Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA v HAROLD T MARTIN III Defendant CRIMINAL NO MJG-17-0069 GOVERNMENT’S BRIEF IN RESPONSE TO ORDER DATED FEBRUARY 16 2018 I INTRODUCTION The Defendant Harold T Martin III is charged with twenty counts of violating Title 18 United States Code Section 793 e On February 1 2018 the Government appeared ex parte before this Court for a hearing on the Government’s motion pursuant to Section 4 of the Classified Information Procedures Act 18 U S C App III CIPA By Order dated February 16 2018 the Court directed the parties to file briefs regarding the elements of Title 18 United States Code Section 793 e particularly as to mens rea See Doc 84 Accordingly this Brief sets forth the elements of the offense To convict the Defendant the Government must prove that the Defendant having unauthorized possession of documents that related to national defense willfully retained those documents—in other words that he retained the documents knowing that his conduct was unlawful The Court has asked whether the Government must prove that the Defendant knew that he possessed the specific documents listed in the Indictment and whether he was aware that the contents of those specific documents constituted national defense information The Government is not required to prove either The Government must prove that the Defendant knew in general that his conduct violated the law Requiring proof that the Defendant knew Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 2 of 13 precisely what documents he possessed or that he knew the precise reason that his retention of those documents was unlawful would be inconsistent with the statute and case law Moreover such a requirement would cause the absurd result that a defendant could avoid culpability merely by committing a crime of such magnitude that he could claim ignorance of the details In this case the Defendant appears to believe that because he stole and retained such a vast quantity of classified information from secure facilities of the U S Intelligence Community he could not know exactly what he stole and therefore cannot be convicted of retaining any particular stolen classified documents For the reasons set forth below the Court should reject this argument and base its discovery determinations on the elements of the charged crime II DISCUSSION Section 793 e provides 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 “The meaning of the essential terms of Section 793 e have been well-settled within the Fourth Circuit since the United States Court of Appeals for the Fourth Circuit issued its opinion in United States v Morison 844 F 2d 1057 4th Cir 1988 ” United States v Drake 2   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 3 of 13 818 F Supp 2d 909 916 D Md 2011 To convict a defendant of violating Section 793 e for retaining a document rather than intangible “information” containing information relating to national defense hereinafter “national defense information” or NDI the Government is required to prove beyond a reasonable doubt that 1 the defendant had unauthorized possession of a document 2 the document related to the national defense and 3 the defendant willfully retained the document and failed to deliver it to the officer or employee of the United States entitled to receive it 18 U S C § 793 e United States v Ford No 05-cr-0235 D Md Doc 38 Jury Instruction No 41 Jury Instructions attached 1 see United States v Hitselberger 991 F Supp 2d 101 104-06 D D C 2013 Drake 818 F Supp 2d at 916-18 see also Sand Sieffert et al Modern Fed Jury Instructions – Criminal Instruction No 29-21 2                                                              1 Ford was charged with inter alia unauthorized retention of national defense information under 18 U S C § 793 e In Jury Instruction No 41 the Hon Peter J Messitte instructed the jury on the elements of the offense In order to prove the defendant under consideration guilty of Count One in the Superseding Indictment the government must prove First that on or about the date set forth in the Superseding Indictment the defendant had unauthorized possession or control over documents relating to the national defense of the United States Second that the defendant willfully retained the same documents and failed to deliver the documents to an officer and employee of the United States who is entitled to receive them 2 The model instruction includes an additional element that only applies in cases involving intangible evidence as opposed to cases such as this one involving documents Specifically the third element listed in the model instruction “that the defendant had reason to believe that the document could be used to the injury of the United States or to the advantage of a foreign country ” does not apply in a case involving documents United States v Morison 622 F Supp 1009 1011 D Md 1985 see United States v Kiriakou 898 F Supp 2d 921 923 E D Va 2012 analyzing Section 793 d Drake 818 F Supp 2d at 916-18 3   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 4 of 13 This Brief addresses each element and responds to the Court’s specific questions regarding mens rea Of course the Government must prove that Martin possessed Document A without authority However what must it prove regarding Martin’s knowledge of his possession Must it prove that Martin knew that he possessed Document A What must the Government prove regarding Martin’s specific knowledge of his possession of Document A Assuming the Government will prove that Document A was included within a pile of documents and that Martin knew he possessed the pile must he have known that the pile includes that specific document And what must the Government prove that Martin knew about the contents of Document A i e whether it contained national defense information Doc 84 at 1-2 As discussed in greater detail below to satisfy the “willfulness” element of