UNITED STATES, Appellee
v.
Matthew M. DIAZ, Lieutenant Commander,
Judge Advocate General Corps
U.S. Navy, Appellant
No. 09-0535
Crim. App. No. 200700970
United States Court of Appeals for the Armed Forces
Argued March 2, 2010
Decided July 15, 2010
BAKER, J., delivered the opinion of the Court, in which EFFRON,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Kathleen J. Purcell, Esq. (argued); Lieutenant
Kathleen L. Kadlec, JAGC, USN, Lieutenant Michael E. Maffei,
JAGC, USN, Robin B. Johansen, Esq., and Kari Krogseng, Esq. (on
brief); Captain Kyle R. Killian, USMC.
For Appellee: Lieutenant Brian C. Burgtorf, JAGC, USN (argued);
Colonel Louis J. Puleo, USMC, and Brian K. Keller, Esq. (on
brief); Captain Mark V. Balfantz, USMC, and Captain Robert E.
Eckert Jr., USMC.
Amicus Curiae for Appellant: Donald G. Rehkopf Jr., Esq. (on
brief) – for the National Association of Criminal Defense
Lawyers; Kenneth W. Starr, Esq. (supervising attorney), Kelsey
Stapler (law student), and Melissa Thornsberry (law student) (on
brief) – for Pepperdine University School of Law.
Military Judge: Daniel E. O’Toole
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Diaz, No. 09-0535/NA
Judge BAKER delivered the opinion of the Court.
A general court-martial composed of members convicted
Appellant, contrary to his pleas, of one specification of
violating a lawful general order, one specification of conduct
unbecoming an officer and a gentleman, one specification of
communicating classified information, and one specification of
removing classified material, in violation of Articles 92, 133,
and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§
892, 933, 934 (2000). The members sentenced Appellant to six
months confinement and dismissal from the Navy. The convening
authority approved the findings and the sentence as adjudged.
The United States Navy-Marine Corps Court of Criminal Appeals
(CCA) affirmed. United States v. Diaz, No. NMCCA 200700970,
2009 CCA LEXIS 79, at *16, 2009 WL 690617, at *6 (N-M. Ct. Crim.
App. Feb. 19, 2009).
On Appellant’s petition, we granted review of the following
issues:
I. WHETHER THE LOWER COURTS MISREAD THE SCIENTER AND
NATIONAL SECURITY ELEMENTS OF THE ESPIONAGE ACT.
II. WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION IN
REJECTING AS IRREGULAR APPELLANT’S PROFFERED GUILTY
PLEA TO A VIOLATION OF ARTICLE 133.
III. WHETHER THE EVIDENCE OF THE CIRCUMSTANCES UNDER WHICH
AN ACCUSED ACTED, INCLUDING HIS MOTIVE, IS RELEVANT TO
A CHARGE UNDER ARTICLE 133.
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For the reasons set forth below, we conclude that the lower
courts did not misread the elements of the Espionage Act and
that the military judge did not abuse his discretion in
rejecting Appellant’s proffered guilty plea to a violation of
Article 133, UCMJ. We further conclude that the military judge
erred by denying Appellant the opportunity to introduce motive
evidence to defend against the charge under Article 133, UCMJ.
We find, however, that any error was harmless. Therefore, the
decision of the court below is affirmed.
BACKGROUND
From July 6, 2004, to January 15, 2005, Appellant was
assigned to Joint Task Force Guantanamo Bay (GTMO) as a Deputy
Staff Judge Advocate (SJA). Upon arriving at GTMO Appellant
received an initial security briefing and signed an
acknowledgment of that briefing. He also received a security
memorandum addressing prohibited activities, which included
“[c]ommunicating, discussing or disseminating classified
information” relating to any operations at GTMO and “[u]sing
non-secure means to discuss classified information” regarding
such operations.
When Appellant arrived at GTMO most of the Guantanamo
detainees had been held at GTMO for two years or more. See
Rasul v. Bush, 542 U.S. 466, 471 (2004) (“Since early 2002, the
U.S. military has held [the petitioners in this case] –- along
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with, according to the Government’s estimate, approximately 640
other non-Americans captured abroad –- at the naval base at
Guantanamo Bay.”). On June 28, 2004, the Supreme Court of the
United States released its opinion in Rasul, holding that the
United States District Court for the District of Columbia has
“jurisdiction to hear petitioners’ habeas corpus challenges to
the legality of their detention” at GTMO. Id. at 483. The
Court reasoned that “[n]o party questions the District Court’s
jurisdiction over petitioners’ custodians. [The federal habeas
statute], by its terms, requires nothing more.” Id. at 483-84
(citation omitted).
