Title: Gov Resp to AE 593, 11 Jul 13

Release Date: 2014-03-20

Text: UNITEDSTATESOF AMERICAGovernment Responseto Defense Motion forDirected Verdict:Charge I I , Specifications4, 6, 8,12, and 16(18 U.S.C. § 641)Manning, Bradley E.PFC, U.S. Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFort Myer, Virginia 2221111 July 2013RELIEF SOUGHTThe United States respectfully requests that the Court deny the Defense Motion forDirectedVerdict: Charge lLSpecifications4, 6, 8,12(hereinafier "Defense 641Motion") andDefense Motion for DirectedVerdict:Specificationl6ofCharge II (hereinafier "Defense GALMotion")(collectively "Defense Motions") because the United States has presented evidence foreach element of each specification. The United States combines its response to the DefenseMotions herein.BURDEN OFPERSUASION AND BURDEN OFPROOF"Amotion fbrafinding of not guilty shall be granted only in the absence of someevidence which, together with all reasonable inferences and applicable presumptions, couldreasonably tend to establish every essential element ofan offense charged." Rule for CourtsMartial (hereinafier "RCM")917(d). "The evidence shall be viewed in the light most favorableto the prosecution,without an evaluation ofthe credibility ofwitnesses." 7^.FACTSThe accused is charged with giving intelligence to the enemy,in violation of Articlel04,Uniform Code ofMilitary .lustice. The accused is also charged with causing intelligence to be"wrongfully and wantonly'^ published in violation ofArticle 134, UCML eight specificationsalleging misconduct in violation ofl8U.S.C.§793(e), five specifications alleging misconduct inviolationofl8USC§641(hereinafier"§641"),twospecificationsallegingmisconductinviolation o f l 8 U S C § 1030(a)(l),fivespecificationsallegingmisconductin violation ofArticle 92 ofthe UCML^^^Charge Sheet.The accused pleaded guilty by substitutions and exceptions to Specifications 2, 3, 5, 7, 9,10,13,14andl5ofChargeIL .^^^ Appellate Exhibit(hereinafier"AE")CDXLIV Theaccused did not plead guilty ^7^^^^^^^^, to Specifications 4, 6, 8,12, a n d l 6 o f Charge II(hereinafier"§641specifications").WITNESSES^VIDENCEThe United States does not request any witnesses be produced for this response. TheUnited States requests that the Court consider the Charge Sheet, Prosecution Exhibits, testimony,and the Appellate Exhibits cited herein.APPELLATE kPAGE REFEPAGE,QP"BIT ^1!LPAGESLEGALAUTHORITY AND ARGUMENTThe United States submitted evidence relevant to the§641specifications that wasadmitted. The Defense argues that the United States has failed to satisly the standard set forth inRCM917(d). The admitted evidence establishesareasonable inference that the accused stoleand convertedthedatabasesandrecordslistedinthe§641specifications The Defenseargumentsthatthe§641specificationsconstittite fatal variances lackmeritbecausetheevidenceproves the contents ofthe databases and the records were stolen or converted. The evidencedoes not constituteamaterial variance. Additionally,the Defense had adequate notice andability to prepare the accused'sdefense for trial.I EVIDENCEADM1TTEDATTRIALRELEVANTT0§641SPECIFICATI0NSA R C M 917Backgroundshall enterafinding ofnot"The military judge, on motion by the accused orguilty of one or more offenses charged afier the evidence on either side is closed and beforefindings on the general issue of guih are announced if the evidence is insufficient tosustainaconviction ofthe offense affected." RCM917(a). The motion by the accused shall state withspecificity where the evidence is insufficient to enable the trial counsel to respond to the motion,and the Court shall give each party an opportunity to be heard on the matter. ^^^RCM917(b)^RCM917(c)^RCM917(c),discussion(stating that the military judge ordinarily should permitthe trial counsel to reopen the case as to the insufficiency specified in the motion).Amotion fbrafinding ofnot guilty "shall be granted only in the absence of someevidence which, together with all reasonable inferences and applicable presumptions, couldreasonably tend to establish every essential element ofan offense charged." RCM917(d). TheCourt shall view the evidence "in the light most favorable to the prosecution,without anevaluation ofthe credibility ofwitnesses." 7^^^^^7^^^^^^^.^^.7^^^^^,40M.L 373 (C.M.A.1994)(upholding the military judge'sdecision not to enterafinding of not guilty because thetestimony ofthree witnesses, construed in the light most favorable to the prosecution, couldreasonably tend to establish the overt act). The standard of"some evidence" required to surviveamotion fbrafinding ofnot guilty isalow one. ^^^^^^7^^i^^^^^.^v^.^^^^^^^.^^^^^^.^,2013WL 561356 (N-M.Ct.Crim.App. 2013)(concurring with the military judge who "notedrepeatedly while hearing argument on the RCM917motion^that^ the standard for surviving suchamotionis very low")^^^^7^^^^^^^.^v.7^^^^^.^,59ML 893,898 (ACt. Crim. App. 2004)(encouraging trial judges to view the standard used to decide whether to grantamotionfbrafinding of guilty asamirror image ofthe standard used to decide whether to give an instmctiononanaffirmativedefense)^^^^7^^i^^^^^.^v.^^^^^^^,1994WL711894(A.F.Ct.Crim.App.1994)(noting that "^t^he military judge was obviously correct in denying the motion fbrafinding of not guilty under the low,^someevidence'standard set out in R.C.M.917(d)")(quotingRCM917(d)). Direct or circumstantial evidence satisfies the "some evidence"standard.^^^^^^7^^^^^^^.^v7^^^^^^,59M.L195(C.A.A.F.2003)^^^^^^^^^^^^.^v^^^645F2d453,458 (5thCirl981)B. Relevant Evidence AdmittedRelevant evidence is evidence having any tendency to make the existence ofany fact thatis ofconsequence to the determination ofthe action more or less probable than it would bewithout the evidence. Military Rule ofEvidence (hereinafier "MRE") 401. Relevant evidence isnecessary when it is not cumulative and when it would contribute toaparty'spresentation of thecase in some positive way inamatter at issue. The militaryjudge has the initial responsibility todetermine whether evidence is relevant under MRE 401. ^^^^^^7^^i^^^^^.^v ^^^7^,69M.L236(C.A.A.F.2010). Elements ofcharged offenses are relevant and defined by the specification.Rule for CourtsMartial 307(c)(3)(definingaspecificationasaplain, concise, and definitestatement ofthe essential facts constituting the offense charged).In the Defense Motions, the Defense does not dispute that the Combined InformationDatabase Network Exchange (hereinafier "CIDNE") Iraq database, CIDNE-Afghanistandatabase. United States Southern Command (hereinafier "USSOUTHCOM") database.Department ofState NetCentric Diplomacy (NCD)database, and United States Forces IraqMicrosofi Outlook^SharePoint Exchange Server global address list (hereinafier "USFIGAL")belonged to the United States oradepartment or agency thereof Further, the Court tookjudicialnoticethatl8USC§641wasinexistenceonthedatesallegedinSpecifications4,6,8,12andl6^^^AEDLXXXVIILAEDLXXXVIII(a)The accused was not authorized to give classified information to the WikiLeaksorganization. ^^^,^.^.,PE59^PE60^TestimonyofCPTFulton^TestimonyofSpecialAgent(hereinafier "SA")Mander^TestimonyofMs.Glenn^TestimonyofSSgt Hosburgh. The Courttook judicial notice that WikiLeaks posted records fiom the CIDNE Iraq database, CIDNEAfghanistan database, and USSOUTHCOM database AEDLXXXVIII SABettencourtconfirmed that WikiLeaks posted the purported Department ofState records fiom the NCDdatabase. ^^^PE76.7. ^^^^^^^^7^^^^C^^^^^77The United States presented evidence that "at or near Contingency Operating StationHammer. Iraq, between on or about31December 2009 and on or about5.1anuarv 2010: theaccused did steal, purloin, or knowin^lv convert records to his own use or someone else'suse. towit: the Combined Information Data Network Exchange Iraq database containing more than380.000 records." ^^^AECDX. SA David Shaver testified that the accused stole, purloined, orknowingly converted more than 380,000 records fiom the CIDNE-Iraq database onaSecureDigital (SD)card. ^^^TestimonyofSA Shaver. SA Shaver testified that these records werestored inafblder entitled "yada.tar.bz2.nc" with thefilename"irq^events.csv." i^^^^^^. Thefolder entitled "yada.tar.bz2.nc" and its contents were admitted into evidence, i^^^ ProsecutionExhibit(hereinafier "PE") 92. On2November 2010, SAMarkMander collected this SD cardfiom the home ofMs.DebraVanAlystne, the aunt of the accused. i^^^PE78^PE113. On3November 2010, Ms.TamaraMairena received this