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Appellate Exhibit 143 | US v Pfc. Manning, Court Ruling on Government and Defense Motions for Instructions for Lesser Included Offenses (LIO)

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US v. Pfc. Manning is being conducted in de facto secrecy.

For more information on the lack of public and press access to United States v. Pfc. Manning, visit the Center for Constitutional Rights, which filed a petition requesting the Army Court of Criminal Appeals (ACCA) "to order the Judge to grant the public and press access to the government's motion papers, the court's own orders, and transcripts of proceedings, none of which have been made public to date."

This ruling on the Government's and the defense's motion for instructions on lesser included offenses was read by Judge Lind into the Court record at the June 8, 2012 Article 39(a) Session of United States v. Pfc. Manning.

[BEGIN COURT RULING ON DEFENSE AND GOVERNMENT MOTIONS FOR LESSER INCLUDED OFFENSES (LIO)]



Defense and Government moved the Court for instructions on lesser included offenses (LIO).

Each party opposes the other's motion at least in part.

After considering the pleadings, evidence presented, and argument of counsel, the Court finds and concludes as follows:



FACTUAL FINDINGS



1.) The accused is charged with five specifications of violating a lawful regulation; one specification of aiding the enemy; one specification of conduct prejudicial to the good order and discipline, and service discrediting; and eight specifications of communicating classified information; five specifications of stealing or knowingly converting Government property; and two specifications of knowingly exceeding authorized access to a Government computer in violations of Article 92, 104, and 134 UCMJ [Uniform Code of Military Justice]; and United States Code, Sections 892, 104, and 934.

Specifically in Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II, the accused is charged with unauthorized possession and disclosure of information related to the national defense, in violation of 18 United States Code (USC) Section 793(e).

In Specifications 13 and 14 of Charge II, the accused is charged with knowingly exceeding authorized access [?] a Government computer in violation of 18 United States Code (USC) Section 1030(a)(1).

Specification 1 of Charge II charges Pfc. Manning with wrongfully and wantonly causing United States intelligence to be published on the Internet, having knowledge that the intelligence placed on the Internet is accessible to the enemy in violation of Article 134.

Finally, Specifications 4, 6, 12, and 16 of Charge II allege that the accused stole, purloined, or knowingly converted for his use or the of another a thing of value owned by the United States Government with a value over a thousand dollars in violation of 18 United States Code, Section 641. 



2.) In addition to these specifications alleged and the conduct describe [?] prejudicial to the good order and discipline of the armed forces, and is of a nature to bring discredit upon the armed forces in violation of Article 134.



3.) At the relevant time, Army Regulation [AR] 380-5 Department of the Army Information Security Program was in effect. The regulation is a punitive law or general order pursuant to paragraph 1-21. 



4.) As charged the elements of Specification 1 of Charge II are (1) that the accused wrongfully and wantonly cause to be published on the Internet intelligence belonging to the United States Government having knowledge that the intelligence published on the Internet is available to the enemy, and (2) is of a nature to bring discredit upon the Armed Forces. 



5.) As charged the elements of Specification 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II which alleges a violation of 18 USC Section 793(e) are (1) the accused had unauthorized possession of certain specified information (2) that the specified information related to the national defense (3) that the accused had reason to believe the information in question would be used to the injury of the United States or the advantage of any foreign nation (4) that the accused willfully communicated, delivered, transmitted, or caused to be communicated, delivered, or transmitted the information to any person not entitled to receive it; and (5) that such conduct is prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.



6.) As charged the elements of Specification 13 and 14 of Charge II which allege a violation of 18 United Stated Code (USC) Section 1030(a)(1) are (1) the accused knowingly accessed a computer exceeding authorized access (2) by means determined by the United Stated Government by Executive Order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations (3) that the accused had reason to believe that the information obtained could be used to the injury of the United States or to the advantage of any foreign nation (4) that the accused willfully communicated, delivered, or transmitted or caused to be communicated, delivered, or transmitted the information to any person not entitled to receive it; and (5) that such conduct is prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.



