Title: Ruling: Gov Motion to Preclude Motive Evidence, 16 Jan 13

Release Date: 2014-03-20

Text: IN THE UNITED STATES ARMYFIRST JUDICIAL CIRCUITUNITED STATES RULING: GOVERNMENTMOTION TO PRECLUDEMOTIVE EVIDENCE ONMERITSMANNING, Bradley E., PFC U.S. Anny, HHC, U.S. Anny Garrison Joint Base Myer-Henderson Hall DATED: 16 January 2013Fort Myer, Virginia 222]] On 16 November 2012, the Government ?led a Motion to Exclude Motive Evidence during themerits portion of the trial. On 30 November 2012 the Defense ?led a response opposing the motion.After considering the pleadings, evidence presented, and argument of counsel, the Court ?nds andconcludes as follows:Findings of Fact:1. The accused is charged with one speci?cation of aiding the enemy in violation of Article 104, UniformCode of Military Justice (UCMJ), one speci?cation of disorders and neglects to the prejudice of goodorder and discipline and service discrediting in violation of Article 134, UCMJ, eight speci?cations ofviolations of 18 U.S.C. 793(e) and Article 134, UCMJ, ?ve speci?cations of violations of 18 U.S.C. 641 and Article 134, UCMJ, two speci?cations of violations of 18 U.S.C. l030(a)( 1) and Article 134,UCMJ, and ?ve speci?cations of violating a lawful general regulation, in violation of Article 92, UCMJ,The time period of the charged offenses is from on or about 1 November 2009 - on or about 27 May 2010.2. The Government asserts evidence of motive is not relevant to any charged offense or to any cognizabledefense.3. The Defense intends to introduce evidence of the accused?s motivation during the period of thecharged offenses. Defense intends to introduce the accused?s motivation through the testimony of AdrianLamo and Zachary Antolak.4. The Defense, in its response, argues that evidence of the accused?s motive is relevant for two reasons:(1) the elements of the charged offenses make the accused?s motive relevant; particularly theelement of knowledge in the speci?cation of Charge 1 (Aiding the Enemy) and speci?cations 4, 6, 8, and12 of Charge 11 (Stealing, Purloining, or Knowingly Converting Records), and the element that theaccused wantonly published the information at issue in specification 1 of Charge 11.(2) to rebut evidence of the accused?s intent presented by the Government via the testimony ofSPC ihrlea Showman.5. During oral argument, the Defense asserted that evidence of the accused?s motive was also relevant tothe element of whether the accused had reason to believe that the infonnation he communicated could beused to the injury of the United States or to the advantage of any foreign nation for the offenses charged1?470- 7- .. .I as violations of 18 U.S. C. Section 793(e), speci?cations Charge II and theoffenses charging a violation of 18 U.S. C. 1030(a)(1), specifications 13 and 14 of Charge II. TheDefense advised the Court of its intent to present evidence that the accused selected information that heknew or believed could not be used to hann the United States and intended to present evidence to raise amistake of fact defense to this element in that the accused did not believe the information hecommunicated could be used to the injury of the United States. The Defense further advised the Court ofits intent to use the damage assessments to corroborate the reasonableness of the accused?s belief.6. The Government argues that the accused?s motivation is not relevant to the elements of ?knowledge?or ?wanton publication? and that the element ?reason to believe the information could be used to theinjury of the United States or to the advantage of any foreign nation? is an objective element. As such,the accused?s subjective knowledge or belief is irrelevant.The Law:1. MRE 401 de?nes ?Relevant Evidence?. Relevant evidence means evidence having any tendency tomake the existence of any fact that is of consequence to the determination of the action more or lessprobable than it would be without the evidence.2. MRE 402 provides that all relevant evidence is admissible, except as otherwise provided by theConstitution of the United States as applied to members of the anned forces, the code, these rules, thisManual, or any Act of Congress applicable to members of the anned forces. Evidence which is notrelevant is not admissible.3. Relevant evidence is necessary when it is not cumulative and when it would contribute to a party?spresentation of the case in some positive way in a matter at issue.4. MRE 403 provides that relevant evidence may be excluded if its probative value is substantiallyoutweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or byconsiderations of undue delay, waste of time, or needless presentation of cumulative evidence.5. There is a distinction in the law between motive and intent. Intent is a pcrson?s immediate goal whilemotive is a person?s ultimate goal. U.S. v. Huet Vaughn, 43 M.J. 105 (C.A.A.F. 1995). As an example, aperson may steal food from a store to feed his family. His intent is to steal the food. He steals the food tofurther his motive to feed his family. The fact that he has a noble motive to feed his family does notnegate his intent to steal the food. In a prosecution for larceny, the government would have to prove theperson?s intent to steal. The person?s motive to feed his family is relevant only to the extent it providescircumstantial