SD card fiom SAMander and, ontoDecember 2010, released the SD card to SA Shaver for examination. ^^^PE29. This SD cardcontainedapicture ofthe accused, in addition to more than 380,000 records fiom the CIDNEIraq database. i^^^PE40^PE113. The SD card was admitted into evidence. ^^^PE92.The accused admitted to this misconduct to Mr.AdrianLamo. ^^^PE30. When asked"(04:34:14PM) infb^adrianlamo.com: what do you consider the highlights7^,^" the accusedadmitted "(04:35:31 PM) bradass87:The Gharani airstrike videos and full report, Iraq war eventlog, the "Gitmo Papers",and State Department cable database...." ^^^^^.at46.The United States presented evidence that "the accused acted knowingly and willfiillyand with the intent to deprive the government ofthe use and benefit ofthe records." i^^^AECDX. The SD card with which the accused stored the records fiom the CIDNE-lraq databasecontainedadocument entitled "README.txt." ^^^TestimonyofSA Shaver. The"README.txt" document was last written on9.Ianuary 2010. ^^^^7^. With this document, theaccused identified the contents ofthe SD card to include the "Iraq and AfghanistanSignificantActivities(SlGACTs)between0000on01^AN 2004 and2359on31DEC 2009"^^^ PE 42The accused also recommended that the recipient "might need to sit on this information, perhaps90 180 days, tofigureout how best to release suchalarge amount of data, and to protectsource." ^^^PE42. Mr.TroyMoul, the accused'sinstructor at Advanced IndividualTraining(AIT), testified that, during AIT,the accused received substantial training on the definition,marking, and proper handling ofclassified inlormation. ^^^Testimony ofMr. Moul. ThePowerPoint slides that the accused received at AITwere admitted into evidence. ^^^PE52.The accused also executed several NonDisclosure Agreements (NDAs),whereby the accusedacknowledged his responsibility not to disclose classified information to unauthorized persons.These NDAs were admitted into evidence. .^^^PE59^PE60. Every member ofthe accused'sunit, who testified, stated that Soldiers were not authorized to remove classified informationfiom the Sensitive CompartmentedlnformationFacility(SCIF). ^^^TestimonyofCPT CaseyFultomTestimonyofCW2KyleBalonek^Testimony of COL David Miller.Executive Order (EO) 13526, which the Court took judicial notice ofverifies thatclassified information may not be removed fiom official premises without proper authorization.E0 13526§41(d)^AE CDX. EO 13526 also states that "^ijnfbrmationmaybeoriginallyclassified only if...(2)the information is owned by,produced by or for, or is under the control ofthe United States Govemment."^^^E0 13526§l.l. Army Regulation(AR) 380 5,paragraph2-8, which the Couritookjudicial notice of, also states that "U.S.classification can only beapplied to information that is owned by,produced by or for, or is under the control of, the UnitedStates Govemment."^^^AR380 5 at^28.The accused made many admissions to Mr. Lamo that establishareasonable inferencethat the accused acted knowingly and willfiilly and with the intent to deprive the government ofthe use and benefit ofthe records. Asampling ofthe relevant statements, in chronological order,is set forth below:i"(12:22:49 PM)bradass87:theairgap has been penetrated, ^L^B^"PE 30, at8ii."(12:26:09 PM)bradass87: lets just say ^someone'^iknow intimately well, has beenpenetrating US classified networks, mining data like the ones described...and beentransferring that data fiom the classified networks over the "air gap" ontoacommercial network computer... sorting the data, compressing it, encrypting it, anduploading it toacrazy white haired aussie who can't seem to stay in one country verylong^L^B^"PE30,at8iii."(1:34:11PM) bradass87:waiting to redeploy to the US,be discharged...and figureout how on earth im going to transition(1:34:45 PM)bradass87:all while witnessing the worldfieakout as its most intimatesecrets are revealed^.^" PE30,atlO.iv."(03:07:01 PM) bradass87:ijust...couldnt let these things stay inside of thesystem...and inside ofmy head...^.^" PE 30, at 26.V."(02:23:25 PM)bradass87:icould've sold to russia or china, and made bank7(02:23:36 PM) info(^adrianlamo.com: why didn'tyou7(02:23:58 PM)bradass87: because it'spublic data(02:24:15 PM) info(^adrianlamo.com:imean, the cables(02:24:46 PM)bradass87: it belongs in the public domain(02:25:15 PM) bradass87: information should be fiee(02:25:39 PM)bradass87: it belongs in the public domaina l "PE30(ellipses in original).The United States presented evidence that "the records were ofavalue greater than$1.000." i^^^AECDX. The parties entered intoastipulation of expected testimony for Mr.WyattBora. ^^^PE115. This evidence confirms the following:i."In 2007,the program spent approximately $900,000 on data management in Iraq.In2008, the program spent approximately$l,000,000 on data management in Iraq. In2009, the program spent approximately $4,200,000 on data management inAfghanistan and$l,800,000 on data management in Iraq.In 2010, the program spentapproximately $3,600,000 on data management in Afghanistan. In 2011, the programspent approximately $3,000,000 on data management in Afghanistan and$570,0000on data management in Iraq. In 2012, the program spent approximately$5,000,000 on data management in Afghanistan.These data management costs aredirectly associated with keeping the data useable on the classified networks."ii."In 2005,the program spent approximately$l,100,000 for development and testing inIraq and$l,800,000 in development and testing in the Continental United States(CONUS).In 2006, the program spent approximately$l,770,000 for developmentand testing in Iraq and $790,000 in development and testing in CONUS.In 2007,theprogram spent approximately$l,320,000 for development and testing in Iraq and$1,810,000 in development and testing in CONUS. In 2008, the program spentapproximately $950,000 for development and testing in Afghanistan, $2,690,000 fordevelopment and testing in Iraq, and $3,610,000 in development and testing inCONUS.In 2009,the program spent approximately $2,760,000 for development andtesting in Afghanistan, $3,280,000 for development and testing in Iraq, and$5,500,000 in development and testing in CONUS. In 2010, the program spentapproximately $4,200,000 for development and testing in Afghanistan, $2,650,000for development and testing in Iraq, and $4,980,000 in development and testing inCONUS"iii."In 2007,the program spent approximately $720,000 on hardware in Iraq.In 2008,the program spent $560,000 on hardware in Afghanistan and$190,000 on hardwarein Iraq. In 2009,the program spent approximately$l,660,000 on hardware inAfghanistan and $520,000 on hardware in Iraq. In 2010, the program spent $760,000on hardware in Afghanistan.In 2011,the program approximately spent$180,000 onhardware in Afghanistan. In 2012, the program spent approximately $3,680,000 onhardware in Alghanistan."iv."In 2005,the program spent approximately$l,100,000 for Iraq training. In 2006, theprogram spentapproximately$l,180,000 for Iraq training and $480,000 forCONUStraining. In 2007, the program spent approximately $2,570,000 for Iraq training and$200,000 fbrCONUS training. In 2008, the program spent approximately$l,850,000fbrAfghanistantraining, $5,220,000 for Iraqtraining,and$l,550,000fbrCONUStraining.In 2009,the program spent approximately $5,360,000 for Afghanistantraining, $6,370,000 for Iraqtraining,and$3,660,000forCONUS training. In2010,the program spent approximately $8,140,000.00 for Afghanistan training, $5,150,000for Iraq training, and $3,320,000 for CONUS training. In 2011, the program spentapproximately$18,410,000 for Afghanistan training, $2,650,000 for Iraq training,and $6,150,000 for CONUS training. In 2012, the program spent approximately$8,790,000 for Afghanistan training and$2,740,000forCONUS training"V."From 2005 through2012, the CIDNE program spentapproximately$18L160,000on contracted support required to run the program, to include development, training,data management, and hardware. In addition, fiom 2005 through 2012, the programspent approximately $5,434,800.00 on program management support, to includegovernment testing, administrative oversight, and research and development."1^^^^^^. Mr.Danny Lewis also testified that the value ofthese records is greaterthan$l,000.Testimony ofMr.Lewis.The United States presented evidence that "under the circumstances, the conduct oftheaccused was to the prejudice of good order and discipline in the armed forces or was ofanatureto brin^ discredit upon the armed forces." ^^^AECDX. COL Miller, the Brigade Commanderfor 2d Brigade CombatTeam(BCT),10th Mountain Division, testified that he v^as "stunned"when he learned ofthe accused'smisconduct because the last thing he anticipated was aninternal security breach fiom one oftheir own. i^^^Testimony of COL Miller. COLMillertestified that the impact to the brigade'smorale was significantly affected.Beforelearning ofthe accused'smisconduct, COL Miller explained that the brigade'smorale was at itshighest point since he took command because many ofthe Soldiers assigned to the unit haddeployed multiple times and, having been tasked as the first BCT responsible for drawdown inIraq, the Soldiers were seeing the fruits oftheir labor over the past ten years coming to fiuition.COL Miller testified that the accused'smisconduct was prejudicial to good order anddiscipline because the atmosphere throughout the brigade asaresult ofthe accused'smisconductwas like that ofa"fiineral"-fiill of anger, sadness, grief, and frustration. ^^^^7^. COLMilleralso testified that the impact to the brigade'stmst with one another was significantly affected.