7.) As charged the elements of Specifications 4, 6, 8, 12, and 16 of Charge II which alleges a violation of Title 18 United States Code (USC) Section 641 are (1) that the records described in the specification belong to the United States Government (2) the records have a value in excess of $1000 dollars at the time alleged (3) that the accused did steal, purloin, or knowingly convert such records to his own use or the use of another (4) that the accused did so knowing the property was not his and with intent to deprive the Government of its use or benefit either temporarily or permanently and (5) that such conduct is prejudicial to good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces.



8.) The elements of an Article 92 UCMJ [Uniform Military Code of Justice] are (1) that a certain lawful general order or regulation was in effect (2) that the accused had a duty to obey it that order or regulation, and (3) that the accused failed to obey the order or regulation.



9.) Defense requests all LIO's that the defense agrees are [?] LIO's the parties agree upon (1) Specifications 2, 3, 16 of Charge II attempt. The parties agree that attempt could be a lesser included offense of all the [?] supported by the evidence (2) Specifications 4, 6, 8, 12, and 16 of Charge II 18 United States Code (USC) Section 641 property of the value of lesser than $100,000 [I think she made a mistake and meant $1000] the parties agree that this is an LIO. And,(3) Specifications 13 and 14 of Charge II 18 United States Code (USC) Section 1030(a)(1) clause (1) and (2) of Article 134 UCMJ, the parties agree that this is LIO.



LIO's in dispute.



1.) Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II 18 United States Code (USC) Section 793(e) Article 92 (1) [violates or fails to obey any lawful general order or regulation] UCMJ [Uniform Code of Military Justice] a violation of Army Regulation [AR] 380-5. Defense requests. Government opposes on the ground the elements of Article 92 (1) [violates or fails to obey any lawful general order or regulation] UCMJ [Uniform Code of Military Justice] are not the subset of 18 United States Code (USC) Section 793(e). 



2.) Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II United States Code, Section 793(e) clauses (1) and (2) . Government request. Defense opposes on the grounds that clause (1) and (2) violation must be charged as a violation of a lawful general order.



3.) Specification 1 of Charge II Article 134 clauses (1) and (2); Article 92 (1) [violates or fails to obey any lawful general order or regulation] UCMJ [Uniform Code of Military Justice] a violation of Army Regulation [AR] 380-5. Defense request. The Government opposes on the grounds the elements of Article 92 (1) [violates or fails to obey any lawful general order or regulation] UCMJ [Uniform Code of Military Justice] are not a subset of the element of Article 134.



4.) Specifications 4, 6, 8, 12, and 16 of 18 United States Code (USC) Section 641 clauses clauses (1) and (2) of Article 134 UCMJ [Uniform Code of Military Justice]. Government requests. Defense opposes based on pre-emption by Article 121 UCMJ [Uniform Code of Military Justice].



THE LAW



1.) The proper test for determining whether an offense constitutes a lesser included offense of another is the elements test Schmuck v. United States 489 U.S. 705, 716-717 (1989); United States v. Jones 68 MJ 465, 469-470 (CAAF 2010). Under the elements test "[o]ne offense is not necessarily included in another unless the elements of the lesser offense are a subset of the elements of the greater offense. For the lesser offense requires an element not required for the greater offense no instruction is to be given" Jones 68 MJ 469-470 quoting Schmuck 489 US 716 The Court was [missed two words] to Congressional and [missed] to ascertain the elements of an offense. id. 471.



