United States v. Chattin

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. 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] in 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. At no time did appellant because of his gross negligence permit another party to remove the classified document from its proper place of custody; rather, he stuffed the document down his pants front and walked out of the building with it; he deliberately, intentionally and without authorization took the documents beyond the scope of his lawful possession and entrustment. Appellant was in unauthorized possession of the document. We hold, therefore, that the conduct prohibited by 18 U.S.C. § 793(f)(1) presupposes compromise of the classified3 material through gross negligence by one who has authorized possession of, or has been entrusted with, the material permitting it to be removed from its proper place of custody by a third party. Accordingly, the facts elicited by the military judge do not support the appellant’s plea of guilty to Specification 2, Charge IV, and the legal sufficiency of the providence inquiry is also deficient in light of our interpretation that a third party was the perpetrator that the removal portion of the provision alleged is meant to hold criminally liable. See Gonzalez (wherein the accused inadvertently removed but by his subsequent gross negligence lost the document entrusted to him). Section 793(e) rather than section 793(f)(1) prohibits appellant’s conduct. The finding of guilty to Specification 2 of Charge IV is set aside and Specification 2 is dismissed. III. MULTIPLICITY Assuming arguendo that we are incorrect in our interpretation of section 793(f)(1) such that appellant’s conviction is sustainable, we find the course of conduct for which appellant was convicted under section 793(e) is the same course of conduct for which he was convicted under section 793(f)(1) and therefore the offenses are multiplicious for findings purposes. As such we would dismiss the findings as to Specification 2 under Charge IV. Appellant’s failure to protect the classified document in violation of the OP-NAV instruction and his unauthorized possession and willful failure to return the document to an officer or employee of the U.S. Government entitled to receive it, as alleged in the Specification under Charge I and Specification 1 of Charge IV, respectively, were related as a part of a single course of conduct. These offenses were not multiplicious or unreasonably duplicative for purposes of findings because the offenses did not stand in the relationship of greater and lesser offenses, the facts were not part of an indivisible crime, and the facts do not reflect a continuous course of conduct prohibited by one statutory provision. United States v. Baker, 14 M.J. 361, 366 (C.M.A.1983). We agree with the military judge, however, that these offenses are multiplicious for purposes of sentencing. The remaining assignments of error are without merit. See United States v. Allen, 31 M.J. 572 (N.M.C.M.R.1990); Article 66(c), UCMJ, 10 U.S.C. § 866(c). The findings, as modified above, and the sentence, as approved on review below, are affirmed. Judge LANDEN concurs. Footnotes [1] In pertinent part, 18 U.S.C. § 793(e) reads: “Whoever having unauthorized possession of, access to, or control over any document or information ... relating to the national defense ... willfully retains the sariie and fails to deliver it to the officer or employee of the United States entitled to receive it: ... Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.” [2] In pertinent part, 18 U.S.C. § 793(f)(1) reads: Whoever, being entrusted with or having lawful possession or control of any document 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, or stolen, abstracted, or destroyed____ Shall be fined not more than $10,000 or imprisoned not more than 10 years, or both. [3] The information or document may, but need not, be of the type requiring classification under the security criteria within the Department of the Navy. See United States v. Harris, 30 C.M.R. 588 (A.B.R.1967), aff'd, 18 U.S.C.M.A. 596, 40 C.M.R. 308 (1969) (citing only Gorin v. United States, 312 U.S. 19, 61 S.Ct. 429, 85 L.Ed. 488, reh. denied, 312 U.S. 713, 61 S.Ct. 618, 85 L.Ed. 1144 (1941)).