^^^^7^. COL Miller testified that trust is critical in theater and, similar to how Soldiers must tmstone another inacombat patrol, trust is crucial among Soldiers in theS2section for safeguardingclassified information. ^^^^7^. The accused'sacts as described by COL Miller, to include, ^7^^^^^^^7^, the harm to trust among Soldiers, caused discredit. Furthermore, the accused'sadmissionofthe world'sa^areness ofthe records he compromised caused discredit. ^^^PE30.Lastly,Mr..lason Milliman testified that havingalarge amount ofinformation stored onone'sdesktop caused problems with the Distributed Common Ground SystemArmy(DCGSA)computers in theater. i^^^TestimonyofMr.Milliman. Mr. Chad Madaras,aformer Soldier whoworked on the day shifi and sharedaclassified government computer with the accused in theater,testified that he observed the size of the accused'sdesktop and testified that it was large andfilled ^ith many items. .^^^TestimonyofMr.Madaras. Mr.Madaras testified that heexperienced many problems with his computer afier the accused'sshifi completed. Mr.Madarastestified that he lost about two hours ofwork each time he experienced problems with hiscomputer. ^^^^7^..2. ^^^^^^^^^^^^C^^^^^77The United States presented evidence that "at or near Contingency Operating StationHammer. Iraq,between on or about31December 2009 and on or about8.1anuarv 2010: theaccused did steal, purloin, or knowingly convert records to his own use or someone else'suse, towit: the Combined Information Network Exchange Afghanistan database containing more than90.000 records." i^^^AECDX. SA Shaver testified that the accused stole, purloined, orknowingly converted more than 90,000 records fiom the CIDNE-Afghanistan database onaSDcard. i^^^TestimonyofSA Shaver. SA Shaver testified that these records were stored inafolder entitled "yada.tar.bz2.nc" with thefilename"afg events.CSV." ^^^TestimonyofSAShaver. Thefilename"afg events.csv" was last written on8.Ianuary 2010. ^^^^7^. ThisSDcard containedapicture ofthe accused, in addition to more than 90,000 records fiom theCIDNE-Afghanistan database. ^^^PE40^PE113. The SD card ^as admitted into evidence.^^^PE92The United States presented evidence that "the accused acted knowingly and willfullyand with the intent to deprive the government ofthe use and benefit ofthe records." ^^^AECDX. Evidence supporting this element is listed above in Specification4ofCharge II.The United States presented evidence that "the records were ofavalue greater than$1.000." i^^^AECDX. Evidence supporting this element is listed above in Specification4ofCharge II. Mr.Lewis also testified that the value ofthese records is greater than$l,000.Testimony ofMr. Lewis.The United States presented evidence that "under the circumstances, the conduct oftheaccused was to the prejudice ofgood order and discipline in the armed forces or was ofanatureto bring discredit upon the armed forces." ^^^AECDX. Evidence supporting this element islisted above in Specification4ofCharge II.^. i^^^^^^^^7^^^^C^^^^^77The United States presented evidence that "at or near Contingency Operating StationHammer.lraq,on or about8March 2010: the accused did steal.purloin, or knowingly convertrecords to his own use or someone else^s use, to wit:aUnited States Southern Commanddatabase containing more than 700 records." i^^^AECDX. SA Shaver testified that PE 83consists ofasummaryoflntelink logs showing that the accused, on8March 2010, usedWget toretrieve more than 700 records fiom the United States Southern Command database accessiblethrough the .IointTaskForce-Guantanamo(.ITFGTMO)Detainee Assessment Branch websiteon Intellipedia. ^^^TestimonyofSA Shavers PE82^PE83. SA Shaver explained that thenumber "200" in PE 83 means that the accused successfully executedWget to retrieve the"DocumentID" of records relating to fTFGTMO detainees. Mr..leffiey Motes confirmed thatthe records in the United States Southern Command database were stored by "DocumentlD" andthat the above database consisted of over700 records. ^^^PE131.The accused further admitted to his misconduct to Mr.Lamo. ^^^PE30. When asked"(04:34:14PM) infb^adrianlamo.com: what do you consider the highlights7^,^" the accusedadmitted "(04:35:31 PM) bradass87:The Gharani airstrike videos and fiifi report, Iraq war eventlog, the "Gitmo Papers",and State Department cable database^.^" ^^^^7^. at 46.The United States presented evidence that "the accused acted knowingly and willfullyand with the intent to deprive the government ofthe use and benefit ofthe records." ^^^AECDX. Evidence supporting this element is listed above in Specification4ofCharge II.The United States presented evidence that "the records were ofavalue greater than$1.000." ^^^AECDX. The stipulation ofMr.Motes explained, in detail, the steps necessary toprepare the records fiom the United States Southern Command database. ^^^PE131. Mr.Motes confirmed that it took, on average, 80-90 working hours to create each ofthe700 recordsthe accused stole and that the most detainee assessments created in one year was approximately520. ^^^^7^. Mr.Motes also confirmed that the lowest ranking Servicemember responsible forcreating these records was E-4 and the lowest ranking government employee responsible forcreating these records was GS 12. The Court tookjudicial notice ofthe salaries for persons ofthese ranks, i^^^ AEDLXXXVIII. Mr.Lewis also testified that the value of these records isgreater than$l,000. i^^^Testimony ofMr.Lewis.The United States presented evidence that "under the circumstances, the conduct oftheaccused was to the prejudice ofgood order and discipline in the armed forces or was ofanatureto brills discredit upon the armed forces." ^^^AECDX. Evidence supporiing this element islisted above in Specification4ofCharge II.^. ^^^^^^^^7^^^2^C^^^^^77The United States presented evidence that "at or near Contingency Operating StationHammer, Iraq,between on or about 28 March 2010and on or about 27 May2010: the accuseddid steal,purloin, or knowingly convert records to his own use or someone else'suse, to wit: theDepartment ofState NCD database containing more than 250,000 records." .^^^AECDX. TheDepartment ofState firewall server logs show an incredible amount ofactivity between theaccused'sclassified government computer and the NCD database. ^^^PE159. SA Shavertestified that he recoveredafblder fiom the accused'scomputer with Department ofState cables.i^^^Testimony ofSA Shavers ^^^PE 12. SA Shaver explained how the accused converted thecables into Comma SeparatedValue(CSV) format with Base64 encryption. ^^^TestimonyofSA Shaver. The excel spreadsheet retrieved fiom the accused'scomputer shows that the accusedwas cataloguing the thefi of251,287 Department ofState diplomatic cables and was admittedinto evidence. ^^^PE102. SABettencourt retrieved 251,287 purported Department ofStatediplomatic cables fiomWikiLeaks. ^^^PE76. The accused admitted this misconduct in chatswith Mr.Lamo, stating: "(02:16:48 AM) infb^adrianlamo.com: embassy cables7(02:16:54AM)bradass87:yes(02:17:00AM)bradass87:260,000inall^B^"^^^PE30,at34The United States presented evidence that "the accused acted knowingly and willfiillyand with the intent to deprive the government ofthe use and benefit ofthe records." ^^^AECDX. Evidence supporting this element is listed above in Specification4ofCharge II.Additionally,Mr. Charley Wisecarver testified that each diplomatic cable in the NCD databasedisplayedawamingbanner. ^^^TestimonyofMr.Wisecarver. ^^^PE169(c)^PE170(c)^PE171(c)^PE172(c)^PE173(c)^PE175(c)^PE176(c)^PE177(c)Further,andinadditionto thosestatements listed in Specification4ofCharge II, the accused made many additional admissionsto Mr.Lamo establishareasonable inference that the accused acted knowingly and willfully andwith the intent to deprive the government ofthe use and benefit ofthe records. Theseadmissions, in chronological order, are set forth below:i."