Section 793 e the Government must prove that the Defendant knew in general that his conduct was unlawful and that his conduct was not due to mistake or accident The Government must also prove that the documents contained NDI but is not required to prove that the Defendant specifically knew that the documents contained NDI Individuals such as the Defendant who work with classified information are trained to recognize such information and are trained that they may not remove it from its authorized location Classified documents are surrounded by physical and procedural protections to ensure that they remain in authorized locations As argued further below in this context if an individual with the Defendant’s training observed in an appropriate authorized storage location a binder or box labeled “TOP SECRET ” and took the binder or box home such an individual would know that his or her retention of the documents within the binder or box was prohibited— and therefore would act willfully in retaining them—even if the individual did not examine the contents of the binder or box 4   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 5 of 13 A Unauthorized Possession First the Government must prove that a defendant had unauthorized possession of access to or control over each document As Judge Messitte instructed the jury in Ford “Possession” is a commonly used and commonly understood word Basically it means the act of having or holding property—in this case documents—or the detention of property in one’s power or command Possession may mean actual physical possession or constructive possession A person has constructive possession of documents if he know where they are and can get at them at any time he wants or otherwise can exercise control over them Possession cannot be found solely on the grounds that the defendant was near or close to the documents Nor can it be found simply because the defendant was present at a scene where the documents were discovered or solely because the defendant associated with a person who did control the documents when they were discovered However these factors may be considered by you in connection with all other evidence in making your decision whether the defendant has unauthorized possession of the documents Ford No 05-cr-235 at Doc 38 Jury Instruction No 42 see Sand Sieffert et al Modern Fed Jury Instructions – Criminal Instruction No 29-22 3 A defendant is “unauthorized” to have possession of access to or control over classified information if he or she 1 does not hold a security clearance 2 holds a security clearance without the need to know or 3 holds a security clearance has a need to know but removed the classified information from the official premises without authorization See Ford No 05-cr-235 at Doc 38 Jury Instruction No 42 see also United States v Truong Dinh Hung 629 F 2d 908 919 n 10 4th Cir 1980 “The trial judge provided adequate content for this phrase by advising the jury that a person would have authorized possession if he had an appropriate security                                                              3 In this case evidence of the Defendant’s possession of the charged documents may include for example the facts that the documents were in his residence among his other papers and effects he was one of two occupants of the residence he was the only occupant with access to the documents and he admitted having classified information in his home 5   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 6 of 13 clearance and if he gained access to the document because it was necessary to the performance of his official duties ” B Relating to the National Defense Second the government must prove that each document contained “information relating to the national defense ” The term “national defense” has been broadly construed See Gorin v United States 312 U S 19 28 1941 holding that the phrase “information relating to the national defense” as used in the Espionage Act is a “generic concept of broad connotations referring to the military and naval establishments and the related activities of national preparedness” The Gorin Court referred approvingly to the district court’s jury instructions which stated that the term “‘national defense’ includes all matters directly and reasonably connected with the defense of our nation against its enemies ” Drake 818 F Supp 2d at 918-19 citing Gorin 312 U S at 30 see also Sand Sieffert et al Modern Fed Jury Instructions – Criminal Instruction No 29-23 Courts have commonly held that to constitute NDI the information at issue must be “closely held ” See United States v Squillacote 221 F 3d 542 576-77 4th Cir 2000 stating that if the information is obtained “‘from sources that were lawfully available to anyone who was willing to take the pains to find sift and collate it ’” then it is not closely held quoting United States v Heine 151 F 2d 813 815 2d Cir 1945 “ T he central issue is the secrecy of the information which is determined by the government’s actions ” Id at 577 see Sand Sieffert et al Modern Fed Jury Instructions – Criminal Instruction No 29-23 The Fourth Circuit has also held that for information to be NDI disclosure of that information must be “potentially damaging to the United States or potentially useful to an enemy of the United States ” Morison 844 F 2d at 1071-72 6   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 7 of 13 Whether information constitutes NDI is a question for the jury and the fact that information is classified is not determinative of whether information constitutes NDI It is wellestablished however that classification is highly probative of whether information constitutes NDI See Truong 629 F 2d at 918 United States v Rosen 240 F R D 204 206 E D Va 2007 “‘Information relating to national defense’ is sometimes referred to herein as ‘NDI ’ This type of information includes most classified information ” United