When the FBI Comes Calling…®
When the FBI Comes Calling…®
You may be charged with:
Disclosure of Classified Information (18 U.S.C. § 798)
In order for one to be convicted of this statute, the government prosecutor, Assistant United States Attorney (AUSA), must prove beyond a reasonable doubt:
1. That the defendant provided, communicated, or made available classified information to an unclassified person;
2. That the information pertained to:
a. Classified cryptographic operations, machines, or programs
b. COMINT activities by the United States or any foreign government; or
3. That the defendant obtained any above-mentioned information from a foreign government known to itself have been obtained in a manner described above;
4. That the defendant acted knowingly and willingly
So how have the courts interpreted this statute?
A. Propriety of the classification is immaterial to conviction. United States v. Boyce, 594 F.2d 1246 (9th Cir. 1979).
Potential Punishment:
Anyone convicted under this statute shall be fined and imprisoned for up to 10 years. Additionally, any and all material, money, or possessions involved in the violation of this statute will be seized by the government.
Unauthorized Removal and Retention of Classified Documents or Material (18 U.S.C. § 1924)
In order for one to be convicted of this statute, the government prosecutor, Assistant United States Attorney (AUSA), must prove beyond a reasonable doubt:
1. That the defendant was, at the time of the alleged offense, an officer, employee, contractor, or consultant to the United States government;
2. That the defendant willingly removed classified documents or materials without permission;
3. That the defendant intended to retain such documents or materials at an unauthorized location.
So how have the courts interpreted these statutes?
A. Espionage applies extraterritorially, so any act committed abroad which effects the United States is still within the jurisdiction proscribed by this statute. United States v. Zehe, 601 F. Supp. 196 (D. M.A. 1985)
B. Absent a request at trial for greater specifications surrounding an allegation under the statute, the person to whom the documents were given need not be mentioned by name. United States v. Perkins, 47 C.M.R. 259 (1973).
Potential Punishment:
Anyone convicted under this statute shall be fined and may be imprisoned for up to 1 year. Additionally, any and all material, money, or possessions involved in the violation of this statute will be seized by the government.
Gathering, Transmitting, or Losing Defense Information (18 U.S.C. § 793)
In order for one to be convicted of this statute, the government prosecutor, Assistant United States Attorney (AUSA), must prove beyond a reasonable doubt:
1. That the defendant obtained, attempted to obtain, conspired to obtain, or agrees to obtain information or materials concerning a vessel, place, or program, or anything else connected with the national defense; or
2. That the defendant gave, sold, or otherwise distributed national defense information; or
3. That the defendant, through gross negligence, permitted to be removed, delivered to anyone in violation of his trust, or lost national defense information; or
4. That the defendant having knowledge that national defense information had been lost, stolen, or destroyed, failed to promptly notify his superior officer;
5. That the defendant intended, knew, or should reasonably have known, that the information was to be used to in some way injure the United States.
Potential Punishment:
Anyone convicted under this statute shall be fined and imprisoned for up to 10 years. Additionally, any and all material, money, or possessions involved in the violation of this statute will be seized by the government.
Gathering or Delivering Defense Information to Aid a Foreign Government (18 U.S.C. § 794)
In order for one to be convicted of this statute, the government prosecutor, Assistant United States Attorney (AUSA), must prove beyond a reasonable doubt:
1. That the defendant provided, communicated, transmitted, or attempted to do the same, any document, material, or information to a foreign government; or
2. That during a time of war, the defendant collected, recorded, published, or communicated information relative to the Armed Forces to the enemy;
3. That the defendant intended, knew, or should reasonably have known, that the information was to be used to in some way injure the United States.
Potential Punishment:
Anyone convicted under this statute shall be fined and may be imprisoned for life. In those instances in which a jury finds that the actions of the defendant led to the death of any person, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, other means of defense or retaliation against large-scale attack, war plans, COMINT, or any other major weapons system or major element of defense strategy, then the death penalty may be sought. Additionally, any and all material, money, or possessions involved in the violation of this statute will be seized by the government.
When one is charged under this statute, the AUSA will seek an indictment from a Federal Grand Jury and may include charges for Import Crimes, Export Crimes, Trading With the Enemy, Industrial Espionage, Transnational Money Laundering, or NBC Weapons, and is likely to couple those charges with lesser included offenses such as False Statements or Obstruction of Justice where applicable. Should the government decide not to immediately seek indictment, one may be held under the Material Witness statute or, if related to any ongoing war (including the War on Terrorism) may be held through Combatant Detention.