Title: Def Req Instruction: Spec 13 & 14 of Ch II, 22 Jun 12

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATES DEFENSE REQUESTEDv. INSTRUCTION:SPECIFICATIONS 13 AND 14 OFMANNING, Bradley E., PFC CHARGE IIU.S. Anny, Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer-Henderson Hall, DATED: 22 June 2012Fort Myer, VA 2221 I 1. The defense requests the following instructions to be given to the panel regardingSpeci?cations 13 and I4 ofCharge ll:'Court InstructionsIn Speci?cation 13 and Speci?cation 14 of Charge II, the accused is charged with the offense ofExceeding Authorized Access to a Computer, a violation of I8 U.S.C. Section lO30(a)(l). To?nd the accused guilty of this offense with regards to Speci?cation 13, you must be convincedby legal and competent evidence beyond a reasonable doubt of the following ?ve (5) elements:(I) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on orabout 28 March 2010 and on or about 27 May 2010, accessed a computer with authorization, butexceeded his authority in accessing the information in question on a Secret Internet ProtocolRouter network computer;(2) That the accused knowingly exceeded his authorized access;(3) That the accused, by means of such conduct, obtained infonnation protected againstunauthorized disclosure for reasons of national defense or foreign relations, or any restricted datato wit: more than 75 classi?ed United States Department of State cables, with the intent to usesuch infonnation against the interests of the United States;(4) That the accused willfully communicated (or delivered or transmitted or caused to becommunicated, delivered or transmitted or attempted to communicate, deliver or transmit) theinformation obtained to a person not entitled to receive it (or willfully retained that informationand failed to deliver it to the of?cer or employee of the United States entitled to receive it); and?This motion does not propose instructions on any potential lesser-included offense (LIO) for the Section lO30(a)(l)violations alleged in Speci?cations 13 and 14 of Charge ll because the Government has not yet identi?ed the act thatwould constitute the L10. However, regardless of the act identi?ed by the Government, the Defense submits thatany LIO ofthese offenses would be akin to a violation ofArtiele 92, UCMJ, and would accordingly carry amaximum penalty of two years imprisonment.Emarrgg U195)Pnge__I_ofP8ae(s) 5(5) That, under the circumstances, the conduct of the accused was to the prejudice of good orderand discipline in the armed forces and was ofa nature to bring discredit upon the armed forces.Authority: 18 U.S.C. 1030(a)(1); United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (enbanc); United States v. Alyenikov, 737 F.Supp.2d 173 (S.D.N.Y. 2010); Military JudgesBenchbook, DA Pam 27-9; Eighth Circuit: Eighth Circuit Model Criminal Jury Instruction6.l8.1030A. Ninth Circuit: Ninth Circuit Model Criminal Jury Instructions 8.95. EleventhCircuit: Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction Similarly, to find the accused guilty ofthis offense with regards to Specification 14, you must beconvinced by legal and competent evidence beyond a reasonable doubt of the following five (5)elements:(1) That the accused did, at or near Contingency Operating Station Hammer, Iraq, between on orabout 15 February 2010 and on or about 18 February 2010, accessed a computer withauthorization, but exceeded his authority in accessing the information in question on a SecretInternet Protocol Router network computer;(2) That the accused knowingly exceeded his authorized access;(3) That the accused, by means of such conduct, obtained information protected againstunauthorized disclosure for reasons of national defense or foreign relations, or any restricted datato wit: a classified Department of State cable titled ?Reykjavik 13,? with the intent to use suchinformation against the interests of the United States;(4) That the accused willfully communicated (or delivered or transmitted or caused to becommunicated, delivered or transmitted or attempted to communicate, deliver or transmit) theinformation obtained to a person not entitled to receive it (or willfully retained that informationand failed to deliver it to the of?cer or employee of the United States entitled to receive it); and(5) That, under the circumstances, the conduct of the accused was to the prejudice of good orderand discipline in the armed forces and was of a nature to bring discredit upon the armed forces.Authority: 18 U.S.C. 1030(a)(1); United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (enbanc); United States v. Alyenikov, 737 F.Supp.2d 173 (S.D.N.Y. 2010); Military JudgesBenchbook, DA Pam 27-9; Eighth Circuit: Eighth Circuit Model Criminal Jury Instruction6.I8.1030A. Ninth Circuit: Ninth Circuit Model Criminal Jury Instructions 8.95. EleventhCircuit: Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 42.1.Court De?nitions(1) Exceeding Authorized Access to a ComputerThe first element that the government must prove beyond a reasonable doubt is that the accusedaccessed a computer with authorization, but exceeded his authority in accessing the informationin question. IIn this case, the government charges that the accused, while authorized to access the computer,exceeded his authority in accessing the information in question. Under the statute, this requiresthat the government prove beyond a reasonable doubt that the accused had access to thecomputer, and used that access to obtain or alter infonnation in the computer that the accusedwas not entitled to obtain or alter. In other words, the term ?exceeds authorized access? appliesto ?inside hackers?, individuals whose initial access to a computer is authorized but who accessunauthorized information or files.?This element is not satisfied by mere misuse or misappropriation of information that the accusedwas authorized to access. Nor does it apply where the accused accesses information that he wasauthorized to access, but in an unauthorized manner. Rather, this element is only satisfied wherethe accused is authorized to access the computer and obtains or alters information on thatcomputer that the accused is not entitled to obtain or alter.If you find that the accused had authorization to access the computer and to obtain theinfonnation, you must find the accused not guilty.Authority: 18 U.S.C. lO30(e)(6); H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 22 (1984);United States v. Nasal, 676 F.3d 854 (9th Cir. 2012) (en banc); United States v. Alyenikov, 737F.Supp.2d 173 (S.D.N.Y. 2010).