2.) "The elements test is not required if the two offenses at issue employ identical statutory language, instead after applying the normal principles of statutory construction, the Court asks whether the elements of the alleged lesser included offense are a subset of the elements of the charged offense" United States v. Bonner 70 MJ 1, 2 (CAAF [Court of Appeals of the Armed Forces], 2011) The fact that there may be an alternative means of satisfying the element in a lesser included offense does not preclude it from being a lesser included offense. See United States v. Arriaga 70 MJ 51, 55 (CAAF [Court of Appeals of the Armed Forces], 2011). The charged language in the specifications determines which statutory variables are relevant for the purposes of a lesser included offense analysis. id. 55. When comparison is drawn between offenses, since offenses are statutorily defined by comparison as appropriately conducted by reference to the statutory elements of the offenses in question and not as the apparent relationship of approach would mandate. By reference of conduct proven at trial regardless of the statutory elements of the offenses in question. One element of an offense is not necessarily included in another, unless the element of the lesser offense are a subset of the elements of the charged offense. United Stated v. Medina 66 MJ 21, (CAAF [Court of Appeals of the Armed Forces], 2008).



3.) Regarding Article 134 of UCMJ [Uniform Code of Military Justice] in the Manual for Court Martial directs that the elements of an assimilated crime for offenses not capital are the elements as defined in the applicable law MCM Part IV, paragraph 60 b.

If the conduct in question is to be punished under clause (1) or (2) of Article 134 UCMJ [Uniform Code of Military Justice] the elements are two fold: (1) Specific actions the accused did or fail to do, and (2) that the accused's acts or omission were prejudicial to the good order or discipline or of the nature to bring discredit upon the armed forces. Clause (1) [that the accused did or failed to do certain acts] and (2) and (3) are alternative theories of prosecution under Article 134.

Clauses (1) and (2) are lesser included offenses of clause (3), if the elements of clauses (1) and (2) are pled in the specification. United States v. Medina 66 MJ 21 (CAAF [Court of Appeals of the Armed Forces] 2008).



ANALYSIS



Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II 18 United Stated Code (USC) Section 793(e); Article 92 (1) UCMJ [Uniform Code of Military Justice]; violation of Army Regulation [AR] 380-5.



1.) The crime or offense not applicable that the Government assimilated by a clause (3) , if the elements of clauses] of Article 134 in Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II, 18 United Stated Code (USC) Section 793(e) is generally applicable federal statute that is part of the criminal sanctions Congress crafted for espionage. As such, it is not founded upon the existence of a regulation of any of the military services, and Congress did not include a reference to such authority in establishing the offense found in 18 United States Code USC() Section 793(e). It is enough that the accused's possession of the specified information was "unauthorized". The statute does not require more.



2.) By the lawful general regulation such as the one issued in this case can serve as a basis for an accused possession of certain information being unauthorized. The plain language of the statute does not require the existence of such a regulation in [?] the offense. It is simply irrelevant under the statute what source of the accused's lack of authority for possessing the information was so long as the accused was without authority. Therefore it follows that the existence of a lawful general regulation is not necessarily included in violation of 18 United States Code (USC) Section 793(e).

3.) The fact the regulation in this case can serve as a basis for the lack of authority required in section 793(e) does not [?] the analysis. The specifications requested do not add anything to the statute that would import a requirement or a lawful general regulation into the offense. Indeed they are not permitted to do so for purposes of the defining the offense. MCM [Manual for Court Martial] Part IV, paragraph 60 b.; See United States v. Jones 68 MJ 471.



The statute does also not include the variable of specifications [missed a few words] Arriaga instead Section 793(e) specifies the exact conduct required to constitute an offense, and the conduct does not include a failure to obey a lawful general regulation even though violating a germane lawful general regulation would potentially result in the [?] of an offense under Section 793(e). To hold otherwise would be to return to the inherent relationship test of the CAAF [Court of Appeals of the Armed Forces] rejected in Jones. 



The second element of the proposed LIO of Article 92 (1) that the accused had a duty to obey a lawful general regulation is not a lesser included element of clauses (1) and (2) of Article 134. Prejudice to the good order and discipline and service discrediting conduct does not require that the accused had a duty to obey a lawful general regulation. 



Based on the elements as charged it is not impossible to prove 18 United Stated Code (USC) 793(e) without also proving a violation of the lawful general order. The defense request for instructions to the effect in violation of Article 92 UCMJ [Uniform Code of Military Justice] is a lesser included offense of the Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II is denied. 