States v Rosen 445 F Supp 2d 602 623 E D Va 2006 As discussed below the fact that information is classified is relevant not only to its relationship to the national defense and its status as “closely held ” but also to a defendant’s willfulness—his knowledge that his retention is unlawful—when that defendant has been trained to recognize and properly handle classified information See Hitselberger 991 F Supp 2d at 106 Kiriakou 898 F Supp 2d at 925 C Willful Retention Third the Government must prove that the Defendant willfully retained NDI and failed to deliver it to the officer or employee of the United States entitled to receive it In Section 793 e cases courts apply the “simple” willfulness standard defined in Bryan v United States 524 U S 184 1998 Drake 818 F Supp 2d at 916 918 see also Hitselberger 991 F Supp 2d at 107 United States v Kim 808 F Supp 2d 44 53 D D C 2011 When such cases involve documents rather than intangible information no additional mens rea requirements apply See Hitselberger 991 F Supp 2d at 107 Drake 818 F Supp 2d at 916 918 Under the Bryan standard “a ‘willful’ act is one undertaken with a ‘bad purpose ’” Bryan 524 U S at 191 A defendant acts willfully if he “acted with knowledge that his conduct was unlawful ” Id at 191-92 see United States v Danielczyk 917 F Supp 2d 573 578 E D Va 2013 distinguishing “Bryan” willfulness from the higher willfulness standard applied in tax 7   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 8 of 13 cases see also United States v Perry 2014 WL 7240236 E D Va describing Bryan willfulness as a “slightly more relaxed definition” than that applied in Ratzlaf v United States 510 U S 135 1994 Thus as described in the Ford jury instructions “Willfully” means to act with knowledge that one’s conduct is unlawful and with the intent to do something the law forbids that is to say with the bad purpose to disobey or to disregard the law A defendant’s conduct was not “willful” if it was due to negligence inadvertence or mistake Ford No 05-cr-0235 Doc 38 Jury Instruction No 17 Similarly the Fourth Circuit in Morison approved the following jury instruction defining willfulness An act is done willfully if it is done voluntarily and intentionally and with the specific intent to do something that the law forbids That is to say with a bad purpose either to disobey or to disregard the law Morison 844 F 2d at 1071 Of particular note to prove that a defendant acted willfully under Bryan the Government must prove that he knew his conduct “was illegal as a general matter ” and is not required to show “that he knew why ” United States v Bishop 740 F 3d 927 932 4th Cir 2014 emphasis in original see Bryan 524 U S at 196 holding that “knowledge that the conduct is unlawful is all that is required”   Critically then a “showing of willfulness only requires that a defendant knew he was doing something that was prohibited by law ” Morison 622 F Supp at 1010 A defendant therefore acts willfully when he retains documents containing NDI that he knows it is unlawful for him to retain The Government is not required to prove that a defendant knew all of the details of why his conduct was unlawful Bishop 740 F 3d at 932 Accordingly in this case the Government must prove that the Defendant knew generally that his conduct—bringing home documents clearly marked as being classified—was unlawful The Defendant’s own knowledge 8   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 9 of 13 or belief that the documents contained NDI—as opposed to his awareness that it was unlawful to retain them—is immaterial National defense is not a subjective test it does not matter whether the defendant himself believed that the photographs and or documents did indeed relate to the national defense It is purely an objective test and one for the jury to decide after considering all of the evidence It is irrelevant whether the defendant personally believed that the items related to the national defense Morison 622 F Supp at 1010 see Drake 818 F Supp 2d at 916 Of course in this case as in Morison 844 F 2d at 1073-74 Kiriakou 898 F Supp 2d at 925 and similar cases the Defendant was well aware that classified documents are controlled for national security reasons and that removing and retaining them is unlawful In this regard relevant evidence of a defendant’s willful violation of the law can include the defendant’s training and his acts of deception to evade detection See Bishop 740 F 3d at 936 The Government has ample evidence of the Defendant’s lengthy history of assignments within the U S Intelligence Community his receipt of multiple security clearances his training in the identification and handling of classified information and the security environment in which he worked For example the Defendant was specifically instructed that a TOP SECRET classification indicates that a document is so sensitive that its unauthorized disclosure “reasonably could be expected to cause exceptionally grave damage to the national security ” Exec Order 13526 § 1 2 a 1 He worked in secure U S Intelligence Community facilities that were guarded that required security clearances for access and in which protection of classified information was a pervasive and paramount concern Moreover investigators even seized relevant security training materials from the Defendant’s residence Also similar to the Defendant in Bishop the Defendant also attempted to minimize his conduct and deceive investigators Ultimately however the Defendant admitted the mens rea 9   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 10 of 13 element when he acknowledged that he retained classified information at his residence despite knowing it was unlawful to do so There can be no question that the Defendant in this case knew that he was prohibited by law from removing documents marked TOP SECRET from their secure authorized location and was prohibited from retaining