes
that Mr. Mendez?s testimony regarding international norms speaks to the issue of whether there
was pretrial punishment and also speaks to the appropriate remedy for such punishment
conduct that is so egregious that it rises to the level of a violation of international law warrants a
greater remedy than a simple breach, say, of brig regulations).

20. Mr. Mendez has volunteered to testify. He resides in Washington D.C. and would not
present a signi?cant cost to the Government nor would his presence result in a delay in the
proceedings.

ii. Requested Evidence

21. The Defense has requested that the Government produce three pieces of evidence for the
Court?s consideration: the issued suicide prevention smock, suicide prevention blanket, and
suicide prevention mattress. RCM Each piece of requested evidence can be
obtained from MCBQ.

0 0 22826

22. The requested evidence is directly relevant to the defense?s theory of why PFC Manning?s
con?nement at the MCBQ PCF constituted unlawful pretrial punishment. Each piece of
evidence will independently demonstrate an aspect of the onerous conditions PFC Manning was
unnecessarily subjected to while at MCBQ PCF. The requested evidence will also demonstrate
how PFC Manning was held under conditions more rigorous than necessary to ensure his
presence for trial. PFC Manning was subjected to each of the requested evidentiary items due to
the MCBQ determination to hold him either on SR or POI status from 29 July 2010 to 19
April 2011.

23. Shortly after the deciding to strip PFC Manning of all of his clothing at night on 2 March
2011 (something that the Defense submits itself amount to unlawful punishment), the MCBQ
PCF decided to require PFC Manning to wear a suicide prevention article of clothing called a
?smock? at night. Due to PFC Manning?s size and the coarseness of the smock, he had dif?culty
sleeping. The suicide smock that he was required to wear was not designed for someone of his
size. It is important for the Court to see the smock in relations to PFC Manning?s size to assess
the reasonableness of this restriction.

24. Additionally, the smock itself posed a risk of harm to PFC Manning. On one occasion, PFC
Manning got trapped inside the smock. The situation is explained in an Incident Report on 13
March 2011:

Ma?am, on the above date and time while performing my duties as special
quarters supervisor, I, LCPL Miller, noticed Det. Manning #10075/9504 had his
head and arms inside of his POI jump suit. I then woke up SND and told him that
I need to see his face and to poke his head out. While doing what I instructed him
to do, SND realized he was stuck and began to roll around, saying, hate this
stupid thing.? I then told SND to calm down and stand up and try to pull the POI
jump suit over his head, but his anns were still stuck. I then called for the watch
supervisor, CPL Sanders, to come down to special quarters to look at the situation
and get permission to open cell 191 and help SND. Upon CPL Sanders arrival, he
evaluated the situation and opened cell 191 to help SND free his arms. Once
SND was situated, I then told him not to put his head and arms inside his POI
jump suit again, and that if he is cold to use his second POI blanket instead. The
DBS was then noti?ed and this report was written, and the incident was recorded
on camera.

See Attachment B.

25. The Brig did not believe the smock precaution was needed and had consistently
determined that PFC Manning was not a risk of self harm. Nonetheless, the MCBQ PCF
commander, then CWO2 Denise Barnes, refused to change the decision to require PFC Manning
to surrender his clothing and wear a smock at night. Her decision was not based upon a
legitimate non-punitive basis, and thus constituted an additional aspect of unlawful pretrial
punishment at the hands of MCBQ PCF.

0 0 22827

26. PFC Manning was also not allowed to have a pillow or sheets. Instead he was provided with
a suicide prevention mattress with a built-in pillow and a tear proof suicide prevention blanket.
The provided mattress was uncomfortable and dif?cult for PFC Manning to sleep on.
Additionally, the suicide prevention blanket was coarse and would frequently cause either a rash
or a burn to PFC Manning?s skin. As with the suicide smock, the Brig did not
believe the suicide prevention measures of the mattress and tear proof blanket were necessary.

27. Contrary to the Govemment?s representation to the Court, a picture of the above requested
items will not be suf?cient for the Court to ?understand its purpose, limitations, or possible
effect.? See Appellate Exhibit CXCV at 2. The requested evidence is under the control of the
Government. The requested production is not unreasonable or oppressive. As such, the
Defense?s request should be granted.

CONCLUSION

28. For the above reasons, the Defense requests this Court compel production of the above listed
witnesses and evidence.

Respectfully submitted,



DAVID EDWARD COOMBS
Civilian Defense Counsel

ATTACHMENT A

22829

A/HRC/19/61/Add.4

United Kingdom of Great Britain and Northern Ireland
(a) UA 23/02/2011 Case No. GBR 1/2011 State reply: None to date Alleged risk Of torture

tor asylum seeker facing deportation.
168. The Special Rapporteur regrets that the Government of the United Kingdom of
Great Britain and Northern Ireland has not responded to this communication, thereby
failing to cooperate with the mandate issued by the Human Rights Council. The
communication referred to allegations of risk of torture for Mr. X, a homosexual man, i f
returned to Burundi. The Special Rapporteur reiterates that article 3 of the UN Convention
against Torture holds that no State party shall expel, return ('Tefouler"), or extradite a
person to another State where there arc substantial grounds for believing that the person
would be in danger of being subjected to torture. Based on the information received, the
Special Rapporteur determines that the rights of Mr, X under the UN Convention against
Torture are at risk of being violated. The Special Rapporteur calls on the Government not to
extradite Mr. X until a fair assessment of his risk of torture is conducted. In this context,
diplomatic assurances do not mitigate the Govemment's obligation to refrain from violating
the non-refoulement provision.
(b) JAL 11/11/2011 Case No. GBR 6/2011 State reply; 13/01/2012 26/01/2012 Concerns

regarding the remit and conduct of the forthcoming United Kingdom of Great Britain
and Northern Ireland (UK) Detainee Inquiry.
169. The Special Rapporteur is grateful to the Government for its responses to this
communication. Given the on-going dialogue between the mandate and the Government on
this case, the Special Rapporteur decides not to make observations on this case in the
present report.

United states of America
(a) UA 30/12/2010 Case No. USA 20/2010 Stale reply: 27/01/2011 19/05/2011 Allegations of

prolonged solitary confinement of a soldier charged with the unauthorized disclosure
of classified information.
170. The Special Rapporteur thanks the Govemment of the United States of America for
its response to this communication regarding the alleged prolonged solitary confinement of
Mr. Bradley E. Manning, a US soldier charged with the unauthorized disclosure of
classified information. According to the information received, Mr. Manning was held in
solitary confinement for twenty-three hours a day following his arrest in May 2010 in Iraq,
and continuing through his transfer to the brig at Marine Corps Base Quantico. His solitary
confinement - lasting about eleven months - was terminated upon his transfer from
Quantico to the .loint Regional Correctional Facility at Fort Leavenworth on 20 April 2011.
In his report, the Special Rapporteur stressed that "solitary confinement is a harsh measure
which may cau.se serious psychological and physiological adverse effects on individuals
regardless of their specific conditions." Moreover, "[djepending on the specific reason for
its application, conditions, length, effects and other circumstances, solitary confinement can
amount to a breach of article 7 ofthe Intemational Covenant on Civil and Political Rights,
and to an act defined in article 1 or article 16 of the Convention against Torture." (A/66/268
paras. 79 and 80) Before the transfer of Pfc Manning to Fort Leavenworth, the Special
Rapporteur requested an opportunity to interview him in order to ascertain the precise
conditions ofhis detention. The US Govemment authorized the visit but ascertained that it
could not ensure that the conversation would not be monitored. Since a non-private
conversation with an inmate would violate the terms of reference applied universally in
fact-finding by Special Procedures, the Special Rapporteur had to decline the invitation. In

74

22830

A^HI^r^/l^/^l/AdtlBl

response to the Special Rapporteur'srequest for the reason to hold an unindicted detainee

in^olitar^t^onlitii^mt^nt,tli^^ovt^rtitti^ntrt^5poii^^tltliatlii^r^^imt^owa^tiot^^^^^
confinement''but ^^preventionofbarmwatch^'but did not offer details about what barm was
being presented. Tothe SpecialRapporteur'srequest for infomiation on the authority to
impose and the purpose of the isolation regime, the govemment responded that the prison
rules authori^^edthebrigcommandertoimposc itonaccountoftheseriousnessofthe
offense fbr which he would eventually be charged. The Special Rapporteur concludes that
imposing seriously punitive conditions ofdetention on someone whohas not been fi^und
guilty of any crime isaviolation ofhis right to physical and psychological integrity as well
as ofhis presumption of innocence.The Special Rapporteur again renews his request fora
private and unmonitored meeting with Mr. Manning to assess his conditions of detention.
(b) ALI^/06/20IICaseNoUSA8/2011State reply; None to date ^Ollo^uptoalettersenl

t^l^ay^Ott regueslingaprivateunmonitoredmeeting with private (^fc.)Bradley
l^anning.
171. The Special Rapporteur thanks the Government ofthe United States of America for
its response to the cotnmunication dated 13May2011 requestingaprivate unmonitored
meeting with Private Bradley Manning. Regrettably, to date the Government continues to
refuse toallow the Special Rapporteur to conductprivate, unmonitored, andprivileged
communications withPrivate Manning, inaccordance with the working methodsofhis
mandate(l^/CN^/2006/6paras. 20-27)
(C) IUA19/08/2011CaseNo USA^/^^^^

treatment in immigration facilities
172. The Special Rapporteur regrets that the Government ofthe United States of America
to date has not responded to the communication dated 19 August 2011, regardingthe
allegations of torture and ill-treatment in immigration facilities According to the
information received,16gay and transgender individuals have allegedly been subjected to
solitary contmement, torture and ill-treatment while in detention in U.S. immigration
facilities Furthermore, there was reportedly a lack of protection irom persecutionand
respect for the principle of non-refoulement for those whorisktortureif returned to their
home countries on account oftbeirse.^ual orientation, gender identity or Hl'^ status In this
regard, the Special Rapporteur would like to draw the attentionof the Govemment to
paragraph6ofGetteral Comment No. 20 of the Human Rights Committee, to article7of
the Basic Principles for the Treatment of Prisoners, to the Body of Principles forthe
Protection of All Persons underAny Form ofl^etention or Imprisot^ment and the Standard
Minimum Rulesfi;;^rtheTreatmentofPrisoners,particularly rule 22 (2).Given thelackof
atiy evidences to the contrary,the Special rapporteur believes that the fact reveal that there
havebeen various violations of the provisionsunder the Convention againstTorture,in
particular breach of articles7and 12.The Special Rapporteur calls on the Government to
undertake a prompt and impartial investigation on the conditions of detention, solitary
confinement and illtreatment of theimmigrants,prosecute and punishthose responsible,
and ensure that the victims obtain redress, including fair and adequate compensation, ands
as full rehabilitation as possible
(d^ AL 16/09/2011 CaseNoUSAI6/2011Statereply;30/ll/201lAlleged^idespreaduseof

solitary confinements including its prolonged and indefinite use and the imposition Of
solitary confinement on individuals ^illi mental disaliililies.
173. The Special Rapporteur is gratefiil thatthe Governmentof the United Statesof
America replied to the allegation letterofl6Septetr^ber201l.Considering theon-going
dialogue on the issues raised between the mandate and the Govemment, the Special
Rapporteur decides not to make observations on this case in the present report. He
encourages the Govemment to continue its engagement with the mandate.

0 0 22831

ATTACHMENT

0 22832

INCIDENT REPORT FACILITY)
(Rev. 6-83)

Complete this form In TRIPLICATE. Ensure that all information Is CORRECT and LEGIBLE. Forward original and one copy to the
Administration Chief. One copy is to be retained by the Security Chiel or OIC oI the individual's organization it the incident occured

outside the facility.

Tug we
MARINE CORPS BASE PRETRIAL CONFINEMENT FACILITY Ocio 20110313
INDIVI INVOLVED
NAME FIRST MI LOCA INJURED ATUS

MANNING NO





DUTY STATUS - Light No Dug. Bed Rest, Admitted NRMC, Other
I

I AK nu

ON THE ABOVE DATE AND TIME WHILE PERFORMING MY DUTIES AS SPECIAL QUAR TERS
SUPERVISOR I. LCPL MILLER. NOTICED DET HAD HIS HEAD AND ARMS INSIDE OF HIS
POI JUMP SUIT. I THEN UP SND AND TOLD HIM THAT I NEED TO SEE HIS FACE AND TO POKE HIS HEAD
OUT. WHILE DOING I INSTRUCTED HIM TO Do, SND REALIZED HE WAS STUCK AND BEGAN TO ROLL
AROUND SAYING, HATE THIS STUPID I THEN TOLD SND TO CALM DOWN AND STAND UP TO TRY TO
PULL THE POI JUMP SUIT OVER HIS HEAD, BUT HIS ARMS WERE STILL STUCK. I THEN CALLED FOR THE
SUPERVISOR, CPL SANDERS, TO COME DOWN TO SPECIAL OUARTERS TO LOOK AT THE SITUATION
AND GET PERMISSION TO OPEN CELL 191 AND HELP SND. UPON CPL SANDERS ARRIVAL HE EVALUATED THE
SITUATION AND OPENED CELL 191 TO HELP SND FREE HIS ARMS ONCE SND WAS SITUATED I THEN TOLD HIM
NOT To PUT HIS HEAD AND ARMS INSIDE HIS POI JUMP SUIT AGAIN, AND THAT IF HE IS COLD To USE HIS
SECOND POI BLANKET INSTEAD. THE OBS WAS THEN NOTIFIED AND THIS REPORT WAS WRITTEN, AND THE

INCIDENT WAS RECORED ON CAMERA. EOS ..



MI RSR., J. E.

PU SMCI SEC II

TIME MOULANCE CALLCO TIMC SENT TO TIMC SENT TO HOSPITAL TIME RETUMED T0 FACILIW
NIA
FOLLOWING PERSONS NOTIFIED






NAME PERSON MAKING CALLS






TITLE
15



ADMIN CHIEF

PROGRAMS CHIEF
OPERATIONS CHIEF
BRIG SUPERVISOR

BRIG COMMANDER
NAME. canoe.

LCPL MILLER
















20110313

DATE







FOR OFFICIAL USE

ManningB__42936

22833

To PROSPECTIVE

MEMBERS

This questionnaire is designed to obtain information from you with respect
to your qualifications to sit as a member in this case. By the use of the
questionnaire, the process of member selection will be shortened.
Please do not discuss any of these questions or your answers with any other
prospective members. Please respond to the following questions as
completely as possible.
The answers to these questions will be used by the Court and the attorneys
solely for the selection of the panel members in this case and for no other
reason. The information contained within the questionnaire will become
part of the Court's permanent record, but it will not be distributed to anyone
except the attorneys in the case and the Judge,
During the later questioning by the attorneys, you will be given an
opportunity to explain or expand any of your answers, if necessary. If there
are any answers or explanations you would prefer to answer in private,
please write the word, "PRIVATE next to the question. If you do not
understand a question, please write "/ DO NOT UNDERSTAND" and the
question will be explained to you. If your answers or explanations to any
question will not fit completely in the space provided, please use the back
of the page, making sure to indicate in the space provided under the
question that you have continued your answer on the back. In addition,
please make sure to write the number of the question/answer you are
completing with the remainder of your answer.

( ^ ^

APPELLATE EXHIBIT ^ C l ^
PAGE ki:FHRENCED:
CoNFiDENnAi
PAGE 1 OF 23

: AGH_L_CF%1 PAOi^

22834

DATE PREPARED:

MEMBER NUMBER:

COURT-MARTIAL MEMBER QUESTIONNAIRE
(PLEASE PRINT CLEARLY & USE BLACK INK)

BACKGROUND
1.

2,

Full name:
(First)

(Middle)
Age:

Date of birth:

(Maiden, if applicable)

(Last)
Sex:

Race:

Birthplace (City/Town & State):
3.

Please provide the following information for any other locations at which you have lived in the
DATES

TowN/CiTY, STATE, COUNTRY

LENGTH OF RESIDENCE

MILITARY SERVICE

4.

5.
6.

Current duty station and office telephone number:

Date of rate/rank:

Rate/rank:
MOS:
Job title, description and duties:

Length of present assignment:
Name and title of supervisor: _
Do you now have, or have you ever had the authority to train, supervise, assign, evaluate, or
discipline others? • YES • No IF YES, Please describe your feelings concerning the
importance of mentoring junior enlisted:

8.

Why do junior enlisted need to be mentored?

PAGE 2 of 23

22835

^

Flave any of you ever heard the expression with proper leadership, failure is not an option?^^ If
so, what does that term mean to you?

Flave you ever been deniedasecurity clearance or hadasecurity clearance revoked?
OYES ONo

If ^lE^, please indicate when and the reason for the denial or revocation:

Flave you ever had seen another soldier been deniedasecurity clearance or hadasecurity
clearance revoked?
OYES O N o

^2

please indicate why:

If

please indicate why:

Have you ever worked as a military police, in military law enforcement or investigations?
O YES

DATES

If

Do you believe that the command should revokeasoldiers security clearance if the soldier
exhibitsanysignsaggressiontowardsothersoldiers?
OYES ONo

14.

please indicate when and the reason for the denial or revocation:

Do you believe that the command should revokeasoldiers security clearance if the soldier
exhibitsanysignsofmentaloremotional instability?
OYES O N o

13

If

O NO

If YES, please indicate:

RANK

DUTIES

P A G E 3 of 23

22836

15. Were you ever involved in combat? O YES

1^

O NO If YES, please give dates and locations:

Do you believe thatacommand should depioyasoldier if the soldier exhibits signs of
mental or emotional instability?
OYES ONo

If ^ 0 , please indicate why:

17.

Years of active duty:

18.

(Officers only) Source of commission:

19.

(Officers only) Have you had any enlisted service? O YES O NO

DATES

YEARS

If YES, please indicate:

HIGHEST RANK

CIVILIAN EMPLOYMENT

20.

Have you ever been employed as a civilian? O YES
fo lowing for each employment:

DATES

LENGTH OF
EMPLOYMENT

NAME & NATURE OF
BUSINESS

O NO

If YES, please indicate the

TITLE & DUTIES

EDUCATION

21.

Is English your first language? O YES D NO If NO, what was your first language and when
did you begin speaking English?

22.

What is the primary language spoken in your home?

PAGE 4 of 23

22837

23.

Do you have any difficulty in reading or writing the English language? O YES O No If y£S,
please explain:

24.

Have you attended technical or trade schools (including any military schools)? O YES O
No If YES, please indicate the following for each school vou attended:

DATES

25.

NAME OF SCHOOL

MAJOR

Have you attended college (undergraduate) O YES O NO
fo lowing for each undergraduate college you attended:

DATES

NAME OF SCHOOL

LOCATION (CITY/STATE)

MAJOR

Hfo lowing for each posi -graduate school you attended:

26.
DATES

27.

NAME OF SCHOOL

LOCATION (CITY/STATE)

MAJOR

MINOR

DEGREE EARNED

If YES, please indicate the
MINOR

DEGREE EARNED

If YES, please indicate the
MINOR

DEGREE EARNED

Have you attended law school, or taken any law courses (including any Army schools)?
O YES O NO

DATES

28.

LOCATION (CITY/STATE)

If YES, please indicate the following for each:

NAME OF SCHOOL

LOCATION (CITY/STATE)

LENGTH

TOPIC

DEGREE EARNED

Have you taken any courses, seminar, or training in the following areas (please check all
that apply):
O BIOLOGY

O CHEMISTRY

O CONSTITUTIONAL LAW

O COUNSELING

O CRIMINAL JUSTICE

O CRIMINOLOGY

O CRISIS INTERVENTION

O EDUCATION

D EMERGENCY RESPONSE O FAMILY THERAPY

O LAW ENFORCEMENT

O MEDICINE

O PHARMACOLOGY

O PHILOSOPHY

O PSYCHOLOGY

O PSYCHIATRY

O RELIGION

O SOCIAL WORK

O SOCIOLOGY

P A G E 5 of 23

22838

MARITAL STATUS^SPOUSE INFORMATION

29

Please indicate your current personal status:



SINGLE (NEVER BEEN MARRIED)



SEPARATED (HOW L O N G ? )



DIVORCED (HOW L O N G ? )



DIVORCED/REMARRIED (HOW LONG?)



W I D O W E D (HOW L O N G ? )



WIDOWED/REMARRIED (HOW LONG?) .

30,

Current and/or former spouse's employer, job title, description and duties:

31,

Is or has your (current and/or former) spouse ever been employed as a civilian? O YES O
NO
If YES, please indicate the following for each employment during the previous five

DATES

32.

LENGTH OF
EMPLOYMENT

NAME & NATURE OF
BUSINESS

TITLE & DUTIES

Has your (current and/or former) spouse ever served in any branch of the Armed Forces?
O YES O NO If YES, please give a summary of your spouse's military career (please
include all significant or unusual jobs and service in any other branch of the Armed

DATES BRANCH ENLIST/COMMISSION/
REENLIST

HIGHEST
RANK

DUTY
DUTIES & SPECIFIC ASSIGNMENT
STATION/COMMAND

DATE/TYPE OF
DISCHARGE

33.

What special recognition, awards, medals or commendations did your current and/or former
spouse receive?

34.

Has your current and/or former spouse ever worked as a military police, in military law
enforcement or investigations?

O YES

O N O If VES, please indicate:

PAGE 6 of 23

22839

DATES

RANK

DUTIES

35^

Has your current and^or former spouse ever been involved in combat? OYES O N o If
^ES, please give dates and locations:

3^,

Is your current and^or former spouseahigh school graduate?

37,

Has your current and^or former spouse attended any technical or trade schools (including
any military schools)? OYES ONo
attended:

DATES

38.

NAME OF SCHOOL

OYES ONo

If YES, please indicate the following for each school

LOCATION ^ClTY/STATE)

MAJOR

MINOR

DEGREE EARNED

Has your current and/or former spouse attended college (undergraduate): O YES O No
If YES, please indiccite the following for each undergraduate college attended:

DATES

39.
DATES

40.

NAME OF COLLEGE

LOCATION (CITY/STATE)

MINOR

DEGREE EARNED

Has your current and/or former spouse attended post-graduate school? O YES O N O If
YES, please indicate the following for each post-graduate school attended:
NAME OF SCHOOL

LOCATION (CITY/STATE)

MAJOR

MINOR

DEGREE EARNED

Has your current and/or former spouse attended law school, or taken any law courses
(including any schools)? O YES O NO

DATES

MAJOR

NAME OF SCHOOL

If YES, please indicate the following for each:

LOCATION (CITY/STATE)

PAGE 7 of 23

LENGTH

TOPIC

DEGREE EARNED

22840

41,

Please provide the following information about each of your children, stepchildren, foster

RELATIONSHIP(SON,
STEPSON, ETC)

42,

SEX

EDUCATION

CURRENT/LAST
OCCUPATION

STATUS

LIVINGINYOUR
HOME

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

Please provide the following information about each parent, Stepparent, foster parent or

RELATIONSHIP (PATHER,
AUNT,ETC^^

43

AGE

AGE

EDUCATION

CURRENT/LAST
OCCUPATION

STATUS

LIVINGINYOUR
HOME

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

Pleaseprovidethefollowinginformationabouteachsibling,stepsibling,fostersiblingor
anyone raised wit hyou:

RELATIONSHIP(BROTHER,
COUSIN, ETC,^

AGE

EDUCATION

CURRENT/LAST
OCCUPATION

STATUS

LIVING INYOURHOME

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

OI^IVING

OOEC^ASEO

OYES

ONO

OLIVING

ODECEASED

OYES

ONO

FAMILYMlLITARY SERVICE

44

Have your parents (including stepparents orfosterparents)or siblings (including stepsiblings

RELATIONSHIP DATES

BRANCH

ENLIST/COMMISSION/
REENLIST

HIGHEST
RANK

PAGE^of23

DUTIES^SPECIFIC ASSIGNMENT

22841

4^^

What special recognition, awards, medals or commendations did any of those listed above
receive?

46,

Have any of those listed above everworked asamilitary police,in military law enforcement

orinvesti^ ations?
RELATIONSHIP

47^^

OYES ONo

DATES

If YES, please indicate:
DUTIES

RANK

Have any of those listed above ever been involved in combat? OYES ONo If YES, please
give dates and locations for each:

INTERESTS^I^OBBIES

48

Pleaselistthecivilclubs, societies, professionalassociations,orotherorgani^ationstowhich
you now belong,orto which you have belonged in the past:

49

Have you ever served as an officer or heldaposition of leadership in any ofthese
organisations? OYES ONo

If YES^ please explain:

50

Towhichcharitableorgani^ationsdoyoucontributemoney,time,servicesorresources,and
whydidyouchoosethoseorgani^ations?

51

What are your hobbies:

52

What do you enjoy doing in your spare time:

53,

Whatwerethelastthreebooksyou have read: (1)
(^)^

54

In general, what types of books do you most often read?

PAGE^of23

22842

55^

Have you ever readabook about releasing classified information or any similar action? OYES
O N o If YES^ which book,who was the author, what trial or crime and why were you
interested?

What newspapers do you regularly read or subscribe to:
What magazines, journals or other periodicals do you regularly read or subscribe to:

58,

Have you everwrittenaletterto the editor? OYES ONo
write and why did you decide to write the letter:

If YES^ about what issue did you

5^,

Do you usually read for

60

Howoftendoyoulistentotheradio,whichstationsandwhichprogramsdoyouusuallylisten
to?

61

Approximately how many hours perweek do you spend watching television?

62

Whattelevisionshowsdoyouwatchregularly:(1)

O ENTERTAINMENTPURPOSES orfor O BusiNESSPURPOSES?

(^)^

63

What is your main source of news?

64

Which television news programs do you usually watch for local, state, national and world
news?

65

Are you most interested in Local, State, l^ational or World news?

66.

Do you typically watch any news magazine programs (Dateline NBC, 20/20, 60 Minutes, 48
Hours, etc.)? D YES

O No If YES, which programs?

67.

How often do you go to see a movie?

68.

In general, what types of movies do you most prefer (i.e. romantic comedies, dramas, action,
mysteries, science fiction, etc.)?

69.

70.

What are the last three movies you went to see: (1)
(2)
(3) _
On social issues, are you:

PAGE

ioof 23

22843

O VERY CONSERVATIVE

O CONSERVATIVE

O MODERATE

O LIBERAL

D VERY

LIBERAL

PLEASE EXPLAIN:

71.

Please list the 3 people you admire or respect the most and tell us why:
(1)

m
(3)
72.

Please list the 3 people you admire or respect the least and tell us why.
(1)

73.

Please list the one person you feel most influenced your life, either positively or negatively,
and tell us why:

74.

Please list the one event you feel most influenced your life, either positively or negatively,
and tell us why.

YOUNG INDIVIDUALS

75,

Do you have any children? D YES D NO If YES, please indicate the gender and age of
each of your children.

76.

Does anyone believe that young individuals are susceptible to make mistakes in judgment?
O YES O NO Please indicate why you feel this way.

PAGE I I of 23

22844

Does anyone believe that the legal drinking age should be lower than 21 years of age?
OYES ONo Please indicate why you feel this way

78,

Does anyone believe that21 is too young foraperson to get married? OYES O N o
Please indicate why you feel this way,

79

Why do you believe that rental car companies do not rent cars to individuals under the age
of25?

80,

Have you ever heard the expression kids these days think that they know it all?'^
OYES ONo IfYes,what does this expression mean to you?

81

Do you believe thatthetypical20somethingyearoldbelievesthatthey^^knowitall?"
OYES ONo Please indicate why you feel this way

8^

Do believe thatit is r^ot unusual foraperson in their e^rly twenties to believethat they C2in
dosomethingtomakeadifferenceorchangetheworld?OYES
why you feel this way.

ONo Please indicate

RELIGION
83
Oni^e^i^i^^s issues, do you consider yourself to be:
O VERY CONSERVATIVE
PLEASE E^PLA/^B

OCONSERVATIVE OMODERATE

PAGE^2of23

OLiBERAL

OVERY LIBERAL

22845

POLITICAL

84.

Are you a registered voter? O YES

85.

During which elections do you usually vote (please select all that apply):
0 LOCAL

86.

O NO

DO you vote regularly?

D STATE

O YES

O NO

O NATIONAL

On political issues, do you consider yourself to be:
O VERY CONSERVATIVE

O CONSERVATIVE

O MODERATE

O LIBERAL

O VERY LIBERAL

PLEASE EXPLAIN:

87.

Have you ever signed a petition? O YES O NO
issue(s):

If YES, please tell us what were the

88.

Have you ever participated in a march, protest or demonstration? O YES O NO
please tell us when and what were the issue(s):

If YES,

PSYCHOLOGY

89,

Have you or any family members or close friends ever worked in the mental health or related
field (psychiatrist, psychologist, psychiatric nurse, social worker, counselor, etc,)? O YES O NO
If YES, please tell us who, when and what that person's job duties included:

90.

Have you ever read books or articles dealing with psychiatry, psychology, social work or
mental health issues? O YES O NO If YES, please tell us which books, when and why you
read them:

91.

Have you ever taken any courses or seminars in the fields of psychiatry, psychology, social
work or counseling? O YES O NO If YES, please tell us what courses, when and why you
took those courses or seminars:

92.

What are your thoughts, feelings or opinions, in general, about psychiatrists, psychologists,
social workers, counselors or other mental health professionals?

93.

Do you know any psychiatrists, psychologists, social workers or counselors on a personal or
professional basis? O YES O NO If YES, please tell us who, what type of work they do and
P A G E 13 of 23

^

22846

the nature of your relationship with that person:

Have you ever known anyone who you believe suffered from severe emotional problems?
OYESONo

95,

If YES, please explain:

Have you or anyfamily members or any close friends ever undergone counseling,treatment,
or hospitalization for psychiatric, emotional,family, or behavioral problems? OYES O N o
If YES, please tell us who and provide the details, including the name of the hospital, doctor
orcounselorseen, diagnosis, treatmentand outcome:

96.

Have you followed any criminal cases that involved testimony about severe emotional
problems experienced by the person accused ofacrime? O Y E S O N o If YES, what was
thecase,whydidyoufollowit,whatwastheoutcomeandwhatwereyourfeelingsabout
the outcome?

^BUSE
97

Have you or any family members or close friends ever volunteered time, money,services,
materials, etc to any children's protective service, crisis intervention, emergency response,
emergencymedical care, firedepartment, search and rescue, shelters, oranyorganizations
involved in helping victims of abuse,in general? OYES ONo If YES, who was involved,
how was that person involved and why did that person become involved?

98.

Have you or any member of your family or friends ever used any of the above services?
OYESONo

99

If YES, please explain:

Do you know anyone who has experienced any type of abusive relationship (sexual abuse,
physical abuse, verbal abuse,emotional^psychological abuse, etc)? OYES ONo IfYES,
please explain:
PAGE^^of23

22847

100

Ifaperson experiences abuses asachild,how do you believe that might impact their social
abilitieswith others asayoung adult?

CRIME
101

Have you,any family member or close friend ever been accused,arrested or convicted ofa
criminal offense? OYES ONo

If YES,,please explain:

102

Do you know anyone who has been in jail orwho has been to prison? O Y E s O N o
please explain:

103

Do you believe that there are some serious crimes wherealengthy jail sentence would serve
nolegitimatepurpose? O Y E S O N o

If YES,

lfYES,pleaseexplain:

MILITARY JUSTICE SYSTEM
104 What is your personal opinion aboutthe militaryjustice system?

105

Do you believe the military justice system is fair?OYES ONo PLEASE E^^LA/z^YOL//^
A^SI^E^^

106

Do you believe the military justice should be influenced by outside civilian pressures to send
amessageincertaincases?OYES

ONo^LEASEE^PLA/^YO^/^A/^si^Ei^

MILITARY LAW
107

Have you ever served as summary courtmartial officer? OYES ONo IfYES, please
provide information about when, the cases and results:
PAGE^2of23

22848

108

Have you ever convened (as OlC^Commanding Officer) any of the following, and if YES, to
any,please explain:
SUMMARY COURT-MARTIAL

OYES ONO

SPECIAL COURT-MARTIAL

OYESONO

ARTICLE 32 INVESTIGATION

OYES ONO

GENERAL COURT-MARTIAL
109.

OYES ONO

Have you ever imposed nonjudicial punishment under LICI^J,Article15?0YES
IfYES, please explain:

ONo

COURTEXPERIENCE^JURY^MEMBER SERVICE
110

Have you everwatched any criminal trial(civilian or military) in person? OYES ONo
YES, please explain circumstances:

111,

Have you or any family members or friends ever worked in the justice system (military or

If

civilian)? OYES ONo If YES, please tell us who, when,what were their duties and are
theystillworkingthere?

112

Have you or any family members orfriends ever beenaparty to,awitness for any criminal
trial (military or civilian)? OYES ONo
circumstances?

113

lfYES,who,whenandwhatwerethe

Have you served asapanel member inacourtsmartialorajuror in any civilian criminal
trial? OYES ONo IfYES, please explain the type of case,whether provide the following
information for each:

DATE

TYPE/NATURE OF
CASE

PINDINGS?

oNG
oNG
oNG
oNG

oG
oG
oG
oG

oNG

oG

PUNISHMENT ASSESSED?

OYES
oYES
oYES
oYES
OYES

WHATWAS THE PUNISHMENT?

ONO
oNO
oNO
ONO
oNO

LEGAL
114

Have you or anyone you know ever worked foralawyer or law firm? OYES ONo IfYES,
who, which lawyer or law firm, what type of law does that lawyer^firm practice and what were
your^their job responsibilities:
PAGE^^of23

22849

115

Do you know any lawyers,prosecutors or judges onapersonal or professional basis?
OYES ONo If YES, who do you know, what type of law does that person practice and
what is the nature of your relationship?

116

What is the first thing that comes to your mind when you think of a:
Criminal Defense Attorney:

Prosecuting Attorney:

CASE SPECIFICS

117

What criminal cases have you followed in the media and why did you follow those cases?

118

What is your opinion about the accuracy of media reports about crimes, in general?

119

This case involves the disclosure of classified information to WikiLeaks The individual
accusedofcommittingthisactisPFCOradleyiyianning Doyouknow,orbelieveyouknow,
anythingaboutthiscase,fromanysource,includingthenewspaper,radio,televisionor
discussions with others? OYES ONo If YES, from which sources,what have you heard,
read, seen or talked about concerning this case and what is your reaction to that
information?
^

120

^ased on what you have heard, read, seen or discussed concerning this case, what
opinions have you formed concerning the people involved?
PAGE^7of23

22850

121

Oased on what you have heard, read, seen or discussed concerning this case, have you
formed any opinions on how the case is being handled and what the outcome should be?

BEING^AYINTHEMlLITARY

122

HaveyouevercounseledaSoliderregardinghis^hersexualpreference?
YES, please explain what prompted your counseling of the soldier:

123

Have youeverinitiatedOCiyi^ action againstaSoldierbased on his^hersexual preference?
OYES ONo

124

IfYES, please explain what prompted you to initiate L^CI^^ action:

Have you everinitiated administrative separation action againstaSoldierbased on his/her
sexual preference?OYES ONo
administrative separation action:

125

IfYES, please explain what prompted you to initiate

Have you ever recommended separation ofaSoldier based on his her sexual preference?
OYES O N o

126,

OYESONo

IfYES, approximately how many times?

Do you agree with the repeal ofDADT? Why orwhy not?
PAGE^^of23

If

22851

127

Have you seen any negative impact from the repeal ofDADT? If so, what?

128,

Have you seen any positive impact from the repeal ofDADT? If so,what?

129

Are any members of your immediate family gay?OYES ONo

130

Are anyofyourclosefriendsgay? OYES ONo

131

Doyouopposegaymarriage?OYES ONo

PAGE^^of23

IfYES, pleaseexplainwhy.

22852

GENDER IDENTITY DISORDER

Gender Identity Di8order is a diagnosis used by medical professionals to describe
individuals who are discontent with the gender they were assigned at birth. Criteria
for a diagnosis of GID include long standing and strong identification with another
gender, long-standing disquiet about the sex assigned or a sense of incongruity in
the gender-assigned role of that sex and significant clinical discomfort or impairment
at work, social situations, or other important life areas.
132.

Do you agree that an individual who is discontent with his/her gender has a disorder? O YES
• No please explain why,

133.

Do any members of your family have GID? O YES ONo

134.

Do any of your close friends have GID? 0 YES O No

135.

What do you think when you see a cross-dresser on the street?

136.

Do you agree that the military, under the former policy of DADT, would limit a Soldier's
ability to fully explore his/her sexuality? O YES O NO please explain why

137.

Are you open to the idea that a person with GID might struggle emotionally in a military
environment? O YES O NO please explain why
P A G E 20 of 23

22853

OEPLOYMENTS
138

Have youdeployedtolrag or Afghanistan? OYES ONolfl^cpleaseskiptoOuestion
141 IfYES, please provide the date(s)andlocation(s)of your deployment:

139

How would you characterize your deployment experience?

140

Do you feel like your efforts contributed to the overall mission accomplishment?

OYES

O N o Please explain:

141

Did youworkwith Depart OfState personnelduringyourdeployment? OYES
Yes, what was your attitude towards DoS personnel?

ONo If

PUNISHMENT
INAGENERALCOURTMARTIAL, MEMBERS MUST DETERMINE IF THE PROSECUTION HAS PROVED
ITS CASE AGAINST THE DEFENDANT. IF THE MEMBERS FIND THE DEFENDANT NOT GUILTY,THE
MEMBERS WILL NOT NEED TOCONSIDERI^UNISHMENT. HOWEVER, IFTHE PROSECUTION PROVES ITS
CASE AGAINST THE DEFENDANT, THE MEMBERS MUST CONSIDER PUNISHMENT. SINCE THERE HAS
BEEN NO EVIDENCE PRESENTED YET, THE COURT CANNOT KNOWWHATTHE EVIDENCE IN THIS CASE
WILLBE,WHETHERORNOTYOUWILLFINDTHEDEFENDANTGUILTYOFANYTHINGATALL,ANDIFTHE
MEMBERS WILL CONSIDER PUNISHMENT ORNOT.
THEREFORE, THE COURT MUST ASK OUESTIONS ABOUT YOUR THOUGHTS, FEELINGS AND OPINIONS
ABOUTALLA^^LICABLE PUNISHMENT OPTIONS NOW, 8 E E 0 / ^ E Y 0 ^ ^ A V E ^ E A ^ D A ^ Y E I B / D E ^ C E .
THE FACTTHATTHESE OUESTIONS ARE BEING ASKEDOFYOUNOWIS NOT MEANTTOSUGGESTTHAT
PAGE2^of23

22854

YOU WILL EVER HAVE TO CONSIDER I^UNISHMENTANO YOU SHOULD NOTASSUME FROM ANY OF
THESE OUESTIONS THATTHE DEFENDANT IS GUILTY.
THE MEMBERS WILL 0/^LY CONSIDER
PUNISHMENT / E T H E I^ROSECUTION PROVES ITS CASE AGAINST THE DEFENDANT BEYOND A
REASONABLEDOUBT.

142.

Please rank in order of importance to you the following purposes for punishment in a
criminal case {1 being most important and 5 being least important):


CLOSURE



DETERRENCE



PUNISHMENT



REHABILITATION



REVENGE

PLEASE EXPLAIN YOUR ANSWER:

FOR EACH OF THE FOLLOWING STATEMENTS, PLEASE INDICATE YOUR LEVEL OF AGREEMENT OR
DISAGREEMENT

143.

AND EXPLAIN

YOUR

ANSWER:

No matter how noble the accused's goal was in committing the crime, this should have little
impact on the appropriate punishment.
O

STRONGLY AGREE

O

O

STRONGLY DISAGREE O

MODERATELY AGREE

O

SLIGHTLY AGREE

MODERATELY DISAGREE

O

SLIGHTLY DISAGREE

PLEASE EXPLAIN YOUR ANSWER:

144.

If the case is a high profile case, it is important to ensure the punishment is severe to send the
appropriate message.
O

STRONGLY AGREE

O

MODERATELY AGREE

O

SLIGHTLY AGREE

O

STRONGLY DISAGREE

O

MODERATELY DISAGREE

O

SLIGHTLY DISAGREE

PLEASE EXPLAIN YOUR ANSWER:

145.

A person who has given classified information to an unauthorized person should receive a
harsh sentence in order to deter others from committing a similar offense.

D

STRONGLY AGREE

O

MODERATELY AGREE

O

STRONGLY DISAGREE

O

MODERATELY DISAGREE

PLEASE EXPLAIN YOUR ANSWER:

P A G E 22 of 23

O
o
o

SLIGHTLY AGREE
SLIGHTLY DISAGREE

22855

146.

It is possible that a criminal act can actually provide a benefit to an individual or a group of
people.
O

STRONGLY AGREE

O

D

STRONGLY DISAGREE

MODERATELY AGREE
O

O

MODERATELY DISAGREE

SLIGHTLY AGREE
O

SLIGHTLY DISAGREE

PLEASE EXPLAIN YOUR ANSWER:

147.

A person who has given classified information to an unauthorized person should receive a
harsh sentence in order to deter others from committing a similar offense.

O

STRONGLY AGREE

O

MODERATELY AGREE

O

SLIGHTLY AGREE

O

STRONGLY

O

MODERATELY

O

SLIGHTLY

DISAGREE

DISAGREE

DISAGREE

PLEASE EXPLAIN YOUR ANSWER:

148

Asaresult of your having been asked to fill out this guestionnaire,have you formed any
opinions about this case? OYES ONo

149.

If YES, please explain:

Knowing what only you can know about yourself, if you or someone you love was on trial for
the charged offenses in this case, would you want someone with the same thoughts,
feelings, opinions, attitudes and life experiences as you to serve as a Member? O YES O
No

150.

PLEASE EXPLAIN YOUR ANSWER:

Is there anything that was not asked that you believe is important to know about you?
O YES O NO If YES, please explain:

151.

Is there anything that you would like to discuss privately with the court? O YES O NO
If YES, please explain:

P A G E 23 of 23

22856

UNITED STATES OF AMERICA

Manning, Bradley E.
PFC, U.S. Army,
HHC, U S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
>
)
)
)
)

Prosecution Notice to Court of
Identification of
Additional CIA Information

12 July 2012

NOTICE
The United States hereby provides notice to the Court that the United States leamed on
11 July 2012 that the CIA has drafted another report analyzing the impact of the WikiLeaks
disclosures on a discrete matter. The report is a follow-on report to the original WikiLeaks Task
Force Report, The United States intends to review the additional report on 13 July 2012 and
intends to submit any applicable filings to the Court no later than 3 August 2012.

ASHDEN FEIN
MAJ, JA
Trial Counsel

I certify that I served or caused to be served a true copy of the above on Mr. David
Coombs, Civilian Defense Counsel via electronic mail, on 12 July 2012.

ASHDEN FEIN
MAJ, JA
Trial Counsel

APPELLATE EXHIBIT Zo^
PAGE REFERENCED.
PAGE_L OF \ PAGES^

22857

UNITED STATES OF AMERICA
V.

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)
)
)
)
)
)
)
)
)

Prosecution Request for Leave
until 18 July 2012 to File
a Protective Order and Motion for
Interim Protective Order
to Preclude Defense from Publishing
Defense Notice under MRE 505(h)(3):
Charged Documents
11 July 2012

1. The United States requests leave of the Court until 18 July 2012 to file a Motion for a
protective order in accordance with the Court's Interim Order: Govemment Request for Leave
to File Protective Order(s) dated 28 March 2012 and the Court's Order: Govemment Motion:
Protective Order(s) dated 24 April 2012.
2. The United States also requests that the Court order the Defense not to publish Defense
Notice under Military Rule of Evidence 505(h)(3): Charged Documents (hereinafter Defense
Notice) until the United States has the ability to determine whether a request for a protective
order is necessary.
3. The United States believes that the Defense Notice may contain classified information. In
general, the Defense describes the content of a classified video, for which an original
classification authority (OCA) conducted a classification review and identified as classified. The
United States is working with CENTCOM, the relevant OCA, to determine whether the
information the Defense provided is classified because it came from a classified video. To the
best of the prosecution's knowledge, the information provided by the Defense is only available
to an individual who has viewed the classified video. CENTCOM advised the prosecution that it
requires additional time to make this determination because the subject matter expert for this
topic has departed the command. Accordingly, the United States requests until 18 July 2012 to
coordinate with CENTCOM and to file a Protective Order, if necessary.
4. This request will not necessitate any delay in the proceedings or delay in responding to the
defense, as the United States still intends to respond on 11 July 2012 to the Defense Notice in a
separate filing.

ALEXANDER VON ELTEN
CPT, JA
Assistant Trial Counsel

APPELLATE EXHIHT_CCJX.
Pace

L«fP«8e
22858

David Coombs

From: David Coombs

Sent: Monday, July 16, 2012 7:49 PM

To: ?Lind, Denise COL USARMY ?Williams, Patricia A CN 'Jefferson, Dashawn
MSG USARMY

Cc: Hurley, Thomas MAJ OSD OMC Defense; 'Tooman, Joshua CPT USARMY 'Fein,
Ashden MAJ USA 'Overgaard, Angel M. CPT USA JFHQ-
?Morrow JoDean, CPT USA 'Whyte, Jeffrey H.
CPT USA

Subject: United States v. Martinelli Question

Attachments: Martine|li.docx

Ma?am,

I?ve had an opportunity to look at the United States v. Martinelli case that you asked me about today in oral
argument, and do not believe that it can be read to support the proposition that the Government is entitled to a
lesser-included offense for a fatally defective speci?cation. First, as I indicated in oral argument today, the
context in which Martinelli was decided is very different than the context in which the issue presents itself
here. In Martinelli, the court was assessing the providence of the accused?s guilty plea a?er a case was decided;
it was not assessing whether the government was entitled to an instruction on a lesser-included offense at the
outset of the case where the court has found as a fact that the evidence falls short of establishing a legally
cognizable defense.

