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United States v. Hitselberger

United States District Court, D. Columbia.

March 5, 2014

UNITED STATES OF AMERICA
v.
JAMES HITSELBERGER, Defendant

Page 109

[Copyrighted Material Omitted]

Page 110

Re Document No.: 34,38,39,50.

For JAMES F. HITSELBERGER, Defendant: Mary Manning Petras, LEAD ATTORNEY, Rosanna Margaret Taormina, FEDERAL PUBLIC DEFENDER FOR D.C., Washington, DC.

For USA, Plaintiff: Jay I. Bratt, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC; Mona N. Sahaf, LEAD ATTORNEY, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF COL, Washington, DC; Deborah A. Curtis, U.S. DEPARTMENT OF JUSTICE, NSD Counterespionage Section, Washington, DC; Thomas A. Bednar, U.S. Attorney's Office for the District of Columbia, National Security Section, Washington, DC.

OPINION

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MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge.

Denying Defendant's Motions to Suppress Tangible Evidence Seized, Denying Defendant's Motion to Dismiss Counts Four, Five and Six of the Superseding Indictment, and Granting in Part and Denying in Part the Government's Motion for 404(b) Evidence

I. INTRODUCTION

This opinion resolves four of the five remaining motions in the criminal case against James F. Hitselberger: the defendant's motions to (1) suppress documents seized after the search of his backpack, (2) suppress a document seized after the search of his room, and (3) dismiss the counts that allege violations of 18 U.S.C. § 2071, as well as (4) the government's motion to admit evidence of other acts under Federal Rule of Evidence 404(b). The defendant's motion to suppress certain statements will be addressed in a separate opinion.

II. BACKGROUND

A. NSA Bahrain

Most of the events at issue in these motions took place in April 2012, on a United States naval base known as Naval Support Activity Bahrain (" the naval base" or " NSA Bahrain" ). It was--and presumably still is, though the evidence presented here was limited to that time period--a

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small base, perhaps a mile across, Tr. 9:8 [1], located in the Juffair section of Manama, which is the capital of Bahrain, Tr. 97:21-23. The base was surrounded by 15-foot-high, wire-topped concrete walls in some places, Tr. 9:10, and by a simple fence in others, Tr. 98:6-7. It had three entry points: one accessible only to pedestrians, another only to motor vehicles, and a third accessible to both. Tr 9:12-15. At each gate a sign was posted, which stood several feet high by several feet wide and read:

WARNING
U.S. NAVY PROPERTY
AUTHORIZED PERSONNEL ONLY
AUTHORIZED ENTRY ONTO THIS INSTALLATION CONSTITUTES CONSENT TO SEARCH OF PERSONNEL AND THE PROPERTY UNDER THEIR CONTROL.
INTERNAL SECURITY ACT OF 1950 SECTION 21:50, U.S.C. 797

Gov't Exhs. 2-3, 5-6, 9.[2] Armed guards manned the gates and patrolled the interior of the base. Tr 9:15, 19, 25.

B. Events Before the Searches

On the morning of April 11, 2012, Master Sergeant Michael Alan Holden and defendant James F. Hitselberger were at work in a restricted access area on the naval base. A civilian linguist, Mr. Hitselberger worked with a team of three other translators to prepare Navy SEALs to travel to countries in the Persian Gulf region and teach classes in Arabic there. Tr. 8:6-17. The SEALs were members of the Military Information Support Group, formerly known as Psychological Operations. Tr 6:13-16. Master Sergeant Holden was their detachment sergeant. Tr. 7:3, 8:21.

According to the testimony of Master Sergeant Holden, who had arrived at the base on April 6, Tr 6:24, the civilian linguists worked together--apparently with pen and paper--at a conference table in the restricted access area. Tr. 39:6-9. They did not have their own computer workstations. Instead, when a linguist needed to use a computer, whether to check his email or to type up a translation on which he had been working, he would sign on to a computer that was used by the officers who supervised his work. Tr. 37:6-8. These computers could access both classified and unclassified information, though not at the same time. Tr. 18:7-10. The mode in which the computers operated was controlled by removable hard drives. Tr. 14:15. If the classified hard drive--marked with a red sticker, Tr. 15:10--was inserted, the computer would operate in classified mode, and a small bar at the top of the computer would turn red, Tr. 15:8. Conversely, the unclassified hard drive was marked with a green sticker, Tr. 15:12; when it was in use, the small bar on the computer would turn green, Tr. 15:9.

