Title: Gov Supp to Motion to Preclude Actual Harm or Damage from Pretrial Motions Practice and Merits, 21 Jun 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 Supplement toProsecution Motionfor Appropriate Reliefto Preclude Actual Harm or Damagefrom the Pretrial Motions Practiceand the Merits Portion of the Trial21 June 2012RELIEF SOUGHTThe Government respectfully requests that the Court preclude the defense from raising oreliciting any discussion, reference, or argument, to include the introduction of any documentaryor testimonial evidence, relating to actual harm or damage, or lack thereof, from pretrial motionsrelated to the merits portion of trial and from the merits portion of trial. The Government doesnot dispute whether actual harm or damage, or lack thereof, is relevant on sentencing.This filing is in response to the Court's request for a brief discussing whether later eventsare relevant to a prior determination of what could occur. The Court requested that the briefinclude relevant case law. In particular, the Court requested the parties submit case lawdiscussing assault with respect to injuries and causation. The Government submits that both theassault hypothetical raised by the Defense at oral argument and case law conclusivelydemonstrate that after-the-fact evidence of damage is irrelevant and should therefore beprecluded.BURDEN OF PERSUA SION AND BURDEN OF PROOFAs the moving party, the prosecution bears the burden of persuasion and must prove anyfactual issues necessary to decide this motion by a preponderance of the evidence. See Manualfor Courts-Martial (MCM), United States, Rule for Court-Martial (RCM) 905(c) (2012).FACT SThe Government relies on the facts it stated in its Motion for Appropriate Relief toPreclude Actual Harm or Damage from the Pretrial Motions Practice and the Merits Portion ofthe Trial (Prosecution Motion).WITNE S SE S/EVIDENCEThe Government does not request any witnesses be produced for this response. TheGovernment respectfully requests that the Court consider the Prosecution Motion.LEGAL AUTHORITY AND ARGUMENTAfter-the-fact evidence is irrelevant to prior events. A determination of "what couldhappen" is not affected by what actually happens in the future. Any damage or harm thatoccurred happened after commission of the charged acts, thereby making all damage irrelevant.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 . . . than it would be without theevidence." United States v. Tanner, 63 M.J. 445, 449 (C.A.A.F. 2006) quoting Military Rule ofEvidence (MRE) 401. The military judge may exclude irrelevant evidence. See United States v.Israel, 60 M.J. 485, 489 (C.A.A.F. 2005). After-the-fact evidence is irrelevant to a person'sintent and state of mind at an earlier time. See Gulbranson v. Duluth, Missabe & Iron Range Ry.Co., 921 F.2d 139, 142 (9th Cir. 1990). Actual harm or damage, including any lack thereof, isirrelevant because the Government need not prove actual damage. Additionally, actual harm ordamage, or lack thereof, is irrelevant to the accused's intent because it occurred after commissionof the charged acts. Finally, actual harm or damage is irrelevant to any proof of whether thecompromised information was entitled to protection or could injure the United States, includingthose specifications charging violations of§§ 793(e) and 1030(a)(l), and Articles 104 and 134,because any harm or its absence occurred after the charged acts. Accordingly, the Governmentrequests that the Prosecution Motion be granted.I.AFTER-THE-FACT DAMAGE IS IRRELEVANT ON THE MERIT SAfter-the-fact evidence does not establish potential danger. See Whitley v. Albers, 475U. S. 312, 323 (determining that infliction of pain does not amount to cruel and unusualpunishment because it may appear in retrospect that the degree of force authorized wasunnecessary when determining whether use of force during prison riot was wanton andunnecessary). "An expert's after-the-fact opinion that danger was not 'imminent' in no wayestablishes that there was no danger, or that a conclusion by the officers that it was imminentwould have been wholly unreasonable." !d. (emphasis in original). Furthermore, an after-the­fact assessment is irrelevant because the facts are examined as they appeared to the accused atthe time of the charged criminal act. See Fennel v. Gilstrap, 559 F.3d 1212, 1218 (11th Cir.2009) (declining to consider the conclusions of an investigation conducted after the use of forceagainst a pretrial detainee).Additional case law supports the Government's argument that