On October 20, 2004, the United States District Court for
the District of Columbia, the federal district court supervising
detainee habeas proceedings, held that the petitioners,
detainees at GTMO, were entitled to legal counsel. Al Odah v.
United States, 346 F. Supp. 2d 1, 14-15 (D.D.C. 2004). Looking
at the Supreme Court’s holding in Rasul, the District Court
reasoned:
The Supreme Court has found that Petitioners have the
right to bring their claims before this Court, and
this Court finds that Petitioners cannot be expected
to exercise this right without the assistance of
counsel. . . . Therefore . . . Petitioners are
entitled to counsel, in order to properly litigate the
habeas petitions presently before the Court and in the
interest of justice.
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Id. at 8. The District Court further stated that “[t]he federal
habeas statute, the Criminal Justice Act, and the All Writs Act,
operate together to create this entitlement.” Id. at 14-15
(citations omitted).
On December 17, 2004, Barbara Olshansky, an attorney
working for the Center for Constitutional Rights (CCR) in New
York City, wrote letters to the Secretary of Defense, the
Secretary of the Navy, and senior Department of Justice
attorneys seeking names and information regarding detainees held
at GTMO. Appellant was the point of contact for such
correspondence at GTMO. In January 2005, the judge advocates at
GTMO, after consulting with leadership in the Department of
Defense and Southern Command, agreed to a response rejecting Ms.
Olshansky’s request.
On January 2, 2005, Appellant used his computer to run a
search on the Joint Detainee Information Management System
(JDIMS), seeking a list of detainees. The military judge found
that JDIMS is a web-based repository of sources in which
detainee information and intelligence is collected and stored.
To access JDIMS one must first log onto SIPR, which is a SECRET
level computer system. The majority of information in the JDIMS
system is considered classified. Colonel (COL) Randall Keys, a
judge advocate in the Army, was stationed at GTMO from May 2004
to May 2005 and was one of Appellant’s superior officers. COL
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Keys testified that in the absence of a security banner stating
“SECRET” or some other overtly stated classification level, the
default level of information on JDIMS would be considered
classified. At trial he testified to the following:
Q: If [information on JDIMS] didn’t [have
classification markings on it] and you had to print it
out for any reason, how would you have treated that
information?
A: As classified.
Q: Why would you do that?
A: Because the database -- I mean the database was on
a secured server . . . -- it didn’t necessarily have a
classification mark on every page, but . . . the
assumption was . . . if it was on the SIPR computer in
a -- in a classified database, you would start with
the assumption it was classified, unless, applying the
classification guidance somehow, you decided that it
wasn’t.
While logged onto JDIMS Appellant printed out the list of
names of detainees then being held at GTMO. The printout
included each detainee’s full name, “Internment Serial Number,”
country of origin, country of citizenship, and other identifying
information, including ethnicity, source identification number,
and information regarding the detention or interrogation team
assigned to each detainee. The printouts themselves were not
marked with a classification label.
Two weeks later, on January 14, 2005, Appellant transmitted
the list of names of detainees to Ms. Olshansky in New York
City. He did so by cutting the printout into more than twenty
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pieces of paper, placing them in a Valentine’s Day card, and
mailing them to Ms. Olshansky. Ms. Olshansky did not have a
security clearance and was not authorized by the government to
access detainee information in the JDIMS system. She did not
read the entire list of names contained in the document in the
card. Ms. Olshansky and her colleagues at CCR discussed the
card and its contents, holding them for approximately two weeks,
during which time the card and its contents were kept locked in
a file cabinet drawer. Recognizing that the document probably
should not have been sent to her, she also consulted an
attorney. She then contacted the judge handling the GTMO
detainee habeas case she had recently filed on behalf of her
organization. A court security officer retrieved the documents
and accompanying Valentine’s Day card.