(12:52:33 PM)bradass87: Hilary Clinton, and several thousand diplomats aroundthe world are going to haveaheart attack when they wake up one morning, and findsan entire repository ofclassified foreign policy is available, in searchable format tothe public. . ^ L "ii."(01:52:30 PM)bradass87:fi^nny thing is... we transffered so much data onunmarked CDs...(01:52:42 PM)bradass87: everyone did...videos...movies...music(01:53:05 PM)bradass87:all out in the open(01:53:53 PM)bradass87: bringing CDs too and fiom the networks was^isacommonphenomeon(01:54:14PM) infb(^adrianlamo.com: is that how you got the cables out7(01:54:28 PM)bradass87:perhaps(01:54:42 PM)bradass87:iwould come in with music onaCD-RW(01:55:21 PM)bradass87: labelled with something like "Lady Gaga"...erase themusic...then writeacompressed split file(01:55:46 PM)bradass87:noonesuspectedathing(01:55:48 PM)bradass87:^Lkindofsad(01:56:04 PM)intb(^adrianlamo.com: and odds are, they never will(01:56:07 PM)bradass87:ididnt even have to hide anything(02:00:12PM) bradass87:everyone just sat at their workstations...watching musicvideos^carchases^buildingsexploding...and writing more smff to CD^DVD...theculture fed opportunities"iii."(04:34:14PM) infb(^adrianlamo.com: what do you consider the highlights^(04:35:31 PM) bradass87:The Gharani airstrike videos and fiill report Iraq war eventlog the "Gitmo Papers" and State Department cable database"PE30(ellipses in original)(emphasis added).The United States presented evidence that "the records were ofavalue greater than$1.000." ^^^AECDX. Mr.Wisecarver testified that the technicians responsible for maintainingthe NCD database earned approximately $70,000 annually and that the yearly maintenance ofthedatabase "well" exceeded$l,000. ^^^TestimonyofMr.Wisecarver. Mr.Lewis also testifiedthat the value ofthese records is greater than$l,000. .^^^Testimony ofMr.Lewis.The United States presented evidence that "under the circumstances, the conduct oftheaccused was to the prejudice of good order and discipline in the armed forces or was ofanatureto brin^ discredit upon the armed tbrces." ^^^AECDX. Evidence supporting this element islisted above in Specification4ofCharge II.^^^^^^^^7^^^^^C^^^^^77The United States presented evidence that "at or near Contingency Operating StationHammer. Iraq,between on or aboutllMay2010and on or about 27 May 2010: the accused didsteal,purloin, or knowingly convert records to his own use or someone else'suse. to wit: theUnited States Forces Iraq Microsofi Outlook^SharePoint Exchange Server global address list."^^^AECDX. On7May2010,WikiLeaks requested viaTwitter email addresses for militarypersonnel. i^^^PE31.SAAlfied Williamson confirmed that the accused, onllMay 2010,searched Google for"global address list Microsofi excel macro." ^^^PE143. Theaccusedconducted this search on the unclassified government computer in the supply office atForwardOperating Base (FOB)Hammer, Iraq. ^^^^7^. SAWilliamson found the accused'sprofile onthis government computer,and SSG Peter Bigelow,the other user of this computer, confirmedthat he "did not know what the Global Address List was." .^^^PE142. SAWilliamson foundthe text file entitled "blah.txt"on this computer which contained74,000 exchange formattedemail addresses and names ofunit, ranks, and sections of personnel. ^^^PE143.The United States presented evidence that "the accused acted knowingly and willfullyand with the intent to deprive the government ofthe use and benefit ofthe records." ^^^AECDX. SAWilliamson confirmed that"on login to the computer byauser, the computer was setto displayaDepartment ofDefense warning banner and legal notice." PE143. Further,Mr.Moul testified that the accused received Operational Security(OPSEC) training at AIT,whichinstructed the accused not to disclose this type ofinformation to unauthorized persons.Testimony ofMr. Moul. The tasker created by the accused to "exfiltrate" the global address listfurther supports that the accused acted knowingly and willfiilly and with the intent to deprive thegovernment ofthe use and benefit ofthe records. ^^^TestimonyofMr.fohnson^PE122.Digital remnants ofthe USFIGAL were located on the accused'spersonal computer. 7^.The United States presented evidence that "the records were ofavalue greater than$1.000."^^^AE CDX. Mr.Lewis also testified that the value of these records is greaterthan$1,000. ^^^Testimony ofMr.Lewis. CW4Nixon testified that the sofiware and hardwarepieces required to operate the USF-I GAL cost between tens ofthousands and overamilliondollars. ^^^TestimonyofCW4NixonCW4Nixon also testified thatthe USFIGAL could notoperate without the soltware and hardware. i^^^^T^The United States presented evidence that "under the circumstances, the conduct oftheaccused was to the prejudice ofgood order and discipline in the armed forces or was ofanatureto brin^ discredit upon the armed forces." ^^^AECDX. Evidence supporting this element camefiom the testimony ofCOL Miller, as set Ibrth above in Specification4ofCharge II. TheDefense does not allege that the United States has failed to provide evidence that the accused'sconduct is prejudicial to good order and discipline.Defense GAL Motion^21. The analysisforafinding of prejudice to good order and discipline is conducted separately fiom the analysisofwhether conduct is service discrediting. i^^^,^^,^^^7^^^^^^^.^v7^^^^.^,26M.L445,448(C.M.A.1988). Evidence ofboth prejudice to good order and discipline and discredit to theservice has been admitted.Part I.B.I,Therefore, based on the above evidence and all reasonable inferences drawn therefiom,the United States satisfied the requirements ofRCM917(d).C. Relevance ObjectionForfeited Where Not Timely MadeIn order to preserve an objection when "the ruling is one admitting evidence" theobjecting party must makea"timely objection oramotion to strike" and must state the specificground ofthe objection MRE103(a)(l)^^^^^^^^^^^^.^v.^^^^^.^^,66ML208,210(CAAF.2008). Application ofl03 and its requirement fbratimely objection should be appliedpractically,notformulaically. ^^^^^^^^.^^,66M.Lat210.In the instant case, the Defense did not object to the evidence detailed in Part LB asirrelevant. Tothe extent the Defense believed the admitted evidence regarding the stolendatabases did not relate to the§641specifications, the Defense should have raised an objectiontotheevidence'srelevance. The Defense declined to object. Having thus conceded theevidence'srelevance, the Defense cannot claim that "the Government has failed to adduceevidence that ^the accused! stole or converted the databases in question." The Defense Motions'arguments are notatimely objection because the Defense remained silent about the relevance ofthe evidence detailed in Part I.B upon its introduction into evidence. 7^^^^^:^^^^..^.^^^^^^^^^^v^^^^^7^,289F3d 1283,1296(llthCir.2002)("Whereaparty has the oppormnitytoobject,but remains silent of fails to state the grounds for objection, objections...will be waived....")(quotations and citations omitted)^ ^^^7^^ ^^^^^.