Title: Def Resp to Gov MIL to Exclude Motive Evidence, 30 Nov 12

Release Date: 2014-03-20

Text: UNITED STATES OF AMERICADEFENSE RESPONSE TOGOVERNMENT MOTION IN LIMINETO EXCLUDE MOTIVE EVIDENCEV.MANNING, Bradley E., PFCU.S. Army,HHC, USA Joint Base Myer-Henderson HallFort Myer, Virginia 2221130 November 2012RELIEF SOUGHTThe defense respectfully requests that the Court deny the Govemment?s 16November Motion in Limine to Exclude Motive Evidence. The evidence described asmotive evidence is actually admissible considering all of the relevant facts and law.OF PERSQSION AND BURDEN OF PROOFThe Government, as the moving party, bears the burden of proof as well as theburden of persuasion. See RCM 905.FACTSThe Defense stipulates to the facts described by the Government in its motion.The defense does not request the production of witnesses or evidence in order toresolve any legal or factual issues with respect to this motion.AUTHORITY AND ARGUMENTThe Defense does intend to call Adrian Lamo to discuss in detail his ?chat?conversations with PFC Manning. We anticipate that examination will include adiscussion of PFC Manning's motivation during the charged time period. See AE 344.Likewise, the Defense intends to call Zachary Antolak to discuss those mattersdescribed on pages 3 and 4 of our Motion to Compel the Production of Vt?tnesses,dated 23 November 2012. (See AE 408.)Motive evidence is relevant in this case for two separate reasons: (1) the elementsof certain charged offenses make PFC Manning's motivation relevant and (2) thetestimony of Jihrleah Showman with respect to PFC Manning's intent makes evidenceof motivation proper rebuttal evidence.This topic was generally addressed by the Defense Motion to Compel the Productionof Witnesses (AE 408) discussed above. Therein," the Defense described the need to1APPELLATE PAGE 0? PAGESproduce Antolak and essentially requested the same relief sought in this instant motion.The Defense writes this separate response in order to address the cases cited by theGovernment in its Motion in Limine.Many of the cases cited by the Government McGuiness, and Kiriakou) do notaltogether block motivation evidence in this case because those accused, unlike PFCManning, were not charged with Aiding the Enemy under Article 104, UCMJ. In order to?nd PFC Manning guilty of the Speci?cation of Charge I, the trier of fact will have todetermine that he aided the enemy with a ?general evil accused had to knowhe was dealing, directly or indirectly, with an enemy of the United States.? See AE 410.Evidence that suggests that PFC Manning's motivation was something other than todeal with an enemy would tend to make a fact of consequence his guiltyknowledge) less probable and, therefore, relevant. This same logic applies to everycharged offense that requires guilty knowledge Specifications Charge ll).Additionally, the Government sought to introduce evidence under MRE 404(b) of anact of PFC Manning that was proof of his intent to commit the charged offenses in amotion on 3 August 2012. See AE 250. Speci?cally, the Government described anencounter that PFC Manning had with then-SPC Jihrleah Showman, another Soliderassigned to HHC, 2/10 at Fort Drum, prior to their deployment to Iraq. During thisconversation, SPC Showman recalls PFC Manning telling her that he has no loyalty tohis country. The Court granted the Government's motion with respect to this particularpiece of evidence and will allow it for its tendency, if any, to prove PFC Manning's intentwith respect to the charged offenses. See AE 287.The Defense believes that the evidence described in the preceding paragraph opensthe door to motive evidence. A closer examination of US v. Huet-Vaughn, 43 M.J. 105(CAAF 1995) is instructive with respect to this point. As indicated by the Government inits brief, CAAF used that case to distinguish between motive and intent by distinguishingbetween an immediate intent and an ulterior one. See Huet-Vaughn, 43 M.J. at 113-114. The former is the requisite intent in order to commit a crime; the latter is ofteninadmissible motive when offered by an accused on the merits. lg.The Defense submits that the Showman intent evidence is only relevant to describean ulterior (and not immediate) intent of PFC Manning. That conclusion is compelledwhen you examine ?404(b) intent cases" that are emblematic of a more immediateintent: US v. Sweeny, 48 M.J. 117 (CAAF 1998) (stalking of ex-wife is relevant inprosecution of stalking current wife) and US v. Harrow, 65 M.J. 190 (CAAF 2007)(evidence of assaultive behavior toward daughter is evidence when accused is chargedwith her premeditated murder). These cases show the difference between putting onevidence of another crime or simply another act. Evidence of another crime like thosecited earlier in this paragraph will more often supply a more ?immediate" intent.There are plenty of 404(b) "intent" cases that seem to more accurately describe theultimate criminal ?motive? of an accused: US v. Henry, 55 M.J. 108 (CAAF 2000)(evidence of pornographic video order fomi possession admissible when accused ischarged with making a minor watch pornography with him) and US v. Hays, 62 M.J. 158(CAAF 2005) (intent evidence of explicit emails admissible when accused is chargedwith solicitation to commit rape of a minor). The Court can see that this evidence, whilecalled evidence of intent, is ultimately more probative of the criminal motive of anaccused. The testimony of Showman will describe conduct that falls more within thisline of cases. As such, the Court must allow the Defense to rebut the Government's404(b) evidence.The ?pigeon holes? of 404(b) should be of no moment to the Court in making thisdetermination to allow the Defense to rebut the Showman ?intent" evidence with theLamo and Antolak "motivation" evidence. It is long settled that a trial judge should notbe particularly concerned with how this evidence is characterized. See US v. Castillo,25 M.J. 145 (CMA 1989).The Defense would certainly understand any desire to avoid over-litigation of acollateral matter. However, the evidence offered by the Government through Showmanmust be put in its appropriate context. Stated bluntly, Lamo and Antolak will impeachthe evidence from Showman by contradiction, showing that her testimony should begiven little weight when considered in the context of all the other evidence at trial.CONCLUSIONThe defense respectfully requests that the Court deny the Government's 16November Motion in Limine to Exclude Motive Evidence. The evidence described asmotive evidence is actually admissible considering all of the relevant facts and law.THOMAS F. HURLEYMAJ, JADefense Counsel

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