DISCUSSION
Issue I: The Espionage Act
We review a military judge’s decision to exclude evidence
for an abuse of discretion. United States v. Barnett, 63 M.J.
388, 394 (C.A.A.F. 2006). “[A] military judge abuses his
discretion if his findings of fact are clearly erroneous or his
conclusions of law are incorrect.” United States v. Ayala, 43
M.J. 296, 298 (C.A.A.F. 1995). A question of statutory
interpretation is a question of law subject to de novo review.
United States v. Martinelli, 62 M.J. 52, 56 (C.A.A.F. 2006).
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Sections 793 and 794 of Title 18 of the U.S. Code, as
amended, popularly titled the Espionage Act, include eight
subsections proscribing in some manner the transfer and/or
disclosure of certain national security information. 18 U.S.C.
§§ 793-794 (2000). Appellant was charged with violating §
793(b) and § 793(e) of the Act. He was acquitted of Charge III,
Specification 1, the § 793(b) charge; he was found guilty of
Specification 2, the charge under § 793(e). That section
states:
Whoever having unauthorized possession of, access to,
or control over any document, writing, code book,
signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument,
appliance, or note relating to the national defense,
or information relating to the national defense which
information the possessor has reason to believe could
be used to the injury of the United States or to the
advantage of any foreign nation, willfully
communicates, delivers, transmits or causes to be
communicated, delivered, or transmitted or attempts to
communicate, deliver, transmit or cause to be
communicated, delivered, or transmitted the same to
any person not entitled to receive it, or willfully
retains the same and fails to deliver it to the
officer or employee of the United States entitled to
receive it . . . [s]hall be fined under this title or
imprisoned not more than ten years, or both.
18 U.S.C. § 793(e).
Before trial, the Government filed a motion in limine to
exclude certain evidence, which Appellant might have offered to
negate his intent to distribute classified information. Among
other things, the Government sought to prevent Appellant from
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introducing: (1) whether or not the release of the information
was consistent with the sworn oath of a commissioned officer;
(2) the ethical obligations of a judge advocate or a practicing
attorney; (3) the Supreme Court decision in Rasul; and (4) the
legality or illegality of United States Government policies on
detainees.1 Regarding the evidence of Appellant’s oath as an
officer and any ethical obligations he may have had, the
military judge concluded as follows:
Though the defense has proffered those as the elements
of the defense of justification, the court finds that
there is no evidence on the record of which ethical
obligation is at issue with respect to a Judge
Advocate or the obligation of an attorney, or why it
would apply to this particular accused under these
circumstances.
In addition, the same is true with respect to
consistency or non-consistency of action with the
sworn oath of a commissioned officer.
The military judge then granted the Government’s motion,
stating:
[T]he Government’s Motion in Limine to exclude the
testimony is granted as to whether the information was
consistent with the oath of a sworn commissioned
officer, the ethical obligations of a Judge Advocate,
the ethical obligations of an attorney, and . . .
consistent with any mandate from Rasul v. Bush.
1
Appellant sought to have Joseph Margulies testify about
extenuating circumstances under which Appellant acted, about the
Supreme Court’s decision in Rasul, and about delay tactics
employed by Department of Defense personnel in response to
requests by attorneys litigating habeas corpus cases on behalf
of detainees held at Guantanamo Bay. The military judge
rejected these requests, stating that Appellant “failed to show”
that the testimony of Mr. Margulies “is necessary.”
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Appellant argues that the military judge abused his
discretion in granting the Government’s motion because the
proffered evidence could have, and in his view would have,
negated the “mens rea requirement” of the Espionage Act. Had he
been allowed to present this evidence, Appellant would have
sought to demonstrate that he intended no harm to the United
States and acted only to uphold the Constitution as interpreted
by the Supreme Court in Rasul.
The hinge of Appellant’s argument is that the Espionage Act
has a heightened mens rea requirement, which he alternatively
describes as an “intent to do harm” or “bad faith.”2 Thus, his
proffered evidence, which he argues showed good faith, would
negate his criminal intent. Appellant finds this heightened
mens rea requirement in Gorin v. United States, in which the
Supreme Court stated:
The obvious delimiting words in the statute are those
requiring “intent or reason to believe that the
information to be obtained is to be used to the injury
of the United States, or to the advantage of any
foreign nation.” This requires those prosecuted to
have acted in bad faith. The sanctions apply only
when scienter is established. Where there is no
occasion for secrecy . . . there can, of course, in
2
With regard to Issue I, Appellant describes this as an element
of scienter involving his knowledge of the harm that “would” or
“could” befall the United States. For purposes of addressing
Appellant’s arguments, we address the mental state required
under § 793(e) generally, rather than parsing the mens rea into
what might be viewed as alternative elements of intent,
knowledge, or recklessness.
