Title: Gov Motion to Preclude Actual Harm from Pretrial Motions or Merits, 29 Mar 12

Release Date: 2014-03-20

Text: UNITED STATES OF AMERICAv.Manning, Bradley E.PFC, U.S. Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFort Myer, Virginia 22211)))))))))Prosecution Motionfor Appropriate Relief to PrecludeActual Harm or Damage from thePretrial Motions Practice andthe Merits Portion of Trial29 March 2012RELIEF SOUGHTIThe United States respectfully requests that the Court preclude the defense from raisingor eliciting any discussion, reference, or argument, to include the introduction of anydocumentary or testimonial evidence, relating to actual harm or damage from pretrial motionsrelated to the merits portion of trial and from the merits portion of trial. The United States doesnot dispute whether actual harm or damage is relevant on sentencing. The United States requestsoral argument.BURDEN OF PERSUASION AND BURDEN OF PROOFThe burden of proof on any factual issue the resolution of which is necessary to decide amotion shall be by preponderance of the evidence. See Manual for Courts-Martial, UnitedStates, Rule for Courts-Martial (R.C.M.) 905(c)(1) (2008). The burden of persuasion on anyfactual issue the resolution of which is necessary to decide a motion shall be on the United Statesas the moving party. See R.C.M. 905(c)(2). Whether the Court rules on the admissibility ofevidence before it arises at trial is a decision in the discretion of the military judge. See R.C.M.906(b)(13).FACTSThe accused is charged with one specification of aiding the enemy, one specification ofdisorders and neglects to the prejudice of good order and discipline and service discrediting,eight specifications of violations of18 U.S.C.§ 793(e), five specifications of violations of18U.S.C.§ 641, two specifications of violations of18 U.S.C.§ 1030, and five specifications ofviolating a lawful general regulation, in violation of Article 104, 134, and 92, Uniform Code ofMilitary Justice (UCMJ). See Enclosure 1.The accused is alleged to have engaged in misconduct relating to, inter alia, more than127 records, files, or cables and four databases, consisting of more than 720,700 records. See id.In response, multiple government agencies and departments immediately began measuring what,if any, harm or damage transpired because of the alleged misconduct. Some of those agenciesand departments prepared damage assessments to memorialize their findings, including theInformation Review Task Force and WikiLeaks Task Force. See Enclosure 2.On 16 February 2012, the defense submitted its Motion to Compel Discovery for thedamage assessments. See Enclosure 3. The defense argued that the damage assessments were1"at odds with the classification review conducted by the OCA" and that the substance "wouldundercut the testimony of each Original Classification Authorities (OCAs) for the chargeddocuments." See id. The defense concluded, both in its Motion to Compel Discovery and at thepublic motions hearing, that the damage assessments were material to the preparation of thedefense for both the merits and sentencing, citing articles indicating that the compromisedinformation "caused only limited damage." See id.On 23 March 2012, the military judge ordered the United States to produce, inter alia,any unclassified, discoverable information from those assessments and to "immediately begin theprocess of producing the damage assessments that are outside the possession, custody, or controlof military authorities." See Enclosure 2. The United States is in the process of producing thoseassessments, or portions thereof, ordered by the military judge.Producing a damage assessment generally requires the owner of the information toengage in a four-step process: first, verify the classification of the information; second,reevaluate the classification of the information; third, determine whether there arecountermeasures to minimize or eliminate the damage to national security; and fourth, preparethe actual damage assessment. See Enclosure 4.A damage assessment measures, "given the nature of the information and thecountermeasures, 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-term,multi-disciplinary analysis of the adverse effects of the compromise on systems, plans,operations, and/or intelligence." Id.WITNESSES/EVIDENCEThe United States does not intend to produce any witnesses for this motion. The UnitedStates requests that the Court consider the following enclosures to this Motion in making itsruling.1.2.Charge Sheet (enclosed in record)Ruling: Defense Motion to Compel Discovery, 23 March 2012 (Appellate ExhibitXXXVI)3.Defense Motion to Compel Discovery, 16 February 2012 (Appellate Exhibit VIII)4.Army Regulation 380-5, Paragraph 10-5, 29 September 2000LEGAL AUTHORITY AND ARGUMENTThe Court should preclude the defense from raising or eliciting any discussion, reference,or argument, to include the introduction of any documentary or testimonial evidence, relating toactual harm or damage