More importantly, though, the reason why the offense was not cognizable in Martinelli is very different than the
reason why it is not cognizable here. This difference means that an instruction on the lesser included offense
might have been appropriate in Martinelli, but not in the instant case. In Martinelli, the accused was charged
under clause 3 with violating the Child Pornography Prevention Act (CPPA) for certain acts he was alleged to
have committed while in Germany. After the accused pled guilty to the speci?cations, the court determined that
the CPPA could not apply extraterritorially to the conduct at issue; hence, the clause 3 offenses were not
cognizable. The court upheld clause 1 and 2 offenses as being lesser-included offenses of the clause 3 offense.

However, it is important to look at the speci?cations in Martinelli to understand why they could survive in that
case and why they carmot survive in the instant case. The speci?cations in Martinelli were as follows:

Speci?cation 1: knowingly mailing, transporting or shipping child pornography in interstate or foreign
commerce (by computer) in violation of 2252A(a)(l) (speci?cally, sending images over the Internet
from the Netzwork Internet Caf? in Dannstadt, Germany);

Speci?cation 2: knowingly receiving child pornography that has been mailed, shipped or transported in
interstate or foreign commerce (by computer) in violation of (speci?cally,
downloading images from the Internet in the Netzwork Internet Caf? in Darmstadt, Germany);

Speci?cation 3: knowingly reproducing child pornography for distribution through the mails, or in
interstate or foreign commerce (by computer) in violation of 2252A(a)(3) (speci?cally, downloading
images from the Internet; copying them to hard drive and transmitting the copied files to approximately
twenty individuals over the Internet in the Netzwork Internet af? in Darmstadt, Germany);

Speci?cation 4: knowingly possessing child pornography on land and in a building used by and under

APPELLATE EXHIBIT C.
1 PAGE
PAGE 4 or 4 PAGES





22859
the control of the United SIQS Government in violation of (speci?cally, possessing

approximately ?fty diskettes containing child pornography in buildings at the Cambrai Fritsch Kaserne).

Notably, once the judge removed the reference to ?in violation of [the the underlying factual acts
could still be proved so as to form the basis for an Article 134 offense. In other words, in Martinelli, it wasn?t
the Govemment?s underlying theory that was de?cient. It was simply that the statute did not extend so as to
cover acts outside the continental United States.

Otherwise stated, even though the offenses were not cognizable as crimes under the CPPA, the factual acts
underlying the original speci?cations could still be proven and made the basis for a lesser-included offense
under Article 134. For instance, under speci?cation 1, the government was still capable of proving that the
accused ?knowingly mailing, transporting or shipping child pornography in interstate or foreign commerce (by
computer)? and that such conduct was prejudicial to good order and discipline. Removal of the offending
statute (the CPPA) from the speci?cation did not change the ability of the government to prove the underlying
offense.

In the instant case, the factual acts underlying the original speci?cation cannot be proven because the conduct
involves ?exceeding authorized access? as de?ned by section 103 0. In other words, the speci?cation cannot be
proved simply by removing reference to section 1030 as the court did in Martinelli and other cases like it. See
United States v. Monette, 2006 WL 6625267, *1 (Army Ct. Crim. court modi?ed the ?ndings of
guilty to Speci?cations Additional Charge II by deleting all Title 18 nomenclature
referring to the CPPA, and, for each affected speci?cation, af?rmed a lesser-included simple disorder under
Article 134?) (emphasis supplied).

For instance, in speci?cation 13 of Charge II, the Government pleads that PFC Manning:

did, at or near Contingency Operating Station Hammer, Iraq, between on or about 28 March
2010 and on or about 27 May 2010, having knowingly exceeded authorized access on a Secret
Internet Protocol Router Network computer, and by means of such conduct having obtained . . .
more than seventy-?ve classi?ed United States Department of State cables, willfully
communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted the said
information, to a person not entitled to receive it, with reason to believe that such information so
obtained could be used to the injury of the United States, or to the advantage of any foreign
nation, in violation of 18 U.S. Code Section

If the Court were simply to remove the language ?in violation of 18 U.S. Code Section 1030(a)(l)? from the
speci?cation as did the court in Martinelli, the Government would still not be able to prove the offense because
the offense derives from section 1030 and ?exceeds authorized access? is de?ned by the terms of that

statute. Thus, this court carmot simply create a lesser-included offense by deleting the Section 1030
?nomenclature? from the speci?cation as the court did in Martinelli.

In order to state an Article 134 offense based on this conduct, the Government would actually need to change
the speci?cation to allege some other conduct not in the speci?cation g. the accused used Wget to obtain the
cables). In other Words, we would be dealing with an amendment to the speci?cation and not a lesser-included
offense. The Defense submits that this would be a major amendment under R.C.M. 603 that cannot be made
over the objection of the accused.

To the Defense?s knowledge, there is no military case that has permitted the government to proceed with lesser-
included offense of a clause 3 offense which is not legally cognizable because the Government does not have
the factual evidence to proceed. Speci?cally, there is no case (Martinelli included) where a court has
determined pretrial that the Government doesn?t have any evidence for an essential element of an offense and
nevertheless has allowed the government to go forward with an uncharged lesser-included offense.



22860
. Accordingly, the Defense submitrQ1tMartinelli does not permit this Coua ?nd a lesser-included offense

where the entire theory underlying the speci?cation is de?cient. Any Article 134 offense would require a major
amendment to the speci?cation which is not permitted over the objection of the accused.

v/r
David

David E. Coombs, Esq.

Law Of?ce of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



Notice: This transmission, including attachments, may contain con?dential attomey-client
information and is intended for the person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying or use of this information may be

unlawful and is prohibited.*

22861

^ITEI^STATE^OFAl^E^^GA

^
^

V

^

banning, Bradley E.
PEG, U.S.Army,
EIHG, U.S. Army Garrison,
Joint l^aseMyerEIenderson^all
FortMyer^^ir^inia^^^II

)
^
^
^
^
^

I^is^uted questions
in Proposed
Court Member ^t^estionnaire^
17 July ^1^1^

A, The prosecution objects to the inclusion of the following de^nse proposed questions and
statements in the supplemental court member questionnaire:
1, Do you now have, or have you ever had the authority to train, supervise, assign, evaluate, or
discipline others7 o ^ ^ ^ o N o IF^ES,Please describe your ^clings conceming the importance
of mentoringjunior enlisted:
2, Why dojunior enlisted need to be mentored7
3, Have any ofyou ever heard the expression ^^with proper leadership, ^ilure is not an options" I f
so, what does that term mean to you7
4, Do you believe that the command should revokeasoldier'ssecurity clearance if the soldier
exhibits any signs ofmental or emotional instability^
o^^^ oNo If : i ^ ^ , please indicate why:
5, Do you believe that the command should revokeasoldier'ssecurity clearance if the soldier
exhibits any signs aggression towards other soldiers7
o^i2^^ oNo If
please indicate why:
6, Do you believe thatacommand should deployasoldier if the soldier exhibits signs ofmental or
emotional instability^
o^^^ oNo IfA^^, please indicate why:
7, Please list the civil clubs, societies, prolessional associations, or other organizations to which you
now belong, or to which you have belonged in the past:
8, Have you ever served as an officer or heldaposition ofleadership in any of these organizations^
o^i^^oNo If
please explain
9, Towhich charitable organizations do you contribute money,time, services orresources, and why
did you choose those organizations7
10, What are your hobbies:
11, What do you enjoy doing in your spare time:
^^^^

APPELLATFI^XHIBIT^^^^^^^^^
PAGEREPI^l^l^NGFD:
^AGE
^OF
PAGE^

22862

12, What were the last three books you have read:
13, In general, what types ofbooks do youmostoftenread7
14, Have you ever readabook about releasing classified inft^rmation or any similar action7
o^^^ oNo I f
which book, who was the author, what trial or crime and why were
youinterested7
15, Have you ever v^ftenaletterto the editor7 o^i2:^oNo If 1^^,^, about what issue did you write
and why did you decide to write the lefter:
16, Doyouusual1yreadft^r

oE^T^i^TAi^^i2:^TPU^0^^^ orloro^U^i^i2:^^PUi^o^^^7

17, Approximately howmany hours perweek do you spend watching television7
18, What television shows do you watchregularly:
19, Howoftendoyougotoseeamovie7
20, In general, what types of movies do you most pre^r(i,e, romantic comedies, dramas, action,
mysteries, science fiction, etc,)7
21, What are the last three movies you went to see;
22, Please list the3people you admire orrespect^^^^^^.^^ and tell us ^^^:
23, Please list the3peop1e you admire or respect ^^^^^^.^^ and tell us ^^^:
24, Please list the one^^^.^^^ you feel most infiuenced your life, either positively or negatively,
and tell us ^^^:
25, Please list the one ^^^^^ you feel most infiuenced your life, either positively or negative1y,and
tell us ^^^:
26, Does anyone believe that young individuals are susceptible to make mistakes in judgment7
o^^^ oNo Please indicate why you feel this way,
27, Does anyone believe that the legal drinking age should be lower than21 years of age7
o^^^ oNo Please indicate why you feel this way,
28, Does anyone believe that21 is too young foraperson to get married7 o^^^ oNo Please
indicate why you ^e1 this way,
29, Why do you believe that rental car companies do not rent cars to individuals under the age of
257

22863

30, Have you ever heard the expression ^^kids these days think that they know it a117"
o'^^^ oNo If^es,what does this expression mean to you7
31, Do you believe that the typical 20 something-year-old believes that they ^^know it all7"
o'^^^ oNo Please indicate why you feel this way,
32, Do believe that it is not unusual foraperson in their early twenties to believe that they can do
something to makeadifference or change the worId7 o^^^ oNo Please indicate why you ^el
this way,
33, Have you ever signedapetition7 o^i2^^oNo If

please tell us what were the issue(s):

34, Have you ever participated inamarch, protest or demonstration7 o ^ i ^ ^ o N o If
tell us when and what were the issue(s):

please

35, Have you ever knov^ anyone who you believe suflered from severe emotional problems7
^ ^ ^ o N o I f 1^^,^, please explain:

o

36, Have you or any ^ ^ i l y members or any closefriendseverundergone counseling, treatment, or
hospitalizationft^rpsychiatric,emotional, ^ ^ i l y , or behavioral probIems7 o ^ i ^ ^ o N o I f i ^ ^ ^
please tell us who and provide the details, including the name ofthe hospital, doctor or counselor
seen, diagnosis, treatment and outcome:
37, Have you followed any criminal cases that involved testimony about severe emotional
problems experienced by the person accused ofacrime7 o ^ ^ ^ o N o If
what was the case,
why did you fr^llowit,what was the outcome and what were your feelings about the outcome7
38, Have you or any family members or closefriendsever volunteered time, money,services,
materials, etc,to any children'sprotective service, crisis intervention, emergency response,
emergency medical care, fire department, search and rescue, shelters, or any organizations involved
in helping victims of abuse, in general7 o^^^ oNo If :^,^, who was involved, howwas that
person involved and why did that person become involved7
39, Have you or any member ofyour family orfriendsever used any ofthe above services7
o ^ ^ ^ o N o If :i^i^, please explain:
40, Do you know anyone who has experienced any type of abusive relationship(sexual abuse,
physical abuse,verbal abuse, emotional/psychological abuse, etc,)7 o ^ ^ ^ o N o I f
please
explain:
41, Ifaperson experiences abuses asachild, how do you believe that might impact their social
abilities with others asayoung adult7
42, Do you believe the military justice should be influenced by outside civilian pressures to senda
message in certain cases7 o^l^^ oNo^^^B^,^^^^^^Bi^^l^^^^^^^l^^B

22864

43, Have you ever watched any criminal trial (civilian or military) in person7 • YES • No I f YES,
please explain circumstances:
44, Do you oppose gay marriage7 • YES • No If YES, please explain why
45, The following description given before a series of Gender Identity Disorder questions: Gender
Identity Disorder is a diagnosis used by medical professionals to describe individuals who are
discontent with the gender they were assigned at birth. Criteria for a diagnosis of GID
include long-standing and strong identification with another gender, long-standing disquiet
about the sex assigned or a sense of incongruity in the gender-assigned role of that sex and
significant clinical discomfort or impairment at work, social situations, or other important life
areas.
46, Do you agree that an individual who is discontent with his/her gender has a disorder7
• YES • No please explain why
47, Do any members of your family have GID7 • YES • No
48, Do any of your close friends have GID7 • YES • No
49, Do you agree that the military, under the former policy ofDADT, would limit a Soldier's ability
to fully explore his/her sexuality7 • YES • No please explain why
50, Are you open to the idea that a person with GID might stmggle emotionally in a military
environment7 • YES • No please explain why
51, How would you characterize your deployment experience7
52, Do you feel like your efforts contributed to the overall mission accomplishment7
o YES • No Please explain:
53, The following description given before a series of punishment questions: I N A GENERAL
COURT MARTIAL, MEMBERS MUST DETERMINE IF THE PROSECUTION HAS PROVED ITS CASE
AGAINST THE DEFENDANT. I F THE MEMBERS FIND THE DEFENDANT NOT GUILTY, THE MEMBERS
WILL NOT NEED TO CONSIDER PUNISHMENT. HOWEVER, IF THE PROSECUTION PROVES ITS CASE
AGAINST THE DEFENDANT, THE MEMBERS MUST CONSIDER PUNISHMENT. SiNCE THERE HAS BEEN
NO EVIDENCE PRESENTED YET, THE COURT CANNOT KNOW WHAT THE EVIDENCE IN THIS CASE
WILL BE, WHETHER OR NOT VOU WILL FIND THE DEFENDANT GUILTY OF ANYTHING AT ALL, AND
IF THE M E M B E R S W I L L C O N S I D E R P U N I S H M E N T O R N O T . T H E R E F O R E , T H E C O U R T M U S T A S K

QUESTIONS A B O U T YOUR THOUGHTS, FEELINGS AND OPINIONS ABOUT ALL APPLICABLE
PUNISHMENT OPTIONS NOW, BEFORE YOU HA VE HEARD ANY EVIDENCE. THE FACT THAT THESE
QUESTIONS ARE BEING ASKED OF YOU NOW IS NOT MEANT TO SUGGEST THAT YOU WILL EVER
HAVE TO CONSIDER PUNISHMENT AND YOU SHOULD NOT ASSUME FROM ANY OF THESE QUESTIONS
THAT THE DEFENDANT IS GUILTY. THE MEMBERS WILL ONLY CONSIDER PUNISHMENT I F THE
PROSECUTION PROVES ITS CASE AGAINST THE DEFENDANT BEYOND A REASONABLE DOUBT.

22865

54. Knowing what only you can know about yourself, if you or someone you love was on trial for
the charged offenses in this case, would you want someone with the same thoughts, feelings,
opinions, attitudes and life experiences as you to serve as a Member7 • YES • No PLEASE
EXPLAIN YOUR ANSWER:
B, The prosecution and the defense disagree on the wording of the below questions. The defense
proposed question is listed with "a" and the prosecution proposed question is listed with "b,"
la. This case involves the disclosure of classified information to WikiLeaks, The individual accused
of committing this act is PFC Bradley Manning, Do you know, or believe you know, anything about
this case, from any source, including the newspaper, radio, television or discussions with others7 •
YES • No If YES, from which sources, what have you heard, read, seen or talked about conceming
this case and what is your reaction to that information7 PLEASE EXPLAIN YOUR ANSWER:
lb. The Accused in this case is PPG Bradley Manning, The website WikiLeaks is also involved in
this case. Do you know, or believe you know, anything about this case, from any source, including
the newspaper, radio, television, or discussions with others7 • YES • No If YES, from which
sources, what have you heard, read, seen or talked about conceming this case and what is your
reaction to that information7
2a,

FOR THE FOLLOWING STATEMENTS, PLEASE INDICATE YOUR LEVEL OF AGREEMENT OR

DISAGREEMENT AND EXPLAIN YOUR ANSWER: No matter how noble the accused's goal was in
committing the crime, this should have liftle impact on the appropriate punishment,

STRONGLY AGREE



STRONGLY DISAGREE
PLEASE EXPLAIN YOUR ANSWER:

MODERATELY AGREE
MODERATELY DISAGREE




SLIGHTLY AGREE
SLIGHTLY
DISAGREE

2b. Do you believe that an Accused's motive in committing a crime is relevant to punishment7 If
yes, please explain your answer,
3a, FOR THE FOLLOWING STA TEMENTS, PLEASE INDICA TE YOUR LEVEL OF AGREEMENT OR
DISAGREEMENT AND EXPLAIN YOUR ANSWER: A person who has given classified information

to an
unauthorized person should receive a harsh sentence in order to deter others from committing a
similar offense,
• STRONGLY AGREE
• MODERATELY AGREE

SLIGHTLY AGREE
• STRONGLY DISAGREE
• MODERATELY DISAGREE

SLIGHTLY
DISAGREE

PLEASE EXPLAIN YOUR ANSWER:

3b, Do you believe that a person should receive a harsh sentence in order to deter others from
commifting a similar offense7 If yes, please explain your answer.

22866

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITEDSTATES

MANNING,BradleyE.,PEG
HUG, U.S. Army Garrison
Joint Base Myer-Henderson Hall
EortMyer,Yirginia22211

OI^DEl^:
GOY^I^NMENTMOTION:
PI^OTEGTIYEGI^EI^(S)
ADDENDUM

DATED: 17July^01^

1, This Order applies when the Defense proposes to release Defense Court filings or proposed
filings publicly,
2, Apleading is ^^filed" with the Court when it is identified as an exhibit on the record at an
Article 39(a)session, Pleadings served on the opposing party that have not been identified on
the record at an Article 39(a)session are''proposed filings'',
3 ThisOrderisissuedIAWMRE505(g)and(h),MRE506(g)and(h),RGM701(g)andRGM
806(d), and^^^^^^^7^^^^.^v.^^^^^^^^^^,104S,CL 2199(1984),TheOrderprovides procedures
for the Govemment to request protective order(s)prior to any public release ofDefense Court
filings or proposed filings. The Courtfindsthis Order necessary under the above authorities.
The Govemment has provided the Defense both classified infbrmation and govemment
information subject to protective orderunder MRE 505(g)(l)and MRE 506(g), This Court has
issuedaprotective order for classified infbrmation provided to the Defense in discovery. The
Delense accepted such discovery and agreed to comply with the protective orders,There have
been two classified infbrmation spillage incidents to date in this case,
4, This Order supplements the Court Order: Govemment Motion: Protective Order(s)issued on
24April2012
Ol^D^I^:
1, The Defense will notify the Government ofeach Defense Court filing or proposed filing
intended for public release. Defense will provide the Govemment with the original filing and the
redacted filing intended for public release,
2, Govemment motionsfr^rprotective order will:
a, address each Defense Couri filing or proposed Court filing individually and identify,with
pariicularity,eachporiion ofthe filing to which the Govemment objects to public release and the
legal basis for each objection to public release.

l,z)
APPELLATE EXHIBIT
PAGE REFERENCED:"
PAGE ) OF 2 _ PAGES

22867

b, provide proposedfindingsoffact for the Couri with respect to each poriion ofeach filing
to which the Govemment objects to public release,
3, Suspense Dates for Defense Couri filings and proposed filings the Defense intends to publicly
release. The Couri is currently scheduling Ariicle 39(a) sessions with the fbllowing schedule:2
weeks to file motions;2weeks to file responses;5days to file replies,
a, NLTthe scheduled liling date for motions, responses, or reply fbr each Ariicle 39(a)
session, the Defense shall provide the Govemment notice IAWparagraph(1)ofthis Order,
b, The Govemment shall provide the notice to the Couri i f i t does not intend to object, or
whether it requires coordination foraspecific filing, NLT^duty days after the Defense filing,
c, Ifthe Govemment provides notice to the Couri that it requires additional time to conduct
furiher review lAWparagraph(3)(b)of this Order, the Govemment shall provide the Couri with
informationorderedinparagraph(2)ofthisOrderNLTlHdutydaysafterprovidingnotice
lAWparagraph(3)(b)to the Couri,
The Couri will grant motions fbr continuance fbr good cause,
4, The Defense will not publicly release any Delense Appellate Exhibit or proposed filing with
the Couri to which the Govemment objects until after the Govemment motion(^s)fbr protective
order are addressed at the next scheduled Ariicle 39(a) session,
5, The Defense will not disclose any intbrmation known or believed to be subject toaclaim of
privilege under MRE 505 or MRE 506 without specific Couri authorization. Prior to any
disclosure of classified infbrmation, the Defense will provide notice under MRE 505(h)and
follow the procedures under that rule,
6, Personal identilying infbrmation (PIl) will be redacted from all Defensefilingspublicly
released,PII includes personal addresses, telephone numbers, email addresses, first5digitsof
social security numbers, datesofbirih,financialaccount numbers, and the names of minors,
7, Toprotect the safety of potential witnesses all persons who are not pariies to the trial shall be
referenced by initials offirst and last name in any Defense filing publicly released. The Defense
will redactjob positions and titles held only by one individual,
SoOI^^I^D:thisl7thdayofJuly2012

DENISERLINI
GOL,JA
ChiefJudge, 1st Judicial Circuit



0 . 22868

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

ADDITIONAL RESEARCH
v. REQUEST BY THE COURT:

VALUATION


MANNING, Bradley E., PFC
U.S. Army, DATED: 17 July 2012
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221]

l. The Court requested the Defense to obtain authority for its argument that the Government
would have to establish proof of a thieves? market in order to use such a method to establish
value under Section 64].

2. The Defense respectfully requests the Court to consider the following authority.

ARGUMENT
3. The statute at issue provides that:

?Whoever embezzles, steals, purloins, or knowingly converts another, or without authority, sells, conveys or disposes of any record, voucher,
money, or thing of value of the United States or of any department or agency
thereof, or any property made or being made under contract for the United States
or any department or agency thereof; or

?Whoever receives, conceals, or retains the same with intent to convert it to his
use or gain, knowing it to have been embezzled, stolen, purloined or converted--
?Shall be fined under this title or imprisoned not more than ten years, or both; but
if the value of such property in the aggregate, combining amounts from all the
counts for which the defendant is convicted in a single case, does not exceed the
sum of $1,000, he shall be ?ned under this title or imprisoned not more than one
year, or both.? 18 U.S.C. 641.'

Section 64] was amended in 1996 by striking the value of and replacing it with the value of
Oct. I I, 1996, Pub.L. I04-294, Title VI, Section 606(a), 110 Stat. 351 I. Many of the cases cited herein involved
prosecutions under the pre?I 996 64 I, where the value necessary for a felony offense was only I 00.
A A?-rs?

I. . ..
I
-7-I



0 0 22869

4. Section 641 additionally de?nes the term ?value? to mean ?face, par, or market value, or cost
price, either wholesale or retail, whichever is greater.? Id.

5. The Government must proffer some evidence of the property?s actual value; the panel
members are not permitted to infer the requisite value simply from the nature of the property at
issue. See United States v. DiGilio, 538 F.2d 972, 980-81 (3d Cir. 1976); United States v.
Homing, 409 F.2d 424, 426 (4th Cir. 1969); United States v. Wilson, 284 F.2d 407, 408 (4th Cir.
1960). Wilson provides the clearest demonstration of this proposition. In that case, the
defendant was charged with the theft of 72 ri?es at a time when Section 641 only required the
property to have a value of $100 or more to support a felony conviction. Id. at 408. The
government offered no evidence of the value of the ri?es, but the jury found the defendant guilty
on the felony charge. See id.2 The Fourth Circuit vacated the defendant?s conviction because no
evidence of actual value was offered by the government, stating that:

are asked to take judicial notice that 72 ri?es are worth more than $100.00,
but we cannot on the basis of anything in the testimony form a judgment as to
value for the purpose of supporting the greater penalty. Nor, in the absence of any
proof of value, could the jury be permitted to speculate on this point merely from
the appearance of the articles. A fact which distinguishes a violation punishable
by imprisonment for not more than one year from a violation punishable by
imprisomnent for ten years carmot be permitted to rest upon conjecture or
surmise.? Id.

6. Similarly, in reducing the defendant?s conviction from a felony to a misdemeanor, the DiGilio
court explained that ?[p]ermitting juror speculation as to value in the absence of evidence was,
for the reasons set forth in United States v. Wilson and the cases which have followed it, error.?
538 F.2d at 981. At the very least, the Government must provide a suf?cient foundation ?to
enable the jury to ?nd beyond a reasonable doubt this essential element of the felony charged.?
Homing, 409 F.2d at 426.

7. As noted above, Section 641 de?nes the term ?value? to mean ?face, par, or market value, or
cost price, either wholesale or retail, whichever is greater.? l8 U.S.C. Section 641 (emphasis
added). The most common method used to prove value of stolen or converted property under
641 is proof of market value of some sort. In this context, market value has been de?ned as ?the
price at which the minds of a willing buyer and a willing seller would meet.? Digilio, 538 F.2d
at 979. Often, the resale price of the goods can be strong evidence of the market price. See, e. g,
United States v. Robie, 166 F.3d 444, 451 (2d Cir. 1999); United States v. Morison, 604 F.Supp.
655, 664-65 (D. Md. 1985).

8. However, there need not be a legitimate, open market for the property in question for it to
have a readily ascertainable ?market value? under Section 641. As explained by then-Judge

2 It should be noted that the jury needed only to conclude that each ri?e had a value of at least $1.39 in order to ?nd
that the requisite $100 value was satisfied here. See DiGilio, 538 F.2d at 980-81 (discussing the Wilson case). Even
discounting for the fact that Wilson was decided in 1960, it is highly unlikely that the jury?s speculation as to the

value of the ri?es was too high.



0 0 22870

Blackmun in Churder, ?the value measure contemplated by 641 is [not] restricted to an open
market price ?between honest, competent and disinterested men?. We apply to the statute what
we feel is its obvious, and certainly its practical, meaning, namely, the amount the goods may
bring to the thief.? Churder v. United States, 387 F.2d 825, 832-33 (8th Cir. 1968) (Blackmun,

.). Like the harder court, several courts of appeals recognize that market value may be proved
under 641 by reference to a ?thieves? market.? See United States v. Sargent, 504 F.3d 767, 771
(9th Cir. 2007); Robie, 166 F.3d at 449; United States v. Oberhardt, 887 F.2d 790, 792 (7th Cir.
1989) is evident from the last paragraph of 641 that Congress sanctioned a number of
different methods of valuation for the purposes of determining whether a violation should be
classi?ed and sentenced as a misdemeanor or as a felony.?)

9. It is well settled that the valuation of stolen goods according to the concept of a ?thieves?
market? is an appropriate method for determining the ?market value? of goods for the purposes
of Jeter, 775 F.2d at 680; United States v. Gordon, 638 F.2d 886, 889 (5th Cir. 1981)
marijuana was an illegal substance, and the Government paid for its destruction. On
those facts, Gordon says the marijuana was not a ?thing of value,? insisting that the required
?value? must be value to the Government, not to smugglers or outlaws. We disagree . . . ?Value?
may also be ?thieves DiGz'lt'0, 538 F.2d at 979; see also Morison, 604 F.Supp. at 664-
65. Similar to the determination of regular market value, the actual or attempted resale price can
be strong evidence of the thieves? market value. See United States v. Jeter, 775 F.2d 670, 680
(6th Cir. 1985); Morison, 604 F.Supp. at 664-65.

10. However, proof of the existence of a thieves? market is insuf?cient to satisfy the
govemment?s burden of proof as to the value of the property. DiGili0, 538 F.2d at 979. The
DiGili0 court explained that if ?there is no proof regarding exchange price in the thieves? market
generally, evidence showing only the existence of that market is insuf?cient on the question of
value for felony sentences under 641.? Id. In addition to proving the existence of a thieves?
market for particular property, the Government must offer some evidence of the value of that
property on that thieves? market; in the absence of such evidence, a jury?s ?nding of the requisite
value under 641 would be pure speculation. See DiGili0, 538 F.2d at 981; see also Horning,
409 F.2d at 426 (holding thatjuror speculation as to value of property is impermissible); Wilson,
284 F.2d at 408 (same). For these reasons, the DtGz'lio court vacated DiGilio?s felony
conviction:

?We do not approve the [trial] court?s charge that the jury could determine the
cost of gathering and producing the information or the market value in a thieves?
market ?on the basis of (its) common knowledge and experience, and the
reasonable inferences to be drawn from the evidence.? No reasonable inferences
of market value of property involved in any particular theft could be drawn from
the evidence.? 538 F.2d at 981.

11. In the instant case, the Defense is unaware of any allegation that PFC Manning sold or
attempted to sell the database he is alleged to have converted. Absent evidence of a sale or an
attempted sale by PFC Marming or evidence of a thieves? market, such a valuation option is not
available to the Government.



CONCLUSION

12. For the reasons articulated above, the Defense requests this Court deny the Govemment?s
request to instruction on ?thieves market? absent proof which satis?es the above requirements.

Respectfully submitted,



DAVID EDWARD COOMBS
Civilian Defense Counsel

O:

22872

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

ADDITIONAL RESEARCH
v. REQUEST BY THE COURT:

CONVERSION


MANNING, Bradley E., PFC
U.S. Army, DATED: 17 July 2012
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211

1. The Court requested the Defense to obtain authority for its argument that the Government is
required to demonstrate a serious or substantial interference with the Govemment?s right to use
and control its property.

2. The Defense respectfully requests the Court to consider the following authority.

ARGUMENT

3. It is well-settled that the Government must prove that the accused?s actions resulted in a
substantial or serious interference with the Govemment?s ownership rights in its property in
order to secure a Section 641 conviction for knowing conversion. In United States v. Collins, 56
F.3d 1416 (D.C. Cir. 1995) (per curiam), the court explained that ?[t]he cornerstone of
conversion is the unauthorized exercise of control over property in such a manner that serious
interference with ownership rights occurs.? 56 .3d at 1420 (emphasis in original).

4. Collins involved a Section 641 prosecution of a technical analyst at the Defense Intelligence
Agency who used the agency?s classi?ed computer system to create and maintain hundreds of
documents relating to the analyst?s ballroom dance activities. Id. at 1418. In the Section 641
prosecution, the Government alleged that the defendant converted, among other things, the
agency?s computer time and storage space. Id The court held that there was insufficient
evidence to support the charge relating to conversion of computer time and storage because the
Government did not prove that the defendant?s use of the system for non-work related tasks
seriously interfered with the Govemment?s property rights in that system:

[T]he government did not provide a shred of evidence in the case at bar that
[defendant] seriously interfered with the govemment?s ownership rights in its
computer system. While [defendant] concedes he typed in data and stored
information on the computer regarding his personal activities, no evidence exists
that such conduct prevented him or others from performing their official duties on
the computer. The government did not even attempt to show that [defendant?s]

APPELLATE EXHI
PAGE
PAGE PAGES



0 22873

use of the computer prevented agency personnel from accessing the computer or
storing information. Thus, [defendant?s] use of the government computer in no
way seriously interfered with the govemment?s ownership rights.

Id. at 1421.

5. Along similar lines, the Eighth Circuit in United States v. May, 625 F.2d 186 (1980), reversed
the defendant?s Section 641 conviction because the district court failed to instruct the jury that
conversion under Section 641 required a ?nding that the defendant?s conduct seriously violated
the Govemment?s property rights. 625 F.2d at 188. In May, the defendant, a former Adjutant
General of the Iowa National Guard, ?directed a series of unauthorized ?ights, using National
Guard aircraft, fuel and personnel, that served his own convenience rather than that of the
National Guard.? Id. at 188-89. More speci?cally, the defendant directed 11 unauthorized
?ights that allowed him to visit his ?ance in various parts of the country. Id. at 189. In holding
that the district court?s failure to instruct the jury on the serious interference element of
conversion was reversible error, the May Court explained that:

The touchstone of conversion is the exercise of such control over property that
serious interference with the rights of the owner result, making it just that the
actor pay the owner the full value of the object.



The problem with the district court?s instruction is that it assumes that any misuse
or unauthorized use of property is a conversion.



[T]he instruction misses the mark because it does not mention the requirement
that the misuse constitute a serious violation of the owner?s right to control the
use of the property.

Id. at 192.

6. Similarly, the Ninth Circuit in United States v. Kueneman reversed the defendant?s Section
641 conversion conviction because of an inadequate showing that the defendant?s conduct
seriously interfered with the Govemment?s property rights. No. 94-10566, 1996 WL 473690, at
*2 (9th Cir. Aug. 20, 1996) (unpublished). In that case, the defendant was the president of a
non-pro?t organization that participated in a Department of Housing and Urban Development?s
(HUD) program that leased HUD homes to non-pro?t organizations for $1/year, provided that
the non-pro?t organizations agreed to sublet these homes to homeless persons. Id. at The
defendant?s alleged conversion occurred when he allowed his daughter to live in one of the HUD
homes for six weeks after quarrelling with her husband. Id The Ninth Circuit determined that
the Govemment?s evidence of conversion was insuf?cient as a matter of law. Id. The court
explained that ?not all misuse of government property is conversion. To prove conversion, the
government must show [defendant?s] misuse of the HUD house was a ?serious interference with
the [govemment?s] property rights.? A ?serious interference? is one that prevents the government

2



0 0 22874

from making some other use of the property.? Id. at *1-2 (internal citations omitted). The
evidence of conversion was thus held to be insuf?cient because ?[t]he government offered no
evidence that it had other contemporaneous uses for the HUD home.? Id at

7. Finally, in United States v. Fowler, 932 F.2d 306 (4th Cir. 1991), the Fourth Circuit af?rrned
a Section 641 conviction of a former Department of Defense employee who gave secret
Department of Defense documents to his new employer (Boeing Aerospace Co.) and other
defense contractors. 932 F.2d at 309. The defendant also converted some of the documents by
incorporating secret information from them into his unclassi?ed reports. Id. Though af?rrning
his conviction, the court noted approvingly that the district court ?recognized that ?substantial
interference with government property rights? was an element of conversion [under Section 641].
[The district court] permitted the introduction of the contents of the documents mentioned in the
conversion counts and properly instructed the jury on this issue.? Id. at 310.

8. Thus, it is settled law that the Government must show that PFC Marming?s alleged actions
resulted in a substantial or serious interference with the Government?s ownership rights in the
charged databases in order for PFC Manning to be found guilty of knowing conversion under
Section 641.

CONCLUSION

9. Based upon the above authority, the Defense respectfully requests that the Court provide the
Defense requested instruction on conversion.

Respectfully submitted,

DA ID EDWARD COOMBS
Civilian Defense Counsel

22875

UnitedStatesv.Drew.2^9E.R.D.449(C.D.Gal.2009^
16June 2008-Drew pleaded not guilty,
23 July 2008-Drew filed three motions to dismiss the indictment on grounds offailure to state
an offense,vagueness, and unconstitutional delegation of prosecutorial power,
lAugust 2008-Electronic Frontier Foundation and the Cyberlaw Clinic at Harvard'sBerkman
Center fbr Intemet^Soctety submitted an amicus brief supporting dismissal of the case
4September2008 -Inahearing, Judge George H,Wu denied Drew'smotions to dismiss the
indictment based on vagueness and improper delegation of authority,but kept her motion to
dismiss fbr failure to state an offense under advisemenL
^6 November 2008 The jury retumedaverdict acquitting Drew on the felony CFAA charges
and finding her guilty on misdemeanor CFAA charges. The jury deadlocked on the felony
conspiracy counLCotinsel fbr Drew(now including Professor Orin ^err)indicated that they
would fileamotionfbranew trial, and the court setahearing fbr 29 December 2008, The court
took the Drew'srenewed motion fbr judgment of acquittal under submission,
15 December 2008^Counsel fbr Drewfiledasupplementto their motion fbr judgment of
acquittal, requesting the Court to decide the issue that it had taken under advisement(whether
violating contractual terms of service can be used to supporta 1030 violation),
28 August 2009 Judge Wu issued an opinion granting Drew's motion fbr judgment of acquittal.

^^^^^^^^^^1^^^^^
^^^^^^^^PAGE^

22876

H. Dean Steward SEN 85317
107 Avenida Miramar, Ste. C
San Clemente, CA 92672
2 949-481-4900
Fax: (949) 496-6753
3 deansteward@fea.net
1

4 A t t o r n e y f o r Defendant
L o r i Drew
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 UNITED STATES,
11
Plaintiff,
12
vs.
13 LORI DREW,
14
Defendant,
15

Case No. CR-08-582-GW
NOTICE OF MOTION; MOTION TO
DISMISS INDICTMENTUNCONSTITUTIONAL DELEGATION OF
PROSECUTORIAL POWER;POINTS AND
AUTHORITIES
Date: Sept. 4, 2008
Time: 8:30 AM

16
17
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19
20
21
22

TO: UNITED STATES ATTORNEY THOMAS O'BRIEN AND ASST. U.S
ATTORNEY MARK KRAUSE, please take n o t i c e t h a t on September 4, 2008
at 8:30 AM, defendant, through counsel, w i l l b r i n g t h e attached
motion t o dismiss t h e i n d i c t m e n t i n t h e courtroom o f the Honorable
George Wu, U n i t e d States D i s t r i c t Judge, 312 N. Spring St.,
Courtroom 10, Los Angeles, C a l i f o r n i a .

23
24
25

Dated: J u l y 23, 200!

s./ H. Dean Steward
H. Dean Steward
Counsel f o r Defendant
L o r i Drew

26
27
28

-1

22877

1 ^o^^o^

2

COMES NOW defendant L o r i Drew, t o g e t h e r w i t h counsel, and

3 moves t h i s honorable c o u r t f o r an order d i s m i s s i n g t h e i n s t a n t
4 i n d i c t m e n t pursuant t o Federal Rules o f Procedure 12(b^. As s e t
5

f o r t h below, t h e i n d i c t m e n t v i o l a t e s c o n s t i t u t i o n a l due process by

6
7

d e l e g a t i n g p r o s e c u t o r i a l powers, and i t must be dismissed.

8 Dated: J u l y 23, 2008
9 San Clemente, C a l i f o r n i a
1(^

s.B H. Dean Steward
H. Dean Steward
Counsel f o r Defendant
L o r i Drew

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-2

22878

1

POINTS AND AUTHORITIES

2
3 I . BACKGROUND
4

The defense here challenges t h e government's d e l e g a t i o n t o t h e

5 power t o s e t g u i d e l i n e s and terms o f what w i l l be a c r i m i n a l law
6 v i o l a t i o n t o i n d i v i d u a l s and e n t i t i e s . The p u b l i c i n general, (and
7 defendant Drew i n p a r t i c u l a r ) , are denied due process under t h e
8 C o n s t i t u t i o n when p r i v a t e p a r t i e s , not t h e government, are given
9 these r i g h t s and powers.
10
11

I I . FACTS
According t o t h e i n d i c t m e n t , defendant L o r i Drew and others

12 set about c r e a t i n g a MySpace s o c i a l network on l i n e personal
13 p r o f i l e i n t h e F a l l o f 2006. The p r o f i l e was o f a teenage boy. The
14 i n d i c t m e n t f u r t h e r a l l e g e s t h a t Ms. Drew and others s e t up t h e
15 p r o f i l e t o gain i n f o r m a t i o n from one M.T.M., a teenager. I n s e t t i n g
16 up the p r o f i l e , t h e government a l l e g e s t h a t Ms. Drew and others
17 v i o l a t e d t h e terms o f s e r v i c e [ h e r e i n a f t e r TOS] t h a t MySpace
18 maintains as a f e a t u r e o f t h e i r website. The government t h e o r y i s
19 t h a t a v i o l a t i o n o f any TOS renders any accessing o f a website by
20

the v i o l a t o r t o be "unauthorized", and t h e r e f o r e p o t e n t i a l l y a

21 v i o l a t i o n o f 18 USC §1030 (a) (2) (C) and (c) (2) (B) ( i i )
22
23

[hereinafter

§1030],
The p r o f i l e was open f o r 29 days, d u r i n g which M.T.M. sent

24 messages back and f o r t h t o the f i c t i o n a l person a l l e g e d l y named
25

"Josh Evans"""". On t h e l a s t o f those 29 days, t h e messages from

26
27 ^ The defense b e l i e v e s t h a t a t l e a s t two o t h e r persons and perhaps
as many as f o u r had t h e "Josh Evans" password and communicated t o

28 M.T.M. as "Josh Evans".

-3-

22879

1

s e v e r a l people t o M.T.M., and her responses, became heated, and

2 M.T.M. soon t h e r e a f t e r took her own l i f e .
3
The f a c t s i n t h i s m a t t e r are deeply i n d i s p u t e . For the
4 purposes o f a d i s m i s s a l motion only, t h e c o u r t i s l i m i t e d t o t h e
5 f o u r corners o f t h e i n d i c t m e n t . U.S. v. Edmonds 103 F.3d 822 (9^^
6 C i r . 1996).
7 I I I . DISCUSSION
8

Under §1030, v i r t u a l l y anyone, (be i t g i a n t MySpace, t h e

9 s o c i a l network, o r an i n d i v i d u a l computer owner), can determine
1(^ whether access t o a s e r v e r or s i t e i s a u t h o r i s e d , and they can
11 determine under what circumstances. A computer owner can s e t t h e
12

scope o f a u t h o r i z a t i o n by c o n t r a c t u a l language, by a TOS. This can

13

lead t o c r i m i n a l v i o l a t i o n s f o r those who run a f o u l o f the

14 TOSBcontract.
15
Turning t o t h i s m a t t e r , MySpace d i c t a t e d , through i t s TOS,
16 what acts supposedly c o n s t i t u t e d a crime. What the government i n
17 i t s view o f §1030 has done i s t o delegate t h e r e s p o n s i b i l i t y o f
18 d e c i d i n g what conduct w i l l be c r i m i n a l t o p r i v a t e p a r t i e s l i k e
19 MySpace.

2(^

I n C^^^er^c^i^^^s^ ^co^^^ ^ ^ ^ ^ r ^ ^ ^ ^ i n ^ ^^^cce.^.^"

21

" ^ ^ t : ^ ^ r i ^ a t : i o n ^ ^ i n ^o^^^^er ^^e ^^a^^te.^^ Kerr, 78 N.Y.U.L.Rev.

22

1596

23

a l l o w i n g an e n t i t y such as MySpace t o anchor and, i n t r u t h ,

(2003) Professor O r i n Kerr p o i n t s up t h e c h i l l i n g e f f e c t o f
dictate

24 §1030 charges:
2^
26

"Imagine t h a t a Website owner announces [and puts i n h i s

27

TOS] t h a t o n l y r i g h t handed people can view

28

-4-

22880

1

h i s Website, o r perhaps o n l y f r i e n d l y people.

2

Under t h e c o n t r a c t - b a s e d approach, a v i s i t t o t h e s i t e

3

by a l e f t - h a n d e d o r s u r l y person i s an u n a u t h o r i z e d

4

access t h a t may t r i g g e r s t a t e and f e d e r a l c r i m i n a l laws. A

5

computer owner could s e t up a p u b l i c web page, announce t h a t

6

^no one i s allowed t o v i s i t my web page', and then r e f e r f o r

7

p r o s e c u t i o n anyone who c l i c k s on t h e s i t e o u t o f c u r i o s i t y . By

8

g r a n t i n g t h e computer owner e s s e n t i a l l y u n l i m i t e d a u t h o r i t y t o

9

define

1(^

authorisation,

the contract

standard delegates t h e

scope o f c r i m i n a l i t y t o every computer owner."

11
12

I d . a t p. 1650,51

13
14
15

A l l o w i n g computer owners t o s e t terms t h a t can cause law

16

v i o l a t i o n s i s s i m i l a r t o t h e v i n t a g e cases i n t h e Supreme Court

17

where governmental powers were u n c o n s t i t u t i o n a l l y delegated between

18

governmental agencies. The Supreme Court i n v a l i d a t e d t h e d e l e g a t i o n

19

of these powers i n t h e 1930's i n a s e r i e s o f cases. See Carter v.

2(^ Carter Coal Co. 298 U.S. 238 (1936); A.L.A. Schechter P o u l t r y Corp.
21 V. U.S. 295 U.S. 495 (1935) and Panama R e f i n i n g Co. v. Ryan 293
22
23

U.S. 388 (1935).
For example, a t issue i n Panama R e f i n i n g

was a d e l e g a t i o n t o

24

the President o f a u t h o r i t y t o p r o h i b i t i n t e r s t a t e t r a n s p o r t a t i o n o f

25

what was known as "hot o i l " - o i l produced i n excess o f guotas s e t

26

by s t a t e law.

