Title: Draft Instructions, 26 Nov 12

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATES DRAFTINSTRUCTIONS:v. MANNING, Bradley E., PFC U.S. Army, Headquarters and Headquarters Company, U.S. Army Garrison, Joint Base Myer- DATED: 26 November 2012Henderson Hall, Fort Myer, VA 22211The Government and Defense have proposed instructions for the elements and de?nitionsfor the charged offenses. The Court has considered the proposals of both parties and has arrivedat the following dra? instructions. Some of the proposed instructions are standard instructionsfrom the Department of the Army Pamphlet, 27-9, Military Judge?s Benchbook with portions ofthe instructions in brackets. Bracketed portions will be instructed upon if raised by the evidence.These dra? instructions may be modi?ed by the Court as necessary from the presentation of theevidence. Affirmative defense, evidentiary, and procedural instructions will be drafted asappropriate during the trial.CHARGE I: Aiding the EnemyIn the speci?cation of Charge I, the accused is charged with the offense of Aiding the Enemy byGiving Intelligence to the Enemy, in violation of Article 104, UCMJ. In order to ?nd the accused guilty of this offense, you must be convinced by legal and competent evidence beyondreasonable doubt: 1) That at or near Contingency Operating Station Hammer, Iraq, between on or about 1November 2009 and on or about 27 May 2010, the accused, without proper authority, knowinglygave intelligence information to certain persons, namely: al Qaeda, al Qaeda in the ArabianPeninsula, and an entity speci?ed in Bates Number 00410660 through 00410664 (classi?edentity);(2) That the accused did so by indirect means, to wit: transmitting certain intelligence,speci?ed in a separate classi?ed document to the enemy through the WikiLeaks website;(3) That al Qaeda, al Qaeda in the Arabian Peninsula, and Bates Number 00410660 through00410664 (classi?ed entity) was an enemy; and(4) That this intelligence information was true, at least in part.?Intelligence? means any helpful information, given to and received by the enemy, which istrue, at least in part?Enemy? includes (not only) organized opposing forces in time of war, (but also any otherhostile body that our forces may be opposing) (such as a rebellious mob or a band of renegades)(and includes civilians as well as members of military organizations). (?Enemy? is not restrictedto the enemy government or its armed forces. All the citizens of one belligerent are enemies ofthe govemment and the citizens of the other.)?Indirect means? means that the accused knowingly gave the intelligence to the enemy through aparty, an intermediary, or in some other indirect way.?Knowingly? requires actual knowledge by the accused that by giving the intelligence to the party or intermediary or in some other indirect way, that he was actually giving intelligence tothe enemy through this indirect means. This offense requires that the accused had a general evilintent in that the accused had to know he was dealing, directly or indirectly, with an enemy of theUnited States. ?Knowingly? means to act voluntarily or deliberately. A person cannot violateArticle 104 by committing an act inadvertently, accidentally, or negligently that has the effect ofaiding the enemy.The Court declines to give the instructions requested by the Defense regarding actual knowledgeand indirect means because they add-a speci?c intent element to Article 104 (Giving Intelligenceto the Enemy) that is not required by the statute. The Court?s ?general evil intent? andknowledge that the accused was dealing with the enemy language is taken from US. v. Olson, 20C.M.R. 461 (C.M.A. 1955) and US. v. Batchelor, 22 C.M.R 44 (C.M.A. 1956). The Court reserves its decision on whether to instruct on mistake of fact as requested by theDefense until the close of the evidence to determine whether a mistake of fact defense is raisedby the evidence.CHARGE ll, Specification I: Wrongfully and Wantonly Causing Publication ofIntelligence Belonging to the United States on the Internet Knowing theIntelligence is Accessible to the Enemy to the Prejudice of Good Order andDiscipline in the Armed Forces or of a Nature to Bring Discredit Upon the ArmedForcesIn speci?cation 1 of Charge II, the accused is charged with the offense of Wrongfully andWantonly Causing Publication of Intelligence Belonging to the United States on the InternetKnowing the Intelligence is Accessible to the Enemy to the Prejudice of Good Order andDiscipline and Being of a Nature to Bring Discredit Upon the Armed Forces, in violation ofArticle 134, UCMJ. In order to ?nd the accused guilty of this offense, you must be convinced bylegal and competent evidence beyond reasonable doubt:(1) That at or near Contingency Station Hammer, Iraq, between on or about 1 November2009 and on or about 27 May 2010, the accused wrongfully and