United States v. Diaz

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.

2
United States v. Diaz, No. 09-0535/NA

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

3
United States v. Diaz, No. 09-0535/NA

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.

4
United States v. Diaz, No. 09-0535/NA

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

5
United States v. Diaz, No. 09-0535/NA

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

6
United States v. Diaz, No. 09-0535/NA

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).

7
United States v. Diaz, No. 09-0535/NA

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

8
United States v. Diaz, No. 09-0535/NA

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.”

9
United States v. Diaz, No. 09-0535/NA

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
United States v. Diaz, No. 09-0535/NA

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

11
United States v. Diaz, No. 09-0535/NA

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:

12
United States v. Diaz, No. 09-0535/NA

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.

13
United States v. Diaz, No. 09-0535/NA

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

14
United States v. Diaz, No. 09-0535/NA

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.

15
United States v. Diaz, No. 09-0535/NA

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.

16
United States v. Diaz, No. 09-0535/NA

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).

17
United States v. Diaz, No. 09-0535/NA

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.”

18
United States v. Diaz, No. 09-0535/NA

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

19
United States v. Diaz, No. 09-0535/NA

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
United States v. Diaz, No. 09-0535/NA

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.

21
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.”

24
United States v. Diaz, No. 09-0535/NA

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
United States v. Diaz, No. 09-0535/NA

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