from pretrial motions related to the merits portion of trial and from themerits portion of trial. Actual harm or damage is not relevant for the reasons proffered bydefense, to the charges facing the accused, or to any available defenses thereto. Even if relevant,the probative value of actual harm or damage is substantially outweighed by the danger of unfair2prejudice, confusion of the issues, or misleading the members, or by considerations of unduedelay, waste of time, or needless presentation of cumulative evidence. See M.R.E. 403.I.ACTUAL HARM OR DAMAGE IS NOT RELEVANT FOR THE REASONSPROFFERED BY DEFENSE.Evidence is relevant if it has "any tendency to make the existence of any fact that is ofconsequence to the determination of the action more probable or less probable than it would bewithout the evidence." Manual for Courts-Martial, United States, Mil. R. Evid. 401 (2008); seealso M.R.E. 401, analysis ("relevant evidence must involve a fact 'which is of consequence tothe determination of the action"').·The defense argued in its Motion to Compel Discovery that the damage assessments (theproffered authority which confirms whether actual harm or damage transpired) are relevant fortwo reasons. See Enclosure 3. First, the defense argued that the damage assessments ''wouldundercut the testimony of each Original Classification Authorities for the charged documents."See id. The defense appears to be conflating the issues of damage and potential impact onnational security. The two topics are distinct. Classification reviews are forward-thinking wherethe "original classification authority determines [whether] the unauthorized disclosure of theinformation reasonably could be expected to result in damage to national security." Exec. OrderNo. 13,526 § 1.2(a)(4). In contrast, damage assessments are prepared in hindsight to determinethe actual impact, if any, caused by the illegal activity. See United States v. Lonetree, 31 M.J.849, 868 (N-M C.M.R. 1990); see also Enclosure 4 (damage assessments "determine, given thenature of the information and countermeasures, if any, that will be employed, what the probableimpact of the compromise will be on our national security"). Thus, the use of a damageassessment (i.e., whether damage did occur) to impeach an OCA who prepared a classificationreview (i.e., whether damage could occur) would be improper.Second, the defense argued that the damage assessments were "at odds with theclassification review conducted by the OCA." See Enclosure 3. Such "non-justiciable"questions, namely challenges to the classification of compromised information for which aclassification review exists, are not relevant on the merits. See United States v. Huet-Vaughn, 43M.J. 105, 114 (C.A.A.F. 1995) (the legality of the decision to employ military forces in thePersian Gulf was "irrelevant because it pertained to a non-justiciable political question").Damage assessments may be relevant to impeach an OCA, but only if the OCA authored thedocument and only with respect to the assessment, not the classification review. See R.C.M.914.Information may be originally classified only if done so by an original classificationauthority. Exec. Order No. 13,526 § 1.1(a). Additionally, the information must be owned by,produced by or for, or under the control of the United States Government and must fall withinone or more of the categories of following categories: military plans, weapons systems, oroperations; foreign government information; intelligence activities (including covert action),intelligence sources or methods, or cryptology; foreign relations or foreign activities of theUnited States, including confidential sources; scientific, technological, or economic mattersrelating to the national security; United States Government programs for safeguarding nuclear3materials or facilities; vulnerabilities or capabilities of systems, installations, infrastructures,projects, plans, or protection services relating to the national security; or the development,production, or use of weapons of mass destruction. See Exec. Order No. 13,526 §§ 1.1(a),1.4(a)-(h). Finally, the OCA must determine "that the unauthorized disclosure of the informationreasonably could be expected to result in damage to the national security" and be able to identifYor describe the expected damage. See Exec. Order No. 13,526 § 1.1(a) (emphasis added).OCAs make their classification designations based on their authority under ExecutiveOrder 13526, Classified National Security Information (signed by President Barack Obama on29 December 2009) or for materials classified prior to 27 June 2010 on Executive Order 12958(signed by President Clinton on 17 April 1995 and amended by Executive Order 13292 signedby President Bush on 25 March 2003), as well as relevant classification guides.The authority to classifY information is limited to (1) the President and the VicePresident; (2) agency heads and officials designated by the President; and (3) United StatesGovernment officials