Wantonly caused to be publishedon the internet, intelligence belonging to the United States Government, having knowledge thatIntelligence published on the internet is accessible to the enemy; and; (2) the circumstances, the conduct of the accused was to the prejudice of goodorder and discipline. in the armed forces or was of a nature to bring discredit upon the armedforces. - The de?nitions of ?intelligence? and ?enemy? I read for you for the speci?cation of Charge Ialso applies to this offense. Would any member like me to repeat those definitions to you??Wrongful? means without legal justification or excuse.?Wanton? includes ?recklessness? but may connote willfulness, or a disregard of probableconsequences and thus describes a more aggravated offense. ?Reckless? conduct is conduct thatexhibits a culpable disregard of foreseeable consequences to others from the act or omissioninvolved. The accused need not intentionally cause a resulting harm. The ultimate question iswhether under all the circumstances, the accused?s conduct was of that heedless nature that madeit actually or imminently dangerous to others. ?Knowledge? requires that accused acted with actually knowledge that intelligence published onthe internet was accessible to the enemy. You may not ?nd the accused guilty of this offense ifyou find that the accused should have known, but did not actually know this fact. Knowledge,like any other fact, may be proved by circumstantial evidence, including the" accused?s training,experience, and military occupational specialty.. ?Caused to be published? means the action of the accused was a proximate cause of thepublication even if it is not the only cause, as long as it is a direct or contributing cause that playsa material role, meaning an important role, in bringing about the publication. An act is not aproximate cause if some other unforeseeable, independent, intervening event, which did notinvolve the accused?s conduct, was the only cause that played any important part in bringingabout the publication.?Conduct prejudicial to good order and discipline? is conduct which causes a reasonably directand obvious injury to good order and discipline. ?Service discrediting conduct? is conductwhich tends to harm the reputation of the service or lower it in public esteem.With respect to ?prejudice to good order and discipline,? the law recognizes that almost anyirregular or improper act on the part of a service member could be regarded as prejudicial insome indirect or remote sense; however, only those acts in which the prejudice is reasonablydirect and palpable is punishable under this Article.With respect to ?service discrediting,? the law recognizes that almost any irregular or improperact on the part of a service member could be regarded as service discrediting in some indirect orremote sense; however, only those acts which would have a tendency to bring the service intodisrepute or which tend to lower it in public esteem are punishable under this Article.Under some circumstances, the accused?s conduct may not be prejudicial to good order anddiscipline but, nonetheless, may be service discrediting, as I have explained those terms to you.Likewise, depending on the circumstances, the accused?s conduct can be prejudicial to goodorder and discipline but not be service discrediting. Findings:The Court ?nds that a de?nition of ?caused to be published? will be helpful to the members.The ?caused to be instruction? stated above is taken from the proximate causeinstruction currently in ith5?" Military Judge?s Benchbook at 5-19. The proposed Defenseinstruction adds elements to the offense charged.The Court tailored the de?nition of knowledge proposed by the Defense. The de?nition requiresthe fact ?nder to ?nd beyond a reasonable doubt that the accused act with actual knowledge andnot constructive knowledge.Clauses 1 and 2 of Article 134 are alternate theories of proving that offense. The members donot have to ?nd both that the conduct was prejudicial togood order and discipline and wasservice discrediting. So long as the fact ?nder ?nds at least one theory beyond a reasonable .doubt, the fact-?nder can ?nd the accused guilty. The Court will instruct accordingly. If a?ndings worksheet is necessary, the parties may request the Court to tailor the ?ndingsworksheet such that the fact ?nder be given the option to except Clause 1 or Clause 2 from thespeci?cation.CHARGE ll, Speci?cations 4, 6, 8, 12, and 16: Stealing, Purloining, o} KnowinglyConverting Records Belonging to the United States of a Value in Excess of$1,000.00.In speci?cations Charge II, the accused is charged with the offense ofStealing, Purloining, or Knowingly Converting Records Belonging to the United States, of aValue in Excess of $1,000.00, in violation of Title 18 United States Code, Section 641 andArticle 134, UCMJ. In order to ?nd the accused guilty of