^^^^^^,40F3d 1347,1378 79 (2d Cir. 1994)(holding objection waived where not raised duringasidebar conference despite ample11opportunity); see also United States v. White, 25 M.J. 50, 52 (C.M.A. 1987) (deciding thedefense forfeited any objection to assailant's identity where defense elicited the identity of theassailant on cross-examination). Therefore, the Defense forfeited any objection about therelationship of the evidence to the res of the § 641 specifications.II. VARIANCEThe Defense also avers that the admitted evidence constitutes a fatal variance because"information" was not specifically charged. See Defense 641 Motion % 9 ("If the Government inthis case intended to charge thefi of the information itself or thefi of a copy of a record, instead ofthefi of the database, such a charge must appear in the Charge Sheet.") (emphasis in original).The Defense claim lacks merit because no variance exists. The United States charged that theaccused compromised databases, to include the records contained in the databases. See ChargeSheet. The United States admitted evidence to provide a reasonable inference the records werestolen and converted. Furthermore, the accused himself referred to the records he asported as"databases" in his chats."A variance between pleadings and proof exists when evidence at trial establishes thecommission of a criminal offense by the accused, but the proof does not conform strictly with theoffense alleged in the charge." UnitedStates v. Allen, 50 M.J. 84, 86 (C.A.A.F. 1999) (citingUnited States v. Lee, 1 M.J 15, 16 (C.M.A. 1975)). To prevail on its claim of a fatal variance,the Defense must demonstrate that the variance is material and substantially prejudicial. UnitedStates V. Finch, 64 M.J. 118, 121 (C.A.A.F 2006). A variance is material where it "substantiallychanges the nature of the offense, increases the seriousness of the offense, or increases thepunishment ofthe offense." UnitedStates v. Marshall, 67 M.J. 418, 420 (C.A.A.F. 2009) (citingFinch, supra). A variance is prejudicial where it puts the accused at risk of another prosecutionfor the same conduct, misleads to the extent that the accused is unable to prepare adequately fortrial, or denies the accused the opportunity to defend against the charge. Id. (citing United StatesV. Teffeau, 58 M.J. 62, 66 (C.A.A.F. 2003)).A. US Charged Databases and Records, and those charges include the info in the records1. Plain meaning of charged terms "database " and "records " includes informationFor all § 641 specifications, the accused has been charged with stealing, purioining, orconverting a database, to include its records, or the USF-I GAL. The Charge Sheet specifiesthat the CIDNE-Iraq database contained more than 380,000 records, the CIDNE-Afghanistandatabase contained more than 90,000 records, the USSOUTHCOM database contained morethan 700 records, and the NCD database contained more than 250,000 records. The Defenseopines that the United States did not charge the accused with stealing or converting information.' In this motion, the United States uses the term "steal" and its variations as synonymous with "stealing" and"purloining." The element of stealth required for "purloining" is not necessary under the specifications at issuebecause the accused has been charged with stealing, purloining, or converting certain databases and information.See Charge Sheet. However, the United States has offered evidence of the stealthiness employed by the accused incompromising the databases. See PE 30.12Defense 641 Motion at ^ 5-6 (stating that a database is "not any way synonymous with theinformation or records contained therein" and that the United States could have charged theaccused with stealing "information").^ By the plain meanings of the § 641 specifications, therecords include the information contained therein. A database is "a compilation of informationarranged in a systematic way and offering a means of finding specific elements it contains, ofientoday by electronic means." Black's Law Dictionary (9th ed. 2009). Similarly, a record is"information that is inscribed on a tangible medium or that, having been stored in an electronicor other medium, is retrievable in perceivable form." Black's Law Dictionary (9th ed. 2009).The Charge Sheet informed the accused of the stolen res because the Charge Sheet describedstolen records, which, by definition, includes the information in those records. See Part III, infra;see, e.g.. Testimony ofMr. Lewis, Testimony of CW4 Nixon; Testimony of CW4 Rouillard.The Defense's reliance on its filing cabinet analogy is misplaced. The United Statescharged the accused with stealing or converting the databases, which consisted of a collection ofrecords. The databases were contained in servers. In the instant case, the servers are moreappropriately comparable to a filing cabinet. While the servers are relevant to valuation asinstruments that support the use of the databases, the servers are not the charged databases.2. The accused agrees that "database " and "records " includes informationMoreover, the accused repeatedly referred to the records he compromised as "databases."See PE 30. The accused also describes the information contained in these databases, writing,"(12:21:24 PM) bradass87: [S]ay . . . a database of half a million events during the Iraq war . . .from 2004 to 2009 . . . with reports, date time groups, lat-lon locations, casualty figures . . . ? or260,000 state department cables from embassies and consulates all over the world, explaininghow the first world exploits the third, in detail, from an internal perspective?" Id. at 8 (ellipses inoriginal); see also id. at 9 (describing the 9/11 pager messages as a database). The accusedfurther connected a database to the information it contains, nofing, "(7:44:01 AM) bradass87:[B]ut once a single piece of information is found . . . then the database can be sifted and sifiedand sified some more, for refinement, so other intelligence functions can get in the act." Id. at 17(ellipsis in original).3. Information as part of records comports with precedentCharging records and the information contained therein comports with applicableprecedent in criminal law. The contents and information contained in government recordsdetermines the criminality of the thefi of the records more than the form of the records. SeeUnitedStates v. Bottone, 365 F.2d 389 (2d Cir. 1966), cert, denied, 385 U.S. 974 (1966) ("Whenthe physical form ofthe stolen goods is secondary in every respect to the matter recorded inthem, the transformation of the information in the stolen papers into a tangible object neverpossessed by the original owners should be deemed immaterial."); United States v. Lambert, 446F.Supp. 890, 894 (D.C. Conn. 1978). Under § 641, the transmission ofthe informationcontained in documents is just as larcenous as thefi of the documents themselves. United States^ Specific records, to include birth records and marriage records, are also defined to include information. Black'sLaw Dictionary (9th ed. 2009).13V. Rosner, 352 F.Supp. 915, 922 (D.C.N.Y. 1972) (noting that the importance of information indocuments described in Bottone applies to § 641 charges).B. United States Presented Evidence ofThefi and ConversionThe accused both stole and converted the information he compromised. Relying on dicta,the Defense argues that the United States must prove conversion and demonstrate a serious andsubstantial interference with its rights in the databases. Defense 641 Motion ^ 1 1 . TheDefense's theory ignores the statutory terms of § 641 and the Charge Sheet's use of the statutorytheories of stealing or conversion. See United States v. Morissette, 342 U.S. 246, 271 (1952)("What has concerned codifiers of the larceny-type offense is that gaps or crevices haveseparated particular crimes of this general class and guilty men have escaped through thebreaches. . . . The codifiers wanted to reach all such instances."). The Defense further arguesthat Marshall sets forth a precedent for a fatal variance. See Defense 641 Motion27-30. InMarshall, the identity of the accused's custodian as charged was not proven. See Marshall, 67M.J. at 420-21. Accordingly, the substitution of a different custodian changed the identity of theoffense. Id. In this case, however, the identity of the records remains the same because theevidence relates to the charged databases and records. Thus, Marshall is not pertinent.