United States v. Chattin

33 M.J. 802, 1991 CMR LEXIS 1037, 1991 WL 182102
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJuly 9, 1991
DocketNMCM 89 2734
StatusPublished
Cited by2 cases

This text of 33 M.J. 802 (United States v. Chattin) is published on Counsel Stack Legal Research, covering U.S. Navy-Marine Corps Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chattin, 33 M.J. 802, 1991 CMR LEXIS 1037, 1991 WL 182102 (usnmcmilrev 1991).

Opinions

ALBERTSON, Senior Judge:

By exceptions and substitutions and in accordance with his pleas, appellant was found guilty of violating Articles 92 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 892, 934. Appellant was found guilty of one specification alleging violation of a lawful general regulation Chief of Naval Operations Instruction (OPNAVINST) 5510.1H: Department of the Navy Information and Personnel Security Program) (OPNAV) by failing to safeguard classified materials in his possession and two specifications alleging espionage under 18 U.S.C. §§ 793(e) and (f)(1) (hereinafter “section 793(e)” and “section 793(f)(1)”) by removing a classified document from its proper location and willfully retaining it. After his pleas of guilty were accepted to these specifications, the military judge merged the specifications into one offense for sentencing purposes. Appellant was sentenced to confinement for 4 years, reduction to pay grade E-l, forfeiture of all pay and allowances, and a bad-conduct discharge. The convening authority approved the sentence as adjudged, but suspended all confinement in excess of 3 years for 12 months.

I. PREEMPTION

Appellant argues that prosecution under Article 134, UCMJ, for violating section 793(e)1 for unauthorized retention of a classified document was preempted by his guilty pleas to the Article 92, UCMJ, offense of violating the OPNAV instruction. We find no merit to his argument.

Appellant had authority to possess the classified document in the performance of his duties, but his possession became unauthorized when he took that classified document out of secure spaces to his home. In so doing, appellant violated both the provisions of the OPNAV instruction prohibiting removal of classified documents from secure spaces, contrary to his required duties, and section 793(e) by becoming an unauthorized possessor of the classified information when he removed it from its secure place without authority, willfully retained it, and failed to return it to the proper custodians. Appellant’s violation of section 793(e) persisted until, days later, the document was recovered and returned to proper custody.

None of the specific punitive articles in the UCMJ cover the duty to protect classified information and return it to the proper authorities when one has unauthorized possession of classified information. 18 U.S.C. § 793(e) makes criminal precisely the conduct engaged in by appellant, and is properly applicable to the appellant under the provisions of the UCMJ. Article 134, clause 3; Para. 60c(4)(b), Manual for Courts-Martial, United States, 1984. Congress did not intend that orders of both general and local applicability issued by commanders and enforceable against military members would preempt a federal criminal statute (18 U.S.C. § 793(e)) which [804]*804is specifically enforceable under clause 3 of Article 134, UCMJ. The inadvertent condemnation in a general regulation of conduct that violates a section of the Federal penal code would effectively limit the punishment for such criminal conduct to a maximum of a dishonorable discharge and 2 years of confinement, thereby frustrating the intent of Congress in establishing clause 3 of Article 134, UCMJ. We find nothing in the material cited by appellant that supports the proposition he maintains. In short, general orders cannot and do not preempt offenses that Congress made applicable to the military through Article 134. See United States v. Wright, 5 M.J. 106 (C.M.A.1978).

II. PROVIDENCE INQUIRY

The providence inquiry regarding the appellant’s plea of guilty to Specification 2 of Charge IV reveals that appellant, a lawful possessor or one entrusted with the possession, knowingly removed a classified document from its secure spaces and took it to his home without proper authorization. The facts elicited show that when he removed the document from the secure spaces he became an unauthorized possessor because he took the document beyond the scope of his lawful and authorized possession. At no time after he left the proper place of custody with the document in his possession did appellant have authorized possession of or was he entrusted with the document. Since the facts show appellant was an unauthorized possessor of the document, there is no factual basis to support the first element of section 793(f)(1) which requires the offender to be a lawful possessor or one who has been entrusted with the document.

Additionally, the providence inquiry fails to reveal a sufficient legal basis to support the finding of guilty to Specification 2, Charge IV. The statutory language of section 793(f)(1) contains the term “permit” as the active ingredient for the gross negligence condemned.2 The statute, however, does not define “permit.” When the statute does not define the term it uses, absent indications to the contrary, the term is ordinarily interpreted according to its general usage or common meaning. See United States v. Gonzalez, 16 M.J. 428, 429 (C.M.A.1983) (citing Burns v. Alcala, 420 U.S. 575, 580-81, 95 S.Ct. 1180, 1184-85, 43 L.Ed.2d 469 (1975)). “Permit” means “[t]o suffer, allow, consent, let; to give leave or license; to acquiesce by failure to prevent, or to expressly assent or agree to the doing of an act.” Black’s Law Dictionary 1026 (5th ed. 1979). This definition implies that before one entrusted with or in lawful possession of a document is criminally liable for his conduct under the removal portion of section 793(f)(1), a third party must be the remover of the document. Although the statutory language of section 793(f)(1) should be given broad interpretation, United States v. Gonzalez, 12 M.J. 747, 751 n. 6 (A.F.C.M.R.1981), aff'd, 16 M.J. 428 (C.M.A.1983), such an interpretation must be logical and consistent with the conduct Congress intended the statute to prohibit. See Moskal v. United States, — U.S. -, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990); S.R.Rep. 2369, 81st Cong.2d Sess (1950); H.R.Rep. 647, 81st Cong. 1st Sess. (1949), U.S. Code Cong. Serv., p. 3886. In light of our reading of the statute as a whole and its legislative history, we do not find it logical that the Congress intended as the target of its prohibition under this subsection the individual who “permits” himself because of his gross negligence to remove a document entrusted to him, or in his lawful possession, from its proper place of custody. We believe this interpretation is supported in particular by comparing the language of section 793(e) with section 793(f)(1). The former provision uses verbs that contemplate direct active participation [805]*805in the unauthorized handling of the document by the individual entrusted with or in lawful possession of the document. The latter uses verbs indicating a passive participation in the handling of the document by the same individual allowing a third party as the remover to become an unauthorized/illegal possessor of the document.

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Bluebook (online)
33 M.J. 802, 1991 CMR LEXIS 1037, 1991 WL 182102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chattin-usnmcmilrev-1991.