this offense, you must be convinced bylegal and competent evidence beyond reasonable doubt that: (1) A or near Contingency Operating Station Hammer, Iraq,SPECIFICATION 4: between on or about 31 December 2009 and on or about 5 January 2010;the accused did steal, purloin, or knowingly convert records to his own use or someone else?suse, to wit: the Combined Infonnation Data Network Exchange Iraq database containing morethan 380,000 records;SPECIFICATION 6: between on or about 31 December 2009 and on or about 8? January 2010;the accused did steal, purloin, or knowingly convert records to his own use or someone else?suse, to wit: the Combined Information Network Exchange Afghanistan database containing morethan 90,000 records; ISPECIFICATION 8: on or about 8 March 2010; the accused did steal, purloin, or knowinglyconvert records to his own use or someone else?s use, to wit: a United States Southern Commanddatabase;SPECIFICATION 12: between on or about 28 March 2010 and onor about 27 May 2010; theaccused did steal, purloin, or knowingly convert records to his own use or someone else?s use, towit: the Department of State Net-Centric Diplomacy database containing more than 250,000records; 0 SPECIFICATION 16: between on or about 11 May 2010 and on or about 27 May 2010; theaccused did steal, purloin, or knowingly convert records to his own use or someone else?s use, towit: the United States Forces Iraq Microsoft Outlook/SharePoint Exchange Server globaladdress list;(Elements Common to all speci?cations)(2) the records belonged to the United States or a department or agency, thereof;(3) the accused acted knowingly and willfully and with the intent to deprive thegovernment of the use and bene?t of the records; and .(4) the records were of a value greater than $1,000;(5) at the time 18 U.S.C. Section 641 was in existence on the dates alleged in thespeci?cation;(6) under the circumstances, the conduct of the accused was to the prejudice of goodorder and discipline in the armed forces or was of a nature to bring discredit upon the armedforces.The same de?nitions for prejudice to good order and discipline in the armed forces and of anature to bring discredit upon the armed forces that I read for you for speci?cation of Charge 11also apply to this offense. To ?steal? means to wrongfully take money or property belonging to the United Statesgovernment with the intent to deprive the owner of the use and bene?t temporarily orpermanently. ?Wrongful? means without legal justi?cation or excuse.To ?purloin? is to steal with the element of stealth, that is, to take by stealth the property of theUnited States government with intent to deprive the owner of the use and bene?t of the propertytemporarily or permanently.A ?taking? doesn?t have to be any particular type of movement or carrying away. Any appreciable and intentional change in the property?s location is a taking, even if the property isn?tremoved from the owner?s premises. The accused did not have to know the United Statesgovernment owned the property at the time of the taking.A ?conversion? may be consurmnated without any intent to permanently deprive the UnitedStates of the use and bene?t of the property and without any wrongful taking, where the initial possession by the converter was entirely" lawful. Conversion may in'c'lud,e "the. misiise.or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of propertyplaced in one?s custody for limited use. Not all misuse of government property is a_conversion.The misuse must seriously and substantially interfere with the United States government?sproperty rights. - ?Value? means the greater of (1) the face, par, or market value,_or (2) the price, whetherWholesale or retail. A ?thing of value? can be tangible or intangible property. Governmentinfonnation, although intangible is a species of property and a thing of value.The market value of stolen goods may be determined by reference to a price that is commandedin the market place whether that market place is legal or illegal. In other words, market value ismeasured by the price a willing buyer will pay a willing seller. (The illegal market place is alsoknown as a ?thieves marke price? means the cost of producing or creating the speci?cproperty allegedly stolen, purloined, or knowingly converted.An act is done ?willfully? if it is done voluntarily and intentionally with the speci?c intent to dosomething the law forbids, that is, with a bad purpose to disobey or disregard the law.An act is done ?knowingly? if it is done voluntarily and intentionally and not because of mistakeor accident or other innocent reason.I have taken judicial notice that Title 18, United States Code Section 641 was in existence on thedates alleged in speci?cations Charge II.LESSER INCLUDED OFFENSE: Stealing, Purloining, or Knowingly ConvertingRecords Belonging to the United States, of a Value of $1,000.00 or