27

the President i n d e t e r m i n i n g whether or when t o e x e r c i s e t h i s

28

The problem was t h a t t h e Act p r o v i d e d no guidance t o

22881

1

a u t h o r i t y , and r e g u i r e d no f i n d i n g by the President as a c o n d i t i o n

2 of exercise o f the a u t h o r i t y . Congress " d e c l a r e d no p o l i c y , . . .
3 e s t a b l i s h e d no standard, [and] l a i d down no r u l e , " b u t r a t h e r " l e f t
4 the matter t o t h e President w i t h o u t standard or r u l e , t o be d e a l t
5 w i t h as he pleased." I d . a t 293 U.S. a t 430.
^

At issue i n Schechter was a d e l e g a t i o n t o t h e President o f

7 a u t h o r i t y t o promulgate codes o f f a i r c o m p e t i t i o n t h a t could be
8 drawn up by i n d u s t r y groups or p r e s c r i b e d by t h e President on h i s
9 own i n i t i a t i v e . The codes were r e g u i r e d t o implement the p o l i c i e s
1(^

of the Act, b u t those p o l i c i e s were so general as t o be n o t h i n g

11 more than an endorsement o f whatever might be thought t o promote
12

the recovery and expansion o f t h e p a r t i c u l a r t r a d e or i n d u s t r y . The

13

President's a u t h o r i t y t o approve, c o n d i t i o n , or adopt codes on h i s

14 own i n i t i a t i v e was s i m i l a r l y devoid o f meaningful standards, and
15

virtually

16

or i n d u s t r y group, and, u n l i k e other broad d e l e g a t i o n s t h a t had

u n f e t t e r e d . The Act s u p p l i e d "no standards" f o r any t r a d e

17 been upheld, d i d not s e t p o l i c i e s t h a t c o u l d be implemented by an
18

a d m i n i s t r a t i v e agency r e g u i r e d t o f o l l o w " a p p r o p r i a t e

19

a d m i n i s t r a t i v e procedure."

21^ conduct,
21
22
23

" I n s t e a d o f p r e s c r i b i n g r u l e s of

[ t h e A c t ] a u t h o r i ^ e [ d ] the making o f codes t o p r e s c r i b e

them." I d . 295 U.S. a t 541.
Here, §1030 has delegated power, n o t between branches o f
government, b u t t o every day c i t i z e n s and e n t i t i e s . But l i k e t h e

24 o l d e r cases above, t h e r e are no standards f o r computer owners when
25 s e t t i n g up TOS's. At t h e same time, however, these owners now have
26

the power t o s e t g u i d e l i n e s , r u l e s and terms t h a t can, i f v i o l a t e d ,

27 cause c r i m i n a l l i a b i l i t y . Such power, by t h e government's
28
6

22882

1

i n t e r p r e t a t i o n of §1030, i s now

2

l i k e MySpace, or anyone or any

3

and

4

i n t e r p r e t a t i o n i s w e l l set out i n Professor Kerr's examples, above.

^

i n the hands of I n t e r n e t behemoths
e n t i t y t h a t can get on the

set up a rudimentary Website. The

Internet

enormous danger i n t h i s

In testimony b e f o r e Congress i n 1992,

the ^ i c e President

and

6

General Counsel of the Computer and

7

A s s o c i a t i o n warned, "You

8

l a r g e percentage of the American people, e i t h e r small businesses or

9

c i t i z e n s , i n t o the gray area of c r i m i n a l law."
871 F. Supp. 535,

11

does ^ust t h a t , w i t h no due

12

computer owner can

13

want, and

14

prosecution.

15

I ^ . CONCLUSION

16

Industry

do not want t o be a c c i d e n t l y

10

544

Communications

(D. Mass. 1994), n. 18.

U.S.
The

process p r o t e c t i o n s

taking a

v. LaMacchia
i n d i c t m e n t here

a t a l l . Almost

any

set up whatever a r b i t r a r y and unigue r u l e s they

a v i o l a t i o n of those r u l e s can

lead t o a §1030

Simply put, access t h a t merely breaches a

contract

17

conditioning

18

liability.

19

Americans are probably committing crimes on a d a i l y basis and

access should not s u f f i c e t o t r i g g e r c r i m i n a l

I f v i o l a t i n g user agreements i s a crime, m i l l i o n s of
don't

2(^ know i t .
21
Basing a f e d e r a l p r o s e c u t i o n on TOS v i o l a t i o n s , on a c o n t r a c t
22 theory, denies due process, i n t h a t " i t a l l o w s a computer owner t o
23 harness the c r i m i n a l law at h i s or her d i s c r e t i o n , using h i s or her
24

u n i l a t e r a l power t o c o n t r o l a u t h o r i z a t i o n by c o n t r a c t

25

c r i m i n a l i z e any v i e w p o i n t of s t a t u s the owner wishes t o t a r g e t . "

26

^^^ercri^e^,s ^co^e^ ^ n ^ e r ^ r ^ ^ i n ^ ^^.^ccess"

27
28
7-

as a t o o l t o

^^^^t:^ori^^^i^^^^ i ^

22883

Computer Use S t a t u t e s supra a t p

1

1658. Such a d e l e g a t i o n i s

2 c o n s t i t u t i o n a l l y i n f i r m , and t h e i n d i c t m e n t mu
3 Dated: J u l y 23, 2008
San Clemente, C a l i f o r n i a

4
5

s,/ H. Dean Steward
H. Dean Steward
Counsel f o r Defendant
L o r i Drew

6
7
8
9
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s t be dismissed.

-8

22884

1

CERTIFICATE OF SERVICE

2
3
4 IT IS HEREBY CERTIFIED THAT:
5 I , H. Dean Steward, am a c i t i z e n o f t h e U n i t e d States, and am a t
6 l e a s t 18 years o f age. My business address i s 107 Avenida Miramar,
7 Ste. C, San Clemente, CA 92672.
8

I am not a p a r t y t o t h e above e n t i t l e d a c t i o n . I have caused,

9
10
11

on J u l y 23, 2008, s e r v i c e o f the defendant's:
NOTICE OF MOTION; MOTION TO DISMISS; POINTS AND AUTHORITIES

12 On the f o l l o w i n g p a r t i e s e l e c t r o n i c a l l y by f i l i n g t h e f o r e g o i n g
13 w i t h t h e Clerk o f t h e D i s t r i c t Court using i t s EOF system, which
14 e l e c t r o n i c a l l y n o t i f i e s counsel f o r t h a t p a r t y .
15 AUSA Mark Krause
16
17
I declare under p e n a l t y o f p e r j u r y t h a t the f o r e g o i n g i s t r u e and

18
19

correct.

20

Executed on J u l y 23, 2008

21

H. Dean Steward

22

H. Dean Steward

23
24
25
26
27
28
9-

22885

H. Dean Steward SBN 85317
107 Avenida Miramar, Ste. (
2 San Clemente, CA 92672
949-481-4900
Fax:
(949) 496-6753
3
deansteward@fea.net

1

4
5 A t t o r n e y f o r Defendant
L o r i Drew

6
7
8
UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11 UNITED STATES,

Case No,

12

CONSOLIDATED REPLY TO
GOVERNMENT'S OPPOSTION TO MOTIONS
TO DISMISS FOR FAILURE TO STATE
AND OFFENSE; FOR VAGUENESS; FOR
IMPROPER DELEGATION OF AUTHORITY

13

Plaintiff,
vs.

14 LORI DREW
15
16

CR-08-0582-GW

Defendant,
Comes now defendant, t o g e t h e r w i t h counsel, and f i l e s

this

17 c o n s o l i d a t e d r e p l y t o t h e government's o p p o s i t i o n s t o three motions
18 on f i l e . Between the defense. Amicus and p r o s e c u t i o n , t h e c o u r t now
19 has 130+ pages o f b r i e f i n g . The defense presents here only a few
20 key p o i n t s as t o each motion t h a t the defense asks the c o u r t t o
21
22

keep i n mind.
I n a d d i t i o n , t h e defense j o i n s and adopts t h e b r i e f f i l e d By

23 the Amicus.
24 August 18, 2008
San Clemente, C a l i f o r n i a
25
26

s./ H. Dean Steward
H. Dean Steward
Counsel f o r Defendant Drew

27
28

-1

22886

1

2

/, FAILURE TO STATE AN

OFFENSE

1. THE FACTS THE GOVERNMENT MAY OR MAY NOT BE ABLE TO PROVE AT

3 TRIAL ARE NOT RELEVANT FOR THESE MOTIONS
4

I n t h e i r o p p o s i t i o n t o a l l t h r e e defense motions, t h e

5 government spends 3-4 pages on " f a c t s " they c l a i m they can prove a t
6 t r i a l . The defense submits t h a t many o f t h e " f a c t s " are not t r u e ,
7 and i n any event, none o f them are r e l e v a n t f o r t h i s Court's review
8 of these motions. U.S. V. Edmonds 103 F.3d 822 (9^^ C i r . 1996).
9
10

2. THE INDICTMENT FAILS TO ALLEGE ELEMENTS OF 1030
The p o i n t o f t h i s motion i s t h a t the i n d i c t m e n t f a i l s t o

11 a l l e g e elements o f §1030. S p e c i f i c a l l y , t h e i n d i c t m e n t does n o t
12 a l l e g e , o t h e r than a t r a c k i n g o f the s t a t u t o r y language, t h a t
13 defendant i n t e n t i o n a l l y accessed a computer, or d i d so w i t h o u t
14 a u t h o r i z a t i o n . On t h i s p o i n t alone, the i n d i c t m e n t must be
15 dismissed.
16

3. DEFENDANT DID NOT "KNOW HER CONDUCT VIOLATED THE RULES" OF

17 MYSPACE AND THE GOVERNMENT HAS UNSUCCESSFULLY PLED KNOWLEDGE
18

Without re-hashing the defense motion a l r e a d y on f i l e , t h e

19 p o i n t i s t h a t the r e g u i r e d knowledge on defendant's b e h a l f has n o t
20 been p l e d , o t h e r than i n the generic language o f the s t a t u t e . The
21

government t r i e s t o cover t h i s g l a r i n g hole a t page 13, l i n e 23-27,

22 note 6:
23
"The i n d i c t m e n t a l s o describes some o f the f a c t s t h a t
24
show defendant knew her conduct v i o l a t e d the r u l e s
25

e s t a b l i s h e d by MySpace and i n t e n d e d t o break those r u l e s . For

26

example, the i n d i c t m e n t a l l e g e s how defendant and her co-

27

c o n s p i r a t o r s sought t o cover up the scheme."

28

Govt. O p p o s i t i o n - Vagueness- p. 13

-2-

22887

1

This p o s i t i o n makes no sense. Even i f t r u e , l a t e r e f f o r t s t o

2 hide e-mail i n no way i n d i c a t e t h a t defendant or t h e u n i n d i c t e d
3 persons knew or were aware o f the MySpace TOS. The elements o f t h e
4 offense must be p l a i n l y and c o n c i s e l y p l e d , not sgueezed from an
5 i n f e r e n c e . Federal Rules o f C r i m i n a l Procedure 7 ( c ) ( 1 ) .
6

4. THE LaMACCIA CASE IS INSTRUCTIVE AND APPLICABLE HERE

7

Perhaps t h e b i g g e s t f a i l i n g o f t h e government i n t h i s

8 i n d i c t m e n t i s t h e e f f o r t t o bend a s t a t u t e (§1030) t o f i t conduct
9 t h a t these prosecutors would l i k e t o c r i m i n a l i z e . This i s p r e c i s e l y
10

what happened i n U.S. v. LaMacchia 871 F.Supp 535 (D. Mass. 1994).

11

The U.S. A t t o r n e y ' s O f f i c e i n Boston t r i e d t o bend the w i r e f r a u d

12

s t a t u t e t o f i t f a c t s t h a t j u s t d i d n o t v i o l a t e t h a t s t a t u t e . The

13

d i s t r i c t c o u r t r e j e c t e d t h a t e f f o r t , dismissed

14

Court here should as w e l l .

15

The d i s t r i c t c o u r t i n LaMacchia recognized

t h e case,^ and t h e

t h a t c o p y r i g h t law,

16

at t h a t time, d i d n o t c o n t a i n c r i m i n a l p r o v i s i o n s against non-

17

commercial i n f r i n g e m e n t . The government here t r i e s t o down p l a y

18

LaMacchia because i t was a wire f r a u d i n d i c t m e n t i n a c o p y r i g h t

19
20
21
22
23
24
25
26
27
28

At v a r i o u s places t h e government guestions the a b i l i t y o f t h e
motions f i l e d here t o give the power t o t h e c o u r t t o dismiss t h e
i n d i c t m e n t . One need look no f u r t h e r than the LaMacchia case f o r a
concrete example f o r t h e d i s t r i c t c o u r t d i s m i s s i n g an i n d i c t m e n t
upon proper showing.

-3^

22888

1

case. The government misses t h e p o i n t : prosecutors cannot bend

2 c r i m i n a l s t a t u t e s l i k e §1030 t o charge conduct not covered by t h a t
3 statute.^
4

As t h e Amicus notes:

^

" I f Congress wanted t o c r i m i n a l i z e t h e conduct a t issue

^

here, i t c o u l d have. I f Congress wanted t o give t h e f o r c e o f

7

law t o terms o f s e r v i c e agreements, i t can. But i t d i d not..."

8

B r i e f , a t p. 2 1 .

9

^

^

^

^

^

^

^

^

^

^

^

^

10

1. CASES CITED BY THE GOVERNMENT ON "ACCESS" MISS THE MARK

11

The government must concede t h a t no p u b l i s h e d opinions i n

12 c r i m i n a l p r o s e c u t i o n s back t h e i r view o f t h e d e f i n i t i o n o f access.
13 The cases the government c i t e d do not support t h e i r p o s i t i o n :
14

^

U.S. V. P h i l l i p s - no h o l d i n g

on access a t a l l , merely c i t e s

15 Kansas and Washington s t a t e o p i n i o n s i n a f o o t n o t e
16

^

Southwest A i r l i n e s - not a c r i m i n a l case; memo order only;

17 c i t e s d i c t i o n a r y d e f i n i t i o n
18

^

Role Models America- c i v i l case; held defendant

not

19 access, under a d i c t i o n a r y d e f i n i t i o n
20

^

21

With no case law support, e i t h e r t h e government i s b l a z i n g new

Am Online, I n c . - c i v i l case; d i c t i o n a r y d e f i n i t i o n

22 t r a i l s , o r they have gone t o o f a r i n t h e i r view o f "access". The
23 defense suggests i t s both.
24
25
26 ^ The Amicus a l s o p o i n t s t o U.S. v. McDanel CR-01-638-LGB as

another example o f the government (there u n s u c c e s s f u l l y ) t r y i n g t o
bend
a s t a t u t e t o f i t the f a c t s . I n LaMacchia, McDanel and Drew, i t
27
i s c l e a r t h a t s t a t u t e s have not kept up w i t h technology. The
28 s o l u t i o n i s not bending the c u r r e n t laws, b u t r a t h e r c r a f t i n g new,
appropriate l e g i s l a t i o n .

-4-

22889

1

2. THE DEFENSE .0^^^ DISPUTE THE MEANING OF THE WORDS IN THE

2 STATUTE
3

The government c u r i o u s l y s t a t e s i n t h e i r o p p o s i t i o n t h a t ,

4 "Defendant does not seem t o d i s p u t e the p l a i n meaning o f t h e
5 s t a t u t e . " O p p o s i t i o n a t page 16, l i n e 7-8. The meaning o f the words
6 i n the s t a t u t e ( i n t e n t i o n a l l y , access, unauthorized) are very much
7 i n dispute.
8

3. CYBERBULLYING IS NOT A §1030 VIOLATION

9

The Amicus b r i e f explores the l e g i s l a t i v e h i s t o r y o f §1030.

10

B r i e f , p. 8-10. The Amicus argues p e r s u a s i v e l y t h a t the i n t e n t o f

11

Congress i n e n a c t i n g §1030 was t o p r o h i b i t " h i g h t e c h crimes". The

12

Amicus h i g h l i g h t s the Congressional

13

emphasizes concerns about "hackers" who "trespass i n t o " computers

14

and the i n a b i l i t y o f "password codes" t o p r o t e c t a g a i n s t t h i s

15

t h r e a t . B r i e f a t p. 8. This l e g i s l a t i v e h i s t o r y demonstrates t h e

16

Congressional

17

not improper motive o r use. C y b e r b u l l y i n g i s n o t , under any

18

d e f i n i t i o n , trespass or t h e f t .

19

committee r e p o r t t h a t

i n t e n t t o p r o h i b i t trespass and t h e f t under §1030,

The government has c i t e d no l e g i s l a t i v e h i s t o r y t o support

20

t h e i r §1030 c y b e r b u l l y i n g t h e o r i e s , the h ^ ^ ^ t

21

And indeed they cannot. This s t a t u t e was simply not intended t o

22

p r o h i b i t the conduct they seek t o c r i m i n a l i z e . I t was intended as a

23

s t r a i g h t f o r w a r d p r o h i b i t i o n a g a i n s t computer trespass and t h e f t .

24

^^^^^^^^^^^^^^^^^^^^^B^

25
26
27
28

t h i ^ prosecution.

1. THE GOVERNMENT HERE DELEGATES PROSECUTORIAL POWER, NOT
LEGISLATIVE
As the o r i g i n a l defense motion makes c l e a r , the problem i s n o t
a d e l e g a t i o n o f l e g i s l a t i v e power, but r a t h e r p r o s e c u t o r i a l power.

-5-

22890

1 Any website owner can, under the government's view i n t h i s case,

2 set terms t h a t can cause a v i o l a t i o n o f f e d e r a l laws.
3

2. THE HEART OF ANY §1030 PROSECUTION, UNDER THE GOVERNMENT'S

4 THEORY, IS THE WEBSITE OWNER
5

In t h e i r o p p o s i t i o n ,

t h e government suggests t h a t a website

6 ownerBcreator i s p e r i p h e r a l t o any §1030 p r o s e c u t i o n , and t h e r e f o r e
7 n o t h i n g has been delegated. The flaw i n t h i s p o s i t i o n i s t h a t i t i s
8 the website owner h i m s e l f o r h e r s e l f who

^ ^ i ^ ^ the

9 c r i t i c a l c o n t r a c t u a l terms- terms t h a t are then p o t e n t i a l l y
10 v i o l a t e d , causing a f e d e r a l c r i m i n a l law v i o l a t i o n . Website owners
11 are c e n t r a l t o any a l l e g e d v i o l a t i o n , under t h e government's theory
12 i n t h i s case. And t h a t i s the p r e c i s e problem: basing c r i m i n a l
13

l i a b i l i t y on p r i v a t e c o n t r a c t

terms [terms o f s e r v i c e ]

invites a

14 host o f d i f f i c u l t , t h o r n y problems and unwanted r e s u l t s . See Amicus
15 b r i e f , p. 26-36.
16 IV^. ^O^C^^^IO^
17

For t h e reasons s e t out above, i n the o r i g i n a l motions and i n

18 the Amicus b r i e f , t h i s i n d i c t m e n t must be dismissed.
19
20 August 18, 2008
21
22
23

San Clemente, C a l i f o r n i a

s.B H. Dean Steward
H. Dean Steward
Counsel f o r Defendant
L o r i Drew

24
25
26
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28

6

22891

1

CERTIFICATE OF SERVICE

2
^

4 IT IS HEREBY CERTIFIED THAT:
5 I , H. Dean Steward, am a c i t i z e n o f t h e U n i t e d States, and am a t
6 l e a s t 18 years o f age. My business address i s 107 Avenida Miramar,
7

Ste. C, San Clemente, CA 92672.

8
9
10

I am n o t a p a r t y t o t h e above e n t i t l e d a c t i o n . I have caused,
on Aug. 18, 2008, s e r v i c e o f t h e defendant's:

11 REPI^IES TO t^OVERNMENT MOTION OPPOSITIONS
12 On t h e f o l l o w i n g p a r t i e s e l e c t r o n i c a l l y by f i l i n g t h e f o r e g o i n g
13 w i t h t h e C l e r k o f t h e D i s t r i c t Court u s i n g i t s EOF system, which
14 e l e c t r o n i c a l l y n o t i f i e s counsel f o r t h a t p a r t y .
15
AUSA Mark ^ra^2^^

16
17
18

I declare under p e n a l t y o f p e r j u r y t h a t t h e f o r e g o i n g i s t r u e and

19 c o r r e c t .
20 Executed on Aug. 18, ^008
21 H. Dean Steward
22 H. Dean Steward
23
24
25
26
27
28

22892

H. Dean Steward SBN 85317
107 Avenida Miramar, Ste. C
San Clemente, CA 92672
2 949-481-4900
Fax: (949) 496-6753
3 deansteward(^fea.net

1

4 O r i n S. Kerr
D i s t . o f Columbia BN 980287
5 2000
H. S t r e e t NW
DC 20052
6 Washington,
202-994-4775
Fax 202-994-5654
7 okerr(^gwu.edu

8 Attorneys f o r Defendant
9 L o r i Drew
10
11
12

UNITED STATES DISTRICT COURT

13

CENTRAL DISTRICT OF CALIFORNIA

14 UNITED STATES,
15
Plaintiff,
16
vs.
17 LORI DREW,
18

Case No. CR-08-582-GW
RULE 29 MOTION FOR JUDGEMENT OF
ACOUITTAL

Defendant.

19
20
21
22
23
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25
26
27

Comes now defendant, together w i t h counsel, and moves t h i s Court
under Rule 29 o f the f e d e r a l Rules o f C r i m i n a l Procedure, f o r a
judgment o f a c g u i t t a l

on a l l counts. The f o l l o w i n g m a t e r i a l

supplements t h i s motion, also made o r a l l y i n open c o u r t .
Dated: Nov. 23, 2008

s.B H. Dean Steward
H. Dean Steward
Orin Kerr
Counsel f o r Defendant Drew

28

1

22893

1

I.

STANDARD OF REVIEW

2

The standard o f review f o r a Rule 29 motion i s t o view the

3 evidence presented a g a i n s t t h e defendant " i n the l i g h t most
4 f a v o r a b l e t o t h e government t o determine whether

^ any r a t i o n a l

5 t r i e r o f f a c t c o u l d have found t h e e s s e n t i a l elements o f t h e crime
6 beyond a reasonable doubt.' " U.S. v. F r e t t e r 31 F.3d 783 (9^"^ C i r .
7 1994), g u o t i n g Jackson v. V i r g i n i a , 443 U.S. 307, 319 (1979).
8 I I . INTENT
9

I t i s e s s e n t i a l t o remember t h e government's t h e o r y o f t h e

10 case.
11

The defendant i s on t r i a l f o r i n t e n t i o n a l l y

MySpace^s Terms o f Service.

violating

The government's t h e o r y o f t h e case i s

12 t h a t i n t e n t i o n a l l y v i o l a t i n g a website Terms o f Service i s a
13

f e d e r a l misdemeanor v i o l a t i o n o f 18 U.S.C. 1 0 3 0 ( a ) ( 2 ) ( C ) , and t h a t

14 t h i s misdemeanor becomes a f e l o n y when i t i s undertaken i n
15

f u r t h e r a n c e o f the t o r t o f i n t e n t i o n a l

i n f l i c t i o n o f emotional

16 d i s t r e s s .
17

Incredibly,

however, the government has o f f e r e d no evidence

18 whatsoever t h a t the defendant or any o f the a l l e g e d co19 c o n s p i r a t o r s i n t e n t i o n a l l y v i o l a t e d MySpace^s Terms o f Service.
20 Neither t h e defendant nor any c o - c o n s p i r a t o r ever read o r discussed
21

MySpace^s Terms o f Service [ p a r t i a l RT G r i l l s testimony, 32-33].

22 And w i t h o u t having read MySpace^s Terms o f Service, i t was
23

impossible f o r t h e defendant t o know o f the exact Terms o f Service

24

t h a t the defendant might have ^^intentionally^^ v i o l a t e d .

25

i s e s s e n t i a l t o r e a l i z e t h a t i n order t o v i o l a t e a Terms o f Service

26

i n t e n t i o n a l l y , a person must have a c t u a l knowledge o f t h e exact

27

t e r ^ and then make i t her conscious o b j e c t t o v i o l a t e i t .

28

^2-

Here, i t

A guess

22894

1

t h a t conduct ^ i ^ ^ t v i o l a t e a Term o f Service i s i n s u f f i c i e n t .

2

Further, even knowledge t h a t conduct v i o l a t e s a Term o f Service i s

3

insufficient.

4

must be the conscious o b j e c t -- the a c t u a l goal of the conduct

5



6

i n t e n t i o n a l conduct from mere knowing conduct).

7

l o g i c t h a t you cannot have a conscious o b j e c t t o v i o l a t e Terms t h a t

8

you do not even know w i t h c e r t a i n t y e x i s t .

9

To v i o l a t e the Terms o f Service i n t e n t i o n a l l y , i t

t o v i o l a t e them.

See Model Penal Code §2.02 ( d i s t i n g u i s h i n g
And i t i s simple

This i s e g u a l l y t r u e under the conspiracy count.

For the

10

defendant t o be g u i l t y o f engaging i n a conspiracy t o i n t e n t i o n a l l y

11

v i o l a t e Terms o f Service, i t must be the o b j e c t o f

12

the conspiracy t o v i o l a t e the Terms of Service.

13

government doesn^t even c l a i m t h a t the purpose o f the conspiracy

14

was t o v i o l a t e MySpace^s Terms of Service. The government's t h e o r y

15

i s t h a t the goal o f the conspiracy was t o i n f l i c t

16

d i s t r e s s on MTM,

17

To support a conspiracy charge, the goal of the conspiracy —

18

aim t h a t the c o - c o n s p i r a t o r s attempted t o achieve -- must be t o

19

v i o l a t e a s p e c i f i c MySpace Term o f Service.

but t h a t i s f a c i a l l y

But the

emotional

insufficient:
the

20

Evidence t h a t the defendant urged the d e l e t i o n o f the MySpace

21

account i s completely i r r e l e v a n t t o the guestion before the Court.

22

The government argues t h a t Drew urged the d e l e t i o n of the MySpace

23

account because she r e a l i z e d t h a t she had done something wrong by

24

v i o l a t i n g the Terms o f Service.

25

M.T.M. had committed

26

account could connect G r i l l s and her t o the s u i c i d e .

27

learned, the connection t o the s u i c i d e would t r i g g e r e x t r a o r d i n a r y

28

But t h i s i s simply b i z a r r e .

s u i c i d e , and Drew l o g i c a l l y f e a r e d t h a t the
As Drew

22895

1

p u b l i c approbation.

The p u b l i c o u t c r y and a t t e n t r o n t o t h i s case

2 has n o t h i n g t o do w i t h t h e o u t c r y over t h e Terms o f Service: Drew
3 has not r e c e i v e d hate m a i l and t h r e a t s by people f u r i o u s t h a t she
4

v i o l a t e d MySpace^s Terms o f Service.

5

completely absurd t o t h i n k t h a t Drew acted as she d i d because she

6

feared t h a t i t might be revealed t h a t she v i o l a t e d t h e Terms o f

7

Service o f a website.

8

I I I . CONCLUSION

9

To p u t i t simply, i t i s

For t h e reasons above and the argument made i n open c o u r t , the

10 defense asks t h i s Court t o dismiss a l l f o u r counts under Rule 29,
11

F.R.C.P.

12

Dated: Nov. 23, 2008

13
14
15
16
17
18
19
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22
23
24
25
26
27
28

s.B H. Dean Steward
H. Dean Steward
O r i n Kerr
Counsel f o r Defendant Drew

22896

1

CERTIFICATE OF SERVICE

2
3
4

IT IS HEREBY CERTIFIED THAT:

5 I , H. Dean Steward, am a c i t i z e n o f t h e U n i t e d States, and am a t
6 l e a s t 18 years o f age. My business address i s 107 Avenida Miramar,
7 Ste. C, San Clemente, CA 92672.
8
I am n o t a p a r t y t o t h e above e n t i t l e d a c t i o n . I have caused,

9
on Nov. 23, 2008, s e r v i c e o f the defendant's:

10
11

RU6E 2^M0TI0N

12

On the f o l l o w i n g p a r t i e s e l e c t r o n i c a l l y by f i l i n g t h e f o r e g o i n g

13

w i t h the Clerk o f t h e D i s t r i c t Court using i t s EOF system, which

14 e l e c t r o n i c a l l y n o t i f i e s counsel f o r t h a t p a r t y .
15

AUSAM^^^l^^RAUSE- I ^

16
17
I declare under p e n a l t y o f p e r j u r y t h a t t h e f o r e g o i n g i s t r u e and

18
19

correct.

20

Executed on NOV. 23, 2008

21

H. Dean Steward

22

H. Dean Steward

23
24
25
26
27
28

22897

1

2
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5
6
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9

THOMAS P. O'BRIEN
U n i t e d States A t t o r n e y
CHRISTINE C. EWELL
A s s i s t a n t United States A t t o r n e y
Chief, C r i m i n a l D i v i s i o n
MARK C. KRAUSE (Cal. State Bar No. 198142)
A s s i s t a n t United States A t t o r n e y
Deputy Chief, Cyber and I n t e l l e c t u a l
Property Crimes S e c t i o n
YVONNE L. GARCIA (Cal. State Bar No. 248285)
General Crimes S e c t i o n
1200 United States Courthouse
312 North Spring S t r e e t
Los Angeles, C a l i f o r n i a 90012
Telephone: (213) 894-3493B0719
Facsimile: (213) 894-8601B0141
E-mail:
mark.krause(^usdoj.gov
yvonne.garcia(^usdoj.gov

10
Attorneys f o r P l a i n t i f f

11 United States o f America
12
UNITED STATES DISTRICT COURT

13

FOR THE CENTRAL DISTRICT OF CALIFORNIA

14
15

UNITED STATES OF AMERICA,
Plaintiff,

16

V.

17
18

CRNo. 08-582-GW
GOVERNMENT'S OPPOSITION TO
DEFENDANT'S MOTION FOR JUDGMENT
OF ACQUITTAL

LORI DREW,
Defendant.

19
20
21
22

P l a i n t i f f U n i t e d States o f America, by and through i t s

23

counsel o f record. U n i t e d States A t t o r n e y Thomas P. O'Brien and

24 A s s i s t a n t United States Attorneys Mark C. Krause and Yvonne L.
25 Garcia, r e s p e c t f u l l y f i l e s i t s o p p o s i t i o n t o defendant's motion
26

f o r judgment o f a c q u i t t a l pursuant t o Federal Rule o f C r i m i n a l

27

Procedure 2 9 ( a ) .

28

BB

22898

1

This o p p o s i t i o n i s based on t h e a t t a c h e d memorandum o f

2 p o i n t s and a u t h o r i t i e s , t h e f i l e s and records o f t h i s case,
3 i n c l u d i n g t h e testimony and e x h i b i t s i n t r o d u c e d a t t r i a l i n t h i s
4 matter, and any a d d i t i o n a l evidence o r o r a l argument t h e Court
5 may wish t o consider.
6 Dated: November 23, 2008
7

R e s p e c t f u l l y submitted,

8

THOMAS P. O'BRIEN
United States A t t o r n e y

9
10

CHRISTINE C. EWELL
A s s i s t a n t U n i t e d States A t t o r n e y
Chief, C r i m i n a l D i v i s i o n

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

BsB
MARK C. KRAUSE
A s s i s t a n t U n i t e d States A t t o r n e y
YVONNE L. GARCIA
A s s i s t a n t U n i t e d States A t t o r n e y
Attorneys f o r P l a i n t i f f
United States o f America

22899

1

MEMOR^^UMOF

POINTS ^ D

2

AUTHORITIES

I.

3

INTRODUCTION

4

On November 21, 2008, the government completed i t s c a s e - i n -

5 c h i e f a g a i n s t defendant L o r i Drew ("defendant").

Drew i s charged

6

with

7

a u t h o r i z a t i o n o r i n excess o f a u t h o r i z e d access t o o b t a i n

(1) conspiracy t o access p r o t e c t e d computers w i t h o u t

8 information,
9

i n v i o l a t i o n o f 18 U.S.C. § 371 (count one); and

(2) i n t e n t i o n a l l y accessing p r o t e c t e d computers w i t h o u t

10

a u t h o r i z a t i o n o r i n excess o f a u t h o r i z e d access t o o b t a i n

11

i n f o r m a t i o n , and doing so i n f u r t h e r a n c e o f a t o r t i o u s a c t ,

12

namely, i n t e n t i o n a l i n f l i c t i o n o f emotional d i s t r e s s , i n

13 v i o l a t i o n o f 18 U.S.C. §§ 1030(a)(2)(C) and ( c ) ( 2 ) ( B ) ( i i )
14
15

(counts

two through f o u r ) .
At t h e close o f t h e government's case, defendant moved f o r a

16

judgment o f a c g u i t t a l pursuant t o Federal Rule o f C r i m i n a l

17

Procedure 29(a)

18

government d i d n o t present s u f f i c i e n t evidence t h a t

19

knew t h a t her accessing o f t h e MySpace servers i n Los Angeles,

20

C a l i f o r n i a , was w i t h o u t a u t h o r i s a t i o n o r i n excess o f

21

a u t h o r i z a t i o n because the government has not shown t h a t

22

read t h e MySpace Terms o f Service ( " T O S " ) T h e Court reserved

("Rule 2 9 ( a ) " ) .

Defendant claims t h a t t h e
defendant

defendant

23 judgment and took t h e motion under submission i n order t o review
24

t r a n s c r i p t s o f p e r t i n e n t government witness testimony.

The Court

25
26
27
28

" The government concedes t h a t i t cannot prove t h a t
defendant read t h e MySpace TOS. As discussed below, however, t h e
crimes charged do not r e g u i r e p r o o f t h a t defendant read t h e
MySpeace TOS. The government may, as i t has, show t h a t defendant
knew her access t o be unauthorized o r i n excess o f a u t h o r i z e d
access, by way o f o t h e r evidence.

22900

1

also reguested b r i e f i n g from t h e p a r t i e s r e g a r d i n g the standard

2 i t should apply i n c o n s i d e r i n g defendant's Rule 29(a) motion.
3

For t h e reasons d e s c r i b e d i n d e t a i l below,

4 motion should be denied.

defendant's

F i r s t , t h e government i s n o t r e g u i r e d

5 to prove t h a t defendant read t h e MySpace TOS i n order prove t h a t
6 she knew her accessing o f t h e MySpace servers was u n a u t h o r i z e d o r
7 i n excess o f a u t h o r i z e d access.

Second, t h e government has

8 presented s u b s t a n t i a l d i r e c t and c i r c u m s t a n t i a l evidence from
9 which a reasonable j u r o r c o u l d i n f e r t h a t defendant knew t h a t she
10 was accessing t h e MySpace computers w i t h o u t a u t h o r i z a t i o n o r i n
11 excess o f a u t h o r i z a t i o n because knew her conduct i n h e l p i n g t o
12 create a f i c t i t i o u s j u v e n i l e account and then use t h i s account t o
13 torment another j u v e n i l e , M.T.M., was " i l l e g a l , " wrong, and i n
14 v i o l a t i o n o f MySpace's r u l e s , y e t c o n t i n u e d using t h e MySpace
15 account t o f u r t h e r t h i s conduct.

Because a r a t i o n a l t r i e r o f

16 f a c t r e v i e w i n g t h i s evidence and drawing a l l i n f e r e n c e s i n f a v o r
17 of the government c o u l d f i n d t h a t t h e e s s e n t i a l elements o f t h e
18 crimes charged have a l l been proven beyond a reasonable doubt,
19 the

Court must deny defendant's motion.

20

II

21
22 A.

ARGUMENT

23

INRUI^IN^ON AMOTION FOR ^^D^MENT OF AC^UITTA6, THE COURT
MUST DRA^ AI^I^ REASON^I^E INFERENCES I N FAVOROF THE
COVERNMENT

24

Rule 29(a) p e r m i t s a t r i a l c o u r t t o " e n t e r a judgment o f

25 a c g u i t t a l on any o f f e n s e f o r which t h e evidence i s i n s u f f i c i e n t
26 to s u s t a i n a c o n v i c t i o n , "

I n r u l i n g on a motion f o r judgment o f

27 a c g u i t t a l , t h e c o u r t must review t h e evidence " i n t h e l i g h t ^o.st
28 ^avora^^e t o t ^ e ^overn^ent t o determine whether ^any r a t i o n a l

2

22901

1

t r i e r o f f a c t c o u l d have found the e s s e n t i a l elements o f the

2 crime beyond a reasonable doubt.'" U n i t e d States v. F r e t e r , 31
3 F.3d 783, 785 ( 9 t h C i r . 1994)
4 U.S. 307, 319 (1979))

(emphasis added); see a l s o United States v.

5 I r i a r t e - O r t e g a , 113 F.3d 1022,
6

( g u o t i n g Jackson v. V i r g i n i a , 443

1024 n.2 ( 9 t h C i r . 1997); U n i t e d

States v. B a n c a l a r i , 110 F.3d 1425,

1428 ( 9 t h C i r . 1997).

7 review o f the evidence f o r t h i s purpose,

In i t s

the c o u r t must assume

8 t h a t the t r i e r o f f a c t c o u l d r e s o l v e a l l c r e d i b i l i t y issues and
9

any " c o n f l i c t i n g i n f e r e n c e s " from the evidence i n f a v o r o f the

10

government.

11

C i r . 2000)

12

^.

See U n i t e d States v. Johnson, 229 F.3d 891, 894 (9th

13

AS AM^TTEROF I ^ ^ , ADEFENDANT CAN INTENTI0NA6I^^ ACCESS A
COMPUTER "WITHOUT AUTHORISATION" OR "EXCEED AUTHORISED
ACCESS" EVEN I F SHE DID NOT READ THE TERMS OF SERVICE THAT
DEFINE ^HAT CONSTITUTES AUTHORISED ACCESS

14

^Section 1030(a)(2)(C) p r o h i b i t s anyone from i n t e n t i o n a l l y

15 accessing a computer w i t h o u t a u t h o r i z a t i o n o r i n excess o f
16 a u t h o r i z a t i o n , and thereby o b t a i n i n g i n f o r m a t i o n from any
17 p r o t e c t e d computer i f the conduct i n v o l v e d an i n t e r s t a t e o r
18 f o r e i g n communication.
18 U.S.C. § 1 0 3 0 ( a ) ( 2 ) ( C ) . I n support o f
19 her Rule 29(a) motion, defendant e r r o n e o u s l y argues t h a t the
20

government presented i n s u f f i c i e n t evidence a t t r i a l t o prove t h a t

21 defendant i n t e n t i o n a l l y accessed the MySpace server w i t h o u t
22 a u t h o r i z a t i o n or i n excess o f a u t h o r i z a t i o n because the
23

government d i d not present evidence t h a t defendant read the

24 MySpace TOS. Proof o f t h a t f a c t i s not r e g u i r e d , however.
25
26
27
28

The Computer Fraud and Abuse Act

("CFAA") does n o t

22902

1 e x p l i c i t l y define "without authorization."^

Courts have

2 r o u t i n e l y looked t o w r i t t e n agreements, i n c l u d i n g TOS, t o
3 determine whether access o f a p r o t e c t e d computer i s a u t h o r i z e d ,
4 unauthorized, or i n excess o f a u t h o r i z a t i o n .

I n doing so, c o u r t s

5 have suggested t h a t a p l a i n meaning i n t e r p r e t a t i o n o f " w i t h o u t
6 a u t h o r i z a t i o n " should apply.
7 USA,

See, e.g.,

Calyon v. Mizuho Sec.

I n c . , 2007 WL 2618658 (S.D.N.Y. Sept. 5, 2007)

("the p l a i n

8 language o f the s t a t u t e seems t o contemplate t h a t , whatever e l s e ,
9

^without access' and ^exceeds a u t h o r i z e d access' would i n c l u d e an

10 employee who i s accessing documents on a computer system which
11 t h a t employee had t o know was i n c o n t r a v e n t i o n of the wishes and
12 i n t e r e s t s o f h i s employer"); Calence LLC v. Dimension Data
13 Holdings, 2007 WL 1526349 (W.D. Wash. May 23, 2007) ( i n case
14 a l l e g i n g defendant breached employment and c o n f i d e n t i a l i t y
15 agreements i n accessing and d i s s e m i n a t i n g i n f o r m a t i o n , h o l d i n g
16 " t h i s Court has g e n e r a l l y accepted the n o t i o n t h a t Congress
17 intended t o encompass a c t i o n s such as those a l l e g e d l y taken by
18 defendant"); Ticketmaster LLC v. RMG Tech., I n c . , 507 F.Supp.2d
19 1096 (CD. Cal. 2007) ( C o l l i n s , J.) ( v i o l a t i o n of terms of
20 s e r v i c e r e s u l t e d i n "unauthorised ^^^e^^^'); Hewlett-Packard Co.
21 V. Bvd:Si^n, I n c . , No. 05-C^-456, 2007 WL 275476, a t ^13

(E.D.

22 Tex. Jan. 25, 2007) (defendant's conduct v i o l a t e d w r i t t e n
23 agreements r e g a r d i n g access and were, t h e r e f o r e , u n a u t h o r i z e d ) ;
24 America Online, I n c . v. LCGM, I n c . , 46 F. Supp.2d 444, 450-51
25

(E.D. ^a. 1998)

( h o l d i n g t h a t massive email t r a n s m i s s i o n s , or

26
^Section 1030(e)(6) defines the term "exceeds a u t h o r i z e d
27 access"
as " t o access a computer w i t h a u t h o r i z a t i o n and t o use
such
access
a l t e r i n f o r m a t i o n i n the computer t h a t
28 the accessert io so nb toati ne n tor
i t l e d t o so o b t a i n or a l t e r . "

22903

1

"spam," sent by customers o f the p l a i n t i f f were sent w i t h o u t

2

a u t h o r i z a t i o n because the emails v i o l a t e d the terms o f s e r v i c e o f

3

p l a i n t i f f ) ; Hotmail Corp. v. Van^ Money Pie, I n c . , 1998 WL 388389

4

(N.D.

5

o f terms o f s e r v i c e c o n s t i t u t e d "unauthorized" access).

6

simply, t o access a computer w i t h o u t a u t h o r i z a t i o n means " t o

7

access a computer w i t h o u t the approval, p e r m i s s i o n , or s a n c t i o n

8

o f the computer's owner."

Gov't Proposed Jury I n s t r u c t i o n

9

26; see also Webster's New

World D i c t i o n a r y , 3d C o l l e g i a t e Ed.

Cal. Apr. 16, 1998)

(misuse of email addresses i n v i o l a t i o n
Put

No.

10

(1988) ( d e f i n i n g " a u t h o r i z a t i o n " as " l e g a l power or r i g h t ,

11

s a n c t i o n " ) ; h t t p : B B d i c t i o n a r y . r e f e r e n c e . c o m BbrowseBauthorized

12

( d e f i n i n g " a u t h o r i z a t i o n " as "permission or power granted by an

13

a u t h o r i t y , s a n c t i o n " ) ; see also Black's Law

14

8 t h ed.

15

" a u t h o r i z e " as " t o g i v e l e g a l a u t h o r i t y ; t o empower" and " t o

16

f o r m a l l y approve").

17

D i c t i o n a r y 1559,

92

143

( d e f i n i n g "unauthorized" as "done w i t h o u t a u t h o r i t y " and

TOS,

by t h e i r v e r y nature, d e f i n e both a u t h o r i z e d and

18

unauthorized uses o f a website.

19

i n v i o l a t i o n o f the terms set f o r t h by the computer's owner i s

20

p l a i n l y " w i t h o u t the approval, permission, or s a n c t i o n " of t h a t

21

computer owner.

22

photograph

23

abusive conduct, encouraging

24

o f personal i n f o r m a t i o n from anyone under the age of 18 - a l l

25

a c t i v i t i e s i n which defendant engaged by u s i n g the fake MySpace

26

account.

27

President of Customer Care, t e s t i f i e d , these r u l e s are necessary

28

t o ensure a safe o n l i n e community.

MySpace's TOS

Conduct i n accessing a computer

e x p l i c i t l y p r o h i b i t p o s t i n g the

of a person w i t h o u t t h a t person's consent, harassment,

(See Gov't Ex. 3.)

others t o harass, and

solicitation

As Jae Sung, MySpace's Vice

5

MySpace even has teams of

22904

1

employees d e d i c a t e d t o e n s u r i n g t h a t members adhere t o the TOS.

2

F a i l u r e t o comply r e s u l t s i n t e r m i n a t i o n

3

occasion, r e f e r r a l t o law enforcement.

4

website t o enforce t h e TOS makes i t c l e a r t h a t access t h a t

5

involves

6

permission, or s a n c t i o n "

7

o f s e r v i c e s and, on
MySpace's p o l i c i n g o f i t s

a v i o l a t i o n o f t h e TOS i s " w i t h o u t t h e approval,
o f MySpace.

Although t h e p o i n t a t which access becomes " w i t h o u t

8

a u t h o r i z a t i o n " or i n excess o f a u t h o r i z a t i o n

i s d e f i n e d by t h e

9

MySpace TOS, defendant need not have read t h e TOS i n order f o r

10 her conduct t o be i n v i o l a t i o n o f t h e law. As an i n i t i a l matter,
11

t h e s t a t u t e merely r e g u i r e s

t h a t defendant i n t e n d t o access a

12 computer w i t h o u t a u t h o r i z a t i o n or i n excess o f a u t h o r i z a t i o n
13



i t does n o t e x p l i c i t l y mention TOS, nor does i t l i m i t i n any way

14 t h e means by which t h e i n t e n t t o engage i n u n a u t h o r i z e d access
15

must be e s t a b l i s h e d .