delegated this authority pursuant to paragraph (c) of section 1.3(a). SeeExec. Order 13,526 § L3(a).The President delegated the authority to make classification determinations to heads ofselect agencies and it remains an Executive function. Department of Navy v. Egan, 484 U.S.518, 527 (1988) (''The authority to protect [classified] information falls on the President as headof the Executive Branch and as Commander in Chief"). The authority has been held in therelevant agencies because they have the expertise to review the information and determine thepotential impact the release of that information would have on the United States as well as whocan have access to that information. Id.; see, e.g., CIA v. Sims, 471 U.S. 159, 176 (1985) ("[A]court's decision whether an intelligence source will be harmed if his identity is revealed willoften require complex political, historical, and psychological judgments. . . . There is no reasonfor a potential intelligence source, whose welfare and safety may be at stake, to have greatconfidence in the ability of the judges to make those judgments correctly.").Courts largely agree that classification determinations, as products of the ExecutiveBranch, should be presumed proper and not subject to great judicial scrutiny. See Haig v. Agee,453 U.S. 280, 291 (1981) ("Matters intimately related to foreign policy and national security arerarely proper subjects for judicial intervention "); see also Harisiades v. Shaughnessy, 342 U.S.580 (1952) (such matters "are so exclusively entrusted to the political branches of government asto be largely immune from judicial inquiry or interference"). The decision of owner of theinformation must be given great deference. See Sims, 471 U.S. at 176 ("[t]he decisions of theDirector, who must of course be familiar with 'the whole picture,' as judges are not, are worthyo�great deference given the magnitude of the national security interests and potential risks atstake"). The Fourth Circuit provides such great deference to the classification determination thatcourts largely do not question the determination. See United States v. Smith, 750 F.2d 1215,1217 (4th Cir. 1984) ("[T]he government . . . may determine what information is classified. Adefendant cannot challenge this classification. A court cannot question it."), vacated andremanded on other grounds, 780 F.2d 1102 (4th Cir. 1985); see also United States v. Rosen, 487F. Supp. 2d 703, 717 (E.D. Va. 2007) ("Of course, classification decisions are for the ExecutiveBranch . . . .").4Even assuming, arguendo, the classification determination is subject to judicial scrutiny,the judicial review of this determination, much like that of a military judge's ruling, should bebased on what information was before the OCA at the time of making the determination. SeeUnited States v. Phillips, 52 M.J. 268, 272 (C.A.A.F. 2000) (a judge's ruling should be reviewedbased on what was available to the judge at the time of ruling). Any fact occurring after thisdetermination, to include whether any damage actually transpired, is irrelevant.II.ACTUAL HARM OR DAMAGE IS NOT RELEVANT TO THE CHARGESFACING THE ACCUSED.Actual harm or damage does not "make the existence of any fact that is of consequence tothe determination of the action more probable or less probable than it would be without theevidence." M.R.E. 401 (emphasis added). In Huet-Vaughn, the accused was charged withdesertion with intent to avoid hazardous duty. See Huet-Vaughn, 43 M.J. at 114. TheGovernment filed a motion to preliminarily exclude any evidence relating to the accused'smotive for her misconduct. The trial court precluded the defense from presenting evidencerelating to the accused's motive. The Court of Appeals for the Armed Forces (CAAF) agreedthat such evidence was irrelevant because, inter alia, it did not ''tend to make her [mens rea]more or less probable." Huet-Vaughn, 43 M.J. at 114 (the accused's motive was irrelevant to therequisite intent of the crime, thus not relevant); see also United States v. Moylan, 417 F.2d 1002,1004 (4th Cir. 1969) (motive not relevant to element of ''willful intent" in destroying boardrecords, ''but is rather an element proper for the judge's consideration in sentencing").The law does not require the United States to prove that actual harm or damage occurredin its case-in-chief, in light of the charges facing the accused. See Enclosure 1. Actual harm ordamage, including the absence thereof, is not an element, or relevant to any element, ofanyoffense for which the accused is charged. See id. The extent of actual harm or damage thatoccurred bears absolutely no relationship to whether the accused, in fact, committed the offenses.Charge I (Article 104, UCMJ) requires that the United States prove, inter alia, that theaccused did "knowingly give intelligence to the enemy, through indirect means." Id. Actualharm or damage, including the lack thereof, caused by the misconduct is neither an element norrelevant to an element of this charge. The