^Here, to "steal" means to wrongfully take money or property belonging to the UnitedStates Government with the intent to deprive the owner of the use and benefit temporarily orpermanently. AE CDX. A conversion may include the misuse or abuse ofUnited Statesproperty and may reach use in an unauthorized manner or to an unauthorized extent of property.Id. The misuse must seriously and substantially interfere with the United States Government'sproperty rights. Id.1. Accused's acts constitute theft ofUnited States Government RecordsThefi of records occurs where copies of the records are transmitted to an unauthorizedparty even though the records remain in the custody and control of the United States. UnitedStates V. DiGilio, 538 F.2d 972, 977 (2d Cir. 1976). A copy of a record does not alter itscharacter as a record under the ambit of § 641. Id. ("A duplicate copy is a record for purposes ofthe statute, and duplicate copies belonging to the government were stolen.") (citations omitted).Furthermore, the accused remains criminally liable under § 641 even where the United Statesretains possession of the original records. See id. (rejecting the accused's argument that § 641does not apply where the United States, at most, loses exclusive possession of informationcontained in confidential records); see also Flores-Figueroa v. United States, 556 U.S. 646, 647(2009) (upholding criminal liability for knowing transfer, possession, or use, without lawfulauthority, a means of identifying another person). Indeed, § 641 makes criminal the asportationof records owned by the United States. DiGilio, 538 F.2d at 977.In his chat logs, the accused admitted to asporting the data from a United StatesGovernment computer system onto his personal computer and compromising the data byconveying it to Mr. Julian Assange. The accused stated, "[L]et's just say *someone* 1 knowChanging the identity of the custodian prevents the accused from confronting the custodian. Here, the accused hasbeen able to confront the custodians of the charged databases and records.14intimately well, has been penetrating us classified networks, mining data like the ones described...and has been transferring that data fiom the classified network over the "air gap"ontoacommercial network computer...sorting the data, compressing it, encrypting it, and uploadingit toacrazy white haired aussie who can't seem to stay in one country very long ^L." PE30at8(ellipses in original). The accused admitted to compromising CIDNE Iraq, CIDNE Afganistan,and NCD. 7^. at 8. The accused also admitted to compromising the USSOUTHCOM database,stating that Mr.Assange has "the ^Gitmo Papers."7^. at 46. The accused'sadmission providesareasonable inlerence ofhis intent to deprive the United States Government permanently oftherecords and information contained therein.Additionally,these statements corroborate the accused'sintent to steal the USFIGAL.The accused removed the USF-I fiomaUnited States Government computer system. CW4Nixon testified that the only United States Government personnel had access to the USFIGALon NIPR system. The accused extracted the USFIGAL fiom the United States Governmentsystem to his personal computer. This act constituted stealing. Moreover, the accused removedthe USFIGAL from the possession ofthe United States Government and placed it in his privatepossession afier WikiLeaks postedatweet specifically requesting military email addresses, i^^^PE31. The accused had the ability to view the USFIGAL but did not possess the capability toexport the USF-I GAL. ^^^TestimonyofCW4Nixon. The accused searched fbramacro,which isacomputer program, that removed the USF-I GAL fiomaUnited States Governmentsystem. ^^^PE143. The accused also createdatasker to "exfiltrate" the USFIGAL.Testimony ofMr. Johnson; PE 122. Thus, the thefi was complete the moment the accused tookthe USFIGAL fiom the possession ofthe United States Government into his personalpossession with the intent to deprive the United States ofthe stolen property.AECDX.Afier-the-fact deletion ofthe record does not render innocent an already completedcriminal act. The Defense'sproffered argument regarding contradictory evidence is notappropriate under RCM917. ^^^917(a)(stating that Defense may offer evidence ifits requestfbrafinding ofnot guilty is denied). Similarly,any evidence of transmission would onlyenhance the criminality ofthe already completed thefi, but the lack ofenhancement also does notrender innocentacompleted criminal act.2. ^^^^.^^^^.^^^^.^^^^.^^^7^^^^^^v^^.^^7^^^^^^7^^^^^^^.^G^v^^^^^The existence ofaproperty in the contents of confidential information has long beenjudicially recognized. ^^^C^^^^^^^^.^^^7^^^^^^^.^,484U.S.19,25 (1987)(recognizingasworthy ofprotectionaproperty right in confidential business information); ^^^^^^^^^^^.^v^^7^^^, 601F.2d 69,71 (2d Cir. 1979)(recognizingaproperty right in unpublished waitings)(citations omitted). The United States Government is responsible for the accountability anddissemination of classified information and has set up certain procedures and precautions toprotect classified documents and the information contained therein. ^^^7^^i^^^^^.^v..^^^^^,889F.2d51,53. The United States Government has created the systems for protecting classifiedinformation to protect its rights to confidentiality and exclusivity in the information it elects toclassifiy. ^^^^7^. (holding that authority to determine whetheradocument should be transferredisafunction ofthe United States Government, not the holder ofthe document). Accordingly,theUnited States hasaproperty interest in its classified records vyhich it may protect by stamte asa15thing ofvalue under§641. ^^^(^^7^^^,601F.2dat71.(citing^^^7^^^^^^^.^v..^^^^^^^^^,445F.2dl076,1087 (9th Cir. 1971). Conversion of computerized records asa"misuse or abuse ofproperty its use in an unauthorized manner"occurs where an accused transfers information to anunauthorized party. ^^^^7^. (holding that sale ofinformation contained in computerized DrugEnforcementAgencyrecordscouldbefoundtoviolate§641asaconversionofthecomputerized records)(citation and quotation marks omitted).Conveyance ofUnited States Government records to an unauthorized party constitutesconversionunder§64L^^^7^^^^7^^,538 F2dat976 ln7^^^^7^^^unauthorized copies documents related to an investigation ofalleged criminal activity anddelivered the copies to unauthorized persons. 7^^^^7^7^,538 F.2dat976. Based on these acts, thedefendants were charged with converting to their own use "records ofthe United States; that is,photocopiesofofficialfilesoftheFederalBureauoflnvestigation...." 7^^^^7^7^,538F.2dat976. Here, the accused converted the United States Government records by conveying them toWikiLeaks. WikiLeaks lacked the authority to possess this information. i^^^TestimonyofSAMander;TestimonyofMs.Glenn;TestimonyofMr.Hosburgh. Defense'sreliance on ^^^7^^^^^^^.^^.C^^^^7^.^,56F.3d 1416(D.C.Cir. 1995), is inapposite because C^/^^7^.^ involved aninfiingement on computer systems within the possession on the United States Government andnot the United States Govemment'sproprietary interest in its United States Governmentinformation. In the instant case, the accused stole and converted United States Governmentrecords by transferring them to an unauthorized party or onto his personal computer.Additionally,this conveyance harmed the United State'sinterest in exclusive possession oftheinformation in the records, thereby fiirther adding to the conversion caused by the accused.Furthermore, disclosure ofUnited States Government proprietary information createscriminal liability for converting that information. i^^^C^^^^^^^,484U.S.at26 27;^^^7^^^^^^^.^ i^7^^^^^^,932F2d 306, 309 10(4th Cir 1991) Specifically,misappropriatinginformation confidentially held by one party by giving it to an unauthorized party constitutedinterference with the right to exclusive use ofthe compromised information. ^^^^7^. InC^^^^^^^,the author of an investment column entered into an agreement to give his COconspirators advance information as to the content and timing ofthe article. 7^. at 23. Thecontents of the articles were not affected and the owner ofthe information did not sufferamonetary loss. 7^. at 23,26. Nevertheless, the defendants'conviction for wire and mail fiaudunderl8U.S.C.§1341 andl8U.S.C.§ 1343,each of which carriedapotential sentence ofup tofive years,was upheld. i^^^^7^.at22nn.34. Deprivation ofthe right to exclusive use oftheinformation establishedasufficient basis for criminal liability because exclusivity was animporiant aspect ofthe confidential information. ^^^^^^7^^^^7^7^, 538 F.3d at 978(finding meritto the Govemment'sargument thatamisappropriation ofinformation under§641 but decliningto so hold whereatechnical larceny was proven).Here, the accused compromised classified, other United States Government information,orPIL This information had value because it was closely held. i^^^Testimony ofMr. Lewis.The United States Government classifies information, ^7^^^^ ^/^7^, to protect it from adversaries.