United States v. Chattin

33 M.J. 802, 1991 CMR LEXIS 1037, 1991 WL 182102
U.S. Navy-Marine Corps Court of Military Review·Decided July 9, 1991·No. NMCM 89 2734·Published·Cited by 2 cases

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] is 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.

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

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