Nothing i n the s t a t u t e , t h e r e f o r e ,

can be

16

read as r e g u i r i n g t h a t a defendant must a c t u a l l y read t h e TOS

17 t h a t render her access unauthorized so long as t h e r e i s
18 a l t e r n a t i v e evidence from which a j u r y can i n f e r t h i s knowledge.
19^

Moreover, absent from the s t a t u t e i s any use o f t h e term

20 Congress has used when i t intends t o r e q u i r e a c t u a l knowledge o f
21

t h e s p e c i f i c r u l e s t h a t render one's conduct u n l a w f u l ,

22 t h e term " w i l l f u l n e s s . "
23

namely,

A venerable p r i n c i p l e o f c r i m i n a l law i s

t h a t ignorance o f the law i s no defense t o a c r i m i n a l charge.

24 Cheek V. U n i t e d States, 498 U.S. 192, 199 (1991).

This i s a

25

concept t h a t i s "deeply r o o t e d i n the American l e g a l system."

26

I d . Where Congress has intended t o s o f t e n t h a t blow, i t has done

27 so e x p l i c i t l y by a s c r i b i n g a ^ens rea t h a t r e g u i r e s the
28 defendant's conduct t o be " w i l l f u l . "

I d . a t 200.

The N i n t h

22905

1

C i r c u i t has r e p e a t e d l y h e l d t h a t where a s t a t u t e does not r e g u i r e

2 p r o o f o f a w i l l f u l v i o l a t i o n , t h e government i s n o t r e g u i r e d t o
3 prove t h a t a defendant has knowledge o f t h e p a r t i c u l a r law t h a t
4

has been v i o l a t e d .

See, e.g.. U n i t e d States v. Hancock, 231 F.3d

5

557, 562 (9th C i r . 2002) ( a f f i r m i n g d i s t r i c t c o u r t ' s r e f u s a l t o

6

g i v e i n s t r u c t i o n t h a t defendant "knew t h a t i t was i l l e g a l f o r him

7

t o possess f i r e a r m s " because p r o s e c u t i o n under 18 U.S.C. § 922(g)

8

does not r e g u i r e p r o o f o f w i l l f u l v i o l a t i o n ) .

9

1030(a)(2)(C) does not c o n t a i n

That

section

a w i l l f u l n e s s reguirement,

10

therefore,

supports t h e government's p o s i t i o n t h a t i t i s n o t

11

reguired

12

j u r y t o f i n d t h a t defendant i n t e n t i o n a l l y accessed the MySpace

13

server " w i t h o u t a u t h o r i z a t i o n " or i n excess o f a u t h o r i z a t i o n , b u t

t o prove t h a t defendant read t h e TOS i n order f o r t h e

14 may i n s t e a d prove defendant's knowledge t h a t her access was
15

unauthorized o r i n excess o f a u t h o r i z a t i o n by o t h e r means.

16

C.

18

THE COVERNMENT HAS PRESENTED SU^ST,^TIAI^ EVIDENCE THAT
DEFENDANT ^ E ^ THAT THE CONTINUED USE OF THEM^SPACE ACCOUNT
^A8 ^ON^, I N VIOI^TIONOF MYSPACE RUIZES, AND II^I^ECAI^, ^ET
CONTINUED TOMAINTAIN^D USE I T "WITHOUT AUTHORISATION" OR
INE^CESS OF AUTHORISATION

19

The evidence presented by t h e government i n i t s case-in-

17

20

c h i e f s t r o n g l y supports t h e i n f e r e n c e t h a t defendant

21

i n t e n t i o n a l l y accessed the MySpace servers " w i t h o u t

22

a u t h o r i z a t i o n " or i n excess o f a u t h o r i z a t i o n because defendant

23

was placed on n o t i c e t h a t her conduct was wrong, i n v i o l a t i o n o f

24 t h e r u l e s o f MySpace, and i l l e g a l , y e t i n s i s t e d on p e r p e t u a t i n g
25

t h e scheme u s i n g t h e fake MySpace account.

26

f i n d beyond a reasonable doubt, based upon the testimony o f

27 Ashley G r i l l s ,
28

Rational

j u r o r s could

C h r i s t i n a Chu, and C h r i s t i n a Meier t h a t defendant

i n t e n t i o n a l l y accessed the MySpace servers " w i t h o u t
7

22906

1

a u t h o r i z a t i o n " and i n excess o f a u t h o r i z a t i o n .

2

F i r s t , defendant's c o - c o n s p i r a t o r Ashley G r i l l s t w i c e r a i s e d

3 concerns about t h e p r o p r i e t y o f t h e "Josh Evans" scheme t o
4 defendant and e x p l a i n e d t h a t t h e i r conduct was " i l l e g a l . "

Within

5 days o f c r e a t i n g t h e fake MySpace account, both Ms. G r i l l s and
6 defendant's own daughter, S.D., t o l d defendant t h a t they were
7 concerned t h a t they would get i n t r o u b l e because what they were
8 doing was " i l l e g a l . "
9

0:

I^

During t h e f i r s t week a f t e r you c r e a t e d t h e
account d i d anyone r a i s e any concerns about what
you were doings

11

Yes.

12

And who was t h a t 7

13

I t was both [S.D.] and I .

14

And who d i d you r a i s e those concerns w i t h 7

I^

Lori.

16

And what d i d you t e l l the defendants

17

That we thought we would g e t i n t r o u b l e because
i t ' s i l l e g a l t o make a fake MySpace.

18
19
20
21
22
23
24
25
26
27
28

( D r a f t G r i l l s Tr. a t 14, 1. 4-13 (emphasis added).)
however, dismissed Ms. G r i l l s ' concerns.

Defendant t o l d her " i t

was f i n e , " and t h a t "people do i t a l l t h e t i m e , "
16.)

( I d . a t 15, 1. 8-15.)

( I d , a t 14, 1.

Ms. G r i l l s renewed her o b j e c t i o n s

l a t e r , s t a t i n g she no longer wanted t o be i n v o l v e d .
1. 21-22.)

Defendant,

( I d . a t 15,

Despite t h i s second warning, defendant again assured

Ms. G r i l l s " t h a t i t was f i n e and i t d i d n ' t matter and [ t h e y ]
weren't going t o g e t i n any t r o u b l e . "

( I d . a t 15, 1. 24-25.)

Such evidence supports an i n f e r e n c e t h a t d u r i n g the pendency o f
the

conspiracy, defendant was aware o f t h e r u l e s o f MySpace, knew

22907

1

t h a t the scheme was i l l e g a l because i t v i o l a t e d those r u l e s , b u t

2 b e l i e v e d (and so assured Ms. G r i l l s and S.D.) That she need n o t
3 worry about t h e improper conduct because o f a p e r c e i v e d l a c k o f
4
5
6

enforcement.
S i m i l a r l y , when defendant v i s i t e d Michael A's H a i r Salon,
she bragged t o her h a i r d r e s s e r , Bonnie King, about t h e fake

7 MySpace account.

According t o Dawn Chu's testimony, defendant

8 e x p l a i n e d t o Ms. King t h a t she was posing as a boy on MySpace i n
9 order t o g e t back a t an u n i d e n t i f i e d g i r l .

Dawn Chu became upset

10

and t o l d defendant t h a t her conduct was wrong.

Defendant d i d n o t

11

respond and i n s t e a d c o n t i n u e d t o use t h e fake MySpace account.

12

r a t i o n a l j u r y c o u l d i n f e r t h a t t h i s represented a t h i r d time t h a t

13

defendant was p l a c e d on n o t i c e t h a t her conduct i n c r e a t i n g adn

A

14 u s i n g the fake MySpace account was wrong and i l l e g a l , and t h a t
15

defendant's ongoing p e r s i s t e n c e i n u s i n g t h e fake MySpace account

16

represented i n t e n t i o n a l access o f the MySpace servers " w i t h o u t

17 a u t h o r i z a t i o n " o r i n excess o f a u t h o r i z a t i o n .
18

Second, defendant's a c t i o n s upon l e a r n i n g t h a t M.T.M. had

19

committed s u i c i d e are evidence o f consciousness o f g u i l t t h a t

20

f u r t h e r demonstrate defendant's knowledge t h a t her use o f t h e

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MySpace account was u n a u t h o r i z e d . A f t e r G r i l l s and daughter S.D.

22

investigated

23

t o l d defendant t h a t M.T.M. had committed s u i c i d e , defendant "was

t h e cause o f t h e ambulances a t the Meier home and

24 k i n d o f g u i e t f o r a minute and then her husband s t a r t e d y e l l i n g
25

a t [ G r i l l s and S.D.] t o g e t r i d o f the MySpace and then

26

[defendant] s t a r t e d y e l l i n g a t [ G r i l l s and daughter S.D.] t o g e t

27 r i d o f the MySpace."
28

( D r a f t G r i l l s Tr. a t 22, 1. 9-11.) The

f a c t t h a t , immediately a f t e r M.T.M.'s death, defendant took steps
9

22908

1

t o evade d e t e c t i o n by law enforcement by seeking t o destroy

2

evidence o f t h e fake MySpace account c l e a r l y supports an

3

i n f e r e n c e t h a t defendant knew t h a t i t was her use o f t h e MySpace

4 account t h a t rendered her conduct i l l e g a l because t h a t use was
5
6

u n a u t h o r i z e d . Leathers v. U n i t e d States, 250 F.2d 159, 159, 162
( 9 t h C i r . 1957) ( d e s t r u c t i o n o f t a x records r e l e v a n t t o

7 defendant's knowledge o f i l l e g a l conduct; c i t i n g Wigmore on
8 Evidence); see a l s o U n i t e d States v. James, 764 F.2d 885, 890
9

(D.C. C i r . 1985) ( d e s t r u c t i o n o f evidence r e l e v a n t

t o defendant's

10

knowledge o f i l l e g a l conduct r e l a t e d t o drug t r a f f i c k i n g ) ;

11

States V. Robinson, 635 F.2d 981 (2d C i r . 1980) ( d e s t r u c t i o n o f

12 passport r e l e v a n t
13

United

t o defendant's knowledge o f i l l e g a l conduct).

Defendant, a f t e r a l l , d i d not i n s t r u c t her c o - c o n s p i r a t o r s t o

14 destroy t h e evidence o f o t h e r modes o f e l e c t r o n i c

communication

15

used i n communicating w i t h M.T.M., l i k e AOL I n s t a n t Messenger,

16

^anga, or Yahoos Messenger, thus demonstrating her knowledge

that

17 t h e use o f t h e fake MySpace account was m a t e r i a l l y d i f f e r e n t and
18 more culpable, p r e c i s e l y because t h a t use was so p a t e n t l y
19

u n a u t h o r i z e d and wrong.

Evidence r e g a r d i n g consciousness o f

20

g u i l t , combined w i t h t h e f a c t t h a t defendant was placed on n o t i c e

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m u l t i p l e times t h a t her conduct was wrong, would enable a

22

r a t i o n a l j u r y t o i n f e r t h a t defendant p e r s i s t e d

23

MySpace account w i t h t h e r e g u i r e d

i n using the fake

i n t e n t o f accessing the MySpace

24 servers " w i t h o u t a u t h o r i z a t i o n " and i n excess o f a u t h o r i z a t i o n .
25
26

F i n a l l y , defendant was aware t h a t S.D, had s e t up her own
fake MySpace account p r i o r t o t h e summer o f 2006.

27 t e s t i f i e d
28

Ms. Meier

t h a t , p r i o r t o c r e a t i o n o f t h e "Josh Evans" MySpace

account, M.T.M. and S.D. created a d i f f e r e n t MySpace account
10

22909

1

using t h e fake name " K e l l y . "

( D r a f t Meier Tr. a t 115, 1. 20;

2 116, 1. 8.) The g i r l s p o r t r a y e d " K e l l y " as an 18 year o l d woman.
3

The g i r l s e s t a b l i s h e d t h e " K e l l y " account so t h a t they could

4 " t a l k t o boys."
5

( I d . a t 116, 1. 9.) A f t e r l e a r n i n g about the

" K e l l y " MySpace account, Ms. Meier contacted defendant

"and t o l d

6 her t h a t Megan was n o t allowed on the computers a t [ t h e Drew]
7 home."

( I d . a t 117, 1. 10-11.)

Soon t h e r e a f t e r ,

defendant

8 changed S.D.'s cellphone number because boys from v a r i o u s s t a t e s
9 had obtained t h e number through t h e " K e l l y " MySpace account and
10

had a c t u a l l y c o n t a c t e d S.D.

11

( I d . a t 117, 1. 19-24.)

Rational j u r o r s could i n f e r that t h i s incident

alerted

12

defendant

t o t h e r i s k s posed by the I n t e r n e t and, s p e c i f i c a l l y ,

13

MySpace.

I n a d d i t i o n , Ms. Meier c a l l e d defendant a f t e r Ms. Meier

14

discovered t h e " K e l l y " MySpace account and i n s t r u c t e d her not t o

15

a l l o w M.T.M. t o use t h e computers i n t h e Drew home, s u p p o r t i n g

16

t h e i n f e r e n c e t h a t Ms. Meier placed defendant on n o t i c e t h a t S.D.

17

and M.T.M. d i d something wrong by c r e a t i n g t h e fake " K e l l y "

18

MySpace account.

19

created the fake "Josh Evans" MySpace account.

20

viewing t h i s evidence, as w e l l as t h e f a c t t h a t defendant was

21

placed on n o t i c e m u l t i p l e times t h a t her conduct was wrong, and

22

sought t o d e s t r o y evidence o f the fake "Josh Evans" MySpace

23

account once she l e a r n e d o f M.T.M.'s s u i c i d e , i n t h e l i g h t most

24

f a v o r a b l e t o t h e government, could i n f e r t h a t defendant used t h e

25

fake MySpace account w i t h the r e g u i r e d

26

MySpace servers " w i t h o u t a u t h o r i z a t i o n " and i n excess o f

27

Despite l e a r n i n g t h i s , defendant

authorization.

28 BB
11

nevertheless

A rational jury

i n t e n t o f accessing the

22910

III.
CONCI^USION
For t h e f o r e g o i n g reasons, t h e government r e s p e c t f u l l y
reguests t h a t t h e Court deny defendant's

motion f o r judgment o f

a c g u i t t a l pursuant t o Rule 2 9 ( a ) .
Dated: November 23, 2008
R e s p e c t f u l l y submitted,
THOMAS P. O'BRIEN
United States A t t o r n e y

11
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Chief, C r i m i n a l D i v i s i o n

BSB
MARK C. KRAUSE
A s s i s t a n t U n i t e d States A t t o r n e y

14^^

YVONNE L. GARCIA
A s s i s t a n t U n i t e d States A t t o r n e y

1^

Attorneys f o r P l a i n t i f f
U n i t e d States o f America

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22911

H. Dean Steward SBN 85317
107 Avenida Miramar, Ste. C
1 San Clemente, CA 92672
949-481-4900
2 Fax: (949) 496-6753

3 Orin S. Kerr
D i s t . o f Columbia BN 980287
4 2000 H. S t r e e t NW
Washington, DC 20052

5 202-994-4775
Fax 202-994-5654
6 okerr(^gwu.edu
7

Attorneys f o r Defendant

8 L o r i Drew
9
1(^
11

UNITED STATES DISTRICT COURT

12

CENTRAL DISTRICT OF CALIFORNIA

13 UNITED STATES,
14
Plaintiff,
15
vs.
16 LORI DREW,
17
18

Case No.

CR-08-582-GW

SUPPLEMENT TO RULE 29 MOTION

Defendant.

Comes now defendant, t o g e t h e r w i t h counsel, and supplements

19 her previous Rule 29 motions, made o r a l l y a t the close o f t h e

2(^

government's case, again a t the close o f the defense case, and

21 by w r i t t e n motion f i l e d Nov. 23, 2008 [docket e n t r y ^ 9 6 ] .
22 Dated: Dec. 15, 2008
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28

s.B H. Dean Steward
H. Dean Steward
O r i n Kerr
Counsel f o r Defendant Drew

^1-

22912

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I . INTRODUCTION
On Nov. 20, 2008, a t t h e end of t h e government's case i n
c h i e f , counsel moved f o r d i s m i s s a l o f t h e charges against the
defendant L o r i Drew under Rule 29 o f t h e Federal Rules o f
C r i m i n a l Procedure.

Counsel moved again under Rule 29 a t the

close o f t h e defense case, on Nov. 21, 2008. On Nov. 23, 2008,
counsel f i l e d a memorandum p r o v i d i n g argument f o r one o f t h e
bases o f t h e motion, namely the l a c k o f evidence t h a t any
unauthorized access was " i n t e n t i o n a l . " This supplemental
memorandum provides argument f o r a second b a s i s o f t h e Rule 29
motion: That when t h e s t a t u t e i s construed p r o p e r l y , t h e r e i s no
evidence t h a t any access was unauthorized.
I I . ARGUMENT
The p r o s e c u t i o n o f L o r i Drew has been front-page news i n
newspapers across t h e country.

I t has been a major TV s t o r y .

I t has been covered e x t e n s i v e l y on t h e r a d i o .
popular t o p i c o f heated debate on t h e I n t e r n e t .

I t has been a
With the t r i a l

now over, and the media hoopla subsided, i t i s e s s e n t i a l t o step
back and see what t h i s p r o s e c u t i o n i s and what i t i s n o t .
The j u r y ' s r e f u s a l t o c o n v i c t L o r i Drew o f any o f t h e
government's f e l o n y counts has l e f t the c o u r t w i t h only a small
p a r t o f t h e o r i g i n a l p r o s e c u t i o n . At t h i s stage, emotional

22913

d i s t r e s s i s no longer p a r t o f the case.

I f t h i s case was

ever

1
about " c y b e r b u l l y i n g , " the j u r y ' s v e r d i c t ended t h a t connection:

2
the government simply f a i l e d t o meet i t s burden of p r o o f t h a t

3
Drew was g u i l t y o f any c y b e r b u l l y i n g .

I n s t e a d , the j u r y ' s

4
v e r d i c t has l e f t the Court w i t h o n l y one type of behavior t h a t

5
is allegedly criminal.

That conduct i s the v i o l a t i o n o f

6
MySpace's Terms o f Service.

7
I n l i g h t o f the j u r y ' s v e r d i c t , i t i s now time f o r the
^

c o u r t t o c o n f r o n t and e i t h e r approve or r e j e c t the government's

9
novel and b r e a t h t a k i n g l y broad t h e o r y of the Computer Fraud and

1(^
Abuse Act.

The t h e o r y o f the p r o s e c u t i o n i s t h a t breach o f a

11
c o n t r a c t u a l r e s t r i c t i o n on the I n t e r n e t i s a f e d e r a l crime.

The

12
government's view i s t h a t breach o f a c o n t r a c t t o use a computer

13
makes the computer usage unauthorized: The c o n t r a c t governs

14
r i g h t s t o use a computer, so breaching the computer makes

15
accessing the computer " w i t h o u t r i g h t " and t h e r e f o r e a crime.

16
The guestion the Court must c o n f r o n t i n t h i s motion t o dismiss

17
i s whether t o endorse or r e j e c t the government's novel theory.

18
si^^^y^^ t^e g^uestion i.5

19
20

^ i o ^ a t e a ^e^.2ite ^er^s of^ ,2erviceB^
The c o r r e c t answer should be a resounding

21
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i t a ^e^era^ c r i ^ e t o

A.

no.

V i o l a t i o n s of C o n t r a c t u a l Terms Such as Terms o f Service Do

Not Make Access Unauthorized.

22914

Breaching a c o n t r a c t u a l term does not make access

1
unauthorized because crimes p u n i s h i n g conduct

"without

2
a u t h o r i z a t i o n " or " w i t h o u t

consent" have a w e l l - e s t a b l i s h e d and

3
s p e c i f i c meaning —

a meaning t h a t the government's broad

4
theory simply ignores.

When Congress or a s t a t e l e g i s l a t u r e

5
punishes an a c t when i t occurs " w i t h o u t

authorization," that act

6
i s p r o h i b i t e d o n l y when t h e person or business t h a t can grant

7
a u t h o r i z a t i o n has act^ai^y^ ^ e c ^ i n e ^ o^ ^ a i ^ e ^ t o ^ i v e

8
per^i^^io^.

9
I f a person or business a c t u a l l y ^rant.^ permission f o r t h e

1(^
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act, c o n d i t i o n e d

on some understanding t h a t turns out t o be ^

f a l s e , then t h e a c t i s . s t i i i a^t^ori^ec^ f o r t h e purposes o f
c r i m i n a l law. See R o l l i n s M. Perkins ^ Ronald N. Boyce,
Criminal
F.3d

Law 1075-84 (3d ed 1982);

1066, 1073 (9th C i r . 2004). As one c o u r t summarized,

"whenever lack o f consent i s a necessary element o f a crime, t h e
f a c t t h a t consent i s obtained through m i s r e p r e s e n t a t i o n w i l l not
supply the e s s e n t i a l element o f nonconsent."
228

Cal.App.2d 716, 719 (1964).

26
27
28

People v. Cook^

I n t h i s case, MySpace

Ashley G r i l l s t o c r e a t e an account and p e r m i t t e d
access MySpace.

Grills to

access t o MySpace, MySpace a f f i r m a t i v e l y a u t h o r i z e d
t o i t s computers.

permitted

By a l l o w i n g the account and g i v i n g i t s users
t h e access

The f a c t t h a t t h e account breached a

24
25

Theofel v. Farey-Jones, 359

-4-

22915

c o n t r a c t u a l r e s t r i c t i o n does not t r a n s f o r m t h a t a u t h o r i z e d

1
access i n t o an u n a u t h o r i z e d access.

2
Because computer crimes are new,

the cases t h a t best

3
i l l u s t r a t e t h i s p r i n c i p l e are found i n o t h e r areas of c r i m i n a l

4
law t h a t use the same element of l a c k o f a u t h o r i z a t i o n or

5
consent.

Perhaps the most analogous cases i n v o l v e the crime o f

6
t a k i n g a v e h i c l e o f another w i t h o u t the owner's consent.

See^

7
e.^.^

Cal. V e h i c l e Code § 10851. I n p a r t i c u l a r , consider the

8
cases i n which a person uses f r a u d , m i s r e p r e s e n t a t i o n , and

9
t r i c k e r y t o persuade

a car owner i n t o handing over the keys.

The

1(^
t r i c k s t e r i s then charged w i t h t a k i n g the automobile of another

11
w i t h o u t the owner's consent.

I n these cases, the c o u r t s have

12
h e l d t h a t the t r i c k s t e r i s not l i a b l e f o r t a k i n g the car

13
" w i t h o u t consent" as a matter of law.

Because the owner handed

14
over the keys, g i v i n g the defendant permission t o use the car,

15
the use of the car was a u t h o r i z e d r a t h e r than unauthorized f o r

16
purposes of c r i m i n a l law.

See, e.g..

People v. Cook^

228 Cal

17
App.2d 716

(1964)

(Burke, P.J.)

(defendant who purchased car by

18
misrepresenting h i s i d e n t i t y not g u i l t y of auto t h e f t , as t a k i n g

19
of car was w i t h consent of s e l l e r ) .

20
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27
28

People V. D o n e l l , 32 Cal.App.3d 613
r e l e v a n t t o t h i s case.

(1973), i s p a r t i c u l a r l y

I n Donell, the defendant a l l e g e d l y

rented a Hertz r e n t a l car using a s t o l e n ID and a s t o l e n Hertz
c r e d i t card.

The r e n t a l c o n t r a c t r e g u i r e d the person r e n t i n g

-5-

22916

the car t o make o n l y t r u t h f u l r e p r e s e n t a t i o n s .

The defendant

1
rented t h e c a r i n v i o l a t i o n o f t h i s c o n t r a c t u a l term, however:

2
While h i s r e a l name was Jon Donell, t h e defendant pretended t h a t

3
he was "Ernest C a r l Johnson."

At t r i a l ,

t h e judge i n s t r u c t e d

4
the j u r y t h a t i f t h e j u r y b e l i e v e d t h a t t h e defendant had

5
obtained t h e c a r by f r a u d , then t h e c o n t r a c t was v i o l a t e d and

6
the t a k i n g o f t h e c a r was w i t h o u t consent.

The Court o f Appeal

7
reversed, a p p l y i n g t h e usual r u l e t h a t " f r a u d u l e n t l y induced

8
consent i s consent nonetheless."

Id^. a t 617. Although Donell

9
had rented t h e c a r i n v i o l a t i o n o f t h e r e n t a l c o n t r a c t , t h e

10
r e n t a l company had i n f a c t consented t o him t a k i n g t h e c a r .

11
The f a c t t h a t t h e consent was obtained by f r a u d d i d n o t make t h e

12
t a k i n g u n a u t h o r i z e d as a matter o f law.

Id.

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The same p r i n c i p l e a p p l i e s t o t h e proper i n t e r p r e t a t i o n o f
s t a t u t e s p r o h i b i t i n g unauthorized access t o a computer,
N i n t h C i r c u i t recognized i n T h e o f e l .

as t h e

Access t o a computer i s

not unauthorized merely because i t v i o l a t e s a c o n t r a c t .

To be

sure, such access may f r a u d u l e n t l y induce t h e computer owner t o
grant access, which under c o n t r a c t law would g e n e r a l l y v o i d t h e
c o n t r a c t between t h e computer owner and t h e computer user.

See,

e.g.. Extra Eguipamentos E Exportacao Ltda. v. Case Corp. 541
F.3d 719, 726 ( 7 t h C i r . 2006) (Posner, J.) ("[T]he remedy f o r
f r a u d i n t h e inducement

i s t o rescind the c o n t r a c t . " ) . Criminal

law i s d i f f e r e n t , however.

I n c r i m i n a l law, f r a u d i n t h e

22917

inducement does not make the access unauthorized.

See R o l l i n s

1
M.

Perkins

^ Ronald N. Boyce, C r i m i n a l Law

1075-84 (3d ed

1982)

2
3
B. The Government F a i l e d t o E s t a b l i s h Unauthorized Access i n

4
t h i s Case.

5
Construing

the evidence i n the government's f a v o r , L o r i

^

Drew and Ashley G r i l l s were a t most i n the same p o s i t i o n as

Jon

7
Donell.

Like Donell, they obtained p r o p e r t y

through

8
m i s r e p r e s e n t a t i o n of i d e n t i t y t h a t breached a c o n t r a c t .

Just as

9
w i t h Donell, t h e i r conduct was

not w i t h o u t the a u t h o r i z a t i o n of

1(^
the p r o p e r t y owner.

MySpace gave G r i l l s access j u s t l i k e Hertz

gave Donell access.

The

11
f a c t t h a t i t was

not r e a l l y "Josh

12
Evans" r e g i s t e r i n g the account i s no more r e l e v a n t t o

13
a u t h o r i z a t i o n than was

the f a c t hat i t was

not "Ernest Carl

14
Johnson" who

r e n t e d the car i n Donell.

I n both cases, the

15
p r o p e r t y owner p e r m i t t e d the defendant t o c o n t r o l the p r o p e r t y :

16
The access was

a u t h o r i z e d even though i t v i o l a t e d a c o n t r a c t u a l

17
r e s t r i c t i o n on access.

18
19
20
21
22
23
24
25
26
27
28

This important l e g a l p r i n c i p l e e x p l a i n s why most I n t e r n e t
users are not c r i m i n a l s f o r the way
the web.

they send e-mail and s u r f

V i o l a t i n g Terms of Service by p r o v i d i n g f a l s e

i n f o r m a t i o n t o r e g i s t e r an account i s extremely
Even the founder of MySpace, Tom

common o n l i n e .

Anderson, v i o l a t e d t h a t Term of

Service w i t h h i s own MySpace p r o f i l e : Anderson knowingly and

^7-

22918

i n t e n t i o n a l l y entered i n a fake age i n h i s MySpace p r o f i l e ,

1
perhaps t o appear younger t o t h e y o u t h f u l audience o f MySpace

2
users.

Jessica Bennett, ^.^

47u.^t ^ ^^^^e^B^^ Newsweek,

3
November 5, 2007, a v a i l a b l e a t http:BBwww.newsweek.comBidB62330.

4
Anderson's conduct was not c r i m i n a l f o r t h e same reason

that

5
Drew's conduct and t h e s i m i l a r conduct o f m i l l i o n s o f Americans

6
i s not c r i m i n a l :

A website Terms o f Service can d e f i n e t h e

7
c o n t r a c t between owner and user, b u t i t does n o t d e f i n e t h e

8
scope o f c r i m i n a l law.

9
The government's case i n c h i e f was based on t h e t h e o r y t h a t

1(^
Drew committed

a crime by v i o l a t i n g MySpace's Terms o f Service.

11
This t h e o r y must be r e j e c t e d as a matter o f law. When i t i s

12
r e j e c t e d , i t becomes c l e a r t h a t t h e government d i d not p r o v i d e

13
any evidence by which a r a t i o n a l j u r y could f i n d t h a t Drew

14
committed

15

B
16

B
17

B
18

B
19

B
20

B
21

B
22
23
24
25
26
27
28

an unauthorized access i n t o MySpace's computers.

22919

^ ^ I ^ CONCLUSION

1

For these r e a s o n s , a n d f o r t h e reasons e x p l a i n e d i n

2

c o u n s e l ' s e a r l i e r w r i t t e n and o r a l arguments, t h e Motior^ t o

3
Dismiss under Rule 29 should be granted.

4
5

Dated: Dec. 15, 2008

6
7
^

9
10
11
12
13
14
15
16
17
18
19

2(^
21
22
23
24
25
26
27
28

s.B H. Dean Steward
H. Dean Steward
O r i n Kerr
Counsel f o r Defendant
L o r i Drew

22920

CERTIFICATE OF SERVICE

1

2
3
4

IT IS HEREBY CERTIFIED THAT:
I , H. Dean Steward, am a c i t i z e n o f t h e United States, and am a t

5
l e a s t 18 years o f age. My business address i s 107 Avenida

6
7
8

Miramar, Ste. C, San Clemente, CA 92672.
I am n o t a p a r t y t o t h e above e n t i t l e d a c t i o n . I have

9 caused, on Dec. 15, 2008, s e r v i c e o f the defendant's:
10 SUPPI^EMENT TORU6E
11 On the f o l l o w i n g p a r t i e s e l e c t r o n i c a l l y by f i l i n g t h e f o r e g o i n g
12

w i t h the Clerk o f t h e D i s t r i c t Court using i t s EOF system, which

13
e l e c t r o n i c a l l y n o t i f i e s counsel f o r t h a t p a r t y .

14
15

AUSAM^^R^^^RAUSE- I ^

16
17 I declare under p e n a l t y o f p e r j u r y t h a t the f o r e g o i n g i s t r u e
18 and c o r r e c t .
19 Executed on DEC. 15, 2008
20
H. Dean Steward

21
H. Dean Steward

22
23
24
25
26
27
28

1(^

22921

H. Dean Steward SBN 85317
107 Avenida Miramar, Ste. C
2 San Clemente, CA 92672
949-481-4900
3 Fax: (949) 496-6753

1

4 Orin S. Kerr
D i s t . o f Columbia BN 980287

5 2000 H. S t r e e t NW
Washington, DC 20052

6 202-994-4775
Fax 202-994-5654

7 okerr^gwu.edu
8 Attorneys f o r Defendant
L o r i Drew

9
10
11
12
13

UNITED STATES DISTRICT COURT

14

CENTRAL DISTRICT OF CALIFORNIA

15
16

Plaintiff,

17
18
19
20

Case No. CR-08-0582-GW

UNITED STATES,

SECOND SUPPLEMENT TO RULE 29
MOTION IN LIGHT OF NEW CASELAW

vs.
LORI DREW
Defendant.

21
22

Comes now counsel f o r defendant L o r i Drew, and submits t h e

23 f o l l o w i n g supplemental p o i n t s and a u t h o r i t i e s ,

specifically

24 o u t l i n i n g new case law on the issue.
25
26
27
28

Dated: Feb. 19

s.B H. Dean Steward
H. Dean Steward
O r i n Kerr
Counsel f o r Defendant
L o r i Drew

1

22922

1

2

Introduction

3

The Court h e l d o r a l argument on t h e Defendant's Motion t o

4 Dismiss on January 8, 2009.

Since t h a t date, t h r e e new f e d e r a l

5 c o u r t d e c i s i o n s have been handed down t h a t r e j e c t the broad reading
6 t h a t the U n i t e d States seeks t o impose on t h e Computer Fraud and
7 Abuse Act, 18 U.S.C. § 1030.
8
9 II.
10

Three New Decisions Have Been Handed Down i n t h e Last Month

That Reject t h e Broad C o n s t r u c t i o n o f Unauthorized Access,

11

The t h r e e new cases concern the most common f a c t p a t t e r n i n

12

the

13

cases, an employee a t one company decides t o leave; t h e employee

14

then accesses t h e company^s computers i n t h e course o f p r e p a r i n g t o

15

leave t o j o i n a c o m p e t i t o r company; and t h e employee then uses t h e

16

employer's c o n f i d e n t i a l i n f o r m a t i o n a t t h e new j o b .

17

the

c i v i l caselaw a p p l y i n g unauthorized access s t a t u t e s .

I n these

As noted i n

p r i o r b r i e f i n g on t h i s issue, c o u r t s are deeply d i v i d e d on

18 whether such f a c t s should lead t o c i v i l l i a b i l i t y under 18 U.S.C. §
19

1030.

20

2007, however, most c o u r t s have s a i d ^^no.^^

21

Initially,

b e f o r e 2007, s e v e r a l c o u r t s s a i d ^^yes.^^

Since

The argument o f t h e United States i n t h i s c r i m i n a l case r e l i e s

22

i n s i g n i f i c a n t p a r t on t h e e a r l i e r c i v i l cases saying ^^yes.^^

23

Indeed, i n i t s January 5, 2009 Sur-Reply, t h e United States t r i e d

24

to dismiss the many cases saying ^^no^^ as i f they were o u t l i e r s .

25

According t o t h e United States, back on January 5, ^^that l i n e o f

26

cases, which a t best must be considered a m i n o r i t y view, i s

27

c o n t r a r y t o the p l a i n language o f t h e s t a t u t e , i t s l e g i s l a t i v e

28
2-

22923

1

h i s t o r y , and t o cases from t h i s d i s t r i c t . G o v e r n m e n t ' s

2

a t 8 n. 4 (emphasis added).

3

Sur-Reply

I n l i g h t of the Government's p o s i t i o n i n i t s Sur-Reply, the

4

Court should be aware of the f o l l o w i n g t h r e e new

5

down j u s t i n the l a s t month, f u r t h e r r e j e c t i n g the broad reading of

6

18 U.S.C. §

cases, a l l handed

1030.

7
8 A)
9
10

U.S.

B i o s e r v i c e s Corp. v. Lugo, No.

, 2009 WL

151577 (D. Kan.

08-2342-JWL, -

January 21, 2009)

I n t h i s case. D i s t r i c t Judge Lungstrum dismissed

11

Section 1030

12

employee.

13

Lungstrum wrote:

F. Supp.2d

i n part

claims brought by an employer against a former

I n r e j e c t i n g the broad reading of Section 1030,

Judge

14
15

N e i t h e r side t o the present d i s p u t e has acknowledged

16

t h i s c l e a r s p l i t i n the caselaw or argued why

17

should f a v o r one l i n e of cases over the o t h e r ; i n s t e a d ,

18

each side merely attempts

19

^^non-controlling^^ cases c i t e d by the o t h e r . Thus, the

20

p a r t i e s have o f f e r e d l i t t l e help i n r e s o l v i n g t h i s

21

conflict.

22

t h i s court

t o d i s t i n g u i s h f a c t u a l l y the

A f t e r r e v i e w i n g the cases, t h i s c o u r t f i n d s

23

persuasive

24

l i n e of cases [adopting the narrower reading of the

25

s t a t u t e ] . A c c o r d i n g l y , the c o u r t f o l l o w s t h e i r lead i n

26

h o l d i n g t h a t , under these p r o v i s i o n s of the CFAA, access

27

t o a p r o t e c t e d computer occurs ^^without a u t h o r i z a t i o n ^ ^

28

only when i n i t i a l access i s not p e r m i t t e d , and a

the reasoning

of the c o u r t s i n the l a t t e r

22924

1

v i o l a t i o n f o r ^^exceeding a u t h o r i z e d access^^ occurs o n l y

2

when i n i t i a l access t o the computer i s p e r m i t t e d but the

3

access o f c e r t a i n i n f o r m a t i o n i s not p e r m i t t e d

4

. . . [ T ] t h e l e g i s l a t i v e h i s t o r y o f the s t a t u t e

5

supports the c o u r t ^ s narrow i n t e r p r e t a t i o n . The CFAA was

6

intended as a c r i m i n a l s t a t u t e focused on ^^hackers^^

7

trespass i n t o computers, and the s t a t u t e deals w i t h

8

unauthorized access i n committing computer f r a u d r a t h e r

9

than the mere use o f a computer.

who

10
11

As the o t h e r c o u r t s have noted, t h i s

interpretation

12

^^has the added b e n e f i t of comporting w i t h the r u l e o f

13

l e n i t y , w h i c h might apply i n l i g h t o f the CFAA^s

14

criminal provisions.

15
16

I d . a t ^3-4,

^4 n.5

(internal citations omitted).

17
18

B)

19

C o n s u l t i n g , LLC,

20

January 22,

21

Lasco Foods, I n c . v. H a l l and Shaw Sales, Marketing ^
NO.

4:08CV01683 JC, 2009 WL

151687 (E.D.Mo.

2009).

I n t h i s case. D i s t r i c t Judge Hamilton granted a motion t o

22

dismiss counts brought under both Section 1030 and the analogous

23

Section 2701, the unauthorized access s t a t u t e found i n the Stored

24

Communications Act.

25

i n t e r p r e t a t i o n of unauthorized access s t a t u t e s found i n Sherman ^

26

Co. V. Salton Maxim Housewares, I n c . , 94 F.Supp.2d 817

27

2000).

28

was not enough t o t r i g g e r unauthorized access.

Judge Hamilton adopted the narrow

I n Sherman ^ Co,

(E.D.

Mich.

the c o u r t had h e l d t h a t deception alone
To impose l i a b i l i t y

22925

1

under unauthorized

2

obtained

3

using a computer he was

4

else^s password or code w i t h o u t a u t h o r i z a t i o n ) . ^ ^ I d . at

5

access s t a t u t e s , ^^the offender must have

the access t o p r i v a t e f i l e s w i t h o u t a u t h o r i z a t i o n
not t o use,

(e.g.^

or o b t a i n i n g and using someone
821.

Judge Hamilton a p p l i e d t h a t same p r i n c i p l e t o the employer's

6

c l a i m t h a t the employee had p r a c t i c e d deception by p r e t e n d i n g

7

have a business reason t o access the employer's f i l e s .

8

t o Judge Hamilton, t h i s was

9

access:

i n s u f f i c i e n t to constitute

to

According
unauthorized

1(^
11

[T]he t h r u s t o f P l a i n t i f f ^ s c l a i m i s the g e n e r a l i z a t i o n t h a t

12

Defendants obtained

13

e.g.,

14

Lasco, he attempted, through deception,

15

one of Lasco^s [b]rokers^^). This ^^deception,^^

16

i s not a [§ 2701]

17

a n o t h e r [ ^ ] s access t o i t s computer network, i t cannot c l a i m

18

t h a t such access was

19

at 821. Lasco a f f o r d e d Defendants access t o i t s computers,

20

networks and i n f o r m a t i o n , which they u t i l i s e d throughout t h e i r

21

employment. P l a i n t i f f has not a l l e g e d anything t o the

Compl.,

41

i n f o r m a t i o n f o r improper purposes.
(^^while Defendant H a l l was

See,

s t i l l employed by

t o o b t a i n r e p o r t s from
as p l e d , however,

v i o l a t i o n . ^^Where a p a r t y consents t o

unauthorized.^^

Sherman ^ Co.,

94 F.Supp.2d

contrary.

22
23

I d . at ^3

24

f o r CFAA c l a i m ) .

( d i s m i s s i n g SCA

claim).

See

also i d . at ^6

(same r e s u l t

25
26
27

C) B r i d a l Expo, I n c . v. Van

28

2009 WL 255862 (S.D.

Tex.

F l o r e s t e i n , NO.

February 3, 2009)

CIV.A. 4:08-CV-03777,

22926

1
2
3

I n t h i s case. Judge E l l i s o n r e j e c t e d the broad reading o f
Section 1030 i n the course o f denying a p r e l i m i n a r y

injunctions

4
5

The Court acknowledges t h a t other c i r c u i t s have approved

6

the use o f the CFAA t o reach employees who have obtained

7

information

8

agreements and have extended t h i s reasoning t o breaches

9

of the duty o f l o y a l t y t o employers. The F i f t h C i r c u i t

i n v i o l a t i o n of their c o n f i d e n t i a l i t y

10

has not y e t taken a p o s i t i o n on the issue, but given the

11

persuasive arguments i n Lockheed [ v . L-3 Communications

12

Corp., 6:05-cv-1480-ORL-31, 2006 WL 2683058 (M.D. Fla.

13

Aug.l, 2 0 0 6 ) ] , and the r u l e o f l e n i t y , given t h a t t h e

14

CFAA i s a l s o a c r i m i n a l s t a t u t e , the Court d e c l i n e s t o

15

read the CFAA t o eguate ^^authorization^^ w i t h a duty o f

16

l o y a l t y t o an employer such t h a t the CFAA i s

17

t o t h i s case.

applicable

18
19

Id.

a t ^10,

20
21
22

I I I . T h e New Decisions R e j e c t i n g the Government's View R e f l e c t t h e
Now-Dominant I n t e r p r e t a t i o n o f 18 U.S.C. § 1030.

23
24

This c r i m i n a l p r o s e c u t i o n i s based e n t i r e l y on the

25

Government's attempt t o take a set o f c i v i l cases adopting a broad

26

reading o f 18 U.S.C. § 1030 and t o apply them j o t - f o r - j o t i n the

27

context o f c r i m i n a l law.

28

broad c i v i l cases cannot be a p p l i e d

As explained i n i t s b r i e f i n g , those very

6

i n the c r i m i n a l s e t t i n g i n

22927

1

l i g h t o f the t h r e e r e l a t e d ^^fair warning^^ canons f o r i n t e r p r e t i n g

2 c r i m i n a l s t a t u t e s : vagueness, the r u l e o f l e n i t y , and overbreadth.
The

3

t h r e e cases decided j u s t i n the l a s t month showcase the

4 weakness o f the Government's approach even as a matter o f c i v i l
5 law.

The c l e a r t r e n d even i n the c i v i l cases i s t o r e j e c t t h e

6 broad reading o f the s t a t u t e t h a t the Government i s u r g i n g i n t h i s
7 case.^

See a l s o Condux I n t e r n . , Inc. v. Haugum, 2008 WL 5244818 (D.

8 Minn., December 15, 2008) ( r e j e c t i n g broad view o f 18 U.S.C. §1030
9 and embracing narrow view i n l i g h t o f l e n i t y concerns t h a t a r i s e i n
10

the i n t e r p r e t a t i o n o f c r i m i n a l s t a t u t e s ) ; Black ^ Decker, Inc. v.

11

Smith, 568 F.Supp.2d 929 (W.D. Tenn. 2008) (same); Shamrock Foods

12

Co.

13

Family Mut.

14

(same).

15

The

V. Cast, 535 F.Supp.2d 962 (D. A r i z . 2008) (same); American
I n s . Co. v. Rickman, 554 F.Supp.2d 766 (N.D.

reason f o r the t r e n d i s easy t o i d e n t i f y .

Ohio 2008)

The e a r l y

civil

16

cases d i d not a p p r e c i a t e t h a t the CFAA i s a c r i m i n a l s t a t u t e , so

17

courts adopted v e r y broad c o n t r a c t u a l

18

s t a t u t e t h a t c r e a t e d a broad c i v i l cause o f a c t i o n .

19

however, c o u r t s began t o appreciate t h a t they should be

20

i n t e r p r e t i n g the CFAA i n a c i v i l s e t t i n g so as t o match how the

21

s t a t u t e should be construed i n a c r i m i n a l s e t t i n g .

i n t e r p r e t a t i o n s o f the
Eventually,

A f t e r courts

22
23
24
25
26
27
28

"^ I n c o n t r a s t , counsel has found o n l y one case decided i n the
l a s t month a d o p t i n g the broader view o f 18 U.S.C § 1030.
See E r v i n
^ Smith A d v e r t i s i n g and Public Relations, Inc. v. E r v i n , 2009 WL
249998 (D. Neb. Feb. 3, 2009). However, u n l i k e most o f the cases
on t h i s t o p i c i n the l a s t year, t h a t d e c i s i o n does not even
acknowledge the deep s p l i t i n the cases. As a r e s u l t , i t does n o t
j u s t i f y i t s approach o r confront the c o n t r a r y argument. See i d . a t

22928

1

began t o r e a l i z e t h i s , around 2006,^ the d i r e c t i o n o f the caselaw

2 s h i f t e d d r a m a t i c a l l y : The c l e a r t r e n d has become t o r e j e c t the
3 broad view and embrace a narrower c o n s t r u c t i o n .
4

The U n i t e d States may wish t h a t the cases r e j e c t i n g i t s view

5 are o u t l i e r s , o r as the Government put i t l a s t month, ^^at best a
6 m i n o r i t y view.^^ However, those narrow cases have become the
7 dominant r e a d i n g o f t h e s t a t u t e i n d i s t r i c t c o u r t s across the
8 country.
9 the t r e n d .