less, in violation of Title18 United States Code, Section 641 and Article 134, UCMJ.The court is further advised that the offense of Stealing, Purloining, or Knowingly ConvertingRecords Belonging to the United States, of a Value of $1000.00 or less is a lesser includedoffense of the offense set forth in speci?cations Charge II. When you vote,if you ?nd the accused not guilty of the offense charged, that is Stealing, Purloining, orKnowingly Converting Records Belonging to the United States, of a Value in Excess of$1000.00, then you should consider the lesser included offense of Stealing, Purloining, orKnowingly Converting Records Belonging to the United States, of a Value of $1000.00 or less,also in violation of Title 18 U.S. Code Section 641 and Article 134, UCMJ. In order to ?nd theaccused guilty of this lesser offense, you must be convinced by legal and competent evidencebeyond reasonable doubt all of the elements as set forth in speci?cations 4, 5, 8, 12, and 16except the value element. The value element of the lesser included offense requires that theGovernment prove the property in each speci?cation was of a value of $1000.00 or less.The offense of Stealing, Purloining, or Knowingly Converting Records Belonging to the UnitedStates, of a Value of $1000.00 or less is a lesser included offense of the offense of Stealing,Purloining, or Knowingly Converting Records Belonging to the United States, of a Value inExcess of $1000.00, as set forth in Speci?cations Charge II. If you ?nd theaccused not guiltyof the charged offense in speci?cations Charge II, youshould then consider the lesser included offense of Stealing, Purloining, or Knowingly Converting Records Belonging to the United States, of a Value of $1000.00 or less. The offenseand the lesser included offense differ in that the charged offense requires as an essential elementthat you be satis?ed beyond a reasonable doubt that the property Stolen, Purloined, orKnowingly Converted was of a value in excess of $1000.00. The lesser included offense doesnot include that element but..does require as an essential element that you be satis?ed beyondreasonable doubt that the property Stolen, Purloined, or Knowingly Converted was of a value of$1000.00 or less.Findings:The Court arrived at the proposed instructions by considering the instructions requested by theparties and any responses to include enclosures and cited authority, pattern jury instructions for18 U.S. c. Section 641 for the 10?: and 11?? Circuits, the Federal Jury Instructionsprovided to ?ue Court from the Defense from the book ?Federal Jury Instructions?, the FederalDistrict Court Jury Instructions in United States v. Morrison, and the additional researchprovided by the Defense regarding whether ?knowing conversion? requires substantialinterference with the government?s use of the property and ?thieves market?. The de?nitions of?steal?, ?purloin?, and ?knowingly convert? are taken from US. v. Morrisette, 342 U.S. 246(1952). The de?nitions of ?knowing? and ?will?il? are taken ?om the District Court?sinstructions in States v. Morrison, and from US. v. May, 625 F.2d 186, 190 (8th Cir. 1980)quoting O?MaIley v. United States, 378 F.2d 401, 404 (1st Cir.) cert. denied, 389 U.S. 1008(1967) and United States v. Lee, 589 F.2d 980 (9th Cir. 1979). The Court will give a ?thievesmarket? instruction if evidence is presented on the value_ of. the .rec,ords alleged to be stolen,purloined, or knowingly converted by theaccused in a thieves market.CHARGE ll, Specifications 2, 3, 5, 7, 9, 10,11, and 15: Transmitting Defenseinformation.In speci?cations Charge II, the accused is charged with the offenseof Transmitting Defense Information, in violation of Title 18, United States Code Section 793(e)and Article 134, UCMJ. In order to ?nd the accused guilty of this offense, you must beconvinced by legal and competent evidence beyond reasonable doubt:? (1) That at or near Contingency Operating Station Hammer, Iraq,SPECIFICATION 2: between on or about 15 February 2010 and on or about 5 April2010; the accused, without authorization, had possession of, access to, or control over: a video?le named ?12 JUL 07 CZ ENGAGEMENT ZONE 30 GC Anyone.avi?;SPECIFICATION 3: between on or about 22 March 2010 and on or about 26 March2010; the accused, without authorization, had possession of, access to, or control over: morethan one classi?ed memorandum producedtby a United States government intelligence agency; SPECIFICATION 5: on or about 31 December 2009 and on or about 9 February 2010;the accused, without authorization, had possession of, access to, or control over: more than 20classi?ed records from the Combined Information Data Network Exchange? Iraq database;SPECIFICATION 7: between 'on,_Q_r about 31 December 2009 and on or about 9February 2010; the accused, without authorization, had possession of, access to, or control over:more