after-the-fact evidence isirrelevant to a person's intent and state of mind at an earlier time. See Gulbranson at 921 F.2d at142 (deciding that railroad's awareness of problem in 1985 not relevant to its knowledge of theproblem in 1984) citing Tallarico v. Trans World Airlines, Inc., 881 F.2d 566, 572 (8th Cir.1989). In particular, after-the-fact evidence is not probative to state of mind for personal injurycases. See, e.g., Arnold v. Riddell, Inc., 882 F, Supp.979, 993 (D. Kan. 1995) (determining videomade six years after injury is irrelevant to prove warnings available in product liability case);Sea/over v. Carey Canada, 793 F. Supp. 569, 579 (M.D. Pa. 1992) (excluding evidence thatmanufacturer had knowledge of health risks posed by its product in 1961-62 where plaintiff hadto prove manufacturer had knowledge prior to 1960). Similarly, after-the-fact opinions aredisfavored in discrimination cases; courts permit "pretext" to attack after-the-fact justifications2for employee termination. See, e.g., See Santiago-Ramos V Centennial P.R. Wireless Corp., 217F.3d 46 (1st Cir. 2000) citing Mariani Giron v. Acevedo Ruiz, 834 F.2d 238, 239 (1st Cir.l987).II.DAMAGE I S IRRELEVANT BECAUSE IT OCCURRED AFTER THE ACCUSEDFORMED HIS INTENTA. Actual Harm or Damage Is Irrelevant to the Accused's IntentUnlike any other in the criminal code, the Espionage Act sanctions prior restraint toprevent substantive evils that, in Justice Oliver Wendell Holmes's words, "create a clear andpresent danger." See United States v. Schenck, 249 U. S. 47, 52 (1919); see also Harold Edgar &Benno C. Schmidt, Jr., The Espionage Statutes and Publication of Defense Information, 73Colum. L. Rev. 929, 941 (1973) (describing the criminalization of information gathering). TheEspionage Act protects the secrecy necessary to conduct certain governmental functions,including defense and diplomacy. See New York Times Co. v. United States, 403 U. S. 713, 728(1971) ( Stewart, J., concurring) ("[I]t is elementary that the successful conduct of internationaldiplomacy and the maintenance of an effective national defense require both confidentiality andsecrecy."). Under the Espionage Act, criminal defendants have been convicted in undercoveroperations and for conspiracy charges where no actual harm to the national security everoccurred. See, e.g., United States v. Miller, 874 F.2d 1255 (9th Cir. 1989).To theGovernment's knowledge, no court has ever permitted evidence pertaining to actual damage orinjury during a trial, nor charged a jury with requiring the Government to establish actual harmor damage. Accordingly, the Government does not need to prove actual harm or damage tosatisfy the requirements of§ 793(e) nor§ 1030(a)(l). See Gorin v. United States, 312 U. S. 19, 29(1941); Charge Sheet.Instead, the Government need only prove that the documents could be used to the injury1of the United States, not that the charged documents would be used to the injury of the UnitedStates or did injure the United States? See United States v. Allen, 31 M.J. 572, 628 (N.M.C.M.R.1990). To prove the requisite mens rea, the Government must demonstrate that the accused wasaware or should have been aware of the potential for the information to be used to the injury of3the United States. See United States v. Diaz, 69 M.J. 127, 133-34; 133 n. 4 (C.A.A.F 2010).Additionally, an altruistic or innocent purpose does not negate culpability. See Allen, 31 M.J. at628 ("[T]he espionage act implies that information shall not be given even to an ally regardless1§§ 793(e) and 1030(a)( l ) apply to documents broadly defined and information. Throughout this Supplement, theGovernment refers to information and documents interchangeably, including the charged documents. Thedistinction is moot given the CAAF's ruling in Diaz, which held that information improperly disseminated under §793(e) was not subject to a heightened bad faith scienter, thereby eliminating the distinction between "documents"and "information" created in United StatesStatesv.v.Rosen, 445 F. Supp.2d 602, 626 (E.D. Va 2006). See generally UnitedSteele, 2011 WL 414992 at *4 (A. Ct. Crim. App. 3 February 2011) citing United Statesv.Diaz, 69 M.J.127, 132-33 (C.A.A.F 2010).2For the sake of brevity, this Supplement will refer "to the injury of the United States" in place of "to the injury ofthe United States or advantage of any foreign nation."3The phrase "which information the possessor has reason to believe could be used to the injury of the United Statesor to the advantage of any foreign nation" only modifies "information relating to the national defense." SeeEnclosure at 7 (discussing the scope of § 793(d) in the legislative history).3of how innocent, or commendable a purpose the person disclosing the information had.") citingUnited States v. Heine, 151 F.2d 813, 815 (2d Cir. 1945). Furthermore, any current lack ofdamage is neither indicative nor predictive of harm that could arise in the future. To be relevant,the Defense's theory requires adding "relations back" to national security law.Contrary to the Government's arguments in the Prosecution Motion, the Defense claimsthat an alleged absence of harm is relevant to three offenses:§ 793(e),§ 1030(a)(1), and Article134, UCMJ. See Defense Response to Prosecution Motion to Preclude Reference to ActualHarm or Damage (Defense Response)§ II(a). Stating its relevance argument, the Defense basesits contention on the intent element of the three offenses, namely, under§§ 793(e) and1030(a)(1) that the accused had reason to believe the compromised information could be used tothe injury of the United States, and, under Article 134, that the accused acted "wantonly." SeeDefense Response�� 13-14.However, the Defense argument fails because it seeks to proveintent with facts occurring after the accused formed his intent. Because Congress amended§1030(a)(1) in 1996 to track more closely the language of§ 793(e), the following analysisdiscussing§ 793(e) applies equally to§ 1030(a)(1). SeeS. Rep. No. 104-357 at 6 (1996).The relevant intent is the accused's state of mind at the precise moment he committed thecharged acts. See Holloway v. United States, 526 U.S. 1, 8; U.S. Dept. of Army. Pam. 27-9,Military Judges' Benchbook, (1 January 2010) (5-11-1) (Benchbook); see also Benchbook (5-112). In Holloway, the Supreme Court decided whether a carjacking statute required a specific andunconditional intent. See id. at 6-7. In relevant part, the statute read, "Whoever, with intent tocause death or serious bodily harm takes a motor vehicle . . . from the person or presence ofanother by force and violence or by intimidation, or attempts to do so, shall . . . . " Id. at 3 n. 1citing 18 U.S.C. § 2119 (1994 & Supp. III) (emphasis in original omitted). The Supreme Courtdetermined that the mens rea of "the intent to cause death or seriously bodily harm" modified theact of taking. Id. at 8 (considering the placement of the mens rea with respect to the actus reus).In particular, the Court found that the statute directed the factfinder's attention to the accused'sstate of mind at the precise moment he demanded control of the car. Id. Thus, the intent ismeasured at the time the criminal act is committed.Here, under§§ 793(e) and 1030(a)(1), the intent is measured at the precise moment whenthe compromised documents were communicated, delivered, transmitted, or caused to be thesame. See id. at 6-7; see also Brown v. Gardner, 513 U.S. 114, 118 (1994) ("[T]he meaning ofstatutory language, plain or not, depends on context." ). In pertinent part,§ 793(e) states, "whichinformation the possessor has reason to believe." The intent is possessed at the moment theaccused willfully transmits, communicates, or delivers the compromised documents under aplain reading of the statute. Similarly,§ 1030(a)(1), in relevant part, states that "with reason tobelieve." Again, the intent is possessed at the time of transmission, communication, or deliveryof the compromised documents. This analysis applies equally to the "wantonly" intent chargedunder Article 134. The degree of carelessness of wanton acts is determined at the time of the act;subsequent events do not alter it. See Holloway, supra; Benchbook (5-11-1, 5-11-2). Theaccused's reason to believe whether the documents could be used to the injury to the UnitedStates, therefore, is considered at the moment of communication, transmission, or delivery of thedocuments. Later harm, or lack thereof, has no bearing on the mens rea or its termination, andany later harm does not make the mens rea more or less probable. See MRE 401.4Because the facts alleged by the defense were unknown to the accused at the moment heformed his intent, they could not have affected his intent and are therefore irrelevant. A§ 793violation under the Espionage Act does not require establishing that the accused acted with thebad faith of believing that the United States would be harmed. See Miller, 874 F.2d at 1278 n.15. The after-the fact damage is also irrelevant to a mistake of fact defense for both specific andgeneral intent crimes. As with intent in Holloway, the focus