The t h r e e new cases decided i n t h e l a s t month r e i n f o r c e
This Court should f o l l o w the c l e a r l y emerging m a j o r i t y

10 view t h a t t h e CFAA should be construed n a r r o w l y i n s t e a d o f the
11 i n c r e a s i n g l y r e j e c t e d view t h a t the s t a t u t e should be construed
12 b r o a d l y .
13
14 IV. Conclusion
15

For the above reasons, the remaining t h r e e misdemeanor counts

16 must be dismissed pursuant t o Fed. R. Crim. Pro. 29.
17
18

Dated: Feb. 19, 2009

s.B H. Dean Steward

19

H. Dean Steward
O r i n Kerr
Counsel f o r Defendant Drew

20
21
22
23
24
25
26
27
28

The t u r n i n g p o i n t appears t o have been t h e c a r e f u l and
s c h o l a r l y o p i n i o n o f Judge P r e s n e l l i n Lockheed M a r t i n v. Speed,
2006 WL 2683058, 81 U.S.P.0^2d 1669 (M.D. F l a . 2006).

8

22929

1

CERTIFICATE OF SERVICE

2
3
4 IT IS HEREBY CERTIFIED THAT:
5 I , H. Dean Steward, am a c i t i z e n o f t h e U n i t e d States, and am a t
6 l e a s t 18 years o f age. My business address i s 107 Avenida Miramar,
7
Ste. C, San Clemente, CA 92672.

8
9
10

I am n o t a p a r t y t o t h e above e n t i t l e d a c t i o n . I have caused,
on Feb. 20, 2009, s e r v i c e o f the defendant's:

11 S^o^^^ S^^^^^^^t^

R^^^

12 On the f o l l o w i n g p a r t i e s e l e c t r o n i c a l l y by f i l i n g t h e f o r e g o i n g
13 w i t h t h e C l e r k o f t h e D i s t r i c t Court u s i n g i t s ECF system, which
14 e l e c t r o n i c a l l y n o t i f i e s counsel f o r t h a t p a r t y .
15
AUSAMark ^ a ^ ^ ^ ^ I A

16
17
18 I declare under p e n a l t y o f p e r j u r y t h a t t h e f o r e g o i n g i s t r u e and
19 c o r r e c t .
20 Executed on Feb. 20, 2009
21 H. Dean Steward
22 H. Dean Steward
23
24
25
26
27
28

22930

- V.

UNITED STATES OF AIMERICA
RULING: Prosecution IVIotion
To Admit Evidence
IManning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base IVIyer-Henderson Hall
Fort IMyer, Virginia 22211

18 July 2012

The Govemment moves to pre-admit the following evidence enclosed to Appellate Exhibit
160:
Enclosure 8: Information Awareness screenshot reflecting the user profile of Bradley
Manning and the dates of his information awareness training. The record is authenticated
by attestation certificate from Willco Technologies, Inc,
Enclosure 9: U,S, Information Assurance Virtual Training screenshot reflecting the user
profile of Bradley IVlanning, The record is authenticated by NACON Consulting,
3. Enclosure 11: Joint Asset IVIovement Management System (JAMMS) Movement Report
by Person - 204 records retumed for Bradley Manning, The record is authenticated by
U,S, ARGENT GI SAMO Section, Camp Arifjan, Kuwait,
4, Classified enclosures: Army Counterintelligence (ACIC) Access Logs, ACIC Server
Logs, Central Intelligence Agency (CIA) WIRe Logs, and Centaur Logs, Each of these
logs is authenticated by a records custodian from the relevant agency.
Govemment proffers that the above evidence is admissible as machine generated data and as
properly authenticated business records. Defense objects on the ground that the screenshots are
testimonial statements in violation of the confrontation clause and are not business records
because the business entity did not maintain the data in a snapshot or log format and the data
query by law enforcement for particular information from an existing data base makes that
infbrmation a testimonial statement.
Findings of Fact:
1, All of the above records were maintained by the various entities in databases for business
purposes. The data was collected prior to or contemporaneous with the dates of the charged
offenses and was maintained by the entity for business purposes before the query for information
by law enforcement.

APPELLATE EXHIBIT & f 6 _
PAGE REFERENCED:
PAGE
OF
PAGES

22931

Th^Law:
1, The Sixth Amendment precludes testimonial hearsayfi^omcoming into evidence against an
accused without crossexamination of the declarant unless (1)the declarant is unavailable and (2)
the declarant was subject to prior cross examination, ^,i^.^.i^^^^^^^,70M.J.296(C.A.A.F.
2011)
2, Astatement is testimonial if made under circumstances which would lead an objective
witness reasonably to believe the statement would be available fbr use atalater trial, A
document created solely fbr an evidentiary purpose made in aid ofapolice investigation is
testimonial. While formalized certifications ofresults in lab reports are testimonial, machine
generated data and printouts are not statements and, thus, they are not hearsay, i^^^^^^^,70M,J,
at301^^^v^^^^.^^^^,65MJ120(CAAF 2007)(affidavitfilled out byvictim of check
fraud pursuant to intemal bank procedures admissible as non-testimonial business record even if
later tumed over to law enforcement,).
Conclusions ofLaw:
1, The fact that infbrmation maintained onabusiness related database is pulled from that
database inasnapshot format at the request ofalaw enforcement query does not transform
machine generated data intoatestimonial statement. It is the nature ofthe data at issue not the
fbrm of the query,thefieldsofthe query,or who made thee query that determines whether the
information is machine generated,astatement,oratestimonial statement,
2, Unlike the cover memorandum and results ceriification that were held to be testimonial
statements in^^^^^^^,the machine generated data offered fbr admission by the Govemment in
this case contains no additional representations or ceriifications that were not machine generated,
3, The records offered fbr admission by the Govemment are machine generated and not
statements. They are properly authenticated, Ifthe Governmentoffers evidence to show their
relevance, the exhibits are admissible,
SoOrd^redthisl8^^dayofJuly,2012

DENISERLIND
COL,JA
Chief Judge, 1^^ Judicial Circuit





. 22932

von Elten, Alexander S. CPT USA SJA

From: Morrow Ill, JoDean, CPT USA SJA

Sent: Tuesday. July 17, 2012 7:19 PM

To: David Coombs; Lind, Denise COL USARMY Williams. Patricia CIV
Jefferson, Dashawn MSG USARMY (US)

Cc: Hurley, Thomas MAJ OSD OMC Defense; 'Tooman, Joshua CPT USARMY Fein,

Ashden MAJ USA Overgaard, Angel M. CPT USA
Whyte. Jeffrey H. CPT USA von Elten, Alexander S. CPT USA
SJA

Subject: RE: United States v. Martinelli Question (UNCLASSIFIED)

Attachments: US v. Rauscher.pdf

Classification: UNCLASSIFIED
Caveats: NONE

Ma'am,

Attached is United States v. Rauscher, decided by CAAF on 18 June 2012. The Government
believes this case is more directly on point. In this case, the Government failed to plead the terminal
element of a 134 offense (Assault with intent to commit murder), but the accused was found guilty of
a lesser-included offense (Article 128). CAAF affirmed the conviction because the accused was on
notice of the lesser-included offense in the specification.

Respectfully,

CPT Joe Morrow
Trial Counsel
U.S. Army Military District of Washington



From: David Coombs

Sent: Monday, July 16, 2012 7:49 PM

To: Lind, Denise COL USARMY Williams, Patricia CIV Jefferson,
Dashawn MSG USARMY (US)

Cc: Hurley, Thomas MAJ OSD OMC Defense; 'Tooman, Joshua CPT USARMY Fein,
Ashden MAJ USA Overgaard, Angel M. CPT USA
Morrow Ill, JoDean, CPT USA Whyte, Jeffrey H. CPT USA
von Elten, Alexander S. CPT USA SJA

Subject: United States v. Martinelli Question

Ma'am,

l?ve had an opportunity to look at the United States v. Martinelli case that you asked me about today
in oral argument, and do not believe that it can be read to support the proposition that the
Government is entitled to a lesser-included offense for a fatally defective specification. First, as
indicated in oral argument today, the context in which Martinelli was decided is very different than the
context in which the issue presents itself here. In Martinelli, the court was assessing the providence
of the accused?s guilty plea after a case was decided; it was not assessing whether the government

1 ..
12!

PAGE

PAGE OF



22933

was entitled to an instruction oQ|esser?inc|uded offense at the outsgof the case where the court

has found as a fact that the evidence falls short of establishing a legally cognizable defense.

More importantly, though, the reason why the offense was not cognizable in Martinelli is very different
than the reason why it is not cognizable here. This difference means that an instruction on the lesser
included offense might have been appropriate in Martinelli, but not in the instant case. In Martinelli,
the accused was charged under clause 3 with violating the Child Pornography Prevention Act (CPPA)
for certain acts he was alleged to have committed while in Germany. After the accused pled guilty to
the specifications, the court determined that the CPPA could not apply extraterritorially to the conduct
at issue; hence, the clause 3 offenses were not cognizable. The court upheld clause 1 and 2
offenses as being lesser-included offenses of the clause 3 offense.

However, it is important to look at the specifications in Martinelli to understand why they could survive
in that case and why they cannot survive in the instant case. The specifications in Martinelli were as
follows:

Specification 1: knowingly mailing, transporting or shipping child pornography in interstate or foreign
commerce (by computer) in violation of 2252A(a)(1) (specifically, sending images over the Internet
from the Netzwork Internet Caf? in Darmstadt, Germany);

Specification 2: knowingly receiving child pornography that has been mailed, shipped or transported
in interstate or foreign commerce (by computer) in violation of (specifically,
downloading images from the Internet in the Netzwork Internet Caf? in Darmstadt, Germany);

Specification 3: knowingly reproducing child pornography for distribution through the mails, or in
interstate or foreign commerce (by computer) in violation of 2252A(a)(3) (specifically, downloading
images from the Internet; copying them to hard drive and transmitting the copied files to
approximately twenty individuals over the Internet in the Netzwork Internet Cafe in Darmstadt,
Germany);

Specification 4: knowingly possessing child pornography on land and in a building used by and under
the control of the United States Government in violation of (specifically, possessing
approximately fifty diskettes containing child pornography in buildings at the Cambrai Fritsch
Kaserne).

Notably, once the judge removed the reference to ?in violation of [the the underlying factual
acts could still be proved so as to form the basis for an Article 134 offense. In other words, in
Martinelli, it wasn't the Government's underlying theory that was deficient. It was simply that the
statute did not extend so as to cover acts outside the continental United States.

Otherwise stated, even though the offenses were not cognizable as crimes under the CPPA, the
factual acts underlying the original specifications could still be proven and made the basis for a
lesser-included offense under Article 134. For instance, under specification 1, the government was
still capable of proving that the accused ?knowingly mailing, transporting or shipping child
pornography in interstate or foreign commerce (by computer)? and that such conduct was prejudicial
to good order and discipline. Removal of the offending statute (the CPPA) from the specification did
not change the ability of the government to prove the underlying offense.

In the instant case, the factual acts underlying the original specification cannot be proven because the
conduct involves ?exceeding authorized access" as defined by section 1030. In other words, the
specification cannot be proved simply by removing reference to section 1030 as the court did in

2

I Martinelli and other cases like See United States v. Monette, 200% 6625267, *1

Crim. court modified the findings of guilty to Specifications Additional Charge II by deleting all Title 18 nomenclature referring to the CPPA, and, for each
affected specification, affirmed a lesser-included simple disorder under Article 134?) (emphasis
supplied).

For instance, in specification 13 of Charge II, the Government pleads that PFC Manning:

did, at or near Contingency Operating Station Hammer, Iraq, between on or about 28 March 2010
and on or about 27 May 2010, having knowingly exceeded authorized access on a Secret Internet
Protocol Router Network computer, and by means of such conduct having obtained . . . more than
seventy-five classified United States Department of State cables, willfully communicate, deliver,
transmit, or cause to be communicated, delivered, or transmitted the said information, to a person not
entitled to receive it, with reason to believe that such information so obtained could be used to the
injury of the United States, or to the advantage of any foreign nation, in violation of 18 U.S. Code
Section

Ifthe Court were simply to remove the language ?in violation of 18 U.S. Code Section 1030(a)(1)"
from the specification as did the court in Martinelli, the Government would still not be able to prove
the offense because the offense derives from section 1030 and ?exceeds authorized access? is
defined by the terms of that statute. Thus, this court cannot simply create a lesser?included offense
by deleting the Section 1030 ?nomenc|ature" from the specification as the court did in Martinelli.

In order to state an Article 134 offense based on this conduct, the Government would actually need to
change the specification to allege some other conduct not in the specification the accused used
Wget to obtain the cables). In other words, we would be dealing with an amendment to the
specification and not a lesser?included offense. The Defense submits that this would be a major
amendment under R.C.M. 603 that cannot be made over the objection of the accused.

To the Defense?s knowledge, there is no military case that has permitted the government to proceed
with lesser?included offense of a clause 3 offense which is not legally cognizable because the
Government does not have the factual evidence to proceed. Specifically, there is no case (Martinelli
included) where a court has determined pretrial that the Government doesn?t have any evidence for
an essential element of an offense and nevertheless has allowed the government to go fon/vard with
an uncharged lesser?included offense.

Accordingly, the Defense submits that Martinelli does not permit this Court to find a lesser?included
offense where the entire theory underlying the specification is deficient. Any Article 134 offense
would require a major amendment to the specification which is not permitted over the objection of the
accused.



David

David E. Coombs, Esq.

Law Office of David E. Coombs
11 South Angeli Street, #317
Providence, RI 02906

. . 22935

Toll Free: 1-800-588-4156
Local: (508)689-4616

Fax: (508) 689-9282




Notice: This transmission, including attachments, may contain confidential attorney-
client information and is intended for the person(s) or company named. If you are not the intended
recipient, please notify the sender and delete all copies. Unauthorized disclosure, copying or use of
this information may be unlawful and is

Classification: UNCLASSIFIED
Caveats: NONE

22936

UNITED STATES, Appellee
V.

Jeremy L. RAUSCHER, Machinist's Mate Second Class
U.S. Navy, A p p e l l a n t
No. 12-0172
Crim. App. No. 201100684
United States Court o f Appeals f o r the Armed Forces
Argued May 16, 2012
Decided June 18, 2012
PER CURIAM

Counsel

For A p p e l l a n t :

Captain Michael D. Berry, USMC (argued).

For Appellee: Captain David N. Roberts, USMC (argued); Colonel
Kurt J. Brubaker, USMC, Lieutenant Benjamin J. Voce-Gardner,
JAGC, USN, and B r i a n K. K e l l e r , Esq. (on b r i e f ) .

M i l i t a r y Judge:

J. K i r k Waits

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION,

22937

United States v. Rauscher, No. 12-0172BNA
PER CURIAM:
A p p e l l a n t ^as charged under A r t i c l e 1^4, Uniform Code o f
M i l i t a r y J u s t i c e (UCMJ), 10 U.S.C. ^

(2006), ^ i t h a s s a u l t

^ i t h i n t e n t t o commit murder ^ u t c o n v i c t e d , c o n t r a r y t o h i s
pleas, o f a s s a u l t ^ i t h a deadly weapon or other means or f o r c e
l i k e l y t o produce death or grievous b o d i l y harm, under A r t i c l e
128, UCMJ, 10 U.S.C. ^ ^28 (2006).
consider whether ^^aggravated

We granted review t o

assault i s a lesser included

offense o f an A r t i c l e 1^4 s p e c i f i c a t i o n t h a t f a i l s t o a l l e g e the
t e r m i n a l element'^

t h a t A p p e l l a n t ' s conduct ^as p r e j u d i c i a l t o

good order and d i s c i p l i n e or ^as o f a nature t o hiring d i s c r e d i t
upon the armed f o r c e s .

We h o l d t h a t A p p e l l a n t ^as c o n v i c t e d o f

an offense t h a t ^as a l l e g e d i n the charged s p e c i f i c a t i o n .

We

a f f i r m the judgment o f the United States Navy-Marine Corps Court
of C r i m i n a l Appeals (CCA).
I.

Background

A f t e r becoming i n t o x i c a t e d d u r i n g shore l i b e r t y . A p p e l l a n t
became embroiled i n arguments ^ i t h some shipmates.

He c u t and

stabbed one and a s s a u l t e d several ^ho ^ere t r y i n g t o b r i n g
Appellant under c o n t r o l .

Contrary t o h i s pleas. A p p e l l a n t ^as

c o n v i c t e d by c o u r t members o f w i l l f u l l y disobeying the order o f
a p e t t y o f f i c e r ; w r o n g f u l l y using provoking ^ords; and v a r i o u s
a s s a u l t s , b a t t e r i e s , and aggravated
and 128, UCMJ, 10 U.S.C.

assault.

A r t i c l e s ^ 1 , 117,

8^1, ^17, ^28 (2006).

The convening

22938

United States v. Rauscher, No. 12^0172BNA
a u t h o r i t y approved t h e adjudged sentence:
discharge, confinement

a bad-conduct

f o r nine months, and r e d u c t i o n t o the

lowest e n l i s t e d grade.

The CCA a f f i r m e d .

United States v.

Rauscher, No. 201000684, 2011 CCA LE^IS 165, a t ^8^^^, 2011 WL
4505^22, a t

(N-M. Ct. Crim. App. Sept. 27, 2011).
II.

The S p e c i f i c a t i o n and T r i a l

A fundamental purpose o f a s p e c i f i c a t i o n i s ^^to provide
n o t i c e t o an accused as t o the matters against ^ h i c h he must
defend.''

United States v. W i l k i n s , 2^ M.J. 421, 424 (C.M.A.

l^^O); see R u s s e l l v. United States, ^6^ U.S. 74^, 767 (1^62).
Appellant ^as charged ^ i t h a s s a u l t ^ i t h i n t e n t t o commit murder,
a v i o l a t i o n o f A r t i c l e 1:^4, UCMJ, as f o l l o w s :
I n t h a t ^Appellant^, on a c t i v e duty, d i d , . . . on or
about 2^ March 2010, ^ i t h the i n t e n t t o commit murder,
commit an a s s a u l t upon Machinist's Mate Second Class
Petty O f f i c e r ^JD^, U.S. Navy, by stabbing him i n t h e
hand and chest ^ i t h a k n i f e .
The m i l i t a r y judge i n s t r u c t e d the members on the offense o f
a s s a u l t ^ i t h i n t e n t t o commit murder.

At the request o f both

p a r t i e s , the m i l i t a r y judge also i n s t r u c t e d the members on the
offense o f a s s a u l t ^ i t h a dangerous weapon or other means or
f o r c e l i k e l y t o produce death or grievous b o d i l y harm, under
A r t i c l e 128, UCMJ, and t h a t i s ^hat he ^as c o n v i c t e d o f . The
elements o f t h a t offense are:
( i ) That the accused attempted t o do, o f f e r e d t o do,
or d i d b o d i l y harm t o a c e r t a i n person;

22939

United States v. Rauscher, No.

12-0172BNA

( i i ) That the accused d i d so ^ i t h a c e r t a i n weapon,
means, or f o r c e ;
( i i i ) That the attempt, o f f e r , or b o d i l y harm ^as done
^ i t h u n l a w f u l f o r c e or v i o l e n c e ; and
( i v ) That the weapon, means, or f o r c e ^as used i n a
manner l i k e l y t o produce death or grievous b o d i l y
harm.
United States v. Dacus, 66 M.J.

2^5,

2^8

(C.A.A.F. 2008)

(citing

Manual f o r C o u r t s - M a r t i a l , United States p t . IV, ^ 54.b.(4)(a)
(2005 e d . ) ) .
Whether a s p e c i f i c a t i o n s t a t e s an offense i s a guestion of
l a ^ ^e review de novo.
211

(C.A.A.F. 2006).

United States v. C r a f t e r , 64 M.J.

20^,

Even i f ^e assumed t h a t the s p e c i f i c a t i o n

^as d e f e c t i v e i n a l l e g i n g an a s s a u l t ^ i t h i n t e n t t o commit
murder, ^e are convinced

t h a t the s p e c i f i c a t i o n c l e a r l y a l l e g e s

every element of the offense of a s s a u l t ^ i t h a dangerous weapon
or means or f o r c e l i k e l y t o produce death or grievous b o d i l y
harm, the offense he ^as c o n v i c t e d of:^
(1)
hand and

A p p e l l a n t d i d b o d i l y harm t o JD

stabbing him i n the

chest;

In order t o determine whether an i n d i c t m e n t charges an
offense a g a i n s t the United States, d e s i g n a t i o n by the
pleader of the s t a t u t e under ^ h i c h he p u r p o r t e d t o l a y
the charge i s i m m a t e r i a l . He may have conceived the
charge under one s t a t u t e ^ h i c h ^ o u l d not s u s t a i n the
i n d i c t m e n t but i t may nevertheless come w i t h i n the
terms of another s t a t u t e .
United States v. Hutcheson, ^12 U.S.

21^, 22^

(1^41).

22940

United States v. Rauscher, No.
(2)

12-0172BNA

He d i d so ^ i t h a c e r t a i n weapon, means, or f o r c e

a

knife;
(^)
violence
(4)

The b o d i l y harm ^as done ^ i t h u n l a w f u l f o r c e or
w i t h o u t a u t h o r i s a t i o n or j u s t i f i c a t i o n ;

and

The weapon, means, or f o r c e ^as used i n a manner

l i k e l y t o produce death or grievous b o d i l y harm

stabbing JD

i n the chest.
The s p e c i f i c a t i o n c l e a r l y placed A p p e l l a n t on n o t i c e of
t h a t against ^ h i c h he had t o defend.

The Government's theory of

the case from beginning t o end ^as t h a t A p p e l l a n t stabbed
v i c t i m ^ i t h a t a c t i c a l k n i f e i n the hand and chest.
defended against t h i s theory throughout the t r i a l .

the

Appellant
Appellant

proposed i n s t r u c t i o n s f o r the A r t i c l e 128 offense and d i d not
o b j e c t t o the i n s t r u c t i o n s given by the m i l i t a r y judge.

In

c l o s i n g , defense counsel even asked the panel t o ^^closely l o o k "
at A r t i c l e 128 because ^^that's much more a l i g n e d ^ i t h
happened."

^hat

Through these a c t i o n s . A p p e l l a n t demonstrated t h a t

he ^as on n o t i c e , and h i s ^^substantial r i g h t t o be t r i e d only on
charges presented

i n ^a s p e c i f i c a t i o n s " ^as not v i o l a t e d .

S t i r o n e v. United States, ^61 U.S.

212, 217

(1^60).

IV.
The judgment of the United States Navy-Marine Corps Court
of C r i m i n a l Appeals i s a f f i r m e d .

. 22941



IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: DEFENSE RENEWED

MOTION: DISMISS
v. SPECIFICATIONS 13 AND 14

OF CHARGE II - FAILURE
MANNING, Bradley E., PFC TO STATE AN OFFENSE
U.S. Army,
Headquarters and Headquarters Company,
U.S. Army Garrison, Joint Base Myer- DATED: 18 July 2012
Henderson Hall, Fort Myer, VA 22211

Defense moves the Court for the second time to dismiss Specifications 13 and 14 of
Charge II for failure to state an offense because the Government has failed to allege the
Accused?s conduct ?exceeded authorized access? within the meaning of 18 U.S.C. Section
1030(a)(1). Government opposes. After considering the pleadings, evidence presented, and
argument of counsel, the Court ?nds and concludes the following:

Factual Findings:
1. The Court adheres to the facts as stated in the 8 June 2012 prior ruling on this issue.

2. The Court further ?nds that the Government proffers that for speci?cation 13, the evidence
will show that the accused ?exceeded authorized access? when he obtained the relevant
information using an unauthorized program, Wget.

The Law: Failure to State an Offense.

1. The military is a notice pleading jurisdiction. A charge and its speci?cation is suf?cient if it
(1) contains the elements of the offense charged and fairly informs an accused of the charge
against which he must defend; and (2) enables the accused to plead an acquittal or conviction in
bar of future prosecutions for the same offense. In reviewing the adequacy of a specification, the
analysis is limited to the language as it appears in the speci?cation, which must expressly allege
the elements of the offense or do so by necessary implication. United States. v. King, 71 M.J. 50,
fn 2, (C.A.A.F. 2012), quoting United States v. Fosler, 70 M.J. 225, 229 (C.A.A.F. 2011) and
United States. v. leig, 16 C.M.A. 444, 445 (1966) (looking ?within the con?nes of the
speci?cation?). A motion to dismiss for failure to state an offense is a challenge to the adequacy
of a specification and whether the speci?cation ?alleges, either expressly or by implication,
every element of the offense, so as to give the accused notice and protection against double
jeopardy.? United States v. Amazaki, 67 M.J. 666, 669, 670 n.8 (A. Ct. Crim. App. 2009)
(quoting United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F. 2006)).

APPELLATE EXHIBIT

PAGE
PAGE OF PAGES

mu



2. This Court has the power to dismiss charges before evidence is presented in accordance with
Rule for Courts-Martial (R.C.M.) 907(b)(1) only when the issue is capable of resolution without
trial on the issue of guilt.

The Law: The Computer Fraud and Abuse Act (CFAA), 18 U.S.C. Section 1030(a)(1). The
Court adheres to the law as stated in the 8 June 2012 ruling on this issue.

Conclusions of Law:

1. The language of Speci?cations 13 and 14 of Charge II includes all of the elements of the
offense, fairly informs the accused of the charge against which he must defend, and protects the
accused against double jeopardy. See King, at 51, n2; Fosler, at 229; Fleig, at 445.

2. Although this Court has the power to dismiss a speci?cation prior to trial when the issue is
capable of resolution without trial on the issue of guilt, this power should be used sparingly.
Unlike the cases presented to the Court, Speci?cations 13 and 14 of Charge II allege that the
accused ?exceeded authorized access? to classi?ed information under 18 U.S.C. Section
1030(a)(1). Restrictions on access to classi?ed information are not limited to code based or
technical restrictions on access. Restrictions on access to classi?ed information can arise from a
variety of sources, to include regulations, user agreements, and command policies. Restrictions
on access can include manner of access. User agreements can also contain restrictions on access
as well as restrictions on use. The two are not mutually exclusive. The Court does not ?nd that
this issue is capable of resolution prior to presentation of the evidence. These issues are
appropriately decided after the formal presentation of the evidence either as a motion for a
?nding of not guilty under R.C.M. 917 or a motion for a ?nding that the evidence is not legally
suf?cient. King, 71 M.J. 50; United States v. Griffith, 27 M.J. 42 (C.M.A. 1988).

3. The 1996 legislative history also evidences Congress? intent that ?exceeds authorized access?
is not limited to code breaking restrictions on access. (18 U.S.C. Section lO30(a)(l) as amended
?covers the conduct of a person who deliberately breaks into a computer without authority, or an
insider who exceeds authorized access, and thereby obtains classi?ed information and then
communicates the information to another person, or retains it without delivering it to the proper
authoritiesthe computer that is being proscribed, not the unauthorized
possession of, access to, or control over the information itself .) S.Rep.No. 104-357, at 6 (1996).

4. The Court considered United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009). Drew upheld
a felony charge under 18 U.S.C. Section l030(c)(2)(B)(ii) against challenges on grounds of
vagueness, failure to state an offense, and unconstitutional delegation of powers ?nding that
scienter element requiring the intentional accessing of a computer without authorization or in
excess of authorization to be in furtherance of the commission of a crime or tortious act
overcame the Constitutional challenges and arguments against criminalizing breaches of contract
involving use of computers. Following acquittal on the felony offense, Drew held that basing a
misdemeanor conviction under the Computer Fraud Act as per 18 U.S.C. Sections l030(a)(2)(C)
and 18 U.S.C. upon the conscious violation of a website?s terms of service was void for
vagueness. These lesser included misdemeanor offenses with no Scienter requirement or a
scienter requirement of only intent to access a computer without authorization or exceed

0 0 22942



0 0

authorized access were void for vagueness because the misdemeanor statutes did not provide
actual notice or minimal guidelines to govern law enforcement. The Court?s earlier decision to
uphold the felony charge in 18 U.S.C. Section 1030(c)(2)(B)(ii) is in accord with the broad view
of the United States v. Rodriguez, 628 F.3d 1258 (1 Circuit 2010) line of cases.

5. In its 8 June 2012 ruling on the original motion to dismiss, the Court found the language in
the statute and legislative history of the definition of ?exceeds authorized access? ambiguous,
applied the rule of lenity, and stated an intent to instruct in accordance with the narrow
interpretation that ?exceeds authorized access? is limited to violations of restrictions on access to
information and not restrictions on the use of the information.

RULING: The Defense Renewed Motion to dismiss Specifications 13 and 14 of Charge II for
failure to state an offense is DENIED. The Court will instruct in accordance with its 8 June 2012
ruling.

So ORDERED: this 18"? day of July 2012.

DENISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit



IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

RULIN G: LESSER
v. INCLUDED OFFENSE

MAXIMUM
MANNING, Bradley E., PFC PUNISHMENTS
U.S. Army,
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 19 July 2012
Fort Myer, VA 22211

The parties have presented the Court with their views of the maximum punishment for
speci?cation I of Charge II, and for the lesser included offense theories under clause 1 and 2 of Article
134 for the offenses charged under all 3 clauses of Article 134 (18 U.S.C. Section 64], I8 U.S.C. Section
793(e) and I8 U.S.C. l030(a)(l)). After considering the pleadings, evidence presented, and argument of
counsel, the Court finds and concludes the following:

The Law: Lesser Included Offense Maximum Punishment Offenses Charged Under Clauses I
and 2 of Article 134.

I. For offenses not listed in Part IV of the Manual for Court-Martial (MCM), the maximum punishment
depends on whether or not the offense is included in or closely related to a listed offense in the MCM.

RCM

2. A clause 1 and 2 offense not included in or closely related to a listed offense is punishable as
authorized by the United States code or as authorized by the custom of the service. RCM
lOO3(c)(2)(B)(ii). Although there is authority that if an accused?s misconduct cannot be charged under a
listed offense, that listed offense cannot be a closely related offense (U.S. v. Tenney. 60 M.J. 838
Crim. App. 2005)), there is contrary authority. See U.S. v. Sampson, M.J. 266 (C.M.A. 1976)
and U.S. v. Hopkins, 55 MJ. S46 (N.M. Ct. Crim. App. 2001 (a violation of 18 U.S.C. 100l(a) charged as
a clause 1 and 2, Article 134, UCMJ offense is closely related to a violation of Article 107, UCMJ for
sentencing purposes.)

3. Where the clause and 2 speci?cation lists every element of the act prohibited by the United States
Code except thejurisdictional element, the maximum punishment may be the maximum punishment for
the United States Code offense. United States v. Leonard, 64 381 (C.A.A.F. 2007).

4. Where the clause and 2 offense does not include the conduct and men: rea proscribed by a directly
analogous federal criminal statutes or the offense is comprised of acts that cannot be criminally charged
under the United States Code at all the offense is neither directly analogous nor essentially the same as a
United States Code offense. United States v. Beaty, 70 39 (C.A.A.F. 201 1).

5. Clause 1 and 2 offenses not specifically listed in the MCM that are not closely related to or included in
a listed offense, that do not describe acts that are criminal under the United States Code, and where there
is no maximum punishment authorized by the custom of the service, are punishable as ?general? or
?simple? disorders with a maximum sentence of four months con?nement, and forfeiture of two-thirds
pay per month for 4 months. Beaty, 70 M.J. at 45.

<20

APPELLATE EXHIBIT

PAGE

8

0 0 22945

Conclusions of Law.

1. Should the offenses charged under 18 U.S.C. Sections 641, 793(e), 1030(a)(1) and Article 134 be
found by the fact-?nder to be lesser included offenses under clause 1 and/or 2 of Article 134 without any
additional change to the elements, the maximum penalty will be:

A. The clause 1 and 2 offenses charged using the elements of 18 U.S.C. Section 641 are closely
related to Article 121, UCMJ, Larceny of Military Property of a value in excess of $500.00 for
speci?cations 4, 6, 8, and 16. The maximum penalty for that offense is 10 years con?nement, a
dishonorable discharge, and forfeiture of all pay and allowances for each speci?cation. Speci?cation 12
is closely related to Article 121, UCMJ, Larceny of Non-Military Property of a value in excess of
$500.00. The maximum penalty for this offense is 5 years con?nement, a dishonorable discharge, and
forfeiture of all pay and allowances.

B. The clause 1 and 2 offenses charged using the elements of 18 U.S.C. Section 134,
UCMJ and 134, UCMJ are not closely related or included in any offense listed in part
IV of the MCM. The clause 1 and 2 Article 134 offenses would be directly analogous to the respective
United States Code offense per RCM 18 U.S.C. Sections 793(e) and 1030(a)(1)
each carry 10 years of con?nement as a maximum sentence, thus the maximum penalty for each of
speci?cations Charge 11 is 10 years con?nement, a dishonorable
discharge, and total forfeiture of all pay and allowances.

2. Speci?cation 1 of Charge II is not closely related to any offense listed in part IV of the UCMJ, nor is it
directly analogous to an offense under the United States Code. AR 380-5 dated 29 September 2000
(Information Security Program), does not penalize the conduct as charged in speci?cation 1 of Charge 11
as a violation of Article 92, UCMJ, however, it does establish a custom of the service penalizing
disclosures of classi?ed and sensitive information. Disclosures charged under Article 92 would cany a
maximum punishment of con?nement for 2 years, a dishonorable discharge, and total forfeiture of all pay
and allowances. This will be the maximum penalty for speci?cation 1 of Charge II.

3. Should other lesser included offenses be raised by the evidence, the Court will address the maximum
punishment for any such offenses after all of the evidence has been presented.



DENISE R. LIND
COL, JA
ChiefJudge, Judicial Circuit

So ORDERED: this 19?? day ofJuly 2012.

22946

UNITED STATESOF AMERICA

Manning, Bradley E.
PFCUS.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
Fort Myer, Virginia 22211

Prosecution Request
for Leave untill7August 2012
to Provide Notice and Disclosure
of Certain Documents
19 July 2012

1, The Ignited States requests leave ofthe Court untill7August 2012 (l)to notify the Court
withastatus of whether it anticipates the custodian of classified evidence will seek limited
disclosure IAWMRE 505(g)(2)orclaimaprivilegeIAWMRE 505(c)forthe classified
intbrmation under that agency^scontroL(2)to file notice IAWMRE505(i)(2), if necessary; and
(3)ifnecessary,to disclose suehfilesregarding the Accused that involve investigation, damage
assessment, or mitigation measures to the Defense or, submit them to the Court fbr in camera
review underRCM 701(g) or fbr limited disclosure under MRE 505(g)(2)fbr the following
infbrmation maintained by military authorities: U,S,Cyber Command(CVEERCGM)
infbrmationandDepartmentofDefense(DoD)infbrmationclassifiedcollateralto^^secref^and
classified above the ^^secref^ level or containing specialized control measures,
2, On 22 June 2012,in regard to ^^files under the possession ofmilitary authorities,^^ the Court
ordered, the fbllowing:
The Govemment will seek out and identify such files regarding
PEC Manning that involve investigation, damage assessment, or
mitigation measures, By20July2012the Govemment will notify
the Court withastatus ofwhether it anticipates any govemment
entity that is the custodian ofclassified evidence that is the subject
ofthe Defense Motion to Compel will seek limited disclosure lAW
MRE505(g)(2)orclaimaprivilegeIAWMRE505(c)forthe
classified infbrmation under that agency^scontrol. Also by 25 July
2012,if the relevant agency claimsaprivilege under MRE 505(c)
and the Govemment seeks an in camera proceeding under MRE
505(i), the Govemment will move for an in camera proceeding
IAWMRE 505(i)(2)and(3)and provide notice to the Defense
under MRE 505(i)(4)(A), For all such files whereaprivilege
under MRE 505(c)is not claimed, by3August2012the
Govemment will disclose such files regarding PEC Manning that
involve investigation, damage assessment, or mitigation measures
to the Defense or, submit them to the Court fbr in camera review
underRCM 701(g) orfor limited disclosure under MRE 505(g)(2),
Ruling: Defense Motion toCompelDiscovery^2,dated22June2012(AECXLVIII (147))
CVBERCGM^^files^^ were not included in the Defense Motion to Compel,

APPELLATE EXHIBIT/V^KK
PAGE REFERENCED:
PAGE J OF_Z, PAGES

22947

3, The L^nited States was first notified ofthe defense request fbr CVBERCGM investigative
^^files^^ on 23 June 2012,the day after the Courtis ruling. The defense submitted to the Courta
request for clarification and specifically named CVBERCGM^^files^^ as being potentially being
material to the preparation ofdefense,
Defense Request fbr Clarification ofCourt Ruling on
Motion toCompelDiscovery^2,dated23 June 2012((AECLXXI (171)) TheCourt^s
clarification did not address CYBERCOM,
Ruling: Delense MotionClarificationofRuling
Motion toCompel Discover 2, dated25 June 20I2(AECLXXVI (176)) Gn27 June 2012, the
defense emailed the prosecution, to ensure that the prosecution understood that the defense
interpreted theCourt^s 22 June 2012diseoverymlingto include CYBERCOM ^^files,^^
4, Based on the defense^s notice, the prosecution, on3July 2012,requested CYBERCOM
produce documents fbr the prosecution^s review, On7July 2012, the prosecution received the
more than3,000 CYBERCOM documents fbr review. During this week^s motions hearing, the
L^nited States started its review and will complete its review this week, but requires additional
time to acquire the authority to release any material related to the Courtis order,
5, The United States also reviewed the additional DoD documents that were the subject ofthe
Defense Motion to Compel and identified more thanll,000 documents which were subject to
the Courtis order. The United States anticipates receiving the approval for the vast majority of
those documents to be disclosed to the defense by3August 2012, The United States requests
additional time to obtain authorization to discloseasmall portion of those documents that require
additional review based on their classification and the original ov^ing agency or department,
6, This request is in response toadefense request fbr more infbrmation, Itwillnotnecessitatea
delay in the proceedings as the continued effbrt to obtain and release this infbrmation will occur
concurrently with the scheduled pretrial motions process. There will be no prejudice to the
defense.

ASHDENFEIN
MAJ,JA
Trial Counsel

. . 22948

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
RULING: GOVERNMENT



MOTION TO PRECLUDE
REFERENCE TO ACTUAL
HARM OR DAMAGE ON
MANNING, Bradley E., PFC MERITS
U.S. Army, -
HHC, U.S. Army Garrison
Joint Base Myer-Henderson Hall DATED: 19 July 2012
Fort Myer, Virginia 22211

Government moves to preclude Defense from raising or eliciting any discussion, reference, or
argument, to include the introduction of any documentary or testimonial evidence relating to actual harm
or damage from pretrial motions related to the merits portion of trial and from the merits portion of trial.
Defense opposes. After considering the pleadings, evidence presented, and argument of counsel, the
Court ?nds and concludes the following:

Proffer by the Government:

1. The accused is charged with one speci?cation of aiding the enemy, one speci?cation of disorders and
neglects to the prejudice of good order and discipline and service discrediting, eight speci?cations of
violations of 18 U.S.C. 793(e), ?ve speci?cations of violations of 18 U.S.C. 641, two speci?cations of
violations of 18 U.S.C. I030, and ?ve speci?cations of violating a lawful general regulation, in
violation of Article 104, I34, and 92, Uniform Code of Military Justice (UCMJ).

2. The charged offenses relate to the release of more than 127 records, ?les, or cables and four databases,
consisting of more than 720,700 records. Multiple government agencies and departments measured what,
if any, ham or damage transpired because of the alleged misconduct. Some of those agencies and
departments prepared damage assessments to memorialize their ?ndings, including the lnforrnation
Review Task Force, WikiLeaksTask Force, Department of State, and ONCIX.

3. On 16 February 2012, Defense submitted its Motion to Compel Discovery for the damage
assessments. Defense argued that the damage assessments were ?at odds with the classi?cation review
conducted by the and that the substance ?would undercut the testimony of each Original
Classi?cation Authorities (OCAs) for the charged documents.? Defense concluded, both in its Motion to
Compel Discovery and at the public motions hearing, that the damage assessments were material to the
preparation of the defense for both the merits and sentencing, citing articles indicating that the
compromised infonnation ?caused only limited damage.?

4. On 23 March 2012, the Court ordered the United States to produce, any unclassi?ed, discoverable
infonnation from those assessments and to ?immediately begin the process of producing the damage
assessments that are outside the possession, custody, or control of military authorities.? The Government
is in the process of producing the damage assessments.

5. Producing a damage assessment generally requires the owner of the infonnation to engage in a four-
step process: ?rst, verify the classi?cation of the information; second, reevaluate the classi?cation of the

1
APPELLATE
PAGE
PAGES

information; third, determine whether there are countermeasures to minimize or eliminate the damage to
national security; and fourth, prepare the actual damage assessment.

6. A damage assessment measures, ?given the nature of the information and the countermeasures, if any,
that will be employed, the probable impact the compromise will have on our national security.?
Producing a damage assessment ?is sometimes a long?tenn, multi-disciplinary analysis of the adverse
effects of the compromise on systems, plans, operations, and/or intelligence.?

Reasons Government Moves to Preclude Mention of Actual Damage on the Merits
1. Actual hann is not relevant to the charges facing the accused or to any available defense.

A. None of the charges require the government to prove actual damage, therefore actual damage
is not relevant to any element of any offense for which the accused is charged.

B. Actual damage is not relevant to whether documents were classi?ed or whether they relate to
the national defense.

C. Actual damage is not relevant to any defense.

D. The evidence is not relevant to cross examine the OCA because classi?cation reviews are
forward thinking where the OCA determines whether the unauthorized disclosure of the infonnation
could reasonably be expected to result in damage to the national security. Use of damage assessments to
impeach an OCA who prepared a classi?cation review would be improper.

E. Challenges to the classi?cation review conducted by the OCA are non-justiciable political
questions. Classi?cation reviews detennine that the unauthorized disclosure of the information
reasonably could be expected to result in damage to the national security. Damage assessments may be
relevant to impeach an OCA, but only if the OCA authored the document and only with respect to the
assessment, not the classi?cation review under RCM 914.

2. Even if relevant, the evidence should be excluded under MRE 403 because the probative value of the
actual damage would be outweighed by the danger of unfair prejudice, con?ision of the issues, misleading
the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence. Evidence of actual harm or lack thereof will create an undue tendency to lure fact ?nder into
?nding guilt or innocence irrespective of evidence supporting the charge.

Defense proffered reasons the Court should deny the Government motion:

1. The Government motion is overbroad in that it seeks to prevent the Defense from introducing any
evidence related to actual harm or damage. Speci?c information in damage assessments could be relevant
to whether the information was expected to cause harm

2. Actual damage is relevant to the 18 U.S.C. Section 793(e) and Section 1030(a)(1) offenses in that
absence of actual harm is probative of whether the information leaked was of the type that the accused
reasonably believed would cause hann.





0 0 22950

3. Actual damage is relevant to the 18 U.S.C. Section 793(e) and Section 1030(a)(1) offenses in that
absence of actual harm is probative of whether the accused had reason to believe that the information
leaked could cause injury to the United States or to the advantage of any foreign nation.

4. Actual damage is relevant to speci?cation 1 of Charge II in that lack of damage is probative of
whether the accused acted wantonly.

5. Actual damage is relevant to the accused?s defense that by virtue of his expertise and training, he knew
which documents and information could be used to the injury of the United States or to the advantage of
any foreign nation and selected only that information to release. Lack of damage corroborates the
reasonableness of that belief.

6. Absence of damage is proper impeachment for OCA detenninations that information could cause
damage.

7. Absence of damage is proper to explore the bias of government agency witnesses who exaggerate
potential damage.

The Law.

1. Military Rule of Evidence (MRE) 40] defines ?Relevant Evidence?. Relevant evidence means
evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the evidence. The military
judge has the initial responsibility to determine whether evidence is relevant under RCM 401. US. v.
White, 69 M.J. 236 (C.A.A.F. 2010).

2. MRE 402 provides that all relevant evidence is admissible, except as otherwise provided by the
constitution of the United States as applied to members of the armed forces, the code, these rules, this
Manual, or any Act of Congress applicable to members of the anned forces. Evidence which is not
relevant is not admissible.

3. Relevant evidence is necessary when it is not cumulative and when it would contribute to a party?s
presentation of the case in some positive way in a matter at issue. A matter is not at issue when it is
stipulated as fact (discussion to RCM

4. MRE 403 provides that relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

5. The Sixth Amendment of the Constitution provides an accused the right to confront witnesses against
him. That right includes cross examination and an opportunity to impeach witnesses. The right to cross
examination is not absolute. Courts balance competing state interests inherent in rules limiting cross
examination. Chambers v. Mississippi, 410 U.S. 284, 295 (1973); Davis v. Alaska, 415 U.S. 308, 316
(1974); Crane v. Kentucky, 476 U.S. 683, 690 (1986) (Judges retain wide latitude to impose reasonable
limits on cross-examination based on concerns about, among other things, harassment, prejudice,
confusion of the issues, witness safety, repetitive or irrelevant.)