10
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all likelihood be no reasonable intent to give an
advantage to a foreign government.
312 U.S. 19, 27-28 (1941). He also finds support for his
position in subsequent federal courts of appeals cases,
including United States v. Morison, 844 F.2d 1057 (4th Cir.
1988). In that case, a judge on the United States Court of
Appeals for the Fourth Circuit stated in a concurring opinion,
“the espionage statute has no applicability to the multitude of
leaks that pose no conceivable threat to national security.”
Id. at 1085 (Wilkinson, J., concurring). Another judge on the
panel in Morison, writing in a separate concurring opinion,
stated: “[N]otwithstanding information may have been
classified, the government must still be required to prove that
it was in fact potentially damaging . . . or useful.” Id. at
1086 (Phillips, J., concurring specially) (ellipsis in original)
(quotation marks omitted).
There are two problems with Appellant’s mens rea analysis.
First, Appellant was convicted of violating § 793(e) rather than
being convicted under § 793(a) or § 793(b), both of which
require a higher measure of mens rea, as did the antecedent §
2(a) that was at issue in Gorin. The mens rea requirement
contained in § 793(e) is clear: it does not include an element
of bad faith or ill intent. The mens rea prescription in §
793(e) pertains to “[w]hoever having . . . information relating
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to national defense which information the possessor has reason
to believe could be used to the injury of the United States or
to the advantage of any foreign nation, willfully . . .
communicated, delivered, or transmitted . . . the same to any
person not entitled to receive it.” The critical language is,
of course, that the accused “has reason to believe could be used
to the injury of the United States or to the advantage of any
foreign nation” (emphasis added). This contrasts with § 793(a),
which requires an “intent or reason to believe that the
information is to be used to the injury of the United States”
(emphasis added). “Willfulness,” in the context of § 793(e),
arises not in the context of bad intent, but in the conscious
choice to communicate covered information. In short, the
military judge and Court of Criminal Appeals got it right in
this case.
Second, the law in the military justice system is well-
settled on this point. In United States v. McGuinness, the
appellant argued that the term “willfulness” in § 793(e)
“includes an element of bad faith, evidenced by a sinister
purpose to injure the interests of the United States.” 35 M.J.
149, 153 (C.M.A. 1992). This Court disagreed. It held that the
military judge was correct to instruct that § 793(e) does not
require proof of a defendant’s bad faith. Id. The Court
explained its reasoning as follows:
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The statute in question is part of the Espionage Act
of 1917, as amended by the Internal Security Act of
1950. When a statute is a part of a larger Act . . .
the starting point for ascertaining legislative intent
is to look to other sections of the Act in pari
materia with the statute under review. Sections
793(a) and 794(a) require that the act be done, with
intent or reason to believe that the information is to
be used to the injury of the United States, or to the
advantage of any foreign nation. Sections 793(d) and
(e), however, require only that the accused act
“willfully.” The current version of § 793(e), as
amended in 1950, criminalizes willful retention of
classified materials by someone not authorized to
retain them. Section 793(f) has an even lower
threshold, punishing loss of classified materials
through “gross negligence” and punishing failing to
promptly report a loss of classified materials. While
§ 794 covers “classic spying,” § 793(e) covers a much
lesser offense than that of “spying.”
Based on our analysis of the statute in question
and a review of its legislative history, we conclude
that there is no basis in the legislative record for
finding that Congress intended to limit prosecutions
for violation of § 793(e) to classic spying. To the
contrary, it is clear that Congress intended to create
a hierarchy of offenses against national security,
ranging from “classic spying” to mere losing
classified materials through gross negligence.
Id. (citation and quotation marks omitted).3
3
We note here that the Fourth Circuit, on which Appellant
relies, has construed § 793(e) similarly. In United States v.