extent of harm or damage that transpired bearsabsolutely no relationship to whether the accused, in fact, committed the offense.Specification 1 of Charge II (Article 134, UCMJ) requires that the United States prove,inter alia, that the accused did ''wrongfully and wantonly cause to be published on the internetintelligence belonging to the United States government, having knowledge that intelligencepublished on the internet is accessible to the enemy, such conduct being prejudicial to good orderand discipline in the armed forces and being of a nature to bring discredit upon the armedforces." Id. Actual harm or damage, including the lack thereof, caused by the misconduct isneither an element nor relevant to an element of this specification. The extent of harm ordamage that transpired bears absolutely no relationship to whether the accused, in fact,committed the offenses.5Specifications 2, 3, 5, 7, 9, 10, 11, and 15 of Charge II (Article 134, UCMJ) require thatthe United States prove, inter alia, that the accused had unauthorized possession of informationrelating to the national defense and, with reason to believe such information could be used to theinjury of the United States or to the advantage of any foreign nation, did ''willfully communicate,deliver, transmit, or cause to be communicated, delivered, or transmitted, the said information, toa person not entitled to receive it, in violation of 18 U.S.C. § 793(e), such conduct beingprejudicial to good order and discipline in the armed forces and being of a nature to bringdiscredit upon the armed forces." Id. Actual harm or damage, including the lack thereof: causedby the misconduct is neither an element nor relevant to an element of these specifications. TheCAAF in Diaz supports this position. See United States v. Diaz, 69 M.J. 127 (C.A.A.F. 2010).In Diaz, the accused was charged with violating, inter alia, 18 U.S.C.§ 793(e). TheGovernment filed a motion in limine to exclude evidence which, on appeal, the defense arguedcould have been offered to negate the alleged "heightened mens rea requirement" under 18U.S.C.§ 793. The Court rejected the defense's argument because the language of the statute,specifically that the accused "has reason to believe [that the information] could be used to theinjury of the United States" and do so with ''willfulness," did not arise "in the context of badintent, but in the conscious choice to communicate covered information." Id., at 132. Thisreasoning supported the Fourth Circuit's decision in Morison that the government must onlyprove ''that [the compromised information] was in fact potentially damaging." United States v.Morison, 844 F.2d 1057, 1086 (4th Cir. 1988) (emphasis added). In sum, the CAAF adopted theruling in Morison that, under 18 U.S.C.§ 793(e), the United States need only prove, inter alia,that the accused had reason to believe the information "could be used to the injury of the UnitedStates[,]" or, put another way, that the information was "potentially damaging" - not thatdamage actually transpired. See Diaz, 69 M.J. at 132.Any actual harm or damage, the existence of which may only be confirmed throughwitness testimony or other documentation, such as a damage assessment, is not relevant towhether select documents were classified (a fact captured through testimony relating to aclassification review) and/or relate to national defense information. The extent of harm ordamage that transpired bears absolutely no relationship to whether the accused, in fact,committed the offenses.Specifications 4, 6, 8, 12, and 16 of Charge II (Article 134, UCMJ) require that theUnited States prove, inter alia, that the accused did "steal, purloin, or knowingly convert to hisuse or the use of another, a record or thing of value of the United States or of a department oragency thereof...of a value of more than $1,000, in violation of 18 U.S.C. § 641, such conductbeing prejudicial to good order and discipline in the armed forces and being of a nature to bringdiscredit upon the armed forces." Id. Actual harm or damage, including the lack thereof: causedby the misconduct is neither an element nor relevant to an element of these specifications. Theextent of harm or damage that transpired bears absolutely no relationship to whether the accused,in fact, committed the offenses.Specifications 13 and 14 of Charge II (Article 134, UCMJ) require that the United Statesprove, inter alia, that the accused, "having knowingly exceeded authorized access on a SecretInternet Protocol Router Network computer, and by means of such conduct having obtained6information that has been determined by the United States government pursuant to an ExecutiveOrder or statute to require protection against unauthorized disclosure for reasons of nationaldefense or foreign relations," did ''willfully communicate, deliver, transmit, or cause to becommunicated, delivered, or transmitted the said information, to a person not entitled to receiveit, with reason to believe that such information so obtained could be used to the injury of theUnited States, or to the advantage of any foreign nation, in violation of 18 U.S.C.