3

0 0 22951

Conclusions of Law:

1. The 18 U.S.C. Section 793(e) and 1030(a) offenses require the Government to prove that at the time
the accused allegedly disclosed the information in each of the relevant speci?cations, the accused had
reason to believe the information he disclosed could be used to the injury of the United States or to the
advantage of any foreign nation and that the accused acted willfully in that he made a conscious choice to
communicate the covered information.

2. Specification 1 of Charge II requires the Government to prove the accused wrongfully and wantonly
caused to be published on the intemet intelligence belonging to the United States govemment, having
knowledge that intelligence published on the intemet is accessible to the enemy.

3. Whether actual harm or damage resulted is not an element of any of the charged offenses, nor it is
probative of the whether the accused had reason to believe that the information leaked could be used to
the injury of the United States or to the advantage of any foreign nation, nor is it probative of the
accused?s state of mind at the time of the commission of the alleged offenses.

4. The first five bases for the Defense relevance proffer for lack of actual damage all relate to the nature
of the information disclosed and the accused?s state of mind on or before the date(s) he disclosed the
information. What, if any, actual damage occurred after disclosure of the information was not knowable
to the accused at the time he disclosed the information. Thus, actual damage, or lack thereof, is not
relevant to any of those five bases. The critical language is ?reason to believe could be used.?
Diaz, 69 M.J. 127, 132 (C.A.A.F. 2010).

5. Similarly, the OCA classi?cation determinations for the information allegedly disclosed by the
accused were made on or before the dates of disclosure. Again, the relevant point of inquiry is the nature
and classification status of the information on or before the date of disclosure. What, if any, future
damage actually resulted was not knowable to the OCA at the time the OCA made the classi?cation
decision. Even if an OCA misjudged the information upon which it based its classification decision does
not change the fact that the decision itself was made and communicated to the accused. Post-release
damage or lack thereof is not relevant to impeach an OCA.

6. A secondary basis for excluding evidence of actual damage is under MRE 403. By allowing evidence
of actual damage when the relevant inquiry is on the nature of the information allegedly disclosed on or
before the disclosure, whether the accused had reason to believe the information could be used to the
injury of the United States or to the advantage of any foreign nation on or before the date of disclosure,
and the accused?s mens rea on or before the date of disclosure, the members will be confused with the
focus of the trial shifting to whether there was or was not actual damage and what, if any steps were taken
by the Government to mitigate the damage.

7. The Court does not have sufficient information at this time to preclude the Defense from using
evidence of actual damage to impeach a Government witness for bias. The Court defers ruling unless and
until the issue ripens at trial.

8. The Court defers ruling on whether lack of actual harm or damage assists in presenting a viable
defense. In order for the Court to appropriately rule on whether actual damage corroborates the
reasonableness of the accused?s belief, there must be some evidence that the accused knew the
information could not be used to the injury of the United States or to the advantage of any foreign nation.

4

0 22952

9. The Government motion to preclude the defense from raising or eliciting any discussion, reference, or
argument, to include the introduction of documentary or testimonial evidence, relating to actual harm or
damage from pretrial motions related to the merits portion of trial and from the merits portion of trial is
overbroad. The Government motion to preclude the Defense from using evidence of actual damage
during the merits portion of the trial is granted in part as set forth in the preceding paragraphs. This ruling
does not preclude the Defense from using information in the damage assessments relevant to the nature of
the information as it existed on or before the dates of the alleged disclosure of the information by the
accused.

RULING: The Court finds that actual ham or damage is neither an element nor relevant to an element
of these specifications. Accordingly, both the government and defense are precluded from introducing
evidence of actual harm or damage during the merits portion of trial without prior approval of the Court.
The Government Motion to Preclude Actual Harm or Damage from the Pretrial Motions Practice and the
Merits Portion of Trial is GRANTED IN PART. This ruling does not affect the ability of either side to
present actual harm evidence at sentencing.

So ORDERED this 19"? day of July 2012.



DENISE R. LIND
COL, JA
Chief Judge, 1? Judicial Circuit

22953

UNITED STATESOF AMERICA
Ruling: Defense Motion to
Compel Department of State
Discovery Motion to Compel ^2

V.

Manning, Bradley E.
PFC, U.S.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
Fort Myer, Virginia 22211

19 July 2012

1, The Govemment has identified the fbllowing potentially discoverable infbrmation ftom the
Department ofState (DOS):
(1) The written assessments produced by the Chiefs ofMission used to fbrmulatea
portion ofthe draft damage assessment completed inAugustof2011consist largely of cables
sent to, and ftom, affected embassies relating to the cables released up until August of2011;
(2) The written Situational Reports produced by the WikiLeaks Working Group,a24^7
working group composed of senior officials ftom throughout the Department designed to
monitorthe immediate crisis stemming ftom the released cables and coordinate the Department's
response, between roughly 28 November 2010and17December 2010, consist ofthe then realtime developments regarding cables released up until that time, summaries of published news
articles relating to the cables released up until that time, and updates ftom select regions ofthe
world regarding the cables released up until that time;
(3) The v^itten minutes and agendas of meetings by the MitigationTeam,agroup
created to address the policy,legal,security,counterinte11igence, and information assurance
issues presented by the release ofthese documents, consist offbrmal meeting notes, PowerPoint
slides ofadministrative matters and substantive issues, and documentation on infbrmation
exchanged with other federal organizations;
(4) The Information Memoranda fbr the Secretary ofState produced by WPAR,agroup
tasked with identifying persons referenced in released cables who are at risk, providing guidance
to local embassies who request assistance on behalfofthose persons, and tracking all persons at
risk, consist ofbackground infbrmation relating to the creation ofthe WPAR, any assistance
requested by embassies ftom the WPAR (to include examples ofrequested assistance), regional
reports by bureaus, guidance to embassies on howto identify and assist persons at risk,
summaries ofWPAR'sduties, and the status of reviewed cables related to persons at risk;
(5) The matrices produced by WPAR consist ofPIIofindividuals and their family
members who are identified by WPAR as persons at risk based on the released cables to track the
status ofthese individuals;^

^ For the pur^^seot^this^oti^n, the pr^^e^uti^n^on^id^r^ 1^11 t^in^lud^ any intormation that
anoth^r^oid^ntitya^^e^it^^ individual.
^

B^^PELL^TFEXHIBIT^^
^AGEREI^^^^^^^^^^^
^
^AGE^^^

22954

(6) The fbrmal guidance produced by WPAR and provided to all embassies, including
authorized actions fbr any identified person at rtsk consists ofprocedures fbr embassies seeking
assistance ftomWPAR, the steps the Department takes should someone request relocation,
additional options available to the embassies, andalistofbest practices;
(7) The information collected by the Director ofthe OfficeofCounter Intelligence and
Consular Support within the Department regarding any possible impact ftom the disclosure of
diplomatic cables consists oftranslated fbreign open-source intemet articles, select cables, the
Departmcnt'sdraft damage assessment dated August 2011to which the defense already has
access, regional assessments relating to the released cables, and no other versions ofthe draft
assessment; and
(8) The Department did not find any prepared v^itten statements for the Department's
reporting to Congress on7and9December 2010, Based on those dates and Under Secretary
I^ennedy^stestimony,onlyinfbrmal discussions would have occurred between Department
officials and members of Congress, therefbre there are no written statements or other documents,
2, The volume of records gathered is more than5,000 documents and most are classified. In
light ofthe volume ofdocuments and interagency coordination involved, the Govemment
requests45 60 days to review the documents and determine whether to seek limited disclosure or
claimaprtvilege. The Defense opposes,
3, The Govemment has advised the Court ofits intent in its sentencing case to introduce
evidenceof actual harm and impact to the DOS regarding each ofthe above categories except (3)
and (8)(which evidence the Govemment asserts does not exist),
4, The Court has previously ordered disclosure of the interim damage assessment prepared by
the Department ofState to the Defense,
5, The Govemment moves the Court to deny the Defense Motion to Compel the fbllowing
information on the grounds that they are not relevant and necessary and fbr category(1)that it is
cumulative,
(1) Infbrmation that predated, and contributed to,the Department ofState draft damage
assessment dated August 2011;
(2) Purely administrative records; and
(3) Personally Identifiable Information (PII) ofpersons negatively affected by the
unauthorized disclosures, to include those persons identified by theWikiLeaks Persons at Risk
Group (WPAR) as being put at risk,
6, Defense moves fbr the Court to order all DOS infbrmation not disclosed to the Defense to be
disclosed to the Court fbr ^^^^^^^^ review and for the Court to order that fbr all remaining
discovery,the Govemment order the Court to consult with equity holders simultaneously.

22955

7, Defense has advised the Court that it has evidence ofalleged people at risk coming fbrward
publicly to state they were not at risk. The Defense providedanewspaper article to the Court
today.
The Law.
The Court adopts the law as set forth in its 23 March 2012 and 22 June 2012 rulings on
discovery issues.
Conclusions ofLaw.
1, The Govemment shall search all of the above infbrmation for material required to be
disclosed to the defense that is material and favorable to the defense under
373 US 83 (1963)
2, The Govemment is presenting evidence in sentencing aggravation, to include expert opinion
testimony,ofthe damage to the Department ofState, fbreign relations, and national security
because by the accused'salleged disclosures, Infbrmation that fbrms the basis ofthe sentence
aggravation and for an expert opinion is material to the preparation ofthe defense and relevant
and necessary to be produced under RCM 703(f) fbr discovery. Aggravating information that
the Govemment will not use or reference during sentencing or that does not fbrm the basis ofa
govemment witness'opinion is not material to the preparation ofthe defense or relevant and
necessary fbr discovery,
3, The underlying raw data forming the basis fbr the damage assessment is not cumulative fbr
discovery purposes. It is material to the preparation ofthe defense and relevant and necessary to
be produced fbr discovery under RCM 703(f),
4, The Govemment has advised the Court it will not present any evidence in sentencing
regarding the MitigationTcam, As such, the Govemment is required only to disclose .^^^^
material ftom this infbrmation to the Defense,
5, The Court grants the Govemment'smotion to exclude purely administrative records and
records that are not relevant to this case. The Govemment will produce and disclose any records
ofthe timing ofrelevant group meetings and how longs the meetings lasted,
6, The Govemment motion to exclude the PII ofpersons negatively affected by the accused's
alleged disclosures is granted except that the Govemment will disclose the PII ofany persons
identified in the newspaper article the Defense presented to the Court that is maintained by the
DOS as persons negatively affected. The Defense has not presented evidence to the Court that
any additional PII infbrmation is relevant and necessary for discovery,
7, The Defense motion to require the Govemment to provide the Defense with all discovery or
to give all infbrmation not disclosed to the Court fbr ^^^^^^^^ review is denied.

22956

RULING: The Defense motion to Compel Discovery ^2 ofState Department infbrmation is
GRANTED INPART assetforthabove
By 14September 2012 the Govemment will disclose all discoverable infbrmation set forth
above to the Defense, submit the discoverable information to the Court fbr ^^^^^^^^^^^^^^^ as
limited disclosure under MRE 505(g)(2), or advise the Court ifDOS claimsaprivilege under
MRE 505(c)and provide notice to the Court and the Defense whether the Govemment seeks an
^^^^^^^^ proceeding under MRE 505(i),
SOORDERED: this 19^^ day ofJuIy,2012

DENISERLIND
COL,JA
Chief Judge,l^^ Judicial Circuit

APPELLATE EX A
PAGE
nu?-is

2 59..
?xx?






















:9

22958

^^^^^C^^^^^B^^^^^^^^^^^^^^^^
^

^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^

VOLUM^l

PARTI

GENERAL INSTRUCTIONS

Chapter 1

Introduction

Chapter 2

The Function of the Court, the Jury and Counsel

Chapter 3

The Indictment. Statute and Charges

Chapter 3A

Scienter

Chapter 4

Burden of Proof

Chapter 5

Evidence

Chapter 6

Inferences

Chapter 7

Witness Credibility

Chapter 8

Defenses

Chapter 9

Concluding General Instructions

Chapter 9A

Federal Death Penalty

PART I I

SUBSTANTIVE INSTRUCTIONS

Chapter 10

Attempt

Chapter 11

Aiding and Abetting (18 U,S,C. §@ 2(a), 2(b))

Chapter 12

Accessory After Ae Pact (18 U.S C, § § 3 . 4 )

Chapter 13

Air Piracy

Chapter 14

AssaultUponaFederaICN5cer(l8U,S,C,§§ 111,115)

Chapter 15

Bankruptcy Fraud (18 U.S.C. §§ 152, 157)

Chapter 16

Bribery of Public OfBctals (18 U,S,C. §§ 201,215)

Chapter 16A

Failure To Pay Child Support (18 U.S.C. § 228)

Chapter 17

Civil Rights

Chapter 18

False Claims Against the Government (18 U.S.C. § 287)

Chapter 19

Conspiracy (18 U.S,C § 371)

Chapter 19A

Solicitation To Commit a Crime of Violence (18 U.S.C. § 373)

Chapter 20

Contempt (18 U.S.C. § 401)

Chapt* 21

Counterfeiting (18 U.S,C, §§ 471-473)

Chapter 22

Forgery (18 U.S.C. §§ 495, 510. 513)

Chapter 23

Smuggling (18 U.S.C. § 545)

(Ral.53B 11.'2008 N k W )

22959

" "'"rr
Chapter 73.A.

^ ' f t f G . -mincntP^'^P^'^^^^^ U.S.C. @ 641)

(Chapter 24

E n , b e z z l e m « , t B o m B ^ ^ ^ ^ ^ ^ ^ ^ ^ A59)^^

Chapter 25
Chapter 26
Chapter 27
Chapter 27A
Chapter 28
Chapter 29

EscapePromCslodydKU-S^ M
Espionage (18 U,S.C§ 7^3)

#

VOLUME 2
Chapter 30
Chapter 31
Chapter 32
Chapter 3:3
Chapter 33A
Chapter 34

Explosive Destruction of property (18U,S,C,§ 844)
-ntreateningCommuDicadoos^I^^SC M 871.875,876)
ExtodionateCreditTr«,s»cUons(18U,S.C.S& 892,894)
False Claim of a , i z « ^ ^ V m U . S , C , § 911)
Immigration Offenses (18 U,S,C.&§ 1324,1326)
Fal^Personation(lSU.S.C.§§ 912^14)

Chapter 35

Firearms (18 U,S,C.§; 922.924:26U,S.C.( sgai)

Chapter 36

False Statements (18 U.S.C. 5 1003)

Chapter 37

BankFra.d(18U.S.C§@ 1005. 1010.1014)

Chapter 38

Fugitives Fmm W e e (18 U.S.C, §§ 10r71_i073)

Chapter 39

G=mbling(18U.S,C.§! 1082.1084.1953.1955)

Chapter 39A

False Identification Documents (18 U,S,C,$ 1028)

Chapter 40

Credit cam Fraud (1«U.S,C.S 1029)

Chapter 40A

Computer Fraud (18 U.S.C.§ 1030)

Chapter 41

Homic:de(l8U.S.C.§§ 1111.1112.1114,1116)

Chapter 42

Kidnapping (18 U.S.C,§§ 1201.1203.1204)

Chapter 43

(Reserved]

Chapter 44

Nail, Wire Bank and HealA Care Fraud (1 g u s.C,

Chapter 45

Obscemiy(18U.S.C.5§ 1461.1462.1464.1465)

Chapter 46

Obstruction ofJuslice (18 U.S.C, §§ 1503,1505,1510-1513)

Chapter 47

Visa and Passpod Fraud (18 U,S,C, §§ 1542, 1

Chapter 48

Perjury (18 U.S.C. §5 1621-1623)
Obstmcting Correspondence (18 U.S.C, §§ 1702,170g, n o g i ^ n )

Chapter 49

i
i M l . 1343,1344)

(RAHB-ll.'SKffl P#,
22960

VOLUMES

i,

\

Chapter 50

The Hobb$ Act (18 U.S.C, § 1951)

Chapter SOA

Money Laundering (18 U,S.C, §§ 1956.1957)

Chapter SOB

Records and Reports of Currency Transactions (3] U,S,C §§ 5313 5314
5316,5324)

Chapter 51
Chapter 52

Criminal Labor Law Violations (18 U.S.C. § 1954; 29 U.S C § 186)
RlCO(18U,S.C.§§ 1962,1963)

Chapter 53

Bank Robbery (18 U.S,C.§ 2113)

Chapter 53A

Carjacking (18 U,S.C,§ 2119)

Chapter 54

Stolen Property (18 U.S,C,§§ 2312-2315)

Chapter 54A

Trademark and Copyright Offenses

Chapter 55

Bail Jumping (18 U.S.C, § 3146)

Chapter 56

Possession and Distribution of Controlled Substances (21 U s C 8S 841
843.848:21 U.S.C. §§856,952)
\
- 99

Chapter 57

Securities Fraud (15 U.S.C. §§ 77-78)

Chapter 58

Criminal Antitrust Violations (15 U.S.C. § 2; 35 U.S.C. § 154)

Chapter 59

Tax Fraud (26 U.S.C. §§ 7201,7203,7206,7212)

Chapter 60

The Travel Act (18 U.S.C. §§ 1952, 1958)

Chapter 61

Sexual Abuse (18 U.S.C. §§ 2241-2244)

Chapter 62

Child PomografAy (18 U.S.C. §§ 2251,2252,2252A)

Chapter 63

Interstate Domestic Violence and Stalking (18 U.S.C. §§ 2261 0261 A)
The Mann Act (18 U.S.C. §5 2421-2423)

k

Chapter 64

Chapters 65-70 [Reserved]
Table of Cases
fable of Statutes
Index

VOLUME 4
PART I I I
Chapter 71
^5 Chapter 72
;Chapter 73
lOtapter 74
napter 75

GENERAL CIVIL INSTRUCTIONS
Function of the Court, the Jury and Counsel
Corporations and Corporate Liability
Burden of Proof
Evidence
Inferences and Presumptions
(Rei.!3B_,|/2;)08

Pub.4«^)

22961

Chapter 76

Witness Credibility

Chapter 77

Damages

Chapter 78

Jury Deliberations

PART IV

SUBSTANTIVE CIVIL INSTRUCTIONS

Chapter 79

Restraint of Trade (15 U.S.C. § I)

Chapter 80

Monopolization (15 U.S.C. § 2)

Chapter 81

Patent Based Antitrust Claims (35 U.S.C. § 154)

Chapter 82

Securities-The 1934 Act (15 U.S.C. § 78)

Chapter 83

Securities-The 1933 Act (15 U.S.C. § 77)

Chapter 84

Civil RICO (18 U.S.C. § 1962)

Chapter 85

[Reserved]

i

VOLUMES
Chapter 86

Patents

Chapter 86A

Trademark

Chapter 86B

Copyright
Civil Rights Actions and the Fair Housing Act (42 U.S.C. §§ 1981-1985.
3604)
Civil Rights Actions-Equal Pay Act and Age Discrimination in
Employment Act; Jury Trial in Employment Discrimination Cases (29
U,S,C,§§ 206.621.623)
Americans with Disabilities Act

Chapter 87
Chapter 88

Chapter 88A
Federal Employer's Liability Act (45 U.S.C. §§ 1, 23, 51)
Chapter 89
The Jones Act (46 U.S.C. § 688)
Chapter 90
Libel
Chapter 91
Table of Cases
Table of Statutes
Index

VOLUME [ • ] PATTERN JURY INSTRUCTIONS (Criminal Cases)
Pattern Criminal Jury Instructions for the District Courts of the First Circuit
Pattem Criminal Jury Instructions for the Third Circuit
Pattern Criminal Jury Instructions for the Fifth Circuit
Pattern Criminal Jury Instructions for the Sixth Circuit
Pattem Criminal Federal Jury Instructions for the Seventh Circuit
4

(RoI.53B-11/2008 Put>,485)

22962

Manual of Model Criminal Jury Insuructions for the District Courts of the Eighth
Circuit
VOLUME

PATIERN JURY INSTRUCTIONS (Criminal Cases)

Manual of Model Criminal Jury Instructions for the Ninth Circuit
Tenth Circuit Criminal Pattern Jury Instructions
Eleventh Circuit Pattern Jury Instructions
Federal Judicial Center. Pattern Criminal Jury Instructions

VOLUME [ 0 ] PATTERN JURY INSTRUCTIONS (Civil Cases)
Fifth Circuit Pattem Jury Instructions (Civil Cases)
Seventh Circuit Pattem Jury Instmctions (Civil Cases)
Manual of Model Civil Jury Instmctions for the District Courts of the Eighth Circuit
Manual of Model Jury Instructions for the Ninth Circuit (Civil)
Eleventh Circuit Pattern Jury Instructions (Civil Cases)
Model Pattern Bankruptcy Jury Instructions (Civil Cases)

(ikijaa-ii/Moi Pukw)

22963

MODERN FEDERAL JURY
INSTRUCTIONS
Volume 1
CRIMINAL
HON, LEONARD B. SAND
JOHN S. SIFFERT
WALTER P. LOUGHLIN
STEVEN A. REISS
STEVEN W. ALLEN
HON. JED S. RAKOFF
Cite as: 1 L. Sand, etal., Modern Federal Jury Instructions-Criminal

2008
Filed Through:
RELEASE NO. 53B November 2008

I' LexisNexis'

22964

MODERN FEDERAL JURY
INSTRUCTIONS
Volume 2
CRIMINAL
HON. LEONARD B. SAND
JOHN S. SIFFERT
WALTER P. LOUGHLIN
STEVEN A. REISS
STEVEN W. ALLEN
HON. JED S. RAKOFF
Cite as: 2 L. Sand, et oL, Modem Federal Jury Instructions—Criminal

2008
Filed Through:
RELEASE NO. 53B November 2008

®* LexisNexis*

22965

UNITED STATES OF AMERICA

)
)

V.

Manning, Bradley E.
PFC, U.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer, Virginia 22211

)

)
)
)
)
)
)

Scheduling
Order
DATE

1, The Court is currently scheduling Article 39(a) sessions with the following default schedule at
the request of the parties: two weeks for parties to file motions; two weeks for parties to file
responses; five days for parties to file replies; and one week for the Court to review all pleadings
before the start of the motions hearing. The time for filing replies was added after the first Article
39(a) session on 15-16 March 2012 because the Court received reply briefs the day before that
session, the parties desire to continue to file replies, and the Court requires time to consider them,
2, Scheduling dates and suspense dates are set forth below. This schedule was coordinated with
the parties. The trial schedule will be reviewed and updated as necessary at each scheduled
Article 39(a) session.
a. Immediate Action (21 February 2012 -16 March 2012)
b. Legal Motions, excluding Evidentiary Issues (29 March 2012 - 26 April 2012)
c. Legal Motions (10 May 2012 - 8 .Tune 2012)
d. Interim Pretrial Motions (2 June 2012 - 25 June 2012)
e. Pretrial Motions (7 June 2012 - 20 July 2012)
f. Pretrial Motions (20 July 2012 - 30 August 2012)
(A)
(B)
(C)
(D)

Filing: 3 August 2012
Response: 17 August 2012
Reply: 22 August 2012
Article 39(a): 28-30 August 2012

(1) Defense Article 13 Motion
(A) Filing: 27 July 2012'
(B) Response: 17 August 2012
(C) Reply: 22 August 2012
(D) Article 39(a): 1-5 October 2012^

The defense agreed to the filing date of one week earlier to give the prosecution the necessary time to respond.
This is also doeutt^nted below in g(l),

APPELLATE E X H I B H L ^ a i /
1

PAGE REFERENCED:
PAGE
OF
PAGES

22966

(2) Government Witness List for Response to Defense Ariicle 13 Motion
(A) Filing: 14 August 2012
(3) Defense Supplemental Request for Article 13 Witnesses
(A) Filing: 15 August 2012
(B) Response: 22 August 2012
(C) Reply: 24 August 2012
(4) Government Supplement to Request for Leave until 14 September 2012^
(A) Filing: 31 July 2012
(5) Motions in Limine
(6) Motions to Suppress (if any)
(7) Due Diligence Ex Parte Filing
(A) Filing: 25 July 2012
(8) Notification to the Court of Anticipated Limited Disclosures under MRE
505(g)(2) or Notification to the Court of Privilege under MRE 505(c) for Files under the
Possession Custody, or Control of Military Authorities based on the Couri's 22 June 2012
Ruling
(A) Filing: 20 July 2012
(9) Notification to the Couri of Anticipated Limited Disclosures under MRE
505(g)(2) or Notification to the Court of Privilege under MRE 505(c) for FBI Investigative
File based on the Court's 22 June 2012 Ruling
(A) Filing: 25 July 2012
(10) Government Filing for In Camera Proceeding lAW MRE 505(i) with Notice to
Defense (if Privilege is Claimed) based on the Couri's 22 June 2012 Ruling
(A) Filing: 25 July 2012
(11) Disclosure to Defense or Disclosure to the Court under RCM 701(g)(2) or MRE
505(g)(2) of All Information Subject to the Court's 22 June 2012 Ruling^
' On 25 July 2012, the prosecution requested leave until 14 September 2012 to disclose a subset group of information
owned by the Central Intelligence Agency (CIA), the Department of Homeland Security (DHS), and the Office of the
Director of National Intelligence (ODNI). On 26 July 2012, the defense filed an objection. On 26 July 2012, the
Court ordered the prosecution to file a supplemental pleading, stating with particularity the review and approval
procedures required prior to disclosure of information above the "secret" level and how that differs from the review
and approval procedures required prior to disclosure of information at or below the "secret" level.
" This disclosure includes all files that involve investigation, damage assessment, or military measures that are under
the possession, custody, or control of military authorities; all FBI files that involve investigation, damage assessment,
or mitigation measures; the ODNI/ONCIX damage assessment; and evidence the prosecution will introduce on the
merits and during sentencing.

22967

(A)Filing:3August2012
(12) DisclosureofAll Remaining Unclassified orClassified (under MRE 505(g)(1))
Brad^ Material and Disclosure under MRE 701(g)(2)orMRE505(g)(2)of All Remaining
Classified Brady Materials
(A)Filing:3August2012
(13) Defense Witness List for SpeedyTrial, including Ariicle 10
(A) ^itness Lists: 10August2012^
(B) Govemment Objections (if any): 17August2012
(C) defense l^otion to Compel (if any): 22 August 2012
(14) Defense 505(h)(3) Notice for Damage Assessments and Other Classified
Information Provided on3August 2012^
(A) Filing: 17August2012
(B) Response: 22 August 2012
(15) Disclosure to Defense, Disclosure to the Court under MRE 505(g)(2), Notification
to the Court of Claim ofPrivilege under MRE 505(c), or Filing for ^^C^B^^B^^ Proceeding
IAWMRE505(i)withNoticetoDefense(ifPriyilegeisClaimed)forCYBERGOM
Information and DoD Information Classified Above Secret or Containing Specialised
Control Measures
(A) Oate: 17August2012
(1^) Preliminary Determinations on Admissibility ^2
(17) Initial Requests for Judicial Notice
(18) RGM914NotificationandMotions
(A) Govemment Notification to OefenseofTypes ofinformation the Govemment
Intends to Oisclose to the L^efenselA^RCM914: 3August2012

^ This production includes any material discovered while searching the files, if any, of the I^resident^slntelligence
Advisory Board, and all material that is not subject to motions to Compel Discovery or I^roduction. If the Court rules
that any of the proposed summaries under l^RI3 505(g)(2)are not acceptable, the prosecution has advised that they
may need additional time to obtain approval foradifferent substitution.
^ On 2^ July 2012, the prosecution and the defense agreed to 10 August 2012 in lieu of the^August2012date that
was discussed in the RC^ ^02 conference. The defense also agreed not to object toaprosecution request for
additional time to prepare its response if the prosecution cannot make contact with all the defense witnesses to
respond by 17August 2012.
^ This notice is for all material that the prosecution produced to the Defense by^August 2012. If the government
proposes summaries that are not acceptable to the Court, and additional time is needed, the Defense will filea
supplemental 505(h)(^)notice seven days after receiving the Court approved summaries under ^.R.13.505(g)(2). The
required notice must be made in accordance with the Court s I^rotective Order for Classified Information, dated 16
l^arch2012 SeeA5^XXXII,paraB^(l)

22968

(B) Defense Motion if Object to Scope of Government Notice: 17August2012
(C) Govemment Reply: 22 August 2012
(19) Updated Proposed Case Calendar
(A) Filing: 17August2012
g. Interim Pretrial Motions (24 Au^ust2012 5October 2012)
(A) Article 39(a): 15October2012
(1) Defense Article 13 Motions
(A) Filing:27July2012
(B) Response: 17August2012
(C) Reply: 22 August2012
(2) Defense Supplemental Article 13 Motion
(A) Filing:24August2012
(B) Response: 7September2012
(C) Reply: 14September2012
(3) Government Supplemental Ariicle 13 Motion Witness List (if necessary)
(A)Filing:4September2012
(4) Court Member questionnaires
(A) ToDetailed Members and Altemates: 4September2012
(B) Suspense for Detailed Members and Altemates to Respond: 21 September 2012
(5) Defense Motion to Compel Discovery ^3 (if necessary)^
(6) Disclosure to Defense, Disclosure to the Court under MRE 505(g)(2), Notification
to theGourtofGlaimofPriyilegeunderMRE505(c),orFilingfor^^C^^^^^ Proceeding
IAWMRE505(i)withNotice to Defense (ifPrivilege is Claimed) for DOS Information
Subjectto theCourts 19 July 2012 Order
(A) Date: 14September2012
h. PretrialMotions (26September 2012 2November 2012)
(A) Filing: 28 September 2012
(B) Response: 12October2012
This motion is listed above in 2fbecause of the filing dates,but it will be litigated during thel^50ctober 2012
Article B^^(a)
^ The defense filedadiscovery request with the prosecution on l^July2012for information classified above the
secret level. If necessary, litigation is tentatively scheduled for the Interim l^retrial motions session. No filing dates
are given at this point because they are contingent upon the prosecutionsresponse to the defense discovery request
and whether or not the defense filesamotion to compel discovery.

22969

(C) Reply: 19October2012
(D) Article 39(a): 29October2012 2November 2012
(1) DefenseMotionforSpeedyTrial,includingArticle 10^^
(A) Filing: 2^ September 2012
(B) Response: l^October2012
(C) Reply: 22 October 2012
(2) Government Witness List for Response to Defense Motion for Speedy Trial,
including Ariicle 10
(A)Filing:9October2012
(3) Defense Notice oflntent to Disclose Classified Information under MRE 505(h)
(From Subsequent Disclosures)
(A) Filing: 15 October 2012
(B) Response: 2^ October 2012
(4) Witness List (Defense and Supplemental Government)
(A) Filing: 15 October 2012
(5) DefenseProductionofGovernmentReciprocalDiscoveryRequest
(A) Date: 15 October 2012
(6) Defense Notice of Accuseds Forum Selection and Notice ofPleas in Writing^^
(A) Filing: 15 October 2012
(7) Defense Notice ofits Intent to Overthe Defense ofLacl^ofMental Responsibility
IAWRGM701(b)(2)
(A) Filing: 15 October 2012
(8) DisclosureofRGM914Material
(A) Date: 15 October 2012
i.

Interim Pretrial Motions (26 November 2012)

j.

Pretrial Motions (16Noyember 2012 14December 2012)
(A) Filing: l^November2012
(B) Response: 30 November 2012
(C) Reply:5December2012

OnlOJuly 2012,the parties agreed to the modified dates to give both parties sufficient time to prepare their filings
and the Court sufficient time to review the filings.
If the accused selectsapanel,the prosecution has requested that the panel be notified no less than si^ty days prior
to trial, in order to coordinate for extended special duty and travel.

22970

(C) Article 39(a): 1014December2012
(1) Defense Witness List Litigation
(A) Govemment Objection to Defense witnesses: l^November2012
(B) Motion to Compel Production: 30 November 2012
(C) Response: 5December2012
(2) Government Motion to Compel Discovery (if any)
(3) Additional Requests for Judicial Notice
(4) Pre^^ualificationofE^perts^^
(5) Motions ^^L^^^^^ (Supplemental, Including any Classified Information) (if
necessary)
1^. PretrialMotions(7December2012 l^Ianuarv2013)
(A)
(B)
(C)
(D)

Filing:21 December 2012
Response: 4January2013
Reply:9January2013
Article 39(a): 1418January2013

(1) Litigation ConcerningMRE505(h)andMRE505(i)'^
(A) Filing:7December2012
(B) Response: 21 December 2012'^
(2) Supplemental Government Witness List (ifnecessary)
(A) Date: 14December20I2
(3) Production ofCompelledDiscoveryfromGovemmentMotiontoGompel
Discovery
(A) Date: 14December2012

If the defense needs additional time to prequalify any contested experts based on the witness determinations, the
defense can prequalify those experts at thel^l^January 201^ Article ^^(a).
This includes ^^^^^^^r^ proceedings for Defense Notice to Disclose Classified Information andBor the
Oovemments Invocation of the I^rivilege for merits and sentencing Information.The prosecution advised that any
Court order to disclose classified information will likely require coordination with multiple federal organisations and
roughly estimates fortyfive to si^ty days to coordinatearesponse across all equity holders.
The adjusted date gives the Court additional time to review any discoverable material and was agreed to by the
defense. The prosecution estimates the review will take no more than fifteen duty days to complete.
The prosecution will suhmitasupplemental witness list based solely on any ruling from the government l^otion to
Compel Discovery and any disclosures by the defense after thel5 October 2012witness list due date.

22971

(4) Grunden Hearing for Government Classified Information
(5) Voir Dire Oi^^^fi^^^^Flyer,Findings^SentenceWorl^sheet, All CMGOs
(A) Filing for Court Review: 4January2013
L

PretrialMotions(2^29.Ianuarv2013)
(1) Grunden Hearing for Defense Classified Information
(2) Completion

ofSecurityGlearanceGhecl^sforWitnesses(asnecessary)

m.Trial bv Members (30 .lanuarv 2013 22 February 2013)
(1) Voir Dire: 30January2013 31 January 2013
(2) Trial:4 22Febmary2013
SoOrderedthis

day of

2012

DENISERLIND
COL,JA
ChiefJudge, 1^^ Judicial Circuit

22972

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE RESPONSE TO
v. PROSECUTION PROPOSED
CASE CALENDAR
MANNING, Bradley E., PFC
U.S. Anny.
Headquarters and Headquarters Company. U.S. DATED: 26 July 20! 2
Anny Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 2221 I

RELIEF SOUGHT

1. PFC Bradley Manning, by and through the undersigned Defense counsel, opposes portions of
the Govemment?s proposed case calendar. The Defense requests that the Court amend the case
calendar to re?ect the issues noted by the Defense below.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party. the Government has the burden of persuasion. RCM The
burden of proof is by a preponderance of the evidence. RCM 905(c)(l

FACTS

3. On 19 July 2012, the Court and the parties participated in an 802 session to discuss the case
calendar. During that discussion, the parties went through the proposed calendar. The Court
directed the Government to capture the discussion into a revised proposed case calendar for
review by the Court and the Defense.

4. On 25 July 2012, the Government submitted a case calendar to the Court. The Govemment?s
proposal was in the form of a Scheduling Order for the Court to sign.

ARGUMENT

5. The Defense objects to various aspects of the Government's proposed case calendar. Further,
the Defense does not understand why this has been drafted in the form of a Scheduling Order and
presented as though it represents consensus on all issues.

2615.

~l

.
--



1. .


l\v"\Q

PAGE



22973

6. The Defense has the following problems with the Government?s proposed calendar:

3)

b)

C)

d)

Jencks: The Government indicates that ?Interpretation of Jencks? motions will be ?led
on 3 August 2012. The Defense did not agree to this ?ling date. The Government was
the party that raised the possible Jencks issue. As such, the Government should be
required to ?le a motion detailing its interpretation of Jencks, to which the Defense can
respond. How can the Defense be expected to guess at what Jencks issues the
Government sees and then address them? If the Government were not adopting an
unorthodox view then it would not have felt the need to raise the issue for the
Court. As such, it is incumbent on the Government to ?le a motion on the issue, not the
Defense.

Motion to Compel Discovery The Government proposes that the Defense ?le a
Motion to Compel Discovery if necessary, at some point in advance of the 26
September interim motions argument. Given the Government?s two separate requests for
extensions of time until 14 September 2012 to produce discovery from the DOS, CIA,
DHS and ODNI (or set the process in motion to claim a privilege), scheduling this motion
for 26 September 2012 is untimely. The Defense needs to have the discovery in order to
move to compel any additional discovery. This cannot be done in time for the 26
September 2010 interim hearing.

Latest Defense Discovery Request: The Government notes in footnote 9 that the
Defense has requested discovery stemming from one of the damage assessments. The
Government has not indicated a proposed response date. It simply states, ?any dates,
however, are contingent upon the govemment?s response to the defense discovery request
and whether or not the defense ?les a motion to compel discovery.? The due date for the
Government's response should be placed on the case calendar. And, in any event, the
due date should be well before whatever date is schedule for the Defense Motion to
Compel Discovery

Speedy Trial Motion: Depending on the Court?s ruling with respect to the
Govemment?s request for additional time to provide discovery, the Defense will likely
move to reschedule the speedy trial motion such that it is litigated after discovery issues
are complete.

505 Notice Issues:

i) August 3 Disclosures: The Government proposes that the Defense give MRE 505
notice on 17 August for damage assessments and other classi?ed information
provided on 3 August. The Defense will do its best to adhere to the 17 August
timeline (bearing in mind that Mr. Coombs is out of country until 10 August and that
the Government has not yet approved military counsel to have full access to classi?ed
information). If there are limitations placed upon access g. the classi?ed
information must be viewed in person), then the Defense will provide notice after
having the opportunity to review the information, most likely after the August Article
39(a) session. For future 505(h) notices the Government?s proposed 505(h)

22974

notice on 15 October), the Defense proposes providing the required notice within 30
days of receiving access to the information from the Government.

505 Notice for Approved Summaries: The Defense objects to providing 505 Notice
within 7 days of receiving the Court-approved summaries. The Defense is not sure
what limitations the Government may place on receiving these summaries g.
having to see them in person in the Washington D.C. areas; having to see them in the
presence of security experts, etc.). Moreover, even if the Government were to
provide the summaries to the Court-approved facility in Rhode Island, this usually
requires coordinating in advance with the Naval War College, and allocating an entire
day at the facility. Seven days is not a reasonable amount of tum-around time for the
Defense. The Defense is particularly disappointed that the Government would
attempt to force the Defense to respond within a week when the Government itself
thinks nothing of requesting an additional two to three months to respond to virtually
any issue.

Rolling 505(h) Notice: The Defense proposes providing the required notice within

30 days of receiving the infonnation. The Government would then provide a
response within 10-14 days (the Defense bases this off of the Govemment?s own
timeline at p. 4 where it indicates a ?ling date of 15 October and a Response date of
26 October). The issue would then be litigated at the subsequent Article 39(a)
session.

iv) The Government?s Interpretation of the Protective Order: Further, the Defense

believes that the Government?s use of the phrase ?The required notice must be made
in accordance with the Court?s Protective Order for Classi?ed Infonnation? at
footnote 7 is intended to surreptitiously re-raise the issue of whether the Defense is
obligated to disclose the names of the witnesses from whom the Defense will be
eliciting the classi?ed information on direct or cross-examination. The 505(h) notice
does not require this disclosure, except to the extent that the Defense is eliciting this
testimony through a defense witness not subject to the protective order. As a
practical matter, the Government should know who the Defense will be eliciting the
information from on cross examination. Further, identi?cation of such witnesses is

unnecessary and not required by MRE 505(h)(3) or the Court?s Protective Order.

December Litigation re: 505(h) and The Defense is not sure what litigation the
Government is envisioning at p. 5 of its case calendar. The case calendar
contemplates (or should contemplate) resolving all 505 issues during the Article 39(a)
sessions not waiting until December to litigate these issues. If the parties waited
until December to litigate these issues, the Government requests an additional 60 days
to coordinate a response, which brings the calendar to 14 February 2013 (the middle
of trial). As such, the Defense recommends resolving all 505(h) and (1) issues as they
arise and not in December.

CONCLUSION



7. The Defense respectfully requests that the Court amend the case calendar to re?ect the
issues noted by the Defense above.

Respectfully submitted,



DAVID E. COOMBS
Civilian Defense Counsel

22976

UNITED STATES OF AMERICA

Manning, Bradley E.
PFCUS.Army,
HHCUSArmyGarrison,
JomtBase Myer Henderson Hall
ForiMyer, Virginia 22211

Prosecution Request
for Leave until 14September 2012
to Provide Notice and Disclosure
of Certain Documents
25July2012

1, The United States requests leave ofthe Court until 14September2012forthe fbllowing: (1)
to disclose files not subject to the Courtis 22 June 2012 order, if any,to the defense or to the
Court fbr ^^^^^^^^ review lA^RCM701(g)(2)or MRE 505(g)(2), but whichmay contain
discoverable material, or, (2)ifnecessary,to notify the Court withastatusofwhether the United
States anticipates the custodian of classified evidence will claimaprivilege l A ^ M R E 505(c)
fbr the classified infbrmation underthatentity^s control and to file notice lA^MRE505(i)(2),
2, The United States is in the process ofcompleting its review ofinformation that is not under
the possession, custody,or control ofmilitary authorities and has not been specifically requested
by the defense^that is owned by the Central Intelligence Agency(ClA), the Department of
Homeland Security (DHS), and Ofliceofthe Director ofNationallntelligence(ODNl),^The
United States is reviewing the infbrmation in accordance with their ethical obligation to search
fbr potential ^ ^ ^ ^ material and^or their legal obligations under ^^7^^^^,^ in accordance with the
Courtis 22 June 2012 Order,
3, Although the Court has not setadisclosure date fbr all ^ ^ ^ ^ material,the United States has
proposedadisclosure date on its case calendar of3August2012fbr all remaining .^^^^
material, ^^^^ Appellate Exhibit C^CIV, The United States is thus requesting leave to complete
its review ofthe CIA and DHS files, and obtain the approval to disclose to the defense any
discoverable infbrmation in the ODNI, CIA, and DHS files. The United States will not be able
to complete its review and obtain the appropriate approvals, if any,by3August 2012, because
the maiority ofthe inlbrmation is classified above the ^^secret^^ level, contains specialised control
measures, or requires interagency coordination,
4, The United States recently completed its review ofinformation at ODNL and anticipates
completing its review ofinformation owned by the DHS and CIA by 27 July 2012. Additionally,
while the United States is reviewing documents at the CIA, it will concurrentlyreview lor
material that is responsive to the defense^s recent discovery request datedl9August 2012,
5, This request will not necessitateadelay in the proceedings as the continued effort to obtain
and release this infbrmation will occur concurrently with the scheduled pretrial motions process.
' On 19 July 2012 and based on their review of the CIA Task Force report, the defense submitted a handwritten
motion classified above the "secret" level or containing specialized control measures which requests information
that could be contained in the remaining information available for the prosecution's review at the CIA.
^ This information does not include the Office of the National Counterintelligence Executive (NCIX) damage
assessment, which was the subject ofthe Court's 22 Jime 212 Order.

LATE i^a-mrr
E r U i \ i L . . ; - ( v _ i _ ii^ ;

OF

PAGES

22977

Additionally,the United States does not anticipate this request affecting the approval process or
disclosure date ofthe fbllow-on report to the ClA^s WikiLeaks Task Force Report, which the
Appellate Exhibit CCVllL There
prosecution gave notice to the Court on 12 July 2012,
will, therefbre, be no prejudice to the defense.

ASHDENFEIN
MAJ,JA
Trial Counsel

Icertify thatlserved or caused to be servedatrue copy ofthe above on Mr, David Coombs,
Civilian Defense Counsel via electronic mail, on 25 July 2012,

ASHDENFEIN
MAJ,JA
Trial Counsel

22978

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE RESPONSE TO
PROSECUTION REQUEST FOR
LEAVE TO UNTIL 14
SEPTEMBER 2012 TO PROVIDE
NOTICE AND DISCLOSURE OF
CERTAIN DOCUMENTS

V.

MANNING, Bradley 13.. PFC

U-S- Arm -

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,

Fort Myer. VA 2221 DATED: 26 July 2012



RELIEF SOUGHT

1. PFC Bradley Manning. by and through the undersigned Defense counsel. opposes the
Govemment?s request for leave of Court until 14 September 2012 for the following: (1) to
disclose ?les not subject to the Court?s 22 June 2012 order, if any, to the defense or to the Court
for in camera review RCM 70l(g)(2) or MRE 505(g)(2). but which may contain
discoverable material, or, (2) if necessary. to notify the Court with a status of whether the United
States anticipates the custodian ofclassified evidence will claim a privilege IAW MRE 505(c)
for the classified information under that entity"s control and to file notice IAW MRE 505(i)(2).
The Defense requests that the Court order the Government to respond by 3 August 2012.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party, the Government has the burden of persuasion. RC The
burden of proof is by a preponderance of the evidence. RC 905(c)(1).

FACTS

3. On 22 June 2012, the Court ordered the Government to provide discovery under a timeline
that would result in all discovery issues being addressed by 3 August 2012. The Government
incorporated this 3 August 2012 timeline into its proposed case calendar.