Truong Dinh Hung, which Appellant cites for the opposite
proposition, the Fourth Circuit analyzed the requisite mental
state in § 793(e). 629 F.2d 908, 919 (4th Cir. 1980). There
the Fourth Circuit compared § 793(e) to § 794(a), rather than to
§ 793(a). However, the Fourth Circuit nonetheless stated that §
793(e) “does not contain the same strong scienter language of §
794(a). Rather, it requires only that the defendant have
‘reason to believe’ that the national defense information could
be used to harm the United States or to aid a foreign nation.”
Id.
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Returning to the facts of this case, Appellant is correct
that classification alone does not satisfy the mens rea
requirement of § 793(e). Surely classification may demonstrate
that an accused has reason to believe that information relates
to national defense and could cause harm to the United States.
However, not all information that is contained on a classified
or closed computer system pertains to national defense.
Likewise not all information that is marked as classified, in
part or in whole, may in fact meet the criteria for
classification. Conversely, information that is not so marked
may meet the standards for classification and protection. This
is evident enough with respect to information received through
oral means or information the recipient should have reason to
believe warrants protection. Indeed, the military judge in this
case found that “the JDIMS system itself does not bear security
classification banners and that the . . . document at issue in
this case . . . was printed from the JDIMS system without a
security classification marking on it.”
The record further indicates that the names of GTMO
detainees, their citizenship, and their nationality had been
declassified at the time of trial. However, other information,
according to trial testimony, could reveal sources and methods
of intelligence gathering and remained classified. Among other
things, the internment serial numbers of the detainees remained
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classified. The unclassified record also indicates that “[t]he
column regarding what Detention Team -– or what Interrogation
Team is assigned to that detainee has never been declassified.”
Further, the “source identification number is still a classified
piece of evidence.” If publicly disclosed, the classified and
unclassified testimony indicates this information could be used
to the injury of the United States.4
The evidence indicates that Appellant should have been
aware of this fact. He was an officer in the Navy. He knew he
was dealing with sensitive material derived from a classified
computer system: he received an initial security briefing upon
arriving at Joint Task Force GTMO; signed an acknowledgment of
the briefing; and received a pocket guide that explained what
types of information were sensitive and prohibited from
disclosure, as well as the rules governing communication about
detainees. He intentionally revealed this sensitive material to
Ms. Olshansky, an employee of an outside organization and an
4
What injury might ensue and why was the subject of more than
forty pages of classified testimony from Paul Rester, a civilian
employee of the Defense Intelligence Agency who, at the time of
trial, was Director of the Joint Intelligence Group, Joint Task
Force GTMO, and had previously served as the Supervisory
Intelligence Officer for Interrogation from April to August
2002. We have reviewed this testimony with care. The
Government’s conclusion that public release of the information
in question may have been harmful to the United States is
credible. We note as well that Appellant has not challenged
before this Court the military judge’s application of Military
Rule of Evidence (M.R.E.) 505 to this information nor his
decision to seal this portion of the record.
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individual not authorized to receive it. Importantly,
Appellant’s awareness of the potential for harm through the
unauthorized release of the data is evidenced by the clandestine
manner in which he distributed this classified information.
Appellant’s conduct therefore satisfies the mens rea requirement
of § 793(e), as that element is correctly defined in law. He
knew or should have known that the information “could be used to
the injury of the United States or to the advantage of any
foreign nation.” Evidence of motive derived from the proffered
evidence would not have negated this element. The record
therefore supports the military judge’s conclusions.
With respect to Appellant’s first issue, the evidence
Appellant sought to introduce at trial does not refute the
requisite mens rea, as interpreted by this Court and virtually
every other court that has construed § 793(e).5 It is also
notable that, when asked at oral argument, appellate defense
counsel stated that the military judge instructed the members
“satisfactorily” regarding the elements other than what
Appellant calls the “bad faith” requirement. Finally, proof of
Appellant’s motive is irrelevant on this issue. Although motive
evidence may be relevant where it is circumstantial evidence of
intent, in this case Appellant’s motive was unrelated to his
5
See, e.g., Truong Dinh Hung, 629 F.2d at 919; Morison, 844 F.2d
at 1071; McGuinness, 35 M.J. at 153.