evidence of intent to steal or it presents a viable defense. See U.S. v. Diaz, 69 M.J. 127(C.A.A.F. 2010); U.S. v. Rockwood, 52 M.J. 98 (C.A.A.F. 1999); U.S. v. Huet Vaughn, 43 M.J. 105(C.A.A.F. 1995).6. Similarly, in this case, the accused?s motive is relevant only to the extent it provides circumstantialevidence of the accused?s intent or it presents a viable defense to any of the charged offenses.7. The mens rea requirement for 18 U.S.C. 793(e) does not require that the accused act in bad faith orwith ill intent. U.S. v. Diaz, 69 M.J. 127 (C.A.A.F. 2010); U.S. v. Kiriakou, 2012 WL 4903319 (E.D. Va.Oct. 16). Under the same rationale, the mens rea requirement for 18 U.S.C. 1030(a)(1) also does notrequire that the accused act in bad faith or with ill intent.8. RCM 9l6(j) governs the defense of Ignorance or Mistake of Fact. The rule provides that it is adefense to an offense that the accused held, as a result of ignorance or mistake, an incorrect belief of thetrue nature of the circumstances such that, if the circumstances were as the accused believed them, theaccused would not be guilty of the offense. If the ignorance or mistake goes to an element requiringpremeditation, speci?c intent, willfulness, or knowledge of a particular fact, the ignorance or mistakeneed only have existed in the mind of the accused. If the ignorance or mistake goes to any other elementrequiring only general intent or knowledge, the ignorance or mistake must have existed in the mind of theaccused and must have been reasonable under all the circumstances. However, if the accused?sknowledge or intent is immaterial as to an element, then ignorance or mistake is not a defense.Conclusions of Law:1. The accused?s motive during the period of the charged offenses, on or about 1 November 2009 on orabout 27 April 2010:a. is relevant to the element of knowledge, particularly whether the accused knew he was dealingwith the enemy, for the speci?cation of Charge I (Aiding the Enemy). This case is distinguished fromprior Article 104 cases declining to allow evidence of noble motive or good faith of the accused becausethe accused?s bad faith is not an element of Article 104 and because Article 104 is a general intent offensenot requiring a speci?c intent by the accused to aid the enemy. See US. v. Batchelor, 22 C.M.R. 144(C.M.A. 1956). The Court agrees, however, in this case, evidence of the accused?s motive is relevant toprove whether the accused knew or didn?t know he was dealing with the enemy.b. is not relevant to whether the accused knew he was stealing, purloining, or knowinglyconverting property belonging to the United States, for speci?cations Charge H.c. is not relevant to whether the accused ?wantonly? published information for speci?cation 1 ofCharge II.d. is not relevant to whether the accused had reason to believe information he communicatedcould be used to the injury of the United States or to the advantage of any foreign nation for speci?cations2, 3, 5, 7, 9,11,13,14, and 15 ofCharge II.2. If the Government offers statements made by the accused to SPC ihrlea Showman to prove his stateof mind, the accused?s motive or state of mind during the period of the charged offenses is relevant torebut that evidence.3. In the Court?s 19 October 2012 Ruling: Government Motion to Preclude Reference to Actual Harm orDamage on the Merits, the Court deferred ruling on whether lack of actual harm or damage assists inpresenting a viable defense. The Ruling stated ?In order for the Court to appropriately rule on whetheractual damage corroborates the reasonableness of the accused?s belief, there must be some evidence theaccused knew the information could not be used to the injury of the United States or to the advantage orany foreign nation.? The Court now has a suf?cient foundation to rule on this issue and believes it wouldbene?t the parties to have clarity on what evidence is relevant and potentially admissible.4. For the speci?cations charging violations of 18 U.S.C. 793(e) and 1030(a)(l) the element that theaccused had ?reason to believe the information he communicated could be used to the injury of theUnited States or to the advantage of any foreign nation? is an objective element evaluated on facts3actually known by the accused. It does not require the Government to prove the accused knew theinformation he communicated could be used to the injury of the United States or to the advantage of anyforeign nation. The Government must prove that the accused had reason to believe that the informationhe communicated could be used to the injury of the United States or to the advantage of any foreignnation. Either the accused had reason to believe or he didn?t. A subjective conclusion by the accused thathe did not have reason to believe the information he communicated could be used to the injury of theUnited States or to the advantage or any foreign nation is immaterial to this element. It is also a mistakenconclusion not a mistake of fact. The accused may certainly present evidence of factors he knewregarding the information communicated as evidence that he did not have reason to believe theinformation could be used to the injury of the United States or to the advantage of any foreign nation.5. Upon request of the Defense, the Court has considered US. v. Miller, 