is on the precise moment theaccused commits the charged acts. See Benchbook (5-11-1) ("If the accused at the time of theoffense was (ignorant of the fact) (under the mistaken belief) then he cannot be found guilty ofthe offense(s) . . . . ") (emphasis added); Benchbook (5-11-2) ("[I]f you are convinced beyond areasonable that, at the time of the charged offense(s), the accused's (ignorance) (mistake) wasunreasonable, the defense of (ignorance) (mistake) does not exist.") (emphasis added).Consequently, the irrelevant evidence must be precluded.B. Actual Harm Is Irrelevant to Proof that the Information Could Cause Injury to theUnited StatesFactors, including classification of the documents and expert testimony of the potentialdamage from disclosure of the documents to unauthorized persons, determine whether theinformation could be used to the injury of the United States. See Gorin, 312 U. S. at 29; Diaz, 69M.J. at 133. Proof of classification constitutes evidence that the compromised information could4be used to the injury of the United States. See Diaz, 69 M.J. at 133 (" Surely classification maydemonstrate that an accused has reason to believe that the information relates to national defenseand could cause harm to the United States."). Documents are classified if their unauthorizeddisclosure reasonably could be expected to result in damage to the national security. See Exec.Order No. 13526§ 1.1(4); Gorin, 312 U. S. at 28 (determining that the term "national defense" asused in a predecessor to§ 793 is a broad concept); United Statesv.Morison, 844 F.2d 1057,1071, 74 (4th Cir. 1988) (noting that national defense information is information that ispotentially damaging to the United States). Additionally,§ 1030(a)( l ) protects information thathas been explicitly determined by the United States to be information that could used to theinjury of the United States. § 18 U. S.C. § 1030(a)(1) (2012).Determinations of whether the document could be expected to cause damage to thenational security are based on the information and circumstances known at the time of theclassification decision. See United Statesv.Abu-Jihaad, 630 F.3d 102, 112 (2d Cir. 2010) citingUnited States v. Abu-Jihaad, 600 F. Supp.2d 362, 377 (D. Conn. 2009) (noting that Navyoperational instructions should be classified until after deployment or a visit had been approvedby the host government). However, a document need not be classified to be protected underespionage laws; national defense information also receives protection under the Espionage Act.See United States v. Squillacote, 221 F.3d 542, 575-76 (4th Cir. 2000). National defenseinformation (NDI) is a term of "broad connotations, referring to the military and navalestablishments and the related activities of national preparedness." See Gorin, 312, U. S. at 28.Under the Espionage Act, unclassified NDI is protected from disclosure if it is closely held bythe Government. See Squillacote, 221 F.3d at 575-76, 578 (noting that a document containing4Under military law, classification is not sufficient by itself nor is it the only means by which information can beshown to be the kind that could be used to the injury of the United States. See Diaz, 69 M.J. at 133.5NDI "will not be considered available to the public (and therefore no longer [NDI]) until theofficial information in that document is lawfully available.") (emphasis in original).Accordingly, information that could be used to the injury of the United States includesunclassified NDI. See Gorin; Squillacote, supra.The Defense relies on two additional, albeit related, arguments to justify inclusion ofactual harm on the merits by attacking classification. First, the Defense contends that it "isentitled to argue that, by virtue of his expertise and training, [the accused] knew whichdocuments and information could be used to the injury of the United States or to the advantageof any foreign nation." Defense Response� 15. The Defense is entitled to invoke a mistake offact defense; however, the defense is limited to the circumstances at the time of the mistake.Second, the Defense states that the alleged "absence of damage is relevant for the impeachmentof Government witnesses who claim that the leaks 'could' cause damage." !d. at� 19.TheEspionage Act criminalizes the act of transmitting or retaining national defense informationwithout consideration of any damage that might ensue. See Gorin; Squillacote, supra. Under theDefense's theory, the accused could escape criminal responsibility for disclosure of nationaldefense