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intent.6 Any noble motives Appellant might have harbored,
including what he may have thought was in compliance with a
Supreme Court ruling, were irrelevant to his intentional act of
physically mailing the names of detainees and coding information
related to these names. Accordingly, the military judge did not
abuse his discretion when he granted the Government’s motion in
limine or in his reading of the Espionage Act.
Issue II: Appellant’s Attempted Guilty Plea
We review a military judge’s decision to accept or reject a
guilty plea as “irregular” for an abuse of discretion. United
States v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008).
Military judges are afforded “broad discretion” in deciding
whether or not to accept such a plea. Id. When an accused
enters a guilty plea, the military judge is required to make
“such inquiry of the accused as shall satisfy the military judge
that there is a factual basis for the plea.” Rule for Courts-
Martial (R.C.M.) 910(e).
R.C.M. 910(a)(1) allows an accused to plead guilty to a
specification with exceptions and substitutions to the initial
charge. R.C.M. 910(b), on the other hand, permits a military
judge to reject such pleas if the exceptions and substitutions
render it “irregular.” The Discussion to R.C.M. 910(b) explains
6
See United States v. Huet-Vaughn, 43 M.J. 105, 114 (C.A.A.F.
1995) (holding that motive evidence is irrelevant where it does
not present a viable defense).
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that an irregular plea “includes pleas such as guilty without
criminality or guilty to a charge but not guilty to all
specifications thereunder.”
At trial, Appellant sought to plead guilty to Charge II and
its Specification by exceptions.7 Charge II presented a
violation of Article 133, UCMJ. This offense has only two
elements: (1) that the accused did or omitted to do certain
acts; and (2) that, under the circumstances, these acts or
omissions constituted conduct unbecoming an officer and
gentleman. Manual for Courts-Martial, United States pt. IV,
para. 59.b(2) (2005 ed.) (MCM). The focus of Article 133, UCMJ,
is the effect of the accused’s conduct on his status as an
officer. United States v. Conliffe, 67 M.J. 127, 132 (C.A.A.F.
2009). The test for a violation of Article 133, UCMJ, is
“‘whether the conduct has fallen below the standards established
for officers.’” Id. (quoting United States v. Taylor, 23 M.J.
314, 318 (C.M.A. 1987)).
In his guilty plea Appellant attempted to substitute for
the words “classified documents” the phrase “government
information not for release.” The military judge determined
7
The specification at issue, in relevant part, states: “In that
Lieutenant Commander Matthew M. Diaz, JAGC, U.S. Navy . . . did,
at or near Guantanamo Bay, Cuba . . . wrongfully and
dishonorably transmit classified documents to an unauthorized
individual.”
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that the guilty plea as submitted was irregular. In particular,
he concluded:
The tendered plea by exceptions and substitutions
alters not just a factor in aggravation, but the very
nature of the information at issue and the gravaman of
the charge. Classified information is not a variety
of fruit which can be alternately pled as a different
apple or orange. . . . It cannot be re-described and
maintain the same offense.
On appeal, Appellant argues that the military judge abused
his discretion in misconstruing the elements of a “regular plea”
when he rejected Appellant’s attempt to plead guilty through
exceptions and substitutions to the charge alleging conduct
unbecoming an officer and gentleman in violation of Article 133,
UCMJ. Appellant points out that the nature of information as
“classified” or “not for release” is not an element of an
Article 133, UCMJ offense. Rather, he argues that the
appropriate question under Article 133, UCMJ, is whether a
reasonable military officer would have no doubt that his
activities constituted conduct unbecoming an officer. United
States v. Hartwig, 39 M.J. 125, 130 (C.M.A. 1994); see also
Parker v. Levy, 417 U.S. 733, 754 (1974) (stating that to
constitute an offense under Article 133, UCMJ, the inappropriate
behavior “must offend so seriously against law, justice,
morality or decorum as to expose to disgrace, socially or as a
man, the offender, and at the same time must be of such a nature
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or committed under such circumstances as to bring dishonor or
disrepute upon the military profession”).
An accused is free to proffer an alternative plea, but he
is not entitled to design his own offense.8 We agree with the
CCA that “the military judge accurately understood the breadth
and scope of Article 133, UCMJ. He did not act in an arbitrary
manner or otherwise abuse his discretion. . . . [A]ppellant’s
proffered plea substituting ‘government information not for
release’ was qualitatively distinct from the charged offense.”