^^^^7^. Adversaries seek United States Government information to attack the United States.PE183. Thus, the accused substantially interfered with United States Government informationby compromising it toWikiLeaks.16B. Copies Do Not ConstituteaMaterial or PrejudicialVarianceThe Defense assertsafatal variance on two bases. First, the Detense states that thedistinction between "infbrmation,""database,"and "copy" affects valuation and any preparationforthevaluationelementofthe§641 specification Defense641Motion^26 AsdiscussedinPart III, ^7^^, this Defense argument ignores established precedent for determining valuation.Second, the Defense maintains that the distinction between stealinga"database,""information,"or"copiesofrecords"altersthesubstanceofthe§641specificationandharmstheaccused'sabilityto presentadefensetothe§641specificationsDefense641Motion^30The accused stole and converted records maintained on United States Governmentcomputer systems. The Defense argues thatafatal variance exists because the Charge Sheetspecifies records and not copies ofrecords. .^^^ Delense 641Motion^4. Therecordscompromised by the accused are the records maintained by the United States. The United Statesmaintained copies ofthe records because they were digitally stored on United States Governmentcomputer systems. In this case, any distinction between copies ofthe records is feckless becausethe records were stored digitally. i^^^7^^^^7^7^,538 F.2dat978 (referringtothefiofcopiesas"anasportation ofrecords owned by the United States")(emphasis added). This distinction cannotbeamaterial variance because it does not change the nature ofthe offense, let alone substantiallychange the nature ofthe offense, increase the seriousness ofthe offense, or the punishment oftheoffense. Thus, any variance is not material.Moreover,any variance betweenadigital record andadigital copy ofthe same record isnot prejudicial. The distinction does not place the accused at risk ofanother prosecution becausethe accused is charged with stealing and converting the actual records,which he in fact stole andconverted. Nor did the distinction affect the accused'sability to prepare his defense because theUnited States charged the accused with stealing and converting the records usingaterm,"database,"the accused himself used to describe the records he compromised.C. No Variance Regarding USFIGALThe United States admitted evidence that the accused stole the USF-I GAL, and theDefense allegation that the property stolen by the accused was not, in fact, the USFIGAL lacksmerit. CW4Nixon testified that the USF-I GAL had approximately 160,000 users.Testimony of CW4Nixon. CW4Nixon testified that the USFIGAL contained, ^7^^^^ ^^^7^,names and email addresses connected to the "iraq.centcom.mif'domain. 7^ CW4Nixon fiirthertestified that he identified names in PE47he personally knew existed in the USFIGAL and thatthe "iraq.centcom.mil" domain was associated with the names, to include GEN Odiemo andthenLTGAustininPE47 7^ CW4 Nixon testified thatthe USFIGAL was distributed byorganization, to include by division at the division level, i^^^^^. CW4 Nixon testified that thedomain control ofUSF-I GAL at the division level established distributional control ofthe USFIGAL. ^^^^^ CW4Nixon testified that the USF-1 GAL was also distributed at the Corps andbrigade levels. ^^^^^ CW4 Nixon testified thatPE47 and PE 48 constitutedaUSFIGALpoolforaUSFIserver. 7^ CW4Nixon identified the contents ofPE 47 and PE 48 as refiectingthe contents ofthe USFIGAL CW4Nixon also testified thatPE 147 and PE148 wererepresentative ofthe contents ofPE 47 and PE 48,respectively.17CW4Nixon testified thatauser would not have the ability to download the USFIGALor its subordinate portions withoutaspecial program or access privileges. ^^^^7^. CW4Nixontestified that downloading the USFIGAL asawhole or in part was notafunction. CW4Nixondistinguished betweenauser being able to view the entire USFIGAL and accessing the USFIGAL; accessing the USFIGAL entailed the ability to remove the USFIGAL fiom the UnitedStates Government systems. CW4Nixon testified thatauser could cut and paste the informationfrom the USFIGAL but that suchaprocess would not be effective. i^^^^T^ CW4Nixonalsotestified that removing the contents of the USFIGAL would not be easy without outsidesofiware or programming. i^^^^T^. SAWilliamson testified that he found the contents ofaMicrosofi GAL on the accused'scomputer. ^^^PE143. SAWilliamson also testified that theaccused searched foramacro to exportaGAL. ^^^PE143. Also, the accused createdataskerto"exfiltrate"theUSFIGAL^^^TestimonyofMrJohnson;PE122Assuming,that the United States has not adduced evidence that the accusedstole the entire USFIGAL but onlyalarge portion ofit, no fatal variance exists forSpecificationl6ofChargeII. Any such variance is minor because it does not change the natureoftheoffense.^^^7^^ ^^^^^.^v7.^v^^^, 59 M.L 230,235 36(C.A.A.F 2004)(citationsomitted). Ataminimum, the evidence establishes that the accused stole the USFIGAL asdistributed at the division level. ^^^TestimonyofCW4Nixon.The Delense was fiilly aware ofthe United States Government property at issue.Furthermore, the admitted evidence constitutes at least part ofthe USFIGAL as charged inSpecificationl6of Charge II. Evidence thataportionaportion ofthe charged property wasstolen does not constituteafatal variance. i^^^^^^7^^i^^^^^.^^.^^^^/,5C.M.R.73,75 76(C.M.A. 1952)(upholding substitutions and exceptions that reduced the number and value ofstolen items); ^^^7^^ ^^^^^.^^.7.^^,1M.J. 15,16-17(C.M.A. 1975) (holding defense counselwas not misled where the Government submitted evidence that marijuana plants were pari ofthequantities covered in the specification); ^^^/^^^v. ^^^^^^^^^^^.^,174F.2d466,468(5thCir.1949)(holding no fatal variance between "check" and "an incompleted drafi on theTreasurer ofthe United States"); .^^^^^.^^ ^^^7^^i^^^^^.^v. 77^^^^.^, 65 M.J.132, 135 36(amendingspecification to changeaspecifically charged quantity to "some quantity"). The Defensecontendsthat^^^7^^^^^^^.^v^^7^^7^.^,45CMR.638 (A.C.MR 1972),demonstratesthatthealleged variance is fatal. However, ^^7^^^^.^ held thatavariance is fatal where it completelychanges the stolen ^^.^ fiom an amount of currency toawallet. ^^^^^7^^7^.^,45 C.M.R. at 63940. Here, the accused is charged with stealing the USFIGAL and its contents, and the evidencedemonstrates, ataminimum, thatalarge portion of the contents ofthe USF-I GAL were stolen.Thus, any variance regarding the amount ofthe USF-I GAL that was stolen is not fatal.IIIVALUATIONISPROVENBYINFORMATIONA. Information Is Intrinsic to Compromised RecordsDefense claims about prejudice stemming fiom valuation disregard the methods ofproving valuation. Under§641,valuation may be demonstrated by face value, par value, marketvalue, or cost price. §641. §641protects"athingofvalue."7^. Athing ofvalue includes18tangible and intangible items. See Fowler, 932 F.2d 306, 309-310 (4th Cir. 1991) (determiningthat records and the informafion contained in the records qualify as a thing of value under § 641)(citing Carpenter, 484 U.S. at 25; Morison, 844 F.2d at 1076-77). Information is an intangiblething of value protected by § 641. See id.; cf United States, v. Schwartz, 785 F.2d 673 (9th Cir.1986) (interpreting "thing of value" under § 641 to "include . .. intangibles, such as providingassistance in arranging the merger"); UnitedStates v. Croft, 750 F.2d 1354, 1362 (7th Cir. 1984)(holding that § 641 applies to research services as a thing of value); Burnette v. United States,222 F.2d 426 (6th Cir. 1955) (holding services and labor performed by government employeesare punishable under § 641). Indeed, proprietary information in United States Governmentrecords is a thing of value under §641. See Fowler, 932 F.2d at 310 (noting that information is aspecies of property and a thing of value); United States v. Jeter, 775 F.2d 670, 680-82 (6th Cir.1985); Girard, 601 F.2d at 70-71.Valuation for a § 641 specification may be demonstrated, inter alia, by the item's marketvalue, thieves' market value, or cost of production. Market value is "approximately what itwould cost to purchase the same or similar property in the marketplace." United States, v. 50Acres of Land, 469 U.S. 24 (1984); see Muser v. Magone, 155 U.S. 240 (1894) (defining marketvalue as the "price at which the owner of the goods, or the producer, holds them for sale; theprice at which they are freely offered in the market to all the world; such prices as dealers in thegoods are willing to receive, and purchasers are made to pay, when the goods are bought andsold in the ordinary course of trade"). The thieves' market value is the price at which the goodmay be sold