than 20 classi?ed records from the "Combined Information Network Exchange Afghanistandatabase; I 9: between on or about 8 March 2010 and on or about 27 May 2010;the accused, without authorization, had possession of, access to, or control over: more than 3classi?ed records from a United States Southern Command database;SPECIFICATION 10: between on or about 11 April 2010 and on or about 27 May2010; the accused, without authorization, had possession of, access to, or control over: morethan 5 classi?ed records relating to a military operation in Farah Province, Afghanistan occurringon or about 4 May 2009;SPECIFICATION 11: between on or about 1 November 2009 and on or about 8January 2010; the accused, without authorization, had possession of, access to, or control over:_ a?le named PAX.zip? containing a video named SPECIFICATION 15: between on or about 15 February 2010 and on or about 15March 2010; the accused, without authorization, had possession of, access to, or control over: aclassi?ed record produced by a United States Army intelligence organization, dated 18 March2008;(Elements Common to all speci?cations)(2) the classi?ed records, classi?ed memorandum, videos, and ?les described for eachspeci?cation in element 1) was information related to the national defense;(3) the accused had reason to believe the classi?ed records, classi?ed memorandum,videos, and ?les described for each speci?cation in element 1) could be used to the injury of theUnited States or to the advantage of any foreign nation;(4) the accused willfully communicated, delivered, or transmitted or caused to becommunicated, delivered, or transmitted the above material to any person not entitled to receiveit;(5) at the time 18 U.S.C. Section 793(e) was in existence on the dates alleged in thespeci?cation; (6) under the circumstances, the conduct of the accused was to the prejudice of goodorder and discipline in the armed forces or was of a nature to bring discredit upon the armed"forces. A A The same de?nitions" forlprejudice to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces that I read for you for speci?cation of Charge IIalso apply to this offense. Would any member like me to repeat those de?ninitions?An act is done ?willfully? if it is done voluntarily and intentionally with the speci?c intent to dosomething the law forbids-, that is, with a bad purpose to disobey or disregard the law.?Possession? means the act of having or holding property or the detention of property in one?spower or command. Possession may mean actual physical possession or constructive possession.?Constructive possession? means having the ability to exercise dominion or control over an item.Possession inherently includes the power or authority to preclude control by others. It ispossible, however, for more than one person to possess an item simultaneously, as when severalpeople share control of an item.A person has unauthorized possession of documents, photographs, videos, or computer ?leswhen he possesses such information under circumstances or in a location which is contrary tolaw or regulation for the conditions of his employment.The term ?national defense? is a broad term which refers to the United States military and navalestablishments and to all related activities of national preparedness.To prove that documents, writings, photographs, videos, or information relate to the nationaldefense, there are two things that the government must prove:(I) that the disclosure of the material would be potentially damaging to the United Statesor might be useful to an enemy of the United States; and(2) that the material is closely held by the United States government, in that the relevantgovernment agency has sought to keep the information from the public generally andhas not made the documents, photographs, videos, or computer ?les available to thegeneral public. Where the information has been made public bythe United Statesgovernment and is found in sources lawfully available to the general public, it doesnot relate to the national defense. Similarly, where the sources of information arelawfully available to the public, and the United States government has made no.effortto guard such information, the information itself does not relate to the nationaldefense.In determining whether material is ?closely held,? you may consider whether it has beenclassi?ed by appropriate authorities and whether it remained classi?ed on the date or datespertinent to the charge sheet. You may consider whether the information was classi?ed or not indetermining whether the information relates to the national defense. However, the fact that theinformation is designated as classi?ed does not, in and of itself, demonstrate that the infonnationrelates to the national defense. ii - I 7?Reason to believe? means that the accused knew facts from which he concluded or reasonablyshould have concluded