Specification 1 of Charge II clauses (1) and (2) of Charge II Article 134 UCMJ [Uniform Code of Military Justice]. Similarly an Article 92 offense is not a lesser included offense of the Article 134 offenses described in Specification 1 of Charge II. The actions alleged in Specifications 1 of Charge II would not be included in a failure to obey a lawful general regulation, and that prescription defines the scope of the elements for that offense. MCM [Manual for Court Martial] Part IV, paragraph 60 b. 



While the actions alleged wrongfully and wantonly publishing Government intelligence on the Internet could result in a violation of a lawful general regulation, they do not necessarily include such a violation. A violation of a lawful general regulation alone would not necessarily constitute an offense as described in Specification 1 of Charge II. See Jones 68 MJ 471; [?] Bonner 70 MJ 3 defining assault consummated by a battery as a lesser included offense of [?] sexual contact because both offenses required offensive contact.



The second element of the proposed LIO, Article 92 (1) the accused had a duty to obey a lawful general regulation is not a lesser included element of clauses (1) and (2) [that, under the circumstances, the accused's conduct was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces] of Article 134. Prejudice to the good order and discipline and service discrediting conduct is not required if the accused had a duty to obey a lawful general regulation. Based on the elements as charged it is not impossible to prove a clause (1) and (2) violation of Article 134 without also proving a violation of a lawful general order. Defense request for a lesser included offense instruction for Specification 1 of Charge II is denied.



Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II, 18 United Stated Code (USC) Section 793(e) clauses (1) and (2) of Article 134 UCMJ [Uniform Code of Military Justice] (1) under Medina the Court finds that the violations of clauses (1) and (2) of Article 134 are lesser included offenses of clause (3) under Article 134, because clause (1) and (2) elements are pled in the specifications. 



The Government has not presented the Court with a brief addressing the defense argument that United States v. Borunda 67 MJ 607 (A.F. Ct. Crim. App. [Air Force Court of Criminal Appeals] 2009) precludes the clause (1) and (2) LIO. The Government may request a reconsideration upon the written filing addressing the issue.



Specifications 2, 3, 5, 7, 9, [she missed 10,] 11, and 15 of Charge II, 18 United States Code (USC) Section 793(e) clause (1) and (2) of Article 134 UCMJ [Uniform Code of Military Justice], under Medina, the Court finds that the violations of clause (1) and (2) of Article 134 are lesser included offenses of clause (3) and (2) elements are pled in the specifications.

The Government has not presented the Court with a brief addressing the defense argument that United States v. Borunda 67 MJ 607 (A.F. Ct. Crim. App. [Air Force Court of Criminal Appeals] 2009) precludes the clause (1) and (2) LIO. Thus, the Court declines to instruct on the LIO. The Government may request a reconsideration upon the written filing addressing the issue.



Specifications 2, 3, 5, 7, 9, 10, 11, and 15, 18 United States Code (USC) Section 641 clauses (1) and (2) of Article 134 UCMJ [Uniform Code of Military Justice], under Medina, the Court finds that clauses (1) and (2) of Article 134 are lesser included offense of clause (3) of Article 134, because the clause (1) and (2) elements are pled in the specifications.

The Government has not presented the Court with a brief addressing the defense argument pre-empts the clause (1) and (2) LIO. Thus, the Court declines to instruct on the LIO. The Government may request a reconsideration upon the written filing addressing the issue.



RULING



Motions for LIO instructions by parties is granted in part, and denied in part. 



1.) The Court will instruct on attempt as an LIO if raised by the evidence for Specifications 2 through 16 of Charge II. The Court will instruct on property with value less than $1000 for Specifications 4, 6, 8, 12, and 16 of Charge II. The Court will instruct on clauses (1) and (2) of Article 134 as an LIO of Specifications 13 and 14 of Charge II. The Court will not instruct on the remaining LIO's.



So ordered this 8th day of June 2012.

[END COURT RULING ON DEFENSE AND GOVERNMENT MOTIONS FOR LESSER INCLUDED OFFENSES (LIO)]



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