§ 1030(a)(l ),such conduct being prejudicial to good order and discipline in the armed forces and being of anature to bring discredit upon the armed forces." Id. Actual harm or damage, including the lackthereof: caused by the misconduct is neither an element nor relevant to an element of thesespecifications. For the reasons set forth above, any actual harm or damage, the existence ofwhich may only be confirmed in a damage assessment, is not relevant to whether selectdocuments were classified (a fact captured through testimony relating to a classification review)and/or relate to national defense information. The extent of harm or damage that transpired bearsabsolutely no relationship to whether the accused, in fact, committed the offenses.Specifications 1-5 of Charge III (Article 92, UCMJ) require that the United States prove,inter alia, that the accused did "violate a lawful general regulation." Id. The violations include"attempting to bypass network or information system security mechanisms," "addingunauthorized software to a SIPRNET computer," "using information system in a manner otherthan its intended purpose," and ''wrongfully storing classified information." Id. Actual harm ordamage, including the lack thereof: caused by the misconduct is neither an element nor relevantto an element of these specifications. The extent of harm or damage that transpired bearsabsolutely no relationship to whether the accused, in fact, committed the offenses.Any discussion, reference, or argument, to include the introduction of any documentaryor testimonial evidence, relating to actual harm or damage is not relevant to pretrial motionsrelated to the merits portion of trial and to the merits portion of trial. The Court should precludeany attempt by the defense to taint the proceeding with irrelevant issues during pretrial motionsfocused on the merits and during the merits portion that are only relevant, if at all, on sentencing.See R.C.M. 1001(b)(4); see also R.C.M. 1001(c).III.ACTUAL HARM OR DAMAGE IS NOT RELEVANT TO ANY DEFENSEAVAILABLE TO THE ACCUSED.Actual harm or damage does not "make the existence of any fact that is of consequence tothe determination ofthe action more probable or less probable than it would be without theevidence." M.R.E. 401 (emphasis added). The extent of harm or damage that subsequentlytranspired bears absolutely no relationship to any legal defense, or relevant to any conceivablelegal defense, available to the accused. See Huet-Vaughn, 43 M.J. at 115 (the accused's motivewas "in no way a defense to this [action] and therefore [] not relevant[,]" rejecting a necessitydefense and the so-called Nuremberg defense).7IN THE ALTERNATIVE, THE FACTORS UNDER MRE 403 SUBSTANTIALLYOUTWEIGH ANY PROBATIVE VALUE OF ACTUAL HARM OR DAMAGE ONPRETRIAL MOTIONS RELATED TO THE MERITS PORTION OF TRIAL ANDON THE MERITS PORTION OF TRIAL.IV.Even assuming, arguendo, actual harm or damage is relevant to the merits, such evidenceis substantially outweighed by those factors under MRE 403 and .!k!ry. See M.R.E. 403; seealso United States v. Berrv, 61 M.J. 91, 95 (C.A.A.F. 2005) (enumerating the factors under theMRE 403 balancing test). The military judge may exclude otherwise relevant evidence, if "itsprobative value is substantially outweighed by the danger of unfair prejudice, confusion of theissues, or misleading the members, or by considerations of undue delay, waste of time, orneedless presentation of cumulative evidence." M.R.E. 403.A. Permitting the Defense to Raise Unsupported Arguments Relating to Whether ActualHarm or Damage Transpired at Pretrial Motions Related to the Merits or on the Merits WillResult in Prejudice to the Integrity of the Proceeding.MRE 403 "addresses prejudice to the integrity of the trial process, not prejudice to aparticular party or witness." United States v. Collier, 67 M.J. 347, 354 (C.A.A.F. 2009). The''term 'unfair prejudice' in the context of MRE 403 'speaks to the capacity of some concededlyrelevant evidence to lure the fact finder into declaring guilt on a ground different from proofspecific to the offense charged."' United States v. Gaddis, 70 M.J. 248, 254 (C.A.A.F. 2011)(citing Old Chief v. United States, 519 U.S. 172, 180 (1997) (analyzing the purpose behindFederal Rule of Evidence 403, which is identical to MRE 403)); see also M.R.E. 403, analysis(MRE 403 "is taken without change from the Federal Rule of Evidence"). Evidence of actualharm or damage, including lack thereof: will create "an undue tendency to suggest decision on animproper basis" and lure the fact finder into declaring guilt or innocence, irrespective of theevidence supporting the charges. See Gaddis, 70 M.J. at 254 (citing Fed. R. Evid. 403, advisorycommittee's notes). Further, any argument by the defense that no damage occurred isinconsistent with what the United States has produced to the defense in