that could be used for the prohibited purposes. Inconsidering whether the accused hadreason to believe that the information could be used to theinjury of the United States or to the advantage of a foreign country, you may consider the natureof the information involved. You need not determine that the accused had reason to believe thatthe information would be used against the United States, only that it could be so used.Additionally, the likelihood of the information being used to the injury of the United States or tothe advantage of any foreign nation must not be remote, hypothetical, speculative, far-fetched, orfanciful. The Government is not requifed to prove that the information obtained by the accusedwas in fact used to the injury of the United States or to the advantage of any foreign nation.The government does not have to prove that the accused had reason to believe that his act couldboth injure the United States and be to the advantageof a foreign country the statute reads inthe alternative. Also, the country to whose advantage the information could be used need notnecessarily be an enemy of the United States. The statute does not distinguish between friendand enemy.In determining whether the person who received the information was entitled to have it, you mayconsider all the evidence introduced at trial, including any evidence concerning the classi?cationstatus of the information, any evidence relating to law and regulations goveming theclassi?cation and declassi?cation of national security information, its handling, use, anddistribution, as well as any evidence relating to regulations governing the handling, use, and?distribution of information obtained from classi?ed systems.I have taken judicial notice that Title 18, United States Code Section 793(e) was in existence onthe dates alleged in speci?cations Charge 11.Findings:The Court arrived at the proposed instructions for speci?cations Charge II by considering the instructions requested by the parties and any responses to includeenclosures and cited authority, pattern jury instructions for 18 U.S. C. Section 793(e) for the and 11"? Circuits, the Federal Jury Instructions provided to the Court from theDefense from the book ?Federal Jury Instructions?, the Federal District Court Jury Instructions inUnited States v. Morrison and United States v. Regan.CHARGE II, Speci?cations 13 and 14: Fraud and Related Activity With ComputersIn speci?cation 13 and 14 of Charge 11, the accused is charged with the offense of Fraud andRelated Activity in Connection with Computers, in violation of Title 18, United States Code,Section 1030(a)(1) and Article 134, UCMJ. In order to ?nd the accused guilty of this offense,you must be convinced by legal and competent evidence beyond reasonable doubt:(1) That at or near Contingency Operating Station Hammer, Iraq,10 SPECIFICATION on or about 28 March 2010 and on or about 27 May2010; SPECIFICATION l4l:' between on or about 15 February 2010 and on or about February 2010;the accused knowingly accessed a computer exceeding authorized access on a Secret InternetProtocol Router Network.(2) the accused obtained information that has been determined by the United StatesGovernment by Executive order or statute to require protection against unauthorized disclosurefor reasons of national defense or foreign relations; to wit:SPECIFICATION 13: more than 75 classi?ed United States Department of Statecables;SPECIFICATION 14: a classi?ed Department of State cable titled ?Reykjavik?l3?;(3) the accused had reason to believe theinformation obtained could be used to theinjury of the United States or to the advantage of any foreign nation;(4) the accused communicated, delivered, transmitted, or caused to be communicated,delivered or transmitted the information to a person not entitled to receive it. (5) the accused acted will?illy; and A(6) under the circumstances, the conduct of the accused was to the prejudice of goodorder and discipline in the armed forces or was of a nature to bring discredit upon the armedforces.The same de?nitions for prejudice to good order and discipline in the armed forces, and of anature to bring discredit upon the armed forces that I read for you for speci?cation 1 of Charge IIalso apply to this offense. - An act is done ?willfully? if it is done voluntarily and intentionally with the specific intent to dosomething the law forbids, that is, with a bad purpose to disobey or disregard the law.An act is done ?knowingly? if it is done voluntarily and intentionally and not because of mistakeor accident or other innocent reason. The term ?computer? means an electronic, magnetic, optical, electrochemical, or other highspeed data processing device performing logical, arithmetic, or storage ?rnctions, and includesany data storage facility or communications facility directly related to or operating inconjunction with such