information because the Government was not able to quantify with precision anydamage that may accrue in the future despite no statutory requirement to prove any harm or5damage.The Defense's first argument fails because the accused does not make the determinationwhether compromise of the information could injure the United States with respect toclassification. Cf United Statesv.Zettl, 889 F.2d 51, 53 (4th Cir. 1989) ("Even those withauthority to see and handle the documents have no right without authority to convey thedocuments to others, whether or not the other party may have a need to know the informationtherein. Any other holding would make the possessor of any classified document the ultimateauthority in deciding whether or not the document should be transferred to someone else. This,however, is a function of the government and its system of accountability for classifieddocuments, not of someone who just happens to be in possession thereof, whether or not herightfully possesses the document."). Classification authority, including the authority todeclassify information, belongs to an original classification authority (OCA) and his successors.See Exec. Order No. 13526§ 3.1(b). Thus, the accused lacked the authority to makeclassification decisions because he never occupied a position as an OCA. See id.Moreover, allowing the accused, who was not an OCA at the time of the charged acts, toattack a classification decision with his personal opinion based on after-the-fact evidence6undermines the entire classification system and should not be permitted. See Scarbeck v. United5Also under the Defense's theory, the Government could prove its case with this irrelevant aggravating evidence,which is only appropriate for sentencing. See United Statesv.Gogas, 58 M.J. 96, 98 (C.A.A.F. 2003).Correspondingly, motive evidence is irrelevant to intent and inadmissible. See United States v. Huet-Vaughn, 43M.J. 105, 113-114 (C.A.A.F. 1995). In particular, allowing the accused to present irrelevant evidence of motivewould render the law moot, thereby allowing the accused to be judged not by the rule of law but by the end whichhis means were designed to serve. See United States6v.Cullen, 454 F.2d 386, 392.The Government intends to file a motion at a later date to preclude challenges to propriety of classification. InScarbeck, which involved the criminal prosecution of United States foreign service officer for communicatingclassified information to representatives of a foreign government, the Court of Appeals for the District of Columbia6States, 317 F.2d 546, 559-60 (D.C. Cir. 1962) (noting the absurdity of hypothetically allowing agovernment employee to challenge the classification decision of a superior in court) cert. denied,374 U.S. 856 (1963). By alleging expertise, the Defense inappropriately attempts to justify theaccused's criminal acts with irrelevant after-the-fact evidence. Any harm or its absence, whichoccurred after commission of the charged acts, had no bearing on the accused's intent at the timeof committing the charged acts. See § II(a) supra. If some evidence raises an issue of mistake offact where a knowledge of a particular fact is necessary to establish an offense, a mistake of factdefense must be instructed upon. See Benchbook (5-11). However, the mistake must beconsidered as it existed at the time of the offense and not with respect to after-the-fact evidence.See Benchbook (5-11-1).Likewise, the alleged absence of harm is irrelevant to any impeachment of an OCA. At aminimum, courts grant great deference to classification decisions. See, e. g., United Statesv.El­Mezain, 664 F.3d 467, 523 (5th Cir. 2011) (declining to "second guess" the Government'sdetermination of what is properly classified). Classification decisions contemplate only the datacurrently available for determinations of which information directly affects the national defense,thereby requiring classification protection. See United Statesv.Dedeyan, 584 F.2d 36, 41 (4thCir. 