4. The Government admits that it has already completed its review ofOf?ce ofthe Director of
National Intelligence (ODNI) infonnation. It also anticipates completing its review of
information owned by the Department of Homeland Security (DHS) and Central Intelligence

Agency (CIA) by 27 July 2012.
:l1iiT Q3
PAGE REFERENCISI):

PAGES





ARGUMENT

5. The Government is requesting an additional 43 days to produce certain Brady discovery in
this case. Under the Court?s original timeline which the Government voluntarily adopted the
Government had 43 days to produce this Brady discovery or claim a privilege. An additional 43
days is not an ?extension.? It is double the amount of time that the Court deemed appropriate for
the Government to comply with its Brady obligations.

6. It must not be forgotten that the Government has had well over two years to conduct
discovery in this case. There is no reason why the Government should not already have
reviewed the relevant ?les and be prepared to proceed accordingly. The Government seems to
think that by underlining the word in its motion, this should somehow make a difference to
the Court?s determination (?The United States is in the process of completing its review of
information that is n_o?t under the possession, custody, or control of military authorities and has
n_ot been speci?cally requested by the defense that is owned by the Central Intelligence Agency
(CIA), the Department of Homeland Security (DHS), and Of?ce of the Director of National
Intelligence in original). Whether such information was speci?cally
requested is irrelevant to the question of whether the Government should be entitled to an
extension. This is Brady information that the Government has an obligation to disclose ?as soon
as practicable? in accordance with R.C.M. 70l(a)(6).

7. The Government admits that, as of 27 July 2012, it will have reviewed all the ?les that are the
subject of its motions. However, it states that ?because the majority of the information is
classi?ed above the ?secret? level, contains specialized control measures, or requires interagency
coordination? this Court should provide the Government with an extension. The Government
fails to explain why this particular classified discovery cannot be produced in a timely manner.
The vast majority of discovery in this case is classi?ed, requires specialized handling procedures
and interagency coordination. This information is no different than the information that will be
produced to the Court on 3 August 2012 already several months after the Defense?s original
?ling of its Motion to Compel Discovery

8. The Government fails to explain why it needs an additional 43 days to produce this discovery
as per the Court?s order. The Govemment?s rote recitation that ?this is complicated? should not
continue to provide it with a basis to kick its discovery obligations down the road. Moreover,
this Court?s case calendar should not be at the continual mercy of ?the equity holders? who
should have already been consulted long ago about the Brady discovery in this case. The
Government has known that it needed to provide Brady discovery since charges were initially
preferred on 5 July 2010. How can it be that after all this time, the Government has not properly
coordinated with key agencies in this case (in particular, the CIA and If an extra 43
days is the magic number, why did the Government not coordinate with these agencies 43 days

earlier??

Note that the Govemment?s Brady obligations existed irrespective of the Defense?s motions to compel discovery.
In other words, it was not the Court?s 22 June 2012 ruling that precipitated the necessity for the Government to
review ?les ?'om CIA, ODNI and DHS. As such, the Government should have already been coordinating with these
agencies long ago.



9. The Court?s order contemplates all discovery being either in the Defense's hands or in the
Court?s hands for in camera review by 3 August 2012 (or that the procedures for claiming a
privilege will be set in motion by that date). That way, discovery disputes will largely be
resolved by early September, prior to the Defense?s ?ling of its speedy trial motion. The
Government?s current motion asks for until 14 September 2012 to notify the Court of whether it
anticipates that a custodian of classi?ed information will claim a privilege. If so, time will then
need to be built-into the calendar to brief and argue the privilege issues, likely bringing this
discovery issue into the November time period.

10. In ordering the Government to produce a due diligence statement, this Court was cognizant
that the discovery issues would impact the Defense?s presentation, and Court?s assessment of,
the speedy trial motion. The court noted, ?This Court must rule upon the motions to compel
discovery that have been ?led in this case and a speedy trial motion to be ?led by the Defense.
One document containing the information in paragraph (2) above will assist the Court in
addressing discovery and speedy trial issues arising during the trial.? Appellate Exhibit
The Court also noted that ?the case calendar will continue into July and August with
scheduled motions that are not impacted by receipt of defense discovery.? Id. Clearly, the Court
was contemplating having the discovery issues largely resolved in August, so that the Defense
could ?le its speedy trial motion in early September.

1 1. The Government?s request for an additional 43 days pushing back the timeline to 14
September 2012 (and possibly much later) will impact the Defense?s speedy trial motion. The
Government?s diligence in seeking out and providing discovery is part and parcel of any speedy
trial motion. Where discovery issues are still up in the air, the Defense is not able to properly
present its case arguing a violation of the accused?s speedy trial rights. The Defense should not
be required to present a less-than-fulsome speedy trial motion while the Government gets a 43-
day extension to complete the Brady obligations it should have completed long ago. This Court
has said that ?both parties will have an opportunity to litigate the due diligence of the
Government in providing discovery during the speedy trial motion.? Id. If the Government has
not yet provided the discovery that is the subject of the speedy trial motion, how can the Defense
have an adequate opportunity to litigate the due diligence issue? This is particularly so given the
Court?s ruling that the Government should be granted a nearly two month extension for the
Department of State discovery. See Appellate Exhibit CC XXII. If signi?cant discovery issues
are still unresolved (State Department discovery, CIA discovery, ODNI discovery and DHS
discovery plus any ancillary issues arising from this discovery), the Defense is seriously
hampered in its ability to address, in a complete and compelling manner, the speedy trial issues
in this case.

12. The Defense submits that the Government has not provided any legitimate justi?cation for
an extension of double the original timeline. Moreover, any such extension would impact the
Defense?s speedy trial motion. As such, the Defense requests that this Court deny the
Govemment?s motion for an extension of time.

CONCLUSION

0 0 22981

13. For the above reasons, the Defense requests that the Court deny the Government?s request
for an extension of time, and order the Government to respond by 3 August 2012.

Respectfully submitted,



DAVID E. COOMBS
Civilian Defense Counsel

22982

UNITED STATESOF AMERICA

Mannmg,BradleyE.
PFCUS.Army,
HHC, U.S. Army Garrison,
JointBaseMyerHendersonHall
ForiMyer, Virginia 22211

Supplement to Prosecution Request
for Leave until 14 September 2012
to Provide Notice and Disclosure
of Ceriain Documents
31July2012

1, On 25 July 2012,the prosecution requested leave ofthe Court until 14September2012fbr
the fbllowing: (l)to disclose records owned bythe Central Intelligence Agency(ClA), the
Department ofHomeland Security (DHS), and Ofltce ofthe DirectorofNational Intelligence
(ODNI) not subject to the Court's22 June 2012 order, if any,to the defense or to the Court fbr
^^^^^^ review lA^RCM701(g)(2)or MRE 505(g)(2), but which may contain discoverable
material, or, (2)ifnecessary,to notifythe Court withastatus of whetherthe prosecution
anticipates the custodian of such records will claimaprivilege lA^MRE505(c)fbr the
classified infbrmation under that entity'scontrol and to file notice lA^MRE505(i)(2), On 26
July 2012, the defense opposed,
2, On 26 July 2012,the Court ordered the prosecution to ^^fileasupplemental pleading stating
with particularity the review and approval procedures required prior to disclosure ofinformation
above the ^secret'level and how that differs Irom the review and approval procedures required
prior to disclosure ofinformation at or below the ^secret'level,"
SPECIFIC APPROVAL PROCEDURES
3, Much ofthe inlbrmation underlying the prosecution'srequest includes infbrmation above the
^^SECRET" level and sensitive compartmented infbrmation (SCI), See Army Regulation(AR)
380 5,para,2 10(TOPSECRETclassification is ^'^applied to inlbrmation in which the
unauthorised disclosure could reasonably be expected to cause exceptionally grave damage to
the national security"^); see also Director ofCentral Intelligence Directive 6^1 (SCI is defined as
^^^cjlassified infbrmation conceming or derived fiom intelligence sources, methods, or analytical
processes that is required to be handled exclusively within fbrmal access control systems
established by the Director of Central Intelligence"), Some ofthe material also includes Foreign
Intelligence Surveillance Act (FlSA)infbrmation, The most important difference between the
approval process fbr SCI or ^TOP SECRET" infbrmation and infbrmation below the ^^SECRET"
level is that Original Classification Authority(OCA) fbr ^^SECRET" infbrmation is generally
delegated toamuch lower leveL requiring less coordination with senior officials within and
among organisations. Disclosure ofclassified infbrmation to the defense must be approved by
the relevant OCA,

^ SECRETclassification is ^^applied to information in which the unauthorized disclostu^e could reasonably be
expected to cause serious damage to the national sectirity,^^ AR^^O-5,

^^^ELL^TEE^HIBIT^^^^^
PAGEREFERENCED:
^
^AGE
^^^^^^

22983

4, CIA. In order to obtain approval to disclose potentially discoverable inlbrmation at the CIA,
each component with equities in the inlbrmation(e,g. National Clandestine Service or
Directorate oflntelligence)must be consulted and coordinated with prior to disclosure. This
ensures that intelligence sources and methods are protected and is true whether the infbrmation is
classified ^^SECRET"or^TOPSECRET"TheClAgenerally^^owns" most oftheintelligence
incorporated into its documents and infbrmation, but because much ofthat infbrmation is SCL
the approval process takes additional time, Additionally,the process is delayed becauseofthe
sensitivity ofsources and methods and the special handling procedures required, SCI must be
reviewed inaSensitive Compartmented InfbrmationFacility and cannot be shared over the
SlPRNETwith the prosecution, requiring travel that may delay the process based on the
availability ofessential personnel, such as the assigned litigation attomey fiom the organisation,
5, DHS and ODNL DHS and ODNI are not collectorsofinfbrmation ODNI operates to
effectively integrate fbreign, military and domestic intelligence—theyareacustomerof
infbrmation. The same is true fbr DHS, DHS and ODNI rely on the intelligence collected by the
CIA and National SecurityAgency,among others, and incorporate the intelligence collected by
those organisations into their own products. Thus, DHS and ODNI records may consist largely
ofSCl owned by other govemment organisations, and ODNI and DHS must seek the approval of
those other organisations in order to ultimately approve disclosureoftheir infbrmation to the
defense. This process differs Irom infbrmation at the ^^SECRET" level or below because less
sensitive infbrmation can be shared over the SlPRNET,or the prosecution may disseminate the
infbrmation on ODNl'sbehalf to speed up the approval process,
6, EISA Information. The Attomey General ofthe United States must approve in advance the
disclosure ofany FISA materials. See 50U,S,C,1806(b), The prosecution has yet to disclose
FISA infbrmation in this case and should any FISA infbrmation be discoverable,will have to
coordinate through the Department ofJustice fbr approval to disclose to the defense.

^"Hsu^.^
/JODEAN MORROW
^ P T , JA
Assistant Trial Counsel

I certify that I served or caused to be served a tme copy of the above on Mr, David Coombs,
Civilian Defense Counsel, via electronic mail, on 31 July 2012,

J^EW^ T'W^^^ZL^

^ D E A N MORROW
CPT, JA
Assistant Trial Counsel

. . 22984

IN THE UNITED STATES ARMY

Headquarters and Headquarters Company, .S. DOCUMENTS

Army Garrison, Joint Base Myer-Henderson Hall,

Fort Myer, VA 2221 1 DATED: 1 AUGUST 2012

FIRST JUDICIAL CIRCUIT
UNITED STATES
DEFENSE RESPONSE TO
v. PROSECUTION SUPPLEMENT
To REQUEST FOR LEAVE
UNTIL 14 SEPTEMBER 2012 To
MANNING, Bradley PFC PROVIDE NOTICE AND
U.S. Army, DISCLOSURE OF CERTAIN





RELIEF SOUGHT

1. PFC Bradley Manning, by and through the undersigned Defense counsel, opposes the
Govemment?s request for leave of Court until 14 September 2012 for the following: (1) to
disclose ?les not subject to the Court?s 22 June 2012 order, if any. to the defense or to the Court
for in camera review IAW RCM 701(g)(2) or MRE 505(g)(2), but which may contain
discoverable material, or, (2) if necessary, to notify the Court with a status of whether the United
States anticipates the custodian of classi?ed evidence will claim a privilege IAW MRE 505(c)
for the classified information under that entity?s control and to file notice 1AW MRE 505(i)(2).
The Defense requests that the Court order the Government to respond by 3 August 2012. In the
altemative, the Defense requests that the Government be required to disclose any material
classi?ed ?secret" or below by 3 August 2012.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party, the Government has the burden of persuasion. RCM The
burden of proof is by a preponderance of the evidence. RCM 905(c)(1).

FACTS

3. On 22 June 2012, the Court ordered the Government to provide discovery under a timeline
that would result in all discovery issues being addressed by 3 August 2012. The Government
incorporated this 3 August 2012 timeline into its proposed case calendar.

4. On 31 July 2012, per the Court?s order on 26 July 2012, the Government provided the Court
with a supplement to its request for leave dated 25 July 2012A.)



. . 22985

ARGUMENT

5. While the Government?s supplement addresses some differences in the approval process
material classi?ed above ?secret?, it fails to explain why, after over two years of litigation, they
have not already taken the necessary steps to obtain the requisite authorities for disclosure.
Indeed, the Government has known since this case?s infancy that it involved large amounts of
classi?ed material. Likewise, the Government should have been aware of its obligations under
Brady. The Government has had more than enough time to review the relevant ?les, make
Brady determinations, coordinate with OCAs, discuss privileges and make necessary disclosures
to the Court and the Defense. As such, the Defense requests the Court require the Government
to comply with the ordered 3 August disclosure date.

6. On 26 July, the Court ordered the Government to ??le a supplemental pleading stating with
particularity the review and approval procedures required prior to disclosure of information
above the ?secret? level and how that differs from the review and approval procedures required
prior to disclosure of information at or below the ?secret? level.? The Government notes that
often approval for disclosure of material classi?ed at a ?secret? level is delegated below the
OCA. However, that Government fails to address whether that is the case with the agencies
relevant to the instant request. Moreover, the Government fails to establish how any variance in
the disclosure process warrants an extension.

a. CIA. The Government admits that the same equities have to be consulted regardless
of whether a document is classi?ed ?secret? or ?top secret.? This being the case the
Government should be able to meet the 3 August deadline.

b. DHS and ODNI. The Government notes that much of the material from these
agencies comes from the CIA. As is already established, the process for CIA
disclosure does not vary between ?secret? and ?top secret.? As such, it does not seem
that any additional time would be warranted

c. ISA. The Government does not address any variance of disclosure procedures
between classi?cation levels for this type of information.

7. Certainly after two years of litigation and seemingly endless coordination with ?equity
holders? the Government has developed a working relationship with the various agencies that
can foster some expediency.

8. Further, the Government fails to address why it cannot produce those relevant documents that
are classi?ed ?secret? or below on 3 August 2012. Such documents do not require the additional
measures that serve as the basis for the Government request and, as such, should be disclosed to
the Defense, pursuant to the Court?s 22 June order, on 3 August.

9. The Defense submits that the Government has had adequate time to accomplish the task for
which it requests the Court?s leave. Moreover, the Government has failed to adequately address
the Court?s query as to the differences in procedures for gaining permission to disclose
documents at varying classi?cation levels. As such, the Government should be required to make

0 0 22986

all disclosures on 3 August 2012. Alternatively, the Defense request the Government be required
to disclose all material classi?ed as ?secret? or below on 3 August 2012.

CONCLUSION

10. For the above reasons, the Defense requests that the Court deny the Govemment?s request

for an extension of time, and order the Government to respond by 3 August 2012. In the
alternative, the Defense requests that, at a minimum, the Government be required to disclose all

material classified as ?secret? or below by 3 August 2012.

Respectfully submitted,



UA J. OMAN
Defense Counsel

22987

IGNITED STATES OF AMERICA

Manning, Bradley E.
PFC, I^.S. Army,
HHC, U.S. Army Garrison,
Joint Base Myer-Henderson Hall
Fort Myer,Virginia 22211

)
)

) RULINGS GOVERNMENT
) REQUEST FOR LEAVE UNTIL 14
) SEPTEMBER2012TO PROVIDE
) NOTICE AND DISCLOSURE OF
) CERTAIN DOCUMENTS
)

)

DATED: lAugust2012

The Govemment requests leave ofthe Court untill4September2012for the following: (1)
to disclose files not subject to the Courtis 22 June 2012order but which may contain
discoverable material,if any^to the defense or to the Court lor ^^c^^^^^ review lAWRCM
701(g)(2)or^RE 505(g)(2), or, (2) if necessary,to notify theCourt withastatusofwhether the
United States anticipates the custodian of classified evidence will claimaprivilege lAWMRE
505(c)lor the classified information underthatentity'scontrol and to file notice lAWMRE
505(i)(2). The reason cited by the Govemment lor the request is that the majority ofthe
information is classified above the Secret" level requiring additional time to obtain review and
approval required prior to disclosure ofthe inlormation. Delense opposes. On26July2012the
Cottrt ordered the Governtnent to fileasupplemental pleading statingwithparticttlarity the
reviewand approval procedures required prior to disclosure ofinformation classified above the
^^Secret" level and how that differs from the review and approval procedures required prior to
disclosure ofinformation at or below the ^^secret" level. Both parties filed supplemental
responses, leaving considered the filings ofthe parties, theCourt rules as follows:
1. Theinlormationatissueinthisrequestisinformationclassifiedatthe secret or above
^^secret"level that is owned by theCentral Intelligence Agency(ClA), the Departn^ent of
Homeland Security (DllS),and the Office of the Director ofNational Intelligence(ODNl) and
possibly information falling within the Foreign Intelligence Surveillance Act(FlSA), Further, on
19July2012,the Delet^sesubmittedadiscovery request Ibr additional CIA inlormation. The
discovery request was classified above the ^^secret" level or containing speciali:^ed control
measures.
2, The Government has advised theCoun that it anticipates completing its reviewof
information owned by DllS,and CIA by27Julyl012,to include infomiation responsive to the
f^elensel9July2012discovery request. The Govemment further advised theCourt that itwill
not be able to cotnplete its reviewand obtain appropriate approvals by3August2012date set
forth by the court calendar because the majority ofthe infonnation is classified above the
^^secret" level, cot^tait^s specialised control measut es, or requires interagency coordinatiot^.
3. This isacomplex case involving htindreds of thousands of classified documents that are
potentially discoverable Therearestatutoryandregulatoryrequirementsaswellas interagency
coordit^ation processes that the Government must meet in order to disclose discoverable
classified inlormation to the Delense. The rules in l^RE 505 recognise the special procedures
required for disclosureof classified inlormation. Accordingly.the reasons idet^fified by the
Govemment and the titr^e period are reasonable,

1

APPELLATE E ^ l i i 8 1 T ^ ^ 0
PAGEREFERENCED;
^
PAG^
OF
PAGE^

22988

RULINGS
1, Upon receipt ofagency approval to disclose discoverable classified inlormation to the
Defense, orto theCoun lAWRCM 701(g)(2)or MRE 505(g)(2), the Govemment will
immediately disclose that information to the Delense and/orthe Court
2, Except as provided in(l)above, the Govemment request for Leave untill4September 2012
is GRANTED.
SOORDEREDthisl^^DayofAugust2012

DENISERLI^
COL,JA
ChiefJudge,1^^ Judicial Circuit



22989

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES
DEFENSE REQUEST FOR
CONTINUANCE

V.

MANNING, Bradley E., PFC

Us. Army,

Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall.
Fort Myer. VA 2221 1

DATED: 27 July 2012



FACTS

1. PFC Manning was held at Marine Corps Base Quantico from 29 July 2010 to 20 April 20] 1.
During this time, PFC Manning was held in MAX custody and under Prevention of Injury watch.

2. In the fall of 2010, the Defense raised the issue of unlawful pretrial punishment with the
Government. On 8 December 2010. the Defense made a discovery request for all documentation
from Quantico pertaining to PFC Manning.

3. The Government provided extensive documentation related to PFC Manning?s confinement at
Quantico in October of 20l l. The Defense believed that this was the full extent of the
information the Government had from Quantico.

4. The Article 13 motion has been on the case calendar since this case was referred. The
deadline for the Defense to file the Article 13 motion was today, 27 August 2012. The Defense
had already advised the Govemment that this was a very and involved motion, totaling
over 100 pages. In fact, the case calendar had accommodated the Govemment?s request for an
additional week to respond to the motion.

5. On 26 August, the Defense informed the Court and the Government that it would be sending
the attachments for the Article 13 motion by Fed-Ex. The attachments exceed 500 pages. The
Government did not indicate to the Defense not to mail the attachments.

6. On the evening of 26 August (after the Defense?s attachments had already been sent), MAJ
Fein sent Mr. Coombs the following email at 19:50:

In preparation for the upcoming Article 13 motion, the prosecution began
reviewing emails yesterday from members of the Quantico brig staff and the chain
of command. The prosecution found some emails that are obviously material to
the preparation of the defense for Article 13 purposes. In an effort to get these
emails to you as soon as possible, we intend to produce them tomorrow and send

0 0 22990

them to you via email so that you have a copy immediately. We will also produce
them according to our normal process. We estimate there are approximately 60
emails.

See Attachment A. An hour and a half later, at 21 :15, MAJ Fein sent the Defense the referenced
emails. There were a total of 84 (not 60) emails. See Attachment B.

7. MAJ Fein indicated that the Government received these emails from Quantico approximately
6 months ago. However, the Government did not begin reviewing the emails until two days ago,
25 July 2012.

RELIEF SOUGHT

8. In light of the Govemment?s late disclosures and its failure to provide timely discovery, the
Defense requests a continuance of the proceedings in order to review and incorporate
information from the 84 emails into its Article 13 submissions; to interview (and re-interview)
witnesses based on information contained therein; and to ?le a new witness list and motion to
compel witnesses, if necessary.

9. The Defense requests the following changes to the case calendar:

a) Initial Article 13 Motion ?No change;

b) Defense Second Request for Article 13 Witnesses: 15 August 2012;

c) Government Objection to Defense Request for Article 13 Witnesses (if any): 22 August
2012;

d) Defense Supplemental Article 13 Motion: 24 August 2012;

e) Defense Motion to Compel Article 13 Witnesses (if any): 24 August 2012;

f) Article 39(a) Session for Article 13 Witnesses and other issues: 28 30 August 2012;

g) Government Response to Defense Article 13 and Supplemental Article 13 Motion: 7
September 2012;

h) Defense Reply to Government Response to Article 13 Motion: 14 September 2012;

i) Article 39(a) to litigate the Article 13 Motion: 1 5 October 2012.

10. Additionally, the Defense requests that the Article 39(a) sessions and ?ling deadlines
currently scheduled be continued for two weeks. Speci?cally, the Defense requests that all

Speedy Trial filing deadlines be continued for two weeks.

Respectfully submitted,

DAVID EDWARD COOMBS
Civilian Defense Counsel

0 0 22991

ATTACHMENT A

David Coombs

From:
Sent:
To:
Cc:

Subject:

David,

0 22992

Fein, Ashden MAJ usARMv MDW (us)

Thursday, July 26, 2012 7:49 PM

David Coombs

?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow 111, JoDean, CPT USA Overgaard, Angel CPT USARMY
Whyte, Jeffrey CPT USARMY 'von Elten, Alexander S. CPT USA JFHQ-NCR
Ford, Arthur 0 Jr CW2 USARMY (US)

Article 13 Emails

In preparation for the upcoming Article 13 motion, the prosecution began reviewing emails yesterday from members of
the Quantico brig staff and the chain of command. The prosecution found some emails that are obviously material to
the preparation of the defense for Article 13 purposes. In an effort to get these emails to you as soon as possible, we
intend to produce them tomorrow and send them to you via email so that you have a copy immediately. We will also
produce them according to our normal process. We estimate there are approximately 60 emails.

V/r
Ashden

0 0 22993

ATTACHMENT

22994

I^avi^ Coombs
From:
S^nt:
^o:
Cc:

Subject:

Fein, Ashden MAJ USARMY MDW (US) (b) (6)
Fnday,July 27,2012^:22 A M
Ond,DeniseRC01^ USARMY (US)
David Coombs; Hurley, ThomasFMAJ OSD OMC Defense; Tooman, JoshuaJCPT
USARMY (US); Morrow 01, JoDean, CPT USAJFHQNCR/MDW SJA'; Overgaard,Angel
MCPT USARMY (US); Whyte,JHunter CPT USARMY (US);'von Elten, AlexanderSCPT
USAJFHQNCR/MDW SJA';Ford,ArthurDJrCW2 USARMY (US)
RE: Article 13 Emails

Ma'am,
8elow is the goveromeotrespor^se to the below email from the defense:
1, Cn^Oecember 2010, the defer^se requested "^a]oyar^d all documents or observatior^r^otes by employees o f t h e Quaotico
confinement facility relatir^gto PFC Bradley Mar^r^ir^g.''TbeUoited States produced all documeotatior^ from the Quaotlco8rig
either as we received it or atthe end o f t h e accused's pretrial cor^fir^emeot at Quaotico. It^ar^effortto preserve all records
ir^volving the accused, the prosecutior^ requested Quantico preserve all documeotatiottar^d their emails. The purpose of this
preservation ret^uest was to ensure the accused's r i g h t t o a f a i r t r i a l by preserving any emails forfuture litigation concerning
the discoverability o f t h e emails and/or f o r t h e prosecution to conductaClglio and Jencl^s (RCM 91^) cbecl^ o f t h e emails. On
Wednesday, the prosecution started reviewing the emails for potential impeachment evidence or Jencl^s material, and during
that review found
emails which we deemed obviously material to the preparation of the defense for Articlel3
purposes, Within2^hours, the United States notified the defense and sent the emails last night,
2, The United States objects to the defense's characterisation o f t h e emails showingaconspiracy,ratherthe emails show the
possible extent, if any,of USMC chain of command's involvement. In the accused's pretrial confinement,
3, This motions hearing Is not scheduled until the end of August. Overthe pastfew months, the defense has been preparing
its over 100 page motion and the government hasareply due on 17 August 2012. Understanding Mr.Coombs will be out of
the office from 27 July to^August, the United States still sees no reason why the defense will not have adet^uate time to
prepare Its Article 13 motion, and especially since this the nta]orlty ofthese emails appearto only bolster the defense's
current argument, as proffered In the Article 13 witness list litigation. Additlonally,the military defense counsel can assist Mr.
Coombs with Interviewing other potential witnesses, Ifthe defense chooses to go down that path,

v/r
MAJFein
Original Message
From: David Coombs^mailto:coombs^armycourtmartialdefense,com]
Sent: Frlday,July 27,2012 12:5^AM
To: tind,0eniseRCOt USARMY (US)
Cc:'Hurley,ThomasFMAJOS0OMCDefense';Tooman,JoshuaJCPTUSARMY(US);'Morrowlll,JoOean,CPTUSAJFFIO
I^CR/MDWSJA';Overgaard,AngelMCPTUSARMY(US);Whyte,JFIunterCPTUSARMY(US);'von5lten,AlexanderSCPTUSA
JF1^0I^CR^MDWSJA';Ford,ArthurDJrCW2 USARMY (US); Feln,Ashden MAJ USARMYMDW (US)
Subiect: RE: Article 13 Emails
Importance: High
Ma'am,
Please see the email below, MAJ Fein iust notified the Defense of the
existence of 60 emails that the government determined were material to the

22995

preparation of the defense for the Arncle
^ ^ ^ ^ ^13 motion which, as you l^now,ls
due tomorrow. At 2115, MAJ Fein sent the Defense copies of the emails. The
Defense cannot understand why It Is getting these emails the night before
its motion is due. The Defense had ret^uested any documentation pertaining
to PFC Manning's confinement while at Quantico overayear andahalf ago,
inadiscoveryrec^uestdated^0ecen^ber2010.
After quicl^ly reviewing the emails sent by MAJ Fein, it is clearthat we
haveaproblem.The Defense had previous l^nowledgethatthere had been an
order given by the Security battalion Commander,Col.Robert Oltman, to l^eep
PFC Manning in maximum custody and under prevention of ln]ury status
indefinitely.This order was given on 13 January 2011 and was made in front
o f t h e 8rlg commander and staff. Capt.William Fleeter and Capt. l^evin Moore
witnessed this order and would be testifying to this fact during the motions
hearlng.The emails that the Defense has]ust received revealaconsplracy
at much higher levels.
The email traffic shows that tt^en.OeorgeFlynn was directly involved In
the custody status of PFC Manning. The Quantico 8aseCon^mander,Col.Daniel
Choline, and Col, Robert Oltman seem to have been simply executing l^t^en,
Flynn'sdirectives, The emails show how the entire chain of command from
t^t^en,Flynn down to the I^CO leadership In the ^rig was involved in
reporting on every issue dealing with PFC Manning In order to support the
decision to maintain hint in his custody status. The emails also show that
theQuanticoStaffJudgeAdvocate,ttCol.Christopher ^reer,was aware of
the issue and supported the chain of command's efforts. In addition to
this, the Defense has learned many more specifics about the nature of PFC
Manning's confinement conditions which support his Article 13 claim
This new information will result i n a n e e d for additional witnesses. And,
as is no doubt apparent, it will ret:^ulre additional time to brief. As you
l^now,lhave already completed whatlbelleved was the Defense's Article 13
motion and have sent the Court and the Covernment the attachments.
Aslpreviously informed the Court and the Covernment,lwill be out of the
office from 27 July through^August for family reasons. A t t h l s p o l n t , l
am unclear on how to proceed. Iwould greatly appreciate guidance from the
Court In this respect.
v/r
David
David E, Coombs, Est:^,
l^aw Office ofDavidE.Coombs
l l S o u t h Angell Street, ^317
Providence, RI 02506
TollFree:1800 588^156
tocal: (50^)689^616
Fax:(505)6899282
coombs^armycourtmartialdefense.com
www.armycourtmartialdefense.com

'^'^'^Confidentlalityl'^otlce:Thlstransmission, Including attachments, may
contain confidential attorney^cllent information and is Intended for the
^

22996

IN THE UNITED STATES ARMY

FIRST JUDICIAL CIRCUIT

UNITED STATES

RULING: DEFENSE REQUEST

FOR CONTINUANCE
v.


MANNING, Bradley E., PFC
U.S. Army,
Headquarters an ea quarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 1 August 2012
Fort Myer, VA 22211

On 27 July 2012, the Defense requested the following adjustments to the case calendar
based on the Govemment?s 26 July 2012 disclosure of 84 emails germane to the preparation of
the Defense Article 13 motion that was due to the Court on 27 July 2012:

a) Initial Article 13 Motion No change;

b) Defense Second Request for Article 13 Witnesses: 15 August 2012;

c) Government Objection to Defense Request for Article 13 Witnesses (if any): 22 August
2012;

d) Defense Supplemental Article 13 Motion: 24 August 2012;

e) Defense Motion to Compel Article 13 Witnesses (if any): 24 August 2012;

0 Article 39(a) Session for Article 13 Witnesses and other issues: 28 30 August 2012;

g) Government Response to Defense Article 13 and Supplemental Article 13 Motion: 7
September 2012;

h) Defense Reply to Government Response to Article 13 Motion: 14 September 2012;

i) Article 39(a) to litigate the Article 13 Motion: 1 5 October 2012.

The Defense also requested that the Article 39(a) sessions and ?ling deadlines currently
scheduled be continued for two weeks and that all Speedy Trial ?ling deadlines be continued for
two weeks.

The Court calendar set 27 July 2012 as the filing deadline for the Defense Article 13
motion. The motion was scheduled to be litigated during the 27-31 August 2012 Article 39(a)
session. On 26 July 2012, the Government disclosed 84 emails obviously material to the
preparation of the Defense Article 13 motion. Mr. Coombs notified the Court prior to 27 July
2012 that he would be out of the country from 27 July 2012 9 August 2012. Upon receiving
the emails from the Government the night before the Article 13 motion was due to the Court, the
Defense sent an email to the Court advising that the Defense would need more time to
incorporate the information gleaned from the 84 emails into its Article 13 motion and to identify
and interview additional witnesses for the Article 13 motion. The Government opposed the
Defense email request for a continuance. The series of emails exchanged between the parties
and the Court on 27 July 2012 are attached to this order.

. '3
1 APPELLATE .93;

PAGE REFERENCED:
PAGE or PAGES





The Court held a telephonic RCM 802 conference with the parties on 27 July 2012 to
address the Defense request for adjustments to the trial schedule. CPT Overgaard represented
the Government. Mr. Coombs represented the Defense. The parties and the Court arrived at the
following mutually agreeable case calendar:

1. Article 13 motion, response, reply - no change.

2. Defense 2nd request for Article 13 witnesses:

15 August 2012- defense request

22 August 2012- government objections

24 August 2012- defense motion to compel

28-30 August 2012 - Article 39(a) session (reduced from 5 - 3 days due to Article 13
litigation continuance)

3. Defense supplemental Article 13 motion:
24 August 2012- defense ?ling
7 September 2012 - government response
14 September 2012 - defense reply
1-5 October 2012 - Article 39(a) to litigate Article 13

4. The Article 39(a) sessions and ?ling deadlines currently scheduled to begin 15 October and
27 November are each continued for 2 weeks. The Article 39(a) schedule set to begin 7-1 1
January 2013 is continued 1 week. The ?nal motions session scheduled to begin on 30 January
2012 will remain as scheduled. Thus, the following dates are scheduled:

Article 39(a):

28-30 August 2012

1-5 October 2012

29 October - 2 November 2012
10-14 December 2012

14-18 January 2013

28 January -29 January 2013

Trial: 30-31 January 2013 (voir dire)
4-22 February 2013 (trial)

The Court ordered the Government to produce a draft case calendar re?ecting the above
changes. A?er the telephonic RCM 802 conference, the Government raised concerns regarding
suspense dates for MRE 505(h) notice, witness lists, reciprocal discovery, accused?s plea and
forum selection, notice of defense of lack of mental responsibility, and disclosure of RCM 914
material. The Government also advised the Court that the Presidential Inauguration period
scheduled 15-24 January 2012 will cause logistics and administrative issues if proceedings for
this case are scheduled during that period.



. . 22998

RULING: The Defense Motion for a Continuance is GRANTED as set forth above. The Court
calendar is adjusted as agreed to by the Parties during the telephonic RCM 802 conference.
During the 28-30 August 2012 Article 39(a) session, the parties and the Court will review the

Case calendar once again and make any necessary adjustments to suspense dates, Article 39(a)
dates, and trial dates.

so ORDERED this Day of August 2012.

DENISE R. LIND
COL, JA
Chief Judge, 1? Judicial Circuit



0 0 22999




FromARMY

Cc: - "M_Q[r9yl_; In g?
USA ljugtgr CWT 0553131: "v -
MY A


Subject: RE: Court Calendar and Article 13 motion
Date: Friday, July 27, 2012 4:09:23 PM
Ma'am,

The Defense does not object to the dates listed by the Court, and will ?le its request for a continuance
along with it Article 13 motion later today.

v/
David

David E. Coombs, Esq.

Law Of?ce of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282


htgp:

Notice: This transmission, including attadwments, may contain con?dential attorney-
client information and is intended for the person(s) or company named. If you are not the intended
recipient, please notify the sender and delete all copies. Unauthorized disclosure, copying or use of this
infonnation may be unlawful and is prohibit

-- Original Message
Subject: Court Calendar and Article 13 motion

From: "Lind, Denise COL USARMY

Date: Fri, July 27, 2012 3:53 pm

To: "Over aard An el CPT USARMY
moan: coomns


Cc: "'Hurley, Thomas MAJ OSD OMC
"Tooman, Joshua CPT USARMY








"Whyte, Hunter CPT USARMY
en, Alexander S. CPT USA








"Ford,
"Fein, Ashden
"Parra, Jairo A (JP)


Arthur Jr cw2 USARMY us"
MAJ USARMY MDW
cw2 USARMY USAMDW

Counsel,

Assuming I receive a motion from the defense, the parties and the Court arrived at the below
mutually agreeable case calendar during the telephonic RCM 802 conference held today between the
Court, CPT Overgaard, and Mr. Coombs:

1. Article 13 motion, response, reply - no change.



0 0 23000

2. Defense 2nd request for Article 13 witnesses:

15 August - defense request

22 August - government objections

24 August - defense motion to compel

28-30 August - Article 39(a) session (reduced from 5 - 3 days due to Article 13 litigation

continuance)

3. Defense supplemental Article 13 motion:

24 August - defense ?ling

7 September - government response

14 September - defense reply

1-5 October 2012 - Article 39(a) to litigate Article 13

4. The Article 39(a) sessions and ?ling deadlines currently scheduled to begin 15 October and 27
November are each continued for 2 weeks. The Article 39(a) schedule set to begin 7-11 January is
moved 1 week. The ?nal motions session scheduled to begin on 30 January will remain as scheduled.
Thus, the following dates are scheduled:

Article 39(a):

28-30 August 12

1-5 October 12

29 October - 2 November 12
10-14 December 12

14-18 January 12

28 January -29 January 2013

Trial: 30-31 January 2013 (voir dire)
4-22 February 2013 (trial)



DENISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit



From: Overgaard, Angel CPT USARMY (US)

Sent: Friday, July 27, 2012 1:40 PM

To: Lind, Denise COL USARMY David Coombs

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY ?Morrow
JoDean, CPT USA Whyte, Hunter CPT USARMY 'von Elten, Alexander S.
CPT USA Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ USARMY MDW
Parra, Jairo A (JP) CW2 USARMY USAMDW (US)

Subject: RE: Article 13 Emails - Government - con?rm receipt (UNCLASSIFIED)

Classi?cation: UNCLASSIFIED
Caveats: NONE

Ma'am:

Receipt con?rmed. We are working call in at 1515.
Otherwise, we can just conference in the Court and Mr. Coombs. Thank you.

VR





0 0 23001

ANGEL OVERGAARD
CPT, JA
Trial Counsel, MDW

Message??--?

From: Lind, Denise COL USARMY (US)

Sent: Friday, July 27, 2012 1:35 PM

To: David Coombs

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ
USARMY MDW (US)

Subject: RE: Article 13 Emails - Government - con?rm receipt

Counsel,

I added CPT Morrow's old email address. Government - con?rm receipt and
schedule the RCM 802 conference on or after 1515.



DENISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit



From: David C00mbS

Sent: Friday, July 27, 2012 1:21 PM

To: Lind, Denise COL USARMY (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
'Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ
USARMY MDW (US)

Subject: RE: Article 13 Emails

Ma'am,

I am available any time after 1500.

v/
David

David E. Coombs, Esq.

Law Of?ce of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



Notice: This transmission, including attachments, may
contain con?dential attorney-client information and is intended for the



. . 23002

person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is prohibit

Message-?--?

From: Lind, Denise COL USARMY (US)

Sent: Friday, July 27, 2012 1:13 PM

To: David Ooombs

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ
USARMY MDW (US)

Subject: RE: Article 13 Emails

Counsel,

1. Please confer and schedule a telephonic 802 with me this afternoon. My
number

2. Defense - this is a request for a continuance. After the telephonic

802, put the request for continuance in a motion or the schedule remains as
is.



DENISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit

--?--Original

From: David Coombs

Sent: Friday, July 27, 2012 1:10 PM

To: Lind, Denise COL USARMY (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ
USARMY MDW (US)

Subject: RE: Article 13 Emails

Ma'am,

The Defense does have an objection to the proposed schedule. I alerted the
Court to the fact that I would be out of the of?ce until 9 August. A
deadline of 15 August does not give me sufficient time to prepare a
supplementary ?ling. The Government has just informed the Defense that it
has had these emails in its possession for six months, but only recently
chose to look at them. Allowing the Defense essentially 6 days (9 August to
15 August) to process all this information is not enough time. Further,
three days is not a suf?cient amount time to Reply to the Government's
Response (to what will be likely 150 pages of Defense ?lings). The Court
should recall that the Government routinely requests weeks, if not months,
to respond to any new issues raised by the Defense.

Perhaps of most concern to me, however, are the witness issues. The Defense
will likely be moving to compel some very high-pro?le witnesses (including



0 23003

a three star General). I'm not sure how the Court could rule on this issue
on 27 August, and have these witnesses at the hearing on 29 August.
Further, there may be issues with cooperation from the requested witnesses
until they are ordered to be produced. As such, the Defense would need
additional time to interview these witnesses.

It seems that continuing with the original motions schedule punishes the
Defense for the Government's misconduct in holding onto Brady/Giglio
material for half a year. It also rewards the Government for bad behavior
critical witnesses might not be available for the hearing; the Defense
needs to re-interview its existing witnesses).

The only way that the Defense can see proceeding under the original motions
schedule (and this would still require the Defense working on only this

issue virtually non-stop) is for the Government to be precluded from
contesting any new witnesses proposed by the Defense. That way, witness
issues are resolved as of now and the Defense can proceed accordingly.

v/r
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 Sou?i Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



Notice: This transmission, including attachments, may
contain con?dential attorney-client information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disdosure, copying
or use of this information may be unlawful and is prohibit



From: Lind, Denise COL USARMY (us)

Sent: Friday, July 27, 2012 12:39 PM

To: David Coombs

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY ?von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ
USARMY MDW (US)

Subject: RE: Article 13 Emails

Counsel,
Is there any good cause objection to the following schedule.

27 July - Defense Article 13 Motion

15 August Defense Supplemental Article 13 motion and list of additional
witnesses

21 August - Government response to Article 13 motion and additional defense
witnesses

24 August - Defense reply and motion to compel (if necessary)

27 August - Litigation on motion to compel wimesses



0 0 23004

29-31 August - Litigation of Article 13 motion


DENISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit



From: David Coombs

Sent: Friday, July 27, 2012 12:26 PM

To: Lind, Denise COL USARMY (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
'Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY ?Von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ
USARMY MDW (US)

Subject: RE: Article 13 Emails

Ma'am,

We believe that the Article 13 motion cannot be litigated as planned. Just
looking at the case calendar, the Defense could see the following:

July 27: Defense Initial Article 13 Motion;
August 17: Defense Submission of new Article 13 Witness list;

August 24: Government Objections if any to the Witness list; Defense
Supplement to the Article 13 Motion;

August 31: Defense Motion to Compel Witnesses; Government Response to
Defense Article 13 Motion and Defense Supplement to the Article 13 Motion;

September 7: Defense Reply to Government Response;
Date: Article 39(a) to resolve witness issues; and
Date: Article 39(a) for Article 13 Motion.

The Defense is willing to explore other options, but at this point I am not
sure what those other options are.

v/
David

David E. Coombs, Esq.

Law Of?ce of David E. Coombs

11 South Angeli Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282





23005

Notice: This transmission, including attachments, may
contain con?dential attorney-dient information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is

Message?-?--

From: Lind, Denise COL USARMY (US)

Sent: Friday, July 27, 2012 12:05 PM

To: David Coombs; Fein, Ashden MAJ USARMY MDW (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY (US)

Subject: RE: Article 13 Emails

Mr. Coombs,

A request for a continuance is a request for more time. It places no
responsibility on the defense for causing delay. I take from the below
email that the Defense does not move to continue litigation of the Article
39(a) session after the August Article 39(a) and the Defense will:

1. submit the original Article 13 motion today; 2. request the Court to
specify a time frame for the Defense to submit a supplement to the Article
39(a) and to request additional witnesses before the 27-31 August article

39(3):

Am I correct?


DENISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit



From: David Coombs

Sent: Friday, July 27, 2012 11:55 AM

To: Lind, Denise COL USARMY Fein, Ashden MAJ USARMY MDW (US)

Cc: 'Huiiey, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY (US)

Subject: RE: Article 13 Emails

Ma'am,

The Defense is not asking for a continuance -- as a continuance implies that
somehow the Defense is responsible for these latest events. The Defense has
completed a 110 page Article 13 motion and has already Fed-Ex'd attadiments
to the Court and the Government. The Government allowed the Defense to send
its attadiments knowing that they were holding on to critical emails that

the Defense had no clue even existed.

The Government's untimely disclosures of 84 emails are what has thrown the



0 23006

Article 13 motion off track. we will have additional witness issues and a
need to supplement our Article 13 motion based upon these disclosures.

The Defense is requesting guidance on how the Court would like to address
this issue.

v/r
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282



Notice: This transmission, including attachments, may
contain con?dential attorney-dient information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is

--?--Original Message--?--

From: Lind, Denise COL USARMY (US)

Sent: Friday, July 27, 2012 11:37 AM

To: David Coombs; Fein, Ashden MAJ USARMY MDW (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY (US)

Subject: RE: Article 13 Emails

Mr. Coombs,

It appears you are asking the Court for a continuance. Please put the
request in a motion and submit it to the Court.



DENISE R. LIND
COL, JA
Chief Judge, 1st Judicial Circuit



From: David Coombs

Sent: Friday, July 27, 2012 8:47 AM

To: Fein, Ashden MAJ USARMY MDW Lind, Denise COL USARMY (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY (US)

Subject: RE: Article 13 Emails



0 0 23007

Ma?am,

I have attached one email sent to us late last night by the Government.

This email is from the Quantico Base Commander, Col. Daniel Choike, to the
Security Battalion Commander, Col. Robert Oltman. Whether this email
indicates a conspiracy or just "context" really does not matter at this

point (that will be the subject of argument). What matters is that 84

emails were dumped on the Defense the night before the Article 13 motion was
due, after I had already sent the Defense attachments and just prior to

leaving the country for family reasons.