Diaz, 2009 CCA LEXIS 79, at *10-*11, 2009 WL 690614, at *4. In
this case, Appellant’s amended plea changed the nature of the
conduct that the Government charged as unbecoming. The military
judge considered Appellant’s amended guilty plea, determined
that the plea altered the gravamen of the charge, and rejected
it, which on these facts was within his discretion to do.9
Accordingly, the military judge did not abuse his discretion by
rejecting Appellant’s amended guilty plea.
8
Of course, an accused may plead to a different offense assuming
it is indeed an offense and that offense is properly before the
court-martial. See R.C.M. 201(b)(3); United States v. Wilkins,
29 M.J. 421, 424 (C.M.A. 1990).
9
The military judge also consolidated the specification within
Charge II with Specification 2 of Charge III, which ensured that
Appellant would face no additional punishment for the Article
133, UCMJ, charge.
20
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Issue III: Exclusion of Motive Evidence
As already stated, a military judge’s decision to exclude
evidence is reviewed for an abuse of discretion. Barnett, 63
M.J. at 394. “[A] military judge abuses his discretion if his
findings of fact are clearly erroneous or his conclusions of law
are incorrect.” Ayala, 43 M.J. at 298.
Article 133, UCMJ, has two elements: (1) that the accused
did or omitted to do certain acts; and (2) that, under the
circumstances, these acts or omissions constituted conduct
unbecoming an officer and gentleman. MCM pt. IV, para. 59.b(2).
As we discussed above in the section on Issue I,10 Appellant
sought at trial to introduce evidence of his ethical duties as a
judge advocate, among other proffers. Appellant sought to argue
that, under the circumstances, he:
was caught between what he reasonably believed to be
conflicting duties: on the one hand, his duty as a
naval officer and an officer of the court to uphold
the Constitution and the rulings of the Supreme Court
and the district court in the habeas cases, and on the
other hand, his duty as a Naval officer to maintain
the confidentiality of information that his superiors
should have authorized for release but did not.
The military judge concluded that none of the evidence
proffered by Appellant supported his argument that he was
required to release classified information based on his duties
10
The CCA did not distinguish the Espionage Act proffer from the
Article 133, UCMJ, proffer.
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United States v. Diaz, No. 09-0535/NA
as a commissioned officer, his ethical obligations as a judge
advocate, or his ethical obligations as a licensed attorney.
Appellant did not appeal the military judge’s determination
that no legal justification was raised by the evidence.11
Appellant does argue that the subjective motivation of an
accused is relevant to a charge under Article 133, UCMJ.
Appellant claims the military judge prevented him from putting
on an adequate defense by excluding evidence of the
circumstances under which he acted, including his motive.
Appellant argues that this evidence would have supported what he
viewed as his struggle between conflicting legal duties to the
11
We note as well that Appellant did not avail himself of the
Judge Advocate General’s guidance on addressing differences of
legal view within the chain of command. The Judge Advocate
General’s Rules of Professional Conduct, Rule 1.13(b),
Department of the Navy as Client, states:
If a covered [United States Government] attorney . . .
intends to act or refuses to act in a matter related
to the representation that is either adverse to the
legal interests or obligations of the Department of
the Navy or a violation of law which reasonably might
be imputed to the Department, the covered . . .
attorney shall proceed as is reasonably necessary in
the best interest of the naval service.
Dep’t of the Navy, Judge Advocate Instr. 5803.1C,
Professional Conduct of Attorneys Practicing Under the
Cognizance and Supervision of the Judge Advocate General,
Enclosure (1): Rules of Professional Conduct Rule 1.13(b)
(Nov 9, 2004). Among other things, this instruction
recommends four specific steps a covered attorney might
take, including “referring the matter to, or seeking
guidance from, higher authority in the chain of command.”
Id. at Rule 1.13(b)(3).
22
United States v. Diaz, No. 09-0535/NA
Constitution and the rulings of the Supreme Court on the one
hand, and to maintain the confidentiality of information
unauthorized for release on the other. In such a context,
members might have found Appellant’s conduct foolish or
inappropriate, but, given Appellant’s motive, not necessarily
unbecoming or dishonorable. He further asserts that with the
benefit of such evidence he would have been able to contradict
the Government’s case, but instead was left to present his
“motive” evidence at sentencing.