(2) Knowing ConductThe second element that the government must prove beyond a reasonable doubt is that theaccused acted knowingly in exceeding his authorized access to the computer.?Knowingly? means to act voluntarily or deliberately, rather than mistakenly or inadvertently.The question of whether a person acted knowingly is a question of fact for you to detennine.The question involves the accused?s state ofmind.As a practical matter, then, in order to sustain the charges against the accused, the governmentmust establish beyond a reasonable doubt that the accused knew that he was exceedingauthorized access in accessing the information.If you find that the accused did not know he was acting without authorization (or exceedingauthorization) or that the accused actually believed he was acting with authorization (or withinhis authorization), then you must find the accused not guilty.Authority: 18 U.S.C. 1030(a)(1); H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 20 (1984);United States v. Nasal, 676 F.3d 854 (9th Cir. 2012) (en banc); United States v. Alyenikov, 737F.Supp.2d 173 (S.D.N.Y. 2010); Eighth Circuit: Eighth Circuit Model Criminal Jury Instruction6.l8.1030A. Ninth Circuit: Ninth Circuit Model Criminal Jury Instructions 8.95. EleventhCircuit: Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 42.1.(3) Obtaining Protected or Restricted InformationThe third element that the government must prove beyond a reasonable doubt is that the accusedobtained infonnation protected against unauthorized disclosure for reasons of national defense orforeign relations or any restricted data, with the intent to use such information against theinterests of the United States. The United States may detennine that information requires protection against unauthorizeddisclosure for reasons of national defense or foreign relations either by Executive Order or bystatute.The government must also establish beyond a reasonable doubt that, at the time he obtained theprotected or restricted information, the accused had reason to believe that the infonnation couldbe used against the interests of the United States or to the advantage of a foreign nation.If you ?nd that the information allegedly obtained by the accused was not protected againstdisclosure for reasons of national defense or foreign relations and was not restricted data, or thatthe accused did not have a reason to believe that the infonnation could be used interests of the United States or to the advantage of a foreign nation, you must find the accusednot guilty.Authority: 18 U.S.C. l030(a)(l); H.R. Rep. No. 98-894, 98th Cong., 2d Sess. 21 Eighth Circuit: Eighth Circuit Model Criminal Jury Instruction Ninth Circuit:Ninth Circuit Model Criminal Jury Instructions 8.95. Eleventh Circuit: Eleventh Circuit PatternCriminal Jury Instructions, Offense Instruction 42.1.(4) Willfullv Communicated of Improperly Obtaiged InformationThe fourth element that the government must prove beyond a reasonable doubt is that theaccused willfully communicated (or delivered or transmitted or caused to be communicated,delivered or transmitted or attempted to communicate, deliver, transmit) the protected orrestricted infonnation obtained to any person [or entity] not entitled to receive it (or will?illyretained that information and failed to deliver it to the officer or employee of the United Statesentitled to receive it).To act willfully means to act knowingly and purposefully, with an intent to do something that thelaw forbids, that is to say, with a bad purpose either to disobey or disregard the law. There is norequirement that the accused acted for financial gain.If you find that the accused did not willfully communicate (or deliver or transmit or cause orattempt to communicate, deliver, or transmit) the protected or restricted infonnation to a personor entity not entitled to receive it, you must find the accused not guilty.Authority: 18 U.S.C. l030(a)(l); Eighth Circuit: Eighth Circuit Model Criminal JuryInstruction 6.l8.l030A. Ninth Circuit: Ninth Circuit Model Criminal Jury Instructions 8.95.Eleventh Circuit: Eleventh Circuit Pattern Criminal Jury Instructions, Offense Instruction 42.1.(5) Preiudicial to Good Order and Discipline and Service Discrediting ConductThe final element of the offense that the government must establish beyond a reasonable doubt isthat the accused?s conduct was prejudicial to good order and discipline and of a nature to bringdiscredit upon the armed forces.?Conduct prejudicial to good order and discipline? is conduct which causes a reasonable directand obvious injury to good order and discipline. ?Service discrediting conduct? is conductwhich tends to hann the reputation of the service or lower it in public esteem.If you ?nd that the accused?s conduct was not prejudicial to good order and discipline and/or wasnot of a nature to bring discredit upon the armed forces, you must ?nd the accused not guilty.Authority: Military Judges? Benchbook notes under Article 1342. The Defense respectfully requests the above instructions and de?nitions be given by theCourt.Respectfully submitted,6/DAVID EDWARD COOMBSCivilian Defense Counsel

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