device, but such term does not include an automated typewriterortypesetter, a portable hand-held calculator, or other similar device.ll The term ?exceeds authorized access? means that the accused accessed a computer withauthorization and used such access to obtain or alter information in the computer that theAccused is not entitled so to obtain or alter. It is the knowing use of the computer by exceedingauthorized access which is being proscribed, not the unauthorized possession of, access to, orcontrol over the protected infonnation itself.?Reason to believe? means that the accused knew facts from which he concluded or reasonablyshould have concluded that the information could be used for the prohibited purposes. Inconsidering whether the accused had reason to believe that the information could be used to theinjury of the United States or to the advantage of a foreign country, you may consider the natured?the information involved. You need not determine that the accused had reason to believe thattlief i?nformatio_n would be used against the United States, only that it could be so used.. .Additionally, ?the likelihood of the information being used to the injury of the United States or tothe advantage ?of any foreign nation must not be too remote, hypothetical, speculative, far-fetched, or fanciful. The Government is not required to prove that the information obtained bythe accused was in fact used to the injury of the United States or to the advantage of any foreignnation.The government does not have to prove that the accused had reason to believe that his act couldboth injure the United States and be to the advantage of a foreign country the statute reads inthe alternative. Also, the country to whose advantage the information could be used need notnecessarily be an enemy of the United States. The statute does not distinguish between friendand enemy.In determining whether the person who received the information was entitled to have it, you mayconsider all the evidence introduced at trial, including any evidence concerning the classi?cationstatus of the information, any evidence relating to law and regulations governing theclassi?cation and declassi?cation of national security information, its handling, use, anddistribution, as well as any evidence relating to regulations governing the handling, use, anddistribution of information obtained ?'om classi?ed systems.The term ?person? means any individual, ?rm, corporation education institution, ?nancialinstitution, governmental entity, or legal or other entity.I have taken judicial notice that Title 18, United States Code Section l030(a)(l) was in existenceon the date alleged in the speci?cation.Findings:The Court arrived at the proposed instructions for speci?cations 13 and 14 of Charge II byconsidering the instructions requested by the parties and any responses to include enclosures andcited authority, pattern jury instructions for 18 U.S. C. Section? the 8th, and11"? Circuits, the Federal Jury Instructions provided to the Court ?'om the Defense from the book?Federal Jury Instructions?. The de?nition for ?exceeds authorized access? is taken from 18U.S.C. Section l030(a)(6) and the 1996 legislative history. The de?nitions of ?knowing?,12 General of Article 92_, UCMJ. In order to ?nd the accused guilty of thisoffense, you must be convinced by legal and competent evidence beyond reasonable doubt:the accused violated this lawful general regulation by wrongfully storing classi?ed information.?will?1l?., and =?3?7reasori?to believe?? are the same as those instructed upon for the speci?cations inviolation of Section CHARGE Violation of a Lawful General Regulation: In speci?cations -1-5 of the accused is charged with the offense of Violating a Lawful(1) That there ?was in existence a certain lawful general regulation in the following terms:Speci?cation 1: paragraph Army Regulation 25-2, dated 24 October 2007;Speci?cation 2: paragraph Army Regulation 25-2, dated 24 October 2007;Speci?cation 3: paragraph Army Regulation 25-2, dated 24 October 2007;Speci?cation 4: paragraph Army Regulation 25-2, dated 24 October 2007;Speci?cation 5: paragraph 7-4, Army Regulation 380-5, dated 29 September 2000;(2) That the accused had a duty to obey such regulation; and(3) That at or near Contingency Operating Station Hammer, Iraq:-Specification 1: between -on or about 1 November 2009 and on or about 8 March 2010the accused violated this lawful general regulation by attempting to bypass network orinformation security system mechanisms.Speci?cation 2: between on or about 11 February 1010 and on or about 3 April 2010 theaccused violated this lawful general regulation by adding unauthorized software to a SecretInternet Protocol Router Network computer.Speci?cation'3: on or about 4 May 2010the accused violated this law?il generalregulation by adding unauthorized software to a Secret Internet