1978) (discussing the necessity of classifying information as it currently bears on thenational defense). Any speculation regarding ex post damage is irrelevant to classificationdecisions made ex ante. Events occurring after classification do not transform a properclassification decision into an improper one, nor has the Defense cited any authority to supportits claim. Accordingly, harm and its absence are irrelevant to impeachment and should not bepermitted.After the Government, on direct, questions witnesses, including OCAs or senior officialson national defense information, which can include classification, the Defense can attack theprocess of classification. Also, the Defense may attack a witness's credibility in accordance withthe Military Rules of Evidence, including for truthfulness and bias. See MRE 608. However, theGovernment does not need to prove actual harm and therefore will not raise the issue on direct7examination. Accordingly, any impeachment involving actual harm would be outside the scopeand excludable. See MRE 611(b).held that, under 50 U.S.C. § 783, the government was not required to establish the propriety of a classificationdetermination, deciding that the executive's determination is not reviewable as part of the criminal prosecution. SeeScarbeck, 317 F.2d at 557-60. Describing a challenge to the propriety of classification as absurd, the Court stated,"But certainly an employee of the State Department could not bring an action in the courts to remove the label'Secret' attached by his superiors to a particular document, simply because he was being blackmailed and wished tobe able to offer the document to his blackmailers without criminal consequences. Merely to describe such alitigation is enough to show its absurdity. Yet appellant is urging that after such an employee has obtained anddelivered a classified document to an agent of a foreign power, knowing the document to be classified, he canpresent proof that his superior officer had no justification for classifying the document, and can obtain an instructionfrom the court to the jury that one of their duties is to determine whether the document, admittedly classified, was ofsuch a nature that the superior was justified in classifying it. The trial of the employee would be converted into atrial of the superior." /d. at 559-60.7This statement is premised on the exclusion of actual harm in accordance with this motion.7III.DEFEN SE' S GRIEVOU S BODILY HARM EXAMPLE DEMONSTRATE SIRRELEVANCE OF ACTUAL HARM OR DAMAGEDuring the Article 39a on 26 April 2012, the Defense raised grievous bodily harm as anexample to demonstrate the relevance of damage reports. The Defense stated, "To use anexample, if we were to charge someone with grievous bodily harm-say, your act could causegrievous bodily harm. The medical report would obviously be relevant to that." Audio Record,Article 39a at 11: 25: 24--11: 25: 37 (26 April 2012). Under Article 128, UCMJ, the elements forassault with a dangerous weapon or other means or force likely to produce death or grievousbodily harm are:i) That the accused attempted to do, offered to do, or did bodily harm to a certainperson;ii) That the accused did so with a certain weapon, means, or force;iii) That the attempt, offer, or bodily harm was done with unlawful force orviolence; andiv) That the weapon, means, or force was used in a manner likely to producedeath or grievous bodily harmMCM pt. IV,� 54.b.(4)(b); United States v. Bean, 62 M.J. 264, 266 (C.A.A.F. 2005). TheGovernment does not dispute that a medical report could be relevant where the specificationalleged actual bodily harm. However, in the case at bar, the Government does not need to proveharm or damage because neither harm nor damage has been alleged; neither is an element to anyspecification. See Gorin 312 U.S. at 29; Charge Sheet. Establishing the creation of the risk ofsubstantial bodily injury does not require an actual injury. See United States v. Rivera, 54 M.J.489, 492 (C.A.A.F. 2001). Moreover, any comparison of assault criminal law to a specificationunder the Espionage Act is inapposite because the Espionage Act is unique in criminal law. SeeSchenck, Edgar & Schmidt, supra. Nevertheless, actual harm or damage, or the lack thereof, isirrelevant under the Defense's hypothetical as applied to this case because harm is not anelement.CONCLUSIONFor the foregoing reasons, the Government respectfully requests that the Court grant thismotion and preclude the defense from raising or eliciting any discussion, reference, or argument,to include the introduction of any documentary or testimonial evidence, relating to actual harmor damage, or lack thereof, from pretrial motions related to the merits portion of trial and fromthe merits portion of trial.ALEXANDER S. VON ELTENCPT, JAAssistant Trial Counsel8A SHDEN FEINMAJ, JATrial CounselEnclosureI certify that I served or caused to be served a true copy of the above on Mr. DavidCoombs, Civilian Defense Counsel via electronic mail, on 21 June 2012.~A SHDEN FEINMAJ, JATrial Counsel9

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