United States v. Roller

37 M.J. 1093, 1993 CMR LEXIS 389, 1993 WL 362311
CourtU.S. Navy-Marine Corps Court of Military Review
DecidedJuly 30, 1993
DocketNMCM 92 00437
StatusPublished
Cited by3 cases

This text of 37 M.J. 1093 (United States v. Roller) 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. Roller, 37 M.J. 1093, 1993 CMR LEXIS 389, 1993 WL 362311 (usnmcmilrev 1993).

Opinions

REED, Judge:

We have examined the record of trial, the assignments of error,1 and the Govern[1094]*1094ment’s reply thereto. We conclude that the assignments of error are without merit. Only the first assignment of error,2 which deals with this Court’s previous interpretation of 18 U.S.C. § 793(f), merits discussion.3 Citing our opinion in United States v. Chattin, 33 M.J. 802 (N.M.C.M.R.1991), aff'd, 36 M.J. 374 (C.M.A.1992) (citing United States v. McGuinness, 35 M.J. 149 (C.M.A.1992)), appellant argues he cannot be found guilty of “permitting” the classified information to be removed from its place of storage, and thus violating that statutory section, because he removed the materials himself. We disagree. To the extent that our decision conflicts with Chattin, we specifically decline to follow it. Our discussion follows.

Appellant was tried by general court-martial, military judge alone, on 11 and 18 September 1991. In accordance with his pleas, he was convicted of one specification of violating a general order4 and one specification of violating the federal espionage statue, 18 U.S.C. § 793(f),5 in violation of the Uniform Code of Military Justice, Articles 92 and 134, 10 U.S.C. §§ 892 and 934, respectively. He was sentenced to three years’ confinement, reduction to E-l, forfeiture of $400.00 pay per month for 36 months and a dishonorable discharge. The convening authority approved the sentence, but suspended for one year all confinement in excess of ten months.

BACKGROUND

Appellant was responsible for all the “code word” and other classified material coming into the Intelligence Division at Headquarters, U.S. Marine Corps, Washington, D.C. Over the course of several months, he placed classified materials in his desk, which was located in an authorized secured area (SCIF).6 Due to a conflict with his supervisor, appellant request[1095]*1095ed a transfer, which was approved. Prior to appellant’s detachment, his supervisor preferred charges against him. These charges were dismissed the day before appellant checked out. On his last day at work, appellant hastily packed his gym bag with material from his desk and left the SCIF. Unfortunately for appellant, classified materials were included within the items he removed. He had no authority to remove the classified materials.

At his home several weeks later, appellant discovered the classified material. Afraid that he might get in trouble if he now returned this material, he kept it and stored it in a drawer in his garage. He indicated he intended to destroy the material when he got to his new duty station. Before that could occur, a moving company employee discovered some of the material as he unpacked appellant’s household goods at his new duty station at Oceanside, California. This employee subsequently consulted a bail bondsman to whom he owed money to inquire what should be done with this classified material. As a result of that inquiry, the Naval Investigative Service (NIS) was notified and an investigation commenced. NIS recovered additional classified documents as the result of a search of appellant’s household goods. These materials were marked, variously, “NOFORN,” “Secret,” and “Top Secret,” and some were additionally marked as containing compartmented information.

DISCUSSION

Title 18, U.S.Code, § 793(f) provides that: Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, ... Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

This Court held in Chattin that for a servicemember to be successfully prosecuted under 18 U.S.C. § 793(f)(1) for “permitting” classified materials to be removed from their proper place, a third party had to remove the material; a member could not be convicted for removing the materials himself. Having reviewed Chattin we conclude that our analysis therein was faulty.

In Chattin we noted that

The statutory language of section 793(f)(1) contains the term ‘permit’ as the active ingredient for the gross negligence condemned. That statute, however, does not define ‘permit.’ ... Although the statutory language of section 793(f)(1) should be given broad interpretation, such an interpretation must be logical and consistent with the conduct Congress intended the statute to prohibit.

33 M.J. at 804 (footnote and citations omitted). Then through a fairly strained interpretation of the word “permit” and using a dictionary definition, we concluded that a third party must be involved before a violation could occur. We now believe that interpretation to be wrong. The definition of the word “permit” includes “to allow” or “to let,” concepts that can refer to oneself. Black’s Law Dictionary 1026 (5th ed. 1979).

In 18 U.S.C. § 793(f), “permits” refers not only to material improperly “removed from its proper place of custody” but also, to materia] “lost, stolen, abstracted, or destroyed.” As we noted in Chattin, the legislative history contains little assistance in interpreting § 793(f). The House hearing on the original version of this section7 [1096]*1096makes clear that, in so far as the “loss” of classified information is concerned, no third party involvement is required. See “Congressional Record-House”, 1917, pp. 1759-1762. In interpreting this legislation, the Court of Military Appeals has adopted a definition of “loss” that does not involve a third party. See United States v. Gonzalez, 16 M.J. 428 (C.M.A.1983).8

Considering the Act in pari materia, we note that

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.” ... 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.

McGuinness, 35 M.J. at 153.

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Related

United States v. Roller
42 M.J. 264 (Court of Appeals for the Armed Forces, 1995)
United States v. Reap
39 M.J. 653 (U.S. Navy-Marine Corps Court of Military Review, 1993)
United States v. Sweet
38 M.J. 583 (U.S. Navy-Marine Corps Court of Military Review, 1993)

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Bluebook (online)
37 M.J. 1093, 1993 CMR LEXIS 389, 1993 WL 362311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-roller-usnmcmilrev-1993.