874 F.2d 125 5 (9th Cir. 1989).Miller is distinguishable from this case in that the defendant in Miller was charged with violating 18U.S.C. 793 with a mens rea that the accused acted with intent or reason to believe the information isto be used to the injury of the United States. It is also distinguishable because the case does not involvethe affirmative defense of mistake of fact as de?ned in RCM 9l6(j). The District Court in Miller gave thefollowing instruction to the jury ?You may consider whether the defendant acted in good faith andreasonably believed that communication or delivery of the document speci?ed in Count Two was withinthe scope of his authorized duties as an FBI Agent and actually intended to communicate and deliver thatclassi?ed document to Svetlana Ogorodnikova as part of his of?cial duties as an FBI agent to the extentthat it may bear on whether he had reason to believe the document was to be used to the injury of theUnited States or the advantage or a foreign nation.? The Ninth Circuit opined that this instructionre?ected a misunderstanding of the nature of the accused?s defense. The appellate court opined it wouldhave been more appropriate to ?instruct the jury to the effect that Miller?s reasonable belief, if any, thathis actions would have met with subsequent approval from his FBI superiors could be taken into accountin deciding whether he had reason to believe that his actions would harm the United States or help theSoviets.? Miller is consistent with the reasoning of this Court. Any mistaken belief the accused hadabout the nature of the information communicated is relevant to whether he did or did not have reason tobelieve the information could be used to the injury of the United States or the advantage of any foreignnation. The Ninth Circuit in Miller further held that Miller was not entitled to an instruction that he couldnot be convicted if his actions were intended to bene?t the United States even if he acted with a mistaken,but reasonable belief as to the extent of his authority. This is also consistent with the reasoning of thisCourt.6. Evidence that the accused selected only particular information to communicate and factors he knewabout that information to select certain information over other information is relevant to the elementwhether the accused had reason to believe the information could be used to the injury of the United Statesor to the advantage of any foreign nation for the speci?cations charging violations of 18 U.S.C.793 and 1030(a)(l). The accused?s subjective conclusion that the information he selected could notbe used to the injury of the United States or to the advantage of any foreign nation is not a mistake of factand does not raise a mistake of fact defense.7. Even if the accused?s mistaken conclusion that he did not have reason to believe that thecommunicated information could be used to the injury of the United States or to the advantage of anyforeign nation raised a viable mistake of fact defense for the element of whether the accused had reason tobelieve the evidence he communicated could be used to the injury of the United States or to the advantageof any foreign nation, the damage assessments would not be relevant to corroborate the reasonableness ofthe accused?s belief. The relevant inquiry would be facts known by the accused at or before the chargedoffenses. The damage assessments were created or compiled after the alleged offenses were committed.4What, if any, future damage occurred after disclosure was not knowable by the accused during the timeperiod of the charged offenses. Moreover, mitigation measures were implemented by affected agencies toprevent or minimize actual damage. The accused could not have known what, if any, mitigation measureswould be taken by United States government agencies and what, if any, impact those measures had onactual damage caused. Thus, the damage assessments would not be relevant to corroborate thereasonableness of the accused?s belief under MRE 401. Even if relevant, the probative value of thedamage assessments is substantially outweighed by the danger of confusion of the issues under MRE 403.RULIN G: The Government Motion to Exclude Motive Evidence on the Merits is GRANTED INPART as set forth above. Evidence of the accused?s motive is relevant to the knowledge element of thespeci?cation of Charge I (Aiding the Enemy). It is also relevant to rebut evidence of the accused?s stateof mind if offered by the Government through the testimony of SPC ihrlea Showman. The accused?smotive is not relevant for any other purpose. Evidence of the accused?s selection of particularinformation to communicate and factors considered by the accused in making such selections is notmotive evidence and is not excluded by this Ruling. The accused?s subjective conclusion that he did nothave reason to believe the information communicated could be used to the injury of the United States orthe advantage or any foreign nation does not raise a mistake of fact defense under RCM 916(j). To theextent any language in the Court?s 19 October 2012 ruling is inconsistent with this ruling, this ruling iscontrolling.So ORDERED this 16"? day of January 2013.DENISE R. LINDCOL, JAChief Judge, 1? Judicial Circuit

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