In our view, Appellant’s general point is well-founded. A
determination as to whether conduct charged under Article 133,
UCMJ, is unbecoming of an officer and gentleman includes “taking
all the circumstances into consideration.” MCM pt. IV, para.
59.c(2). Such circumstances incorporate the concept of honor.
Thus, in contrast to § 793(e), Appellant’s view of what those
circumstances entailed, and what was “honorable,” is therefore
relevant to his charge under Article 133, UCMJ. In short,
evidence of honorable motive may inform a factfinder’s judgment
as to whether conduct is unbecoming an officer. This is
possible even where the conduct itself amounts to a delict; this
might be the case, for example, where an accused drives under
the influence of alcohol in order to rush a gravely injured
person to an emergency room.
23
United States v. Diaz, No. 09-0535/NA
We therefore conclude that the military judge abused his
discretion when he prohibited Appellant from presenting motive
evidence on the Article 133, UCMJ, charge, without first
evaluating Appellant’s specific proffers for factual and legal
relevance under M.R.E. 401, M.R.E. 402, and M.R.E. 403 in the
context of the Article 133, UCMJ, charge.
Whether the Prohibition of Motive Evidence was Harmless Error
Nonconstitutional errors are reviewed for prejudice under
Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2006). The burden is
on the Government to demonstrate that the error did not have a
substantial influence on the findings. United States v.
McCollum, 58 M.J. 323, 342 (C.A.A.F. 2003).12 When evaluating
claims of prejudice from an evidentiary ruling, this Court
weighs four factors: “(1) the strength of the Government’s
case, (2) the strength of the defense case, (3) the materiality
of the evidence in question, and (4) the quality of the evidence
in question.” United States v. Kerr, 51 M.J. 401, 405 (C.A.A.F.
1999) (citation omitted). Balancing the factors, we conclude
that the military judge’s error did not have a substantial
influence on the findings.
12
In Kotteakos v. United States, 328 U.S. 750, 765 (1946), the
Supreme Court stated that “[t]he inquiry cannot be merely
whether there was enough to support the result, apart from the
phase affected by the error. It is rather . . . whether the
error itself had substantial influence. If so, or if one is
left in grave doubt, the conviction cannot stand.”
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On the one hand, the military judge’s decision to exclude
evidence of Appellant’s state of mind certainly changed the way
Appellant defended himself at trial. As we have stated, Article
133, UCMJ, specifically requires “taking all the circumstances
into consideration.” Appellant’s state of mind was relevant to
the circumstances under which he acted. At trial, Appellant was
barred from showing that he acted in a manner he believed was
compelled by the Supreme Court’s decision in Rasul, and thus, in
his view, was honorable.
On the other hand, the better argument is that the military
judge’s error did not have a substantial influence on the trial,
and that Appellant could not have avoided a conviction under
Article 133, UCMJ, even if some or all of Appellant’s proffered
evidence had been admitted. Appellant copied classified
material and sent it to a person not authorized to receive it.
The clandestine method of disclosure –- by sending it through
the postal system cut up in a Valentine’s Day card –- suggests
that Appellant knew at the time his actions warranted
concealment. His failure to adhere to presidential directives
and departmental regulations, including those regarding
classified information and for addressing differences of legal
views within the Department, demonstrates that Appellant was not
legally permitted to disregard the classified nature of the
protected information. Moreover, had Appellant been allowed to
25
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present evidence of his “duty” owed as a result of the Rasul
decision, the Government would have responded by noting
Appellant’s obligations to adhere to naval and presidential
directives regarding the handling of classified information,
which weighed in the opposite direction. The absence in Rasul
of any indication the Supreme Court intended its ruling to
supersede in some manner counsel’s other legal and ethical
obligations also weighs against Appellant.
Finally, we note that the military judge merged the two
charges for sentencing purposes.
Under these circumstances we conclude that any error on the
part of the military judge to assess and ultimately admit
Appellant’s proffer of motive evidence on the Article 133, UCMJ,
charge was harmless.
CONCLUSION
The decision of the United States Navy-Marine Corps Court
of Criminal Appeals is affirmed.
26