on the illegal black market. See, e.g.. United States v. Hood, 12 M.J. 890, 891-92(A.C.M.R. 1982); see also United States v. Ligon, 440 F.3d 1182 (9th Cir. 2006) (defining themarket value approach to include the thieves' market). The cost of production is the price theproducer incurred to create or produce the good. See, e.g.. United States, v. Walter, 43 M.J. 879,885 (N-M. Ct. Crim. App. 1996). The cost of production has been applied to calculate the valueof deleted databasefilesfor which "no readily ascertainable market value" existed. Id.Additionally, the cost of production includes costs producing and supporting the use ofthe records. See Zettl, 889 F.2d at 54 (noting that cost price includes the cost of photocopying,transportation, and other actual costs of the documents); Walter, 43 M.J. at 884-85 (deciding thatthe personnel or labor costs of producing and reproducing thefileswas reasonable). TheDefense relies on Zettl to argue that the scope of valuation should be narrowed. See Defense 641Motion \ 44. However, the accused is charged with stealing or converting databases, to includethe records contained therein, and not documents as charged in Zettl. See Charge Sheet; Zetd,supra. Given the infiastructure necessary to support the databases and the records containedtherein, the costs of producing and maintaining the databases are relevant under § 641. See, e.g.,PE 115; PE 116; PE 131; Testimony of CW4 Nixon; Testimony ofMr. Wisecarver.The basis of establishing a market value, to include the thieves market, requires ananalysis of the characteristics of the acmal goods. See, e.g.. Hood, 12 M.J. at 891-92 (comparingvalues of stolen goods to values received on black market of similar goods). The market value isdetermined by the value the participants place on the record, to include its information. SeeLigon, 440 F.3d at 1184 ("[P]roperty value is determined by market forces . . . . This gives § 641its obvious, and certainly its practical, meaning, namely the amount the goods may bring to thethief").19The contents ofthe record dictate its value. ^^^Testimony ofMr. Lewis. No openmarket for United States Government information exists. ^^^^7^. Further, bulk amounts ofinformation have increased value in comparison to smaller collections ofrecords. i^^^^T^. Wherevaluation can be proven by the value ofthe goods inamarket, evidence that the records arevaluable to adversaries based on their contents does not prejudice the accused. ^^^^^^^7^^^^^^^.^v ^ ^ , 6 2 5 F2d,186,191 92(6th Cir. 1980)(decidingthatadeterminationofathing ofvaluecan rely on the readily ascertainable and quantifiably components ofthe stolen or convertedthing ofvalue). Similarly,evidence ofthe cost ofproduction for the databases and recordscontained therein cannot be separated fiom the information because the information requiresprotection.Testimony ofMr.Lewis;The Defense attacks Mr.Lewis'scredibility,but the Defense Motions are not the appropriate forum for argument regardingwitness credibility. ^^^RCM917(d). Thus, evidence ofvalue ofthe records, to include theirinformation, poses no prejudice to the accused.B. Defense Has Had Ample Notice ofValuation Based on InformationThe appellate record demonstrates that the Defense has been on notice that the UnitedStates intended to elicit testimony fiom Mr.Lewis on the value of government information sincewell before the start ofthis trial, and specifically that the United States intended to offer him asan expert in this field. Below are excerpts fiom both the United States and Delensefilingsthatoutline this notice:On 26 October 2012, the United States stated in its witness list ^2 with explanations,"^Mr.Lewis^will testify about counterintelligence and the value of information, includingclassified information concerning the value ofgovemment information." AECCCLXVIIat8.On 12December 2012, the United States stated in its witness list ^3 with explanations,"^Mr.Lewis^will testify about counterintelligence and the value ofinformation, includingclassified information concerning the value ofgovemment information." AECDXXXVI;AECDXXXVIIat8On31January 2013,the United States stated in its witness list ^4 with explanations,"^Mr.Lewis^will testify about counterintelligence and the value ofinformation, includingclassified information concerning the value ofgovemment information." AECDLXXV;AECDLXXVIat7On31January2013,the United States stated in its Gmnden response that Mr. Lewis"will testify about counterintelligence and the value ofinformation, including classifiedinformation concerning the value ofgovemment information." AECDLXXlX;AEDLXXXat18OnlFebmary 2013,the United States stated in its Gmnden response corrected copy thatMr.Lewis "will testify about counterintelligence and the value ofinformation, includingclassified information concerning the value ofgovemment information." AECDLXX1X;AEDLXXXatl820On22 Febmary 2013,the Defense statedin its MRE 505(h)noticethatMrLewis "isacounterintelligence specialist with DIA and has worked in the field generally for many years."AECDXCatl4. The Defense explains that the United States provided the following as anexplanation ofhis testimony-"He will testify about counterintelligence and the value ofinformation, including classified information concerning the value ofgovemment information."7^. The defense further states:The matters covered by the defense in cross examination wih fallwithin the general outlines provided bythe Government above.The defense reasonablyexpects to discuss the experience of Mr.Lewis on other cases. That experience gives Mr. Lewis theexpertise to opine as to the value ofgovemment information.On24 April 2013,the Defense stated in its Grunden filing that Mr.Lewis will testifyaboutthe "valueofCIDNE^djatabases, charged SOUTHCOM information, andthe USFIGAL." AECXXVatl6. In the same filing, they also stated Mr.Lewis will "testify about howthe value of those items and how their value is determined."7^ Additionally,the Defense statedthat he will testify about money offered for the information in the databases and "generally abouthow the information, even if dated,will be of some value" to foreign entities. 7^OnlOMay 2013,the United States filed its notice of accounting of discovery and expertwitnesses, which stated next to Mr.Lewis'sname that "^tlhe United States may qualify thiswitness as an expert in counterintelligence and the value ofnational security information^.j" AECXLIIIat4On 13May 2013,the Defense stated in its corrected copy ofits Grunden filing that Mr.Lewis wih testify about the "value of ClDNE^d^atabases, charged SOUTHCOM information,and the USFIGAL"AECXVatl6. In the same filing, they also stated Mr. Lewis will "testifyabout howthe value of those items and how their value is determined."7^. Additionally,theDefense stated that he will testify about money offered for the information in the databases and"generally about how the information, even if dated,wih be of some value" to foreign entities.7^On 15May 2013,the United Statesfiledacorrectedcopy ofits notice of accounting ofdiscovery and expert witnesses,which stated next to Mr.Lewis'sname, "The United States mayqualify this witness as an expert in counterintelligence and the value ofnational securityinformation^B^"AECLXIIlat4Thus, the Defense has had ample notice about the United States'intention to rely on theinformation contained in the compromised records to establish valuation. Therefore, the Defensehas not suffered any prejudice.21CONCLUSIONThe United Stales submitted evidence relevant to the§64f specifications that wasadmitted. The Defense argues that the United States has failed to satisfy the standard set forth inRCM9I7(d). The admitted evidence establishesareasonable inference that the accused stoleand converted the databases and records listed in the§641specifications. The Defensearguments that the§64Ispecifications constitute fatal variances lack merit because the evidenceproves the contents ofthe databases and the records were stolen or converted. The evidencedoesnot constituteamaterial variance. Additionally,the Defense had adequate notice andability to prepare the accused'sdefense for trial.^ ^ ^ ^ ^ALEXANDERS.^^^ELTENCPT,JAAssistant Trial CounselIcertifythatlseiv^ed or caused to be servedatrue copy ofthe above on Ml. DavidCoombs, CivilianDefense Counsel via electronic mail, on I I July 20f3.j^wtkALEXANDER S. VON ELTENCPT, JAAssistant Trial Counsel22

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