them at his home and in his vehicle When he nevertheless removed and retained such documents he did so willfully regardless of whether he knew which classified documents he took In that regard the Defendant in this case is similar to the hypothetical defendant described above who removes from an authorized storage location a binder or box bearing markings that the contents are classified TOP SECRET A defendant with this Defendant’s background and training would know that he was not authorized to remove the binder or box from its proper storage location and that he was not authorized to retain the contents at his residence Such a defendant would not need to view the specific contents to know this III SUMMARY CONCERNING MENS REA Accordingly in response to the Court’s questions regarding mens rea 1 W hat must the Government prove regarding Martin’s knowledge of his possession Must it prove that Martin knew that he possessed Document A What must the Government prove regarding Martin’s specific knowledge of his possession of Document A Section 793 e requires the Government to prove that the Defendant retained documents that he knew he was prohibited by law from retaining and that the documents contained NDI The Government must prove that the Defendant was generally aware that his conduct violated the law and that his conduct was not due to mistake or error There is no additional requirement for the Government to prove that the Defendant knew which specific documents he possessed or why his retention of those documents was unlawful 10   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 11 of 13 Proof of the Defendant’s willfulness may consist of for example circumstantial evidence such as the Defendant’s training the security environment in which the charged documents would ordinarily be maintained and the markings on those documents the facts that the charged documents along with a vast quantity other classified documents were present in the Defendant’s residence the Defendant and his wife were the only occupants of the residence and the Defendant’s wife could not have removed the documents from their authorized storage location and the Defendant’s admissions to investigators that he retained classified information in his residence despite knowing that he was not permitted to do so The steps necessary for the charged documents to be transported from their proper location to the Defendant’s residence and the measures in place to prevent that from occurring are strong evidence that the Defendant could not steal and retain such a volume of documents unknowingly His admission of course further reflects his overall awareness that he retained classified information at home and his knowledge that such conduct was prohibited by law Such evidence illustrates the commonsense conclusion that the Defendant could willfully possess classified documents without being aware of the specific contents of the charged documents 4 2 Assuming the Government will prove that Document A was included within a pile of documents and that Martin knew he possessed the pile must he have known that the pile includes that specific document Section 793 e does not require the Government to prove that the Defendant knew that particular documents were contained within the classified documents he unlawfully retained Rather the Government must prove that he was generally aware that his conduct was prohibited                                                              4 Even though the Government is not required to prove that the Defendant knew he possessed the specific charged documents evidence regarding the location of physical documents as well as digital forensic findings are also probative of the Defendant’s knowledge that he possessed the specific documents listed in the Indictment 11   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 12 of 13 by law The Defendant’s theft and retention of vast quantities of classified documents does not relieve him of culpability for retaining each individual document 3 And what must the Government prove that Martin knew about the contents of Document A i e whether it contained national defense information The Government is only required to prove that the Defendant knew he was prohibited by law from retaining the documents It is well-settled that the Government is not required to prove that in a case where the defendant is charged with the retention of documents related to the national defense the defendant knew they contained NDI See e g Morison 622 F Supp at 1010 Drake 818 F Supp 2d at 916 IV CONCLUSION As set forth above the Government must prove the following in this prosecution 1 the Defendant had unauthorized possession of the documents underlying the Indictment 2 the documents underlying the Indictment contained information related to the national defense and 3 the Defendant willfully retained the documents and failed to deliver them to the officer or employee of the United States entitled to receive them To establish willfulness the Government must show that the Defendant knew that his conduct was prohibited by law and that he did not retain the documents due to negligence inadvertence or mistake The Government is not required to prove that the Defendant knew specifically which documents containing NDI he 12   Case 1 17-cr-00069-MJG Document 88 Filed 02 23 18 Page 13 of 13 retained and is not required to prove that he knew the documents contained NDI This Court should reject any attempt to add additional elements of the crime charged Respectfully submitted STEPHEN M SCHENNING ACTING UNITED STATES ATTORNEY By s Harvey E Eisenberg Assistant United States Attorney Chief National Security Section Zachary A Myers Nicolas A Mitchell Assistant United States Attorneys 36 South Charles St 4th Floor Baltimore Maryland 21201 Tel 410 209-4800 David C Aaron Trial Attorney U S Department of Justice National Security Division 13