The Government avoids addressing the two issues that I raised. First, I

need additional time to incorporate these emails into my motion. The
Government seems to suggest that the emails simply support the arguments
that I was in the process of already making, I was on the right

track). However, these emails do much more than simply support our
argument. The emails change the basis of the Defense's argument. when does
the Government propose that the Defense incorporate these emails into our
motion? Based upon the Government's email it would seem that it would have
us do this today.

Second, due to the nature of these emails, the Defense believes that
additional witnesses will be needed for the motion. The question is not
necessarily just interviewing potential witnesses, but likely litigating
with the Government over whether the witnesses will be produced.

How the Government could have waited so long to look at these emails which
should have been produced as part of its discovery obligations is beyond me.
The fact that the Government is now trying to hold the Defense to a time

line of today when the need for a delay is due to their lack of diligence is
unbelievable. The Defense has repeated since referral its concern that
information would be dumped on us on the eve of trial. This is an perfect
example of the Defense's concerns coming to fruition.

v/r

David

David E. Coombs, Esq.

Law Office of David E. Coombs
11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (503) 689-4616



.

Fax: (508) 689-9282



Notice: This transmission, including attachments, may
contain con?dential attomey-dient infomiation and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying
or use of this information may be unlawful and is

From: Fein, Ashden MAJ USARMY MDW (us?

Sent: Friday, July 27, 2012 8:22 AM

To: Lind, Denise COL USARMY (US)

Cc: David Coombs; ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua
CPT USARMY ?Morrow JoDean, CPT USA Overgaard,
Angel CPT USARMY Whyte, Hunter CPT USARMY 'von Elten,
Alexander S. CPT USA Ford, Arthur Jr CW2 USARMY (US)
Subject: RE: Article 13 Emails

Ma'am,
Below is the government response to the below email from the defense:

1. On 8 December 2010, the defense requested "[a]ny and all documents or
observation notes by employees of the Quantico con?nement facility relating
to PFC Bradley Manning." ?me United States produced all documentation from
the Quantico Brig either as we received it or at the end of the accused's
pretrial con?nement at Quantico. In an effort to preserve all records
involving the accused, the prosecution requested Quantico preserve all
documentation and their emails. The purpose of this preservation request
was to ensure the accused's right to a fair trial by preserving any emails

for future litigation concerning the discoverability of the emails and/or

for the prosecution to conduct a Giglio and Jencks (RCM 914) check of the
emails. On Wednsday, the prosecution started reviewing the emails for
potential impeachment evidence or Jendfound 84 emails which we deemed obviously material to the preparation of the
defense for Artide13 purposes. Within 24 hours, the United States noti?ed
the defense and sent the emails last night.

2. The United States objects to the defense's characterization of the
emails showing a conspiracy, rather the emails show the possible extent, if
any, of USMC chain of command's involvement, in the accused's pretrial
con?nement.



0 0 23009

3. This motions hearing is not scheduled until the end of August. Over the

past few months, the defense has been preparing its over 100 page motion and
the government has a reply due on 17 August 2012. Understanding Mr. Coombs
will be out of the of?ce from 27 July to 9 August, the United States still

sees no reason why the defense will not have adequate time to prepare its
Article 13 motion, and especially since this the majority of these emails

appear to only bolster the defense's current argument, as proffered in the
Article 13 witness list litigation. Additionally, the military defense

counsel can assist Mr. Coombs with interviewing other potential witnesses,

if the defense chooses to go down that path.

MAJ Fein



From: David Coombs

Sent: Friday, July 27, 2012 12:54 AM

To: Lind, Denise COL USARMY (US)

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Hunter CPT USARMY 'von Elten, Alexander S. CPT
USA Ford, Arthur Jr CW2 USARMY Fein, Ashden MAJ
USARMY MDW (US)

Subject: RE: Article 13 Emails

Importance: High
Ma?am,

Please see the email below. Fein just noti?ed the Defense of the
existence of 60 emails that the Government determined were material to the
preparation of the defense for the Article 13 motion which, as you know, is
due tomorrow. At 2115, Fein sent the Defense copies of the emails. The
Defense cannot understand why it is getting these emails the night before
its motion is due. The Defense had requested any documentation pertaining
to PFC Manning's con?nement while at Quantico over a year and a half ago,

in a discovery request dated 8 December 2010.



.

After quickly reviewing the emails sent by MAJ Fein, it is clear that we

have a problem. The Defense had previous knowledge that there had been an
order given by the Security Battalion Commander, Col. Robert Oltman, to keep
PFC Manning in maximum custody and under prevention of injury status
inde?nitely. This order was given on 13 January 2011 and was made in front
of the Brig commander and staff. Capt. William Hocter and Capt. Kevin Moore
witnessed this order and would be testifying to this fact during the motions
hearing. The emails that the Defense has just received reveal a conspiracy

at much higher levels.

The email traf?c shows that LtGen. George was directly involved in

the custody status of PFC Manning. The Quantico Base Commander, Col. Daniel
Choike, and Col. Robert Oltman seem to have been simply executing LtGen.
directives. The emails show how the entire chain of command from
LtGen. down to the NCO leadership in the Brig was involved in

reporting on every issue dealing with PFC Manning in order to support the
decision to maintain him in his custody status. The emails also show that

the Quantico Staff Judge Advocate, LtCo|. Christopher Greer, was aware of

the issue and supported the chain of command's efforts. In addition to

this, the Defense has learned many more speci?cs about the nature of PFC

Manning's con?nement conditions which support his Article 13 claim.

This new information will result in a need for additional witnesses. And,
as is no doubt apparent, it will require additional time to brief. As you
know, I have already completed what I believed was the Defense's Article 13

motion and have sent the Court and the Government the attachments.

As I previously informed the Court and the Government, I will be out of the

of?ce from 27 July through 9 August for family reasons. At this point, I

23011

am unclear on how to proceed. I would greatly appreciate guidance from the

Court in this respect.

v/r
David

David E. Coombs, Esq.

Law Office of David E. Coombs

11 South Angell Street, #317
Providence, RI 02906

Toll Free: 1-800-588-4156

Local: (508) 689-4616

Fax: (508) 689-9282




Notice: This transmission, including attachments, may
oontain con?dential attorney-client information and is intended for the
person(s) or company named. If you are not the intended recipient, please
notify the sender and delete all copies. Unauthorized disclosure, copying

or use of this information may be unlawful and is



From: Fein, Ashden MAJ USARMY MDW
Sent: Thursday, July 26, 2012 7:49 PM

To: David Coombs

Cc: ?Hurley, Thomas MAJ OSD OMC Defense?; Tooman, Joshua CPT USARMY
?Morrow JoDean, CPT USA Overgaard, Angel CPT
USARMY Whyte, Jeffrey CPT USARMY ?yon Elten, Alexander S. CPT





0 0 23012

USA Ford, Arthur Jr USARMY (us)

Subject: Article 13 Emails
David,

In preparation for the upcoming Article 13 motion, the prosecution began
reviewing emails Yesterday from members of the Quantico brig staff and the
chain of command. The prosecution found some emails that are obviously
material to the preparation of the defense for Article 13 purposes. In an
effort to get these emails to you as soon as possible, we intend to produce
them tomorrow and send them to you via email so that you have a copy
immediately. We will also produce them according to our normal process. We

estimate there are approximately 60 emails.

V/r

Ashden

Classi?cation: UNCLASSIFIED
Caveats: NONE

23013

IN THE UNITED STATES ARMY
FIRST JUDICIAL CIRCUIT

UNITED STATES

DEFENSE MOTION FOR
v. JUDICIAL NOTICE OF

DISTRIBUTED COMMON
MANNING, Bradley E., PFC GROUND SYSTEM-ARMY
U.S. Army, INADEQUACIES
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall, DATED: 3 AUGUST 2012
Fort Myer, VA 22211

RELIEF SOUGHT

1. PFC Bradley E. Manning, by and through counsel, moves this court, pursuant to Military
Rule of Evidence (M.R.E.) 201 to take judicial notice of inadequacies with the Distributed
Common Ground System-Army (DCGS-A). Speci?cally, the Defense requests judicial notice
that the DCGS-A system was prone to crashes and incapable of functioning when not connected
to a network.

BURDEN OF PERSUASION AND BURDEN OF PROOF

2. As the moving party, the Defense has the burden of persuasion. R.C.M. 905(c)(2). The
burden of proof is by a preponderance of the evidence. R.C.M. 905(c)(1).

FACTS

3. DCGS-A is ?the Army?s premier intelligence, surveillance and reconnaissance (ISR)
enterprise for the tasking of sensors, analysis and processing of data, exploiting of data and
dissemination of intelligence (TPED) across all echelons.? See Attachment A. Its three core
functionalities are serving at the ISR component for Battle Command, providing intelligence
a ?net enabled capability to exploit infonnation with common analyst tools,?? and it
receives it it?s data directly from multiple sources. See Attachment B. The system provides
?access to the multiple databases and near real time direct links from collectors.? Id.

4. Beginning in 2010, Army and elected of?cials alike began voicing concerns over the
effectiveness of the DCGS-A system.

a. In a 2 July 2010 memorandum from MG Michael to the Deputy Commanding
General for Support, USFOR-A, MG asserted, ?[i]ntelligence in
theater do not have the tools required to fully analyze the tremendous amounts of

-. 933

PAGE or PAGES

23014

information currently available in theater.? See Attachment C. Speci?cally, he noted
that the systems employed at the time ?do not provide the ability to support low-
bandwidth or frequently disconnected users with a data sub-set tailored to their area
of operations.? Id. at 1. MG goes on to say, ?[l]ow bandwidth or ?equently
disconnected users should be provided a laptop capable of maintaining the data and
applications? and ?the data set should updated while the user is connected to the
network and should also feed user reports/work back to the central database for wider
use.? Id. at 2-3.

b. Members of Congress echoed MG plea, and on 19 July 2010 wrote to the
Chairman, the Honorable Norm Dicks and Ranking Member, the Honorable C.W.
Young, of the House Appropriations Committee?s Subcommittee on Defense. They
wrote, ?[a]bove all we ask that funding be provided for a system that can operate
remotely while disconnected from the network since has struggled with the issue
of connectivity in the remote See Attachment D.

c. On 28 July 2010 COL Peter Newell drafted a letter to Chairman Dicks in which he
indicated the Army was in the process of implementing a cloud-based tool that would
address these concerns. See Attachment E.

d. Representatives Gabrielle Giffords and Adam Smith responded to COL Newell on 25
August 2010 acknowledging that a cloud-based system, while an upgrade over the
then-current system, would still not solve the connectivity issues facing deployed
Soldiers. See Attachment F.

e. On 23 May 2011 Representative Smith sent a letter Chief of Staff, General Martin
Dempsey. Representative Smith followed up on the 25 August 2010 letter he co-
signed, re-iterated his concerns and cited the 2 July 2010 memo from MG See
Attachment G.

f. Politico chronicled the aforementioned correspondences and, citing multiple former
Army intelligence Officers, reported about ?the system being prone to crashes and
frequently going offline.? See Attachment H.

5. On 22 September 2011 DefenseNews reported on DCGS-A system crashes during a joint
exercise with South Korea. The article, which employed a senior intelligence of?cial as a
source, noted, ?[w]hen American intelligence tried to use the software to track simulated
North Korean troop movements, the screens on the DCGS-A workstations sometimes went
black, forcing them to reboot the software.? See Attachment 1.

6. At the time of PFC Ma1ming?s deployment the DCGS-A system did not incorporate cloud
computing, as such technology was not employed by deployed U.S. Soldiers until November
2010. See Attachment A.

23015



7. The Defense does not request any witnesses be produced for this motion. The Defense
respectfully requests this court to consider the referenced attachments to this motion in support
of its request.

a. DCGS-A information paper produced by HQDA DCS, G-2 Initiatives Group

b. DCGS-A Commander's Handbook

c. Memorandum from MG Michael to the Deputy Commanding General for
Support, USFOR-A, dated 2 July 2010

d. Letter from Representatives Gabrielle Giffords, Mike McIntyre and Adam Smith to
the Honorable Norm Dicks and the Honorable C.W. Young, dated 19 July 2010.

e. Letter from COL Peter Newell to the Honorable Norm Dicks, dated 28 July 2010.

f. Letter from Representatives Giffords and Smith to COL Newell, dated 25 August
2010

g. Letter from Representative Smith to General Martin Dempsey, dated 23 May 2011

h. ?Computer bugs hurt Army ops,? by Charles Hoskinson, Politico, 29 June 2011

i. Army intel software crashes during exercise,? by Ben Iannotta, DefenseNews,
22 September 2011.

LEGAL AUTHORITY AND ARGUMENT

8. In the interest of judicial economy, M.R.E. 201 relieves a proponent from formally proving
certain facts that reasonable persons would not dispute. There are two categories of adjudicative
facts that may be noticed under the rule. First, the military judge may take judicial notice of
adjudicative facts that are ?generally known universally, locally, or in the area pertinent to the
event.? M.R.E. 201(b)(1). Under this category of adjudicative facts, it is not the military judge?s
knowledge or experience that is controlling. Instead, the test is whether the fact is generally
known by those that would have a reason to know the adjudicative fact. US. v. Brown, 33 M.J.
706 (N .M.C.A 1992). The second category of adjudicative facts are those ?capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be questioned.?
M.R.E. 201(b)(2). This category of adjudicative facts includes government records, business
records, information in almanacs, scientific facts, and well documented reports. Id. See also,
US. v. Spann, 24 M.J. 508 (A.F.C.M.R. 1987). The key requirement for judicial notice under
this category is that the source relied upon must be reliable.

9. Under M.R.E. 20l(d), a military judge must take judicial notice if the proponent presents the
necessary supporting information. In making the determination whether a fact is capable of
being judicially noticed, the military judge is not bound by the rules of evidence. 1 STEPHEN A.
SALTZBURG, LEE D. SCHINASI, AND DAVID A.SCHLUETER, MILITARY RULES OF
EVIDENCE MANUAL 201.02[3] (2003). Additionally, the information relied upon by the
party requesting judicial notice need not be otherwise admissible. Id. The determination of
whether a fact is capable of being judicially noticed is a preliminary question for the military
judge. See M.R.E. l04(a).



23016

10. Here, the inadequacies of the DCGS-A system are readily apparent. At the time PFC
Marming was deployed to Iraq he DCGS-A system was prone to frequent crashes and often left
users, like PFC Manning disconnected. By mid-2010 these issues were well-known in both
military and political circles. In fact, both military and political of?cials had identi?ed these
serious faults with the DCGS-A system and memorialized those faults in correspondence
amongst themselves. These correspondences were then reported in the mainstream media and
reinforced by intelligence sources that had spent extensive time using the system. It is clear that
the inadequacies and issues with the DCGS-A were well known within the military community.
Thus, the DCGS-A inadequacies are known ?in the area pertinent to the event generally known
by those that would have a reason to know the adj udicative fact. As such, it is appropriate to
take judicial notice of the DCGS-A inadequacies. M.R.E. 201(b)(1) and Brown.

CONCLUSION

11. Based on the above, the Defense requests that the Court to take judicial notice of requested
adjudicate facts.

Respectfully Submitted

JOSHUA J. TOOMAN

CPT, JA
Defense Counsel

ATTACHMENT A

23017

23018

Distributed Common Ground System - Army (DCGS-A)
What is it?

The Distributed Common Ground System - Army (DCGS-A) is the Army's premier
intelligence, surveillance, and reconnaissance (ISR) enterprise for the tasking of
sensors, analysis and processing of data, exploitation of data, and dissemination of
intelligence (TPED) across all echelons. It is the Army component of the larger Defense
Intelligence Information Enterprise and interoperable with other Service DCGS
programs. Under the framework, USD (I) hopes to provide COCOM Joint
Intelligence Operations Centers capabilities interoperable with DCGS-A through
a Cloudlwidget approach. DCGS-A connects tactical, operational, and theater-level
commanders to hundreds of intelligence and intelligence-related data sources at all
classification levels and allows them to focus efforts of the entire ISR community on
their information requirements. This system allows to use a growing menu of
advanced analytic tools which enable users to better understand norms, detect change,
discern linkages, appreciate significance, cue collection, and identify, track, and target
hostile forces in a timely and effective manner. This capability provides the
ability to rapidly mine, fuse, and visualize data on top of geospatially-oriented layers to
gain unprecedented contextual understanding of their operational environment. DCGS-
A provides organizational elements the ability to control select sensor platforms and
receive and process the collected data. The enhanced speed, accuracy, and relevance
of the ISR effort provides commanders the intelligence information they need, when
they need it, to plan and conduct full spectrum operations in counter-insurgency
environments and across the full range of military operations.

What has the Army done?

The Army recognized that the counter-insurgency fight is at the BCT, battalion, and
company level and yet analysis hardware and software was not fielded below battalion-
level. Therefore, in addition to the initial capability set fielded across the force from
battalion to Army Service Component Command (ASCC), the Company Intelligence
Support Team concept was developed and deploying are being
equipped with DCGS-A. Additionally, the Army has worked aggressively to incorporate
DCGS-A into all combat training centers with a full suite of systems. The DCGS-A
provides users access to more than 200 data sources and allows rapid collaboration
through shared data access. The system enables tactical the ability to leverage
analytical support from National agencies, combatant commands, military intelligence
brigades, and tactical Army units in the train/ready phase of Army Force Generation
(ARFORGEN). The ability for deploying units to access the same battle space
awareness information as their deployed counterparts significantly increases pre-
deployment readiness by providing current intelligence products in support of pre-
deployment training and operational planning. DCGS-A has incorporated cutting edge
technology in the form of cloud computing and advance analytics to provide users with
precision search, increased computing speed, enhanced collaboration, and data
aggregation tools. The ISR Task Force resourced Program Manager (PM) DCGS-A to



23019

implement this architecture on the in support of deployed operations. The ?rst
tactical cloud was deployed to Afghanistan in November 2010 and became operational
in March 2011, followed by the CX-I coalition cloud in May 2011. This implementation is
the Army's response to a theater Joint Urgent Operational Needs Statement (JUONS)
for advanced analytics. The Joint Interoperability Test Command (JITC) completed an
assessment of the DCGS-A SIPR Cloud v1.0, with favorable results, in December 2010.

What continued efforts does the Army have planned for the future?

The Army will continue to integrate new technical upgrades into the DCGS-A enterprise
and ?eld them in accordance with the ARFORGEN cycle. The program leverages
existing government and commercial technologies and integrates them within a
common framework to accelerate the delivery of new capabilities. The next version of
DCGS-A software will focus on enhancing the geospatial layers and analyst interface,
integrate Human lntelligence (HUMINT) tools, and introduce Full Motion Video (FMV)
exploitation capabilities and new applications or widgets. Additionally, to enhance the
capability to respond to commanders? most computer resource intensive and
challenging intelligence questions and scenarios, the Army will introduce cloud edge
nodes into the Afghanistan ISR architecture. Recent advances in cloud computing
technology have resulted in the development of an edge node capable of extending the
cloud architecture and provide advanced analytics capabilities and enhanced storage
capacity to remote locations. The PM DCGS-A is postured to begin ?elding edge nodes
to Afghanistan during 4"?quarter FY 11, to a limited set of operating bases. Every effort
is made to continually expand DCGS-A access to other libraries of data. At the request
of units in Iraq and Afghanistan, the Defense Intelligence Agency permitted the
ingestion of several of its data sources into the DCGS-A enterprise and the Marine
Corps allowed ingestion of their intelligence products via MarineLink. The Department
of the Army lntelligence and lnforrnation Service and DCGS-A program engineers work
daily to identify, access, and ingest new data sources and monitor the transfer of
volumes of data across the various network domains.

Why Is this Important to the Army?

The Army requires relevant, accurate, and timely ISR support to provide commanders
the information they need to fight and win counterinsurgency con?icts. DCGS-A is the
Army's modern ISR TPED capability that allows commanders from company to ASCC
levels to focus the efforts of the entire ISR community - tactical, joint, coalition, and
national - on their own information requirements.

As of July 2011
HQDA DCS, G-2 Initiatives Group (DIG)



23020

ATTACHMENT

23021

COMMANDER'S HANDBOOK
DISTRIBUTED COMMON GROUND SYSTEM ARMY
(DCGS-A)

FOR OFFICIAL USE ONLY
TCM-SP Fioai Draft
March 30, 2009
Distribution authorized to U.S. Government Agencies and their contractors only to
protect information and technical data that advance current technology or describe new
technology in an area of significant or potentially significant military application or that
relate to a specific military deficiency of a potential adversary (Department of Defense
(DoD) Directive 5230.24 Distribution Statements C and D). This determination was
made on 31 March 2004. Other requests for this document shall be referred to
Department of the Army, Deputy Chief of Staff, G-3, ATTN: DAMO-RQ, 400 Army
Pentagon, Washington, DC 20310-0400.

.^4

23022

FOR OFFICIAL USE ONLY
Commander's Handbook Distributed Common Ground System (DCGS A)

THIS PAGE INTENTIONALLY LEFT BLANK

11

23023

FOR OFFICIAL USE ONLY
Commander's Handbook Distributed Common Ground 5ysten^(0CG5A^

^^^^^T^^^^^^^^A^^
Access to the Intelligence Enterprise is through the Distributed Common Ground
System-Army (DCGS A). This Commander^s Handbooks is an o^er^iew of the
capabilities DCGS-A is providing to the commander. It addresses the benetits ot^
employment ofDCGS-Aasawhole, rather than any particular tielded version.
DCGS-A,asacomponent to the DoD Distributed Common Ground^Surtace System
Mission Area program, is greatly contributing to the .loint and combined Wart^ghter
needs.
DCGS A enables the Commander to tight in ways that exceed the historical
limitations through the tollowing^^^^^^^^^^^^^^^^^^^^^^^^^^:
1. ) Increased situational awareness reduces risl^t^or the Commander when
executing missions.
2. ) Atlattenednetworl^ enables Commanders greater access to information
historically only available to Corps and abo^e echelons.
3. ) Providing Commanders with unprecedented access to the Intelligence
Enterprise aftords the greatest impact at the lowest le^eL
The^^B^^^^^B^^^^^^^^^^^^^^^^ot^DCGS-Aare:
1. ) It is the ISR component ot^Battle Command.
2. ) l t provides analysts a net enabled capability to exploit int^ormation with
common analyst tools.
3. ) l t receives direct teedstrom multiple sensors.
DCGS-A has ^^^^^^^^^^^^^^^^^^,which enable Commanders to tailor the system
and its components to tit their mission needs:
1. )l^i^ed configuration- Primarily it leverages the power and stability of
sanctuary for the most complex processing and analytic tasl^s, and is currently available.
2. )Mobile contiguration- Provides tactical, expeditionary, and deployable
capabilities to Brigade CommandTeam(13CT) and other Commanders and is currentlya
quicl^ reaction capability(^RC).
3. )Embeddedsottware On battle command systems (BCS) enables access to the
intelligence enterprise down to the platform(e.g.Future CombatSystems (PCS)).
This handbool^ is a lining document. Updates will tollowasthe DCGS-A system
progresses. This will allowCommandersaconcise reterence guide to the capabilities
provided to their units and its application to leverage DCGS-A against current and ti^ture
adversaries.

in

23024

FOR OFFICIAL USE ONLY
Commander's Handbook Distributed Common Ground System (OCGSA^

TLIISPAGEINTENTIONALLYLEFTBLANK

1^

23025

FOR OFFICIAL USE ONLY
Commander's Handbook Distributed Common Ground System (DCGS A^

^A8^^^^^^^^^1^^^
E^ECUTl^E SUMMARY

iii

C^^ptei^^D^12^^^^^^
1-1.Introduction
1-2.ArmyTasl^(ART) List and DCGS-AApplication
1- 3.Challenges
14. Main Idea

^
-1-2-4-4-

C^^^t^i^^^^^CT^^^AL^TY
2- 1.ISR Component ot^Battle Command
2-2.Common AnalystTools
2- 3.Sensor Injects

7
-7-7-

C^^pt^^^^^SC^^^T^Ol^
3- l.DCGSAContigurations
3- 2.Where WeAre at in Development

^
^ -10-

C^^^t^i^^CD^CL^S^^^
4- 1.Conclusion

^2
-12-

23026

FOR OFFICIAL USE ONLY
Commander'sHandbook Distributed Common Ground System ^DCGS A)

TLIISPAGEINTENTIONALLYLEFTBLANK

^1

~fT^

23027

FOR OFFICIAL USE ONLY
Commander's Handbook Distributed Common Ground System (DCGS A)

Chapter 1
OVERVIEW
"My background is that I am an JIB that re-classed to a 25B, now
working as an independent company level S2. Considering no formal
training other than a two-day familiarization course and that I don't
hold an INTEL MOS, I was able to use these DCGS-A tools to create
products that my Commanding Officer commented, "I have not seen
anything like this below the division level before." I have extensively
used a set of tools from DCGS-A: ArcGIS and PSIJabber. I was able
to use ArcGIS to prepare maps using imagery from the server and
imagery I imported from Buckeye and WARP. This allowed us to
create products rapidly that were not previously practical for a unit at
a low level such as ours, and Infantry Companies. Otherwise, we
would need to send out RFI's to outside organizations that would not
allow the flexibility or time constraints that our mission required. PSI
Jabber allowed me to send large files to lower echelon units. "
SGT Charles A. Fair
S2 Ceo. 1/279 IN (SEP),
300th MP BDE, Iraq

1-1. INTRODUCTION
a. As the Intelligence Surveillance and Reconnaissance (ISR) component of Battle
Command, DCGS-A provides the Commander faster and more complete situational
awareness enabling better understanding of the operational environment. This increased
situational awareness allows the Commander to fight in ways that exceed the historical
limitations through the following three interrelated main ideas:
1. ) Increased situational awareness reduces risk for the Commander when
executing missions.
2. ) A flattened network enables Commanders greater access to information
historically only available to Corps and above echelons.
3. ) Providing Commanders with unprecedented access to the Intelligence
Enterprise affords the greatest impact at the lowest level.
b. The capabilities of DCGS-A align the center of gravity shift from the division to
the BCT with increased accessibility to critical information to fulfill the mission
requirements. The accessibility to previously restricted information provides the
Commander at the lowest level the capability to leverage the vast intelligence enterprise

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to better assess the current operational environment and to receive actionable intelligence
inatimely manner. Previously,collection, processing, and analysis fromastovepiped
process restricted critical information from most Commanders, particularly at brigade and
below. Consequently,their decisions,otten made without the critical information, came
with high risk. DCGS-A reduces that high risk and enables the Commanders to better
drive combat operations.

^
B
^

l^.AR^^TA^I^(ART)EI^TANDDC^^AAI^I^I^ICATION
^^B
^

a. In conjunction with the three main ideas, DCGS A, through system configuration
and application,enables the Commander to meet seven of his ArmyTasks as depicted
below through system configuration and application.
l.)ART1.0:The DCGS-A primary wartighting function is the intelligence
warfighting function (IWP). The IWF is the flexible and adjustable activity to generate
knowledge ofand products portraying the enemy and the environmental features required
to plan, prepare, execute, and assess operations. The personnel and organisations within
the IWF conduct four primary tasks that facilitate the Commander^svisuali^ation and
understanding ofthe threat and the environment. These tasks are interactive and often
take place simultaneously throughout the intelligence process. DCGS-A supports the
following Army tasks and mission areas:

^

B

a.)ARTl.l:Support to situational understanding(and all subtasks).
b. )ART1.2: Support to strategic responsiveness(and all sub-tasks).
c. )ART1.3:Conduct Intelligence, Surveillance and Reconnaissance(and all
sub-tasks).
d. )ART1.4:Provide Intelligence Support to Effects(and all sub-tasks).
^

b. The IWF also conducts multiple tasks associated with the following nonintelligence discipline warfighting functions:
l.)ART7.2:ManageTacticallntormation^.
a. )lntegrate Intelligence Products.
b. )Collect Relevant Information.
c. )Process Relevant Information to CreateaCommon Operational Picture.
d. )DisplayaCommon Operational Picture(COP)Tailored to user Needs.
e. )Store Relevant Information.
f. ) Disseminate Common Operational Picture and Execution Information to
l^igher,Lower,Ad^acent, supported and Supporting Organisations.
g. )Communicate with Non-English SpeakingPorces and Agencies.
^^ote:^^ere it includes ti^e^rocessin^ot sensor data^ the interpretation ot^ata into inteiii^ent
informations tusion and integration ot separate source data^ management ot the data to inciude
accuracy and data topoio^y^and dissemination ottacticai data intormation^
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2. )ART7.3:AssessTactical Situation and Operations.
a. )Monitor the Situation or Progress ofOperations.
b. )Evaluate Situation or Operation.
c. )Provide Combat Assessment.
3. )ART7.4:PlanTactical Operations Using the Military Decision Making
Process/Troop Leading Procedures
a.)Provide Space support.
c.DCGSAisthe centerpiece of the future ArmylSR framework and is the enabler
for intelligence functions at the brigade combat team (BCT) and battalion (BN). DCGSAprovides unprecedented access toawealth of information and sources thereby greatly
improving situational awareness. Through Congressional and Under Secretary of
Defense (Intelligence) (USD (1)) support, the Army accelerated the development and
fieldingof DCGSA. Figure 1-1 graphically illustratestheprocess in which DCGS-A
facilitates the requirements outlined in theAUTL.

What Is DCGS-A?
SEE

UNDERSTAND

Sensor Inject

Common Analyst
Tools

ACT
ISR Component to
Battle Command
Situational
Jipderstandljifl^

Hems in gray not
availtiblu iiritil
Mobile Basic

DCGS-A Reduces Commander's Risk, Flattens the Intelligence Enterprise, and Impacts the
lowest echelons the greatest

Figure 1-1. What is DCGS-A

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^^^^^A^^^^^^2^
a. l^istorically, operational tocus resided at the divisions moreover, the enemy fight
was conventional. The programs of record (POR) supported the conventional fight at the
cost of irregular warfare. Modularity restructuring, reinforced by Operation Iraqi
Ereedom(01P)andOperationEnduringPreedom(OEP), generatedfocusatthe BCT
level and below, thereby highlighting shortfalls in current and near term intelligence
structures and capabilities. This presented new challenges for the commanders. Now,
BCT Commanders are responsible for providing operational focus and actionable
intelligence that once cametrom higher. They must ensure theintelligenceis accurate
and timely toreduce the risk for mission requirements. Thechallengebecamehowto
provide theunrestricted accessto theBCTCommander. (^RC providedthe solution
throughDCGSA(^2)
b. Secondly,U.S.Porces face adversaries that are highly complex and able to quickly
adapt to anygiven situation. Theyconstantly re-evaluate successes versus failures and
adjust their operations for the maximum impact on U.S. and Coalition forces. In
addition, adversariespossessthecapability to acquire andmanipulate various types of
networks(e.g. electronic,human)totheir advantage.Thiscomplicatestheadversary's
prot^le and challenges the U.S.forces^ability to predict enemy courses of action(COA).
This ability to leverage various networks provides adversaries the advantages of
unpredictability.
c. Pinally,theenemy^sability to leveragethe complexity of urbanandprovincial
domains to their advantage allows them to remain camouflaged to collection resources.
This presents an ISR challenge to U.S. and Coalition Porces.
d. DCGS-A allows Commanders to mitigate these diverse challenges with essential
capabilities (e.g. leverage more collection quickly and counter threat actions). These
capabilitiesenable Commanderstodisrupttheadversary decisioncyclesand shift the
operational advantage back toU.S.Porces. The results, listed below, allow three main
ideas to meet the commander^sneeds through DCGS-A:
1. )Reduce Risk toU.S.Porces
2. )Platten Network Communications
3. )Greatest Impact telt at the lowest level

^^^^A^l^^^^A
a. The Army^stransformationfromadivisioncentrictoamodular,expeditionary,
brigade centric force placed the BCT at the center of current and future combat
operations. ^hileoperationalfocuswasontheBCT,thelevelof information access
stopped at division.
b. ^^o^^^^^l^: DCGS-A reduces or mitigates risk by providing robust access to
information that is ofgreater volume,variety,and fidelity^ therefore facilitating precise
andtimelydecisionmaking. Effective planning reduces uncertainty when informed by
accurateintelligence and allows Commanders tomitigate risk presentedby the enemy.

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Essentially, as situational awareness increases, the level of risk decreases. The problem
is having access to that information.
c. FLATTENED NETWORK: Historically, brigade and battalion Commanders were slow
to receive relevant threat information to execute missions. Often times, requests for
information (RFl) were left unanswered due to stove piped congestion. Consequently,
this left Commanders to rely on their experience to fill the information gaps before and
during their decision cycles. With an evolving, proactive, and highly responsive
adversary, this created higher risks. Faced with a versatile adversary. Commanders
require direct access to processed intelligence data (i.e., threat warning and locational
data), as well as a conduit to receive analyzed information to have the advantage in the
operational environment. In addition. Commanders may need to redirect ISR assets to
fully assess the operational environment. Timely access to critical combat information
and intelligence provides Commanders and Soldiers with detailed situational awareness.
1.) The DCGS-A network enabled structure provides access to the multiple
databases and near real time (NRT) direct links from collectors. This access provides an
unprecedented conduit to ISR sensors and databases. In addition, this access is not only
to Army information but also to Joint, National and Coalition forces' information. The
improved access empowers Commanders with NRT intelligence at the lowest command
level. This capability sharply enhances the lethality, survivability, agility, versatility, and
sustainability of the force and enables more timely and precise application of combat
power. For example, intelligence analysts simply take the Commanders RFl and query,
using the DCGS-A access to database repositories, for answers that previously were left
unanswered.
d. GREATEST IMPACT FELT AT LOWEST LEVEL: Commanders plan missions to obtain
the advantage in the operational environment. Previously, restricted information and
intelligence limited the knowledge base extendable to the Soldiers executing the
missions. Consequently, Soldiers executed missions in a disadvantaged state and walked
into many lethal situations that were avoidable with more critical and NRT information
available.
1. ) DCGS-A provides commanders, including those at BCT and lower levels, an
unprecedented access to this critical information, thus extending the flow of information
and knowledge down to the Soldier. This enhanced information, knowledge, affords the
Soldier to have a greater situational awareness. More importantly. Soldiers lives are
saved and risk greatly reduced by this access, because Commanders now can plan the
mission down to the most critical probable change in enemy activity.
2. ) The Operational View One (OVl) illustrates how DCGS-A incorporates these
three main ideas described above in creating a network-enabled capability to the Future
Force. DCGS-A allows combat information and intelligence to be available on the same
network and linked to the lowest tactical level.

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Figurell.DCGSAOVlandFnture Force.

^

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Chapter 2
FUNCTIONALITY
2-1. ISR COMPONENT OF BATTLE COMMAND
a. DCGS-A is the ISR component of the modular and future force BCS and the
Army's primary system for ISR tasking of sensors, processing of data, exploitation of
data, and dissemination of intelligence (TPED) information. DCGS-A provides critical
battle information about the threat, weather, and terrain at all echelons. DCGS-A will
provide the capabilities necessary for Commanders to access information, task organic
sensors, and synchronize non-organic sensor assets with their organic assets. These
services will be shared by Commanders across an enterprise (provided by the NetworkCentric Enterprise Services (NCES)) using the DCGS Integration Backbone (DIB) to
enhance interoperability of ISR information.
b. DCGS-A will provide continuous acquisition and synthesis of data and information
from Joint, Interagency, Intergovernmental, and Multi-national (JllM) sources that will
permit Commanders to have an updated and accurate picture of the operational
environment. This will allow Commanders to maximize their combat power and enhance
their ability to operate in an unpredictable and changing environment throughout the
operational spectrum.
c. DCGS-A will provide critical accessibility to combat information as the ISR
component of Battle Command. By providing a two-way information flow from the BCS
to the intelligence enterprise, DCGS-A will enable the intelligence enterprise the
accessibility to surveillance and reconnaissance obtained through non-military
intelligence collections.

2-2. COMMON ANALYST TOOLS
a. Providing unrestricted access to intelligence information to the Brigade
Commander has always been a challenging process. Historically, the ability to provide
critical NRT intelligence took 30 military intelligence vehicles manned with over 100
Soldiers to produce the situational awareness and resided at the division level. The
composition of a brigade could not handle such an increase in footprint. However,
DCGS-A has reduced this footprint to approximately seven vehicles. By incorporating
various programs of record (POR) into one system, this allows Commanders to equip the
analyst, instead of manning the equipment. One of the ways this occurs is by reducing
duplicate functionality and providing common analyst tools.
b. Formerly, analysts were required to have specialized training on specific operating
systems to maximize the full effect of an operational intelligence community. The
common tasks of analyzing, mapping, and disseminating finished products were
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accomplished in completely different ways. An example of this is the process it would
take to provide actionable intelligence to the BCT. The Human Intelligence (HUMINT)
collector would input his data intoaHUMlNTsystem. He would use his own mapping
and analytical tools toproduceaproduct. Analysts would attempt topass the product
throughadifferent communication support system. Unfortunately,his products were not
compatible with the All Source Analyst'ssystem and would ofl^en be unactionable or lost
due to data incompatibility. Unless the All Source Analyst directly spoke to the
HUMlNTteams,this information wasnot included intheCOP. For example,critical
information about the pattern of life or social tendencies was not included in the
actionable intelligence and would leave patrols or tactical HUMINT teams (THT)
exposed.
c. DCGS-A provides common tools to assist in providing all analysts a greater
understanding of each discipline and enables cross training. Common tools enhance
analyst's ability to share data and information and to collaborate on answering the
Commander'sPlR. These tools supportacentralDCGS-Aconcept of teaming to solve
problem sets vice depending onthe current discipline-centric approach. Thisincreases
awareness within the operating cell and leads to more precise collection plans, and
situational development.

2^.SENSORIN^ECTS
a. DCGS-A replaces multiple stove-piped sensor catcher mitts for intelligence,
surveillance and reconnaissance withasingle ground station capability that is tailorable
to the mission. DCGS-Aprovidesacentral information point by incorporating various
POR into one system allowing for ground base operating stations for sensors to deposit
Information into one central location.
b. While serving as the centralin^ect point DCGS-A also provides the tools tor the
unique intelligence processing techniques while simultaneously enablingcollaboration
with other specificintelligenceendproducts. DCGS-A allows for various sensor data
injects to be readily crossed referenced with other sources in NRT. Through use ofone
intelligence system, DCGS-A, Commanders can nowequiptheiranalysts at the lower
echelons, with common tool sets, without increasing the footprint. Therefore, an
unprecedented amount of information and knowledge is available to them. Analysts can
provideamore defined operational picture for the Commander and the Commander can
quickly identify gaps and redirect the sensors to collect in those areas where his
knowledge may be limited.

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Chapters
DESCRIPTION
3-1. DCGS-A CONFIGURATIONS
a. The DCGS-A fielding of various configurations extends across BCT, fires,
maneuver enhancement. Battlefield Surveillance Brigade (BFSB), aviation and
sustainment organizations. The fixed, mobile, and embedded configurations allow
Commanders to have a better awareness and enable understanding of the operational
environments in NRT. Figure 3-1 illustrates various configurations.

Continuous Access to Information J
Analysis
Dedicated Support (Overwatch) to
Operationally Engaged Units
Ensures Information Superiority
Army Level-MIB, Engineer BDE,
Knowledge Centers, GISA

-Deployable, Expeditionary and
Modular
-Scalable to Meet Mission Needs
-Operations on the Move
- A l l Echelons

-Software Capability
-Integrated into Complementary
Systems
• BCS, ACS, PCS. NECC, Land
Warrior, etc.
-Integrated into DCGS-A at All
Echelons

Figure 3-1. DCGS-A Configurations
b. FIXED: The fixed configuration leverages the power and stability of sanctuary for
the most complex processing and analytic tasks. Additionally, it provides the greatest
historical data repository. Aligned geographically, INSCOM Theater Brigades host these
fixed sites. Additional sites exist primarily for redundancy and accessibility. The fixed
DCGS-A configurations facilitate reach and split-based operations by providing the
"heavy lifting" intelligence analysis and strategic planning from stationary locations.
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Regionally focused, fixed DCGS-A performs a dedicated overwatch fi^nction for
operationally engaged units. The fixed configuration connects other variations ofDCGS
System ofSystems, and National Sources through provided communications.
c. ^08lt^E: The mobileconfigurationofDCGS-Aprovidesatactical, deployable
capability to deliver responsive, forward support to Commanders from BN through
operational headquarters. Analyticaltools, sensor in^ect,datastorage,and integration
with other BCS are the highlights ofthe Mobile configuration. Theconttgurationisthe
"access"point or intelligence service provider torlSR data and information intheater.
DCGS-Avia its analysts will provide the Commander with timely and accurate targeting
information, intelligence products and predictions onprobable enemy COA. Mobile
DCGS-A providesawide range of ISR capabilities including direct downlink of select
DCGS baseline sensors, robust tasking, posting, processing, using (TPPU) tools, and
advance ISR analysis capabilities directly support tactical and force protection
operations. Mobile DCGS-A is scalable and tailorable based on mission,enemy,terrain
and weather, troops, time available and civilian considerations (MF^TT-TC). l^astly,
DCGS-A Mobile has the capability of receiving "plug" augmentation for increased
capability while remaining connected to various networks through provided
communications.
d. F^^8E00E0: The embedded DCGS-A software on BCS enables the connection of
the intelligence enterprise with the battle command network (e.g. PCS), embedded
software provides battalion andcompany intelligence efforts unprecedented accessto
data never before available. Historically,surveillance and reconnaissance collected from
non military intelligence sources was notavailable to the intelligence enterprise. The
embedded sottware provides the shared access to both battle command and the
intelligence enterprise. This ability enablesamore complete picture of the operational
environment tothecommander. Fmbeddedsof^warecapabilitiesprovide commonality
and standardization to improve interoperability, reduce training time, and increase
sustainability across thePuturePorce. It resides on local workstations and is available
through the network. The network secures the embedded software through user access
and permissions.

32.^IIEI^E^EAI^EATINI^E^EI^OFl^ENT
a. DCGS-A follows an evolutionary acquisition strategy to develop and t^eld
capability incrementally throughout its life cycle.
l.)The initial DCGSAeffort improved on interoperability between current force
systems and related modifications to POR. Initial DCGS-A eftorts also included the
integration ofthe .loint Intelligence Operations Capability-Iraq (.110C-1)^RC. This
product, renamed DCGSA^ersion^(^^), was fielded to OlF^OFF units in F^ (^^07
and provided access to over ^(^(^ data sources. The next DCGS-A step was the
development and fielding of^ersion3,(^ hardware and sottware,which added the DCGS
Integration Backbone (DlB)as well as two-way Battle Command interoperability.
DCGS-A^ersion3.1(^3.l)adds .loint interfaces,will be fielded worldwide beginning
in F^(^9,and will displace ASASl^ight.The initial DCGS-A effortalso included

1(^-

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standing upafixed facility capability at each of the Army Military Intelligence Brigades
(MIB)
^.)The current DCGS-A effort develops, produces and fieldsaDCGS-A Mobile
(vehicle mounted and deployable)capability in two increments: the Mobile Basic and the
Mobile F^xtended. TheArmy'srationalforseparatingthedevelopmental efforts is to
provideamobile BCT focused capability to the force as early as possible while reducing
risk associated with achieving specific attributes where technology readiness levels
(TRU)would delay fielding of the capability of the Force.
3.)The follow-on DCGS-A Mobile extended effort will integrate capabilities
provided by other Office ofthe Secretary ofDefense(OSD)programs,will provide the
embedded ISR capability to Army Battle Command and FCS^ the ground station
capability for the Aerial Common Sensors andaDCGS-A capability throughout the
force. The Army anticipatesamilestoneBdecision for the DCGS-A Mobile F^xtended in
F^l^

23038

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 1984,
Appendix 14, will be used by the trial counsel and
the reporter as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a verbatim record is prepared. Air
Force uses this form and departmental
instructions as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court-martial cases in
which a summarized record is authorized.
Inapplicable words of the printed text will be
deleted.

8. Matters submitted by the accused pursuant to
Article 60 (MCM, 1984, RCM 1105).

COPIES - See MCM, 1984, RCM 1103(g). The
convening authority may direct the preparation of
additional copies.

12. Advice of staff judge advocate or legal officer,
when prepared pursuant to Article 34 or otherwise.

ARRANGEMENT - When forwarded to the
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

13. Requests by counsel and action of the
convening authority taken thereon (e.g., requests
concerning delay, witnesses and depositions).

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.
2. Judge advocate's review pursuant to Article
64(a), if any.
3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.
4. Briefs of counsel submitted after trial, if any
(Article 38(c)).
5. DD Form 494, "Court-Martial Data Sheet."

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).
10. Congressional inquiries and replies, if any.
11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.
b. Index sheet with reverse side containing
receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt.
c. Record of proceedings in court, including
Article 39(a) sessions, if any.
d. Authentication sheet, followed by certificate
of correction, if any.
e. Action of convening authority and, if appropriate, action of officer exercising general courtmartial jurisdiction.
f. Exhibits admitted in evidence.

6. Court-martial orders promulgating the result of
trial as to each accused, in 10 copies when the
record is verbatim and in 4 copies when it is
summarized.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.

h. Appellate exhibits, such as proposed instructions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.

DD FORM 490, MAY 2000

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