discovery.Permitting the Defense to Raise Unsupported Arguments Relating to Whether ActualHarm or Damage Transpired at Pretrial Motions Related to the Merits or on the Merits WillResult in Prejudice the United States.RIf the Court permits the defense to raise or elicit unsupported arguments relating to actualharm or damage during pretrial motions practice focused on the merits and on the merits, theUnited States would be greatly prejudiced. See R.C.M. 906(b)(13), discussion (the purpose of amotion to make a preliminary ruling on the admissibility of evidence "is to avoid the prejudicewhich may result from bringing inadmissible matters to the attention of court members"). Actualharm or damage resulting from the compromised information is likely classified information.Assuming, arguendo, the defense continues its unsupported arguments that actual harm ordamage did not occur in open court, the United States is unable to rebut the defense's argumentwith classified information without satisfying the requirements for a closed session under RCM806, assuming the government entities who own the information authorize its use. See R.C.M.806; see also United States v. Grunden, 2 M.J. 116 (C.M.A. 1977). Furthermore, this would be a8new form of graymailing, whereby the government entities who own information relating toactual harm or damage would be forced to approve the use of this classified information for thesole purpose of rebutting the defense's argument, or otherwise have the prosecution be unable toanswer the defense's accusations in open or closed session by protecting the information fromdisclosure. For these reasons, the Court should exclude actual harm or damage under MRE 403.C. The Balancing Test under MRE 403 Confirms that the Court Should Exclude ActualHarm or Damage from Pretrial Motions Related to the Merits and to the Merits.MRE 403 requires the military judge to conduct a balancing test of: inter alia, thestrength of the proof of the fact, the probative weight of the evidence, the potential to present lessprejudicial evidence, the possible distraction of the fact-finder, the time needed to prove the fact,and the presence of intervening circumstances. See Berry, 61 M.J. at 95. Assuming, arguendo,the Court finds that actual harm or damage is relevant to any pretrial motions hearing focused onthe merits and on the merits, the balancing test confirms that the Court should exclude actualharm or damage from any pretrial motions hearing focused on the merits and the merits.The Court may consider the strength of the proof of fact in conducting its balancing testunder MRE 403. See�' 61 M.J. at 95. Damage assessments confirm whether, and to whatextent, actual harm or damage may have occurred. However, a damage assessment is a purelyhearsay statement or compilation of statements, thus likely inadmissible on its face. The strengthof the proof of fact is weak, absent additional evidence to overcome hearsay. Being a classifieddocument, the government entity that owns the information would be required to decide whetherto assert the privilege under MRE 505. If the privilege is sought, a classification review wouldbe required and the proceedings under MRE 505 would be initiated. Irrespective of whether theprivilege is sought or asserted, the document is likely inadmissible on its face as pure hearsay,which may require the offering of additional evidence to overcome hearsay. Lastly, a closedhearing under RCM 806 would be required to discuss whether actual harm or damage transpired.See R.C.M. 806; see also Grunden, 2 M.J. at 116. Being a classified document withadmissibility concerns, the time needed to prove whether actual harril or damage transpiredduring any pretrial motions hearing focused on the merits and during the merits may stalematethe proceeding.The Court should also consider whether the information would operate to distract the factfmder, rather than assist in the decision-making process. See�' 61 M.J. at 95. Whether the'accused s misconduct resulted in actual harm or damage would greatly distract the fact-finderfrom determining whether the accused committed the alleged offenses and, instead, lure thepanel members to make a decision based purely on damage, not misconduct. Actual harm ordamage may be a legitimate consideration of the panel on sentencing, but not on the merits.9CONCLUSIONThe United States respectfully requests that the Court preclude the defense from raisingor eliciting any discussion, reference, or argument, to include the introduction of anydocumentary or testimonial evidence, relating to actual harm or damage from pretrial motionsrelated to the merits portion of trial and from the merits portion of trial.J. HUNTER WHYTECPT, JAAssistant Trial CounselI certify that I served or caused to be served a true copy of the above onCoombs, Civilian Defense Counsel, via electronic mail, on 29 March 2012.� ·\�-]. HUNTER WHYTECPT, JAAssistant Trial Counsel10Mr.David E.

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