Not long after 11:00 a.m. on April 11, Mr. Hitselberger asked Master Sergeant Christensen if he could use his computer. Tr. 17:12. Mr. Hitselberger signed onto the computer, which contained Master Sergeant Dale Christensen's classified hard drive and was therefore operating on its classified side, and began to read his own

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email. At some point, Master Sergeant Holden, who was standing directly behind Mr. Hitselberger and could clearly see the computer screen on which he was working, noticed that Mr. Hitselberger was reading a classified situation report. Tr. 18:16-18. Although Master Sergeant Holden would later learn that Mr. Hitselberger was on the distribution list for this report and was authorized to read it, Tr. 53:18-25, in that moment he found Mr. Hitselberger's behavior to be odd, Tr. 18:19-20. He turned to Master Sergeant Christensen and said so, then continued to observe Mr. Hitselberger. Tr. 19:17-23.

Master Sergeant Holden saw Mr. Hitselberger print the classified report and walk over to the printer to retrieve it. He then saw Mr. Hitselberger fold the report in half and place it in an English-to-Arabic dictionary. Tr. 19:25-20:11. Master Sergeant Holden again spoke to Master Sergeant Christensen, who turned to Mr. Hitselberger and asked him to sign off of the computer so that Master Sergeant Christensen could use it. Tr. 20:21-25. Mr. Hitselberger replied that he needed one minute to print something. He hit print, logged off of the computer, walked over to the printer, picked up the document, and put it in his backpack along with the dictionary. Mr. Hitselberger zipped up the backpack, threw it over his shoulder, and began to leave. Tr. 21:1-6, 25; 26:1.

C. Search of Mr. Hitselberger's Bag

Master Sergeant Holden turned to Captain Hering and said that he needed the captain to come with him. Captain Hering was in the middle of a conversation and ignored Master Sergeant Holden, who grabbed his sleeve and pulled him toward the door. Tr. 22:8-16. When Master Sergeant Holden and Captain Hering left the restricted access area--a closed, elevated room in an open warehouse area--Mr. Hitselberger was already on the floor of the bay below; they had lost sight of Mr. Hitselberger for ten or fifteen--perhaps as many as twenty--seconds. Tr. 22:23-23:25; 68:24-25. As the two descended the stairs, Mr. Hitselberger left the building, and they lost sight of Mr. Hitselberger for another ten or fifteen seconds. Tr. 22:23-23:25; 70:8.

When Master Sergeant Holden and Captain Hering emerged from the building, Mr. Hitselberger was fifteen or twenty feet ahead of them, and still had his backpack on his back. Tr. 23:17-19; 24:3. Master Sergeant Holden called for Mr. Hitselberger to stop and put his backpack on a nearby picnic table, which he did. Tr. 24:10-14. Master Sergeant Holden told him to open his backpack and remove the documents that he had seen him put into it. Tr. 24:15-16. Mr. Hitselberger reached into the bag and removed a document; Master Sergeant Holden looked at it quickly and noticed that it was marked " SECRET." Tr. 24:17-19. He folded the document, put it into his pocket, and told Mr. Hitselberger that he had seen him put more documents in his backpack. Master Sergeant Holden told him to remove those documents, as well. Tr. 24:19-23. Mr. Hitselberger did so, and Master Sergeant Holden saw that those documents were marked " SECRET/NOFORN." He again folded the documents and put them into his pocket. Tr. 24:23-25, 25:1. Neither Master Sergeant Holden nor Captain Hering physically searched Mr. Hitselberger's backpack. Tr. 25:10-15. The two conferred and decided to let Mr. Hitselberger go, which he did. Tr. 26:9-13. (He returned when asked to do so shortly thereafter, but those events are not relevant to these motions.)

D. Search of Mr. Hitselberger's Room

When he learned of these events, Special Agent Raffi Kesici of the Naval Criminal

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Investigative Service decided to request a command authorization to search Mr. Hitselberger's quarters and seize materials discovered there; he drafted that authorization and prepared an affidavit in support of his request. Tr. 108:20-23. While drafting those documents, Special Agent Kesici reviewed sworn statements made by Master Sergeant Christensen, Master Sergeant Holden, and one Captain Thiel. Tr. 111:5-7. He also consulted with Staff Judge Advocate David Peck, who recommended a revision to his draft. Tr. 111:10-112:2. After Special Agent Kesici made the revision, he and SJA Peck went to meet with Captain Walsh, the base commander at NSA Bahrain. Tr. 112:3-12. Special Agent Kesici introduced himself and briefly summarized what had happened that day and why he believed that there was probable cause to search Mr. Hitselberger's quarters. He presented the draft command authorization to Captain Walsh, who took a moment to read it. Tr. 112:19--113:1. There was a brief exchange between Captain Walsh and Special Agent Kesici, which suggested to the Special Agent that Captain Walsh had already been briefed on the day's events. Tr. 113:4-15. Captain Walsh signed the command authorization; it was executed shortly thereafter. Tr. 113:16-21. The search uncovered an apparently classified document dated March 11, 2012. Tr. 114:22.

III. ANALYSIS

A. Motion to Suppress Documents Seized from ...


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