Protocol Router Networkcomputer.Speci?cation 4: between on or about 11 May 2010 and on or about 27 May 2010 theaccused violated this lawful general regulation by using an information system in a manner otherthan its intended purpose.Speci?cation 5: between on or about 1 November 2009 and on or about 27 May 2010NOTE 1: Proof of existence of order or regulation. The existence ofthe order or regulation must be proven or judicial notice taken.NOTE 2: Lawfulness of order or regulation. The lawfulness of theorder or regulation is not a separate element of the offense. Thus,13 the issue of lawfu_lness is determined by the MJ and is not submittedto the members. See United States v. New. 55 MJ 95 (CAAF 2001);. Uhi?teg__?tates v. Deisher. 61 MJ 313 (CAAF 2005). To be lawful, theorder or regulation must relate to speci?c military duty and be one that the noncommissionedlwarrantlpetty officer was authorized togive the. accused. .The order- or regulation must require the accused- to do or stop doing a. particular thing either at once or at a future-time. An order or-regulation is lawful i.f reasonably? necessary todiscipline, and usefulness of themembers of a commandand is di'r?e?ctly connected with themaintenance of good order in the services. (The three precedingsentences may be modi?edand used by the MJ during a providenceinquiry to de?ne ?_?lawfulness? for the accused.) When the MJdetermines that, based on? the facts, the order or regulation waslawful, the MJ should advise the members as follows:I As a matter of law, the (order) (regulation) in this case, as described in the speci?cation, if in factthere was such (an order) (a regulation), was a lawful (order) (regulation).NOTE Order or requlat_ion determined to be gnlawful. An order orregulation is illegal if, for. example, it is unrelated to military duty, itssole purpose is to accomplish some private end, it is arbitrary andunreasonable, andlor it is given for the sole purpose of increasing athe punishment for an offense which it is expected the accused maycommit. lfthe MJ determines that, based on the facts, the order wasnot lawful, the MJ should dismiss the affected speci?cation, and themembers shouldbe so advised.NOTE 4: pispgte as to whether order was general. If there is afactual dispute whether the order was general, that dispute must beresolved by the mem bers in connection with their determination ofguilt or innocence. The following. instruction may be given:General (orders) (regulations) are those (orders) (regulations) which are generally applicable toan armed force and which are properly published by (the President) (the Secretary of (Defense)(Homeland Security) (or) (a military department).General (orders) (regulations) also include those (orders) (regulations) which are generallyapplicable to the command of the officer issuing them throughout the command or a particularsubdivision thereof and which are issued by (an officer having general court-martial jurisdiction)(or) (a general or ?ag o?icer in command) (or) (a commander superior to one of these).You may ?nd the accused guilty of violating a general (order) (regulation) only if you are satis?ed beyond a reasonable doubt that the (order) (regulation) was general.NOTE 5: Deleted. . NOTE 6: Order issued by previous commander. If appropriate, thefollowing additional instruction may be given: . A general (order) (regulation) issued by a commander with authority to do so retains its characteras a general .(order) (regulation) when another of?cer takes command, until it expires by its own_t_erms or is rescinded by separate action. NOTE 7: Orders or regu|at_ions containinq conditions. When analleged general order or -reggyula-tion proh_ibits a certain act or acts?except under certain conditions,? ?except in the course ofofficial duty?), and the issue is raised by the evidence, the burden isupon the prosecution to prove that the accused is not within theterms of the exception. In such a case, the MJ must inform themembers of the speci?c exception(s) when listing the elements ofthe offense. Additionally, under present law an instructionsubstantially as follows must be provided:When a general (order) (regulation) prohibits certain act(s), except under certain conditions,then the burden is on the prosecution to establish by legal and competent evidence beyond areasonable doubt that the accused does not come within the terms of the exception(s).Conclusion. The Court?s Proposed Draft Instructions substantially cover the relevantand legally correct instructions proposed by the parties. These draft instructions may bemodi?ed by the Court as necessary from the presentation of the evidence. Affirmative defense,evidentiary, and procedural instructions will be drafted as appropriate during the trial.DENISE R. LINDCOL, JAChief Judge, 1st Judicial Circuit15

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