United States District Court, E.D. Virginia, Norfolk Division
For Robert Patrick Hoffman, II, Defendant: Keith Loren Kimball, LEAD ATTORNEY, Office of the Federal Public Defender - Norfolk, Norfolk, VA; James Orlando Broccoletti, Zoby & Broccoletti, Norfolk, VA.
For USA, Plaintiff: Robert John Krask, LEAD ATTORNEY, Alan Mark Salsbury, United States Attorney's Office, Norfolk, VA; Heather Schmidt, U.S. Department of Justice, National Security Division, Counterespionage Section, Washington, DC.
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR LESSER-INCLUDED OFFENSE INSTRUCTIONS
Robert G. Doumar, Senior United States District Judge.
This matter comes before the Court upon Robert Patrick Hoffman, II's (" Defendant" ) oral motion for issuance of two lesser-included offense instructions. This opinion is written to set forth in writing the reasons for orally denying the instructions when offered. For the reasons set forth herein, the Court DENIES Defendant's Motion for Lesser-Included Offense Instructions.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner was charged in a one-count Superseding Indictment with Attempted Espionage, in violation of Title 18, United States Code, Section 794(a). ECF No. 50. Defendant's five-day trial on that one-count Superseding Indictment began on Thursday, August 15, 2013. On Wednesday, August 21, 2013, after approximately one-hour and twenty-minutes of deliberation, the jury returned a verdict of guilty.
The evidence presented at trial showed that Defendant had served in the United States Navy for approximately 20 years, having achieved the rank of Petty Officer First Class. During his 20 years of service, Defendant principally served aboard U.S. submarines as a Cryptologic Technician (Technical) (" CTT" ). Defendant retired from active duty on or about October 21, 2011.
As a CTT, Defendant held a TOP SECRET/SENSITIVE COMPARTMENTALIZED INFORMATION (" SCI" ) security
clearance, which amongst other things permitted Defendant to access information concerning CONTROLLED ACCESS PROGRAMS (" CAPS" ). As a result, Defendant had access to classified information relating to the programs and operations in which he participated.
In the course of being granted his security clearance, Defendant entered into Classified Information Nondisclosure Agreements with the United States on or about: (1) January 16, 1992; (2) December 11, 2001; and (3) September 7, 2009. Gov.'s Trial Exs. 1-3. On May 27, 1992, Defendant also entered into a Sensitive Compartmentalized Information Nondisclosure Agreement with the United States. Gov.'s Trial Ex. 4. In entering into these agreements, Defendant agreed that he would never divulge classified or SCI information to anyone unless he: (1) " officially verified that the recipient ha[d] been properly authorized by the United States Government to receive it" ; or (2) obtained prior, written notice of authorization from the Department or Agency responsible for the classified or SCI information at issue. These Agreements further advised Defendant that any unauthorized disclosure of classified or SCI information " may constitute violations of United States criminal laws," including Title 18, United States Code, Section 794. See Gov.'s Trial Exs. 1-4.
On or about July 13, 2011, on the eve of his retirement from the U.S. Navy, Defendant signed a Security Termination Statement. Gov.'s Trial Ex. 5. In executing that Statement, Defendant agreed the he would not thereafter " communicate or transmit classified information to any person or agency," Gov.'s Trial Ex. 5, ¶ 3, and would " report to the Federal Bureau of Investigation or to the local Naval Criminal Investigative Service office without delay any incident wherein an attempt is made by an unauthorized person to solicit classified information." Gov.'s Trial Ex. 5, ¶ 4. The Security Termination Statement further advised that United States criminal laws, including Title 18, United States Code, Section 794, " prescribe severe penalties for unlawfully divulging information affecting National Defense." Gov.'s Trial Ex. 5, ¶ 5.
After executing his Security Termination Statement, Defendant entered into a stage of service deemed " terminal leave." Trial testimony explained that this is the final period of leave taken by U.S. service members prior to separating or retiring from the military. Persons on terminal leave have not retired, and are still considered to be on active duty. In August 2011, while on terminal leave, Defendant traveled overseas for approximately three weeks. During that time, Defendant visited a former Soviet-bloc country which the U.S. military has deemed a " high" risk to U.S. service members based on security considerations such as counterintelligence, safety, and criminal threats.
In June 2012, the Federal Bureau of Investigation (FBI) began to investigate whether Defendant had passed, or was willing to pass, classified information to foreign intelligence operatives. The first stage of the FBI's investigation involved answering a personal ad posted by Defendant on the Internet. The FBI initially communicated with Defendant in a series of email exchanges using the pseudonym " Megan Feeney." See Gov.'s Trial Exs. 6-8. As those conversations progressed, a female undercover agent was brought into the investigation in order to interact personally with Defendant. That agent, who testified at trial under the pseudonym " Tracy Tea," went on two dinner dates with Defendant. The second dinner date occurred on or about August 10, 2012, and was subject to audio recording by the FBI. Portions of that audio recording were
played at trial. See Gov.'s Trial Ex. 12A (CD of August 12, 2012 dinner date audio recording; Gov.'s Trial Ex. 12B (transcript of clips from August 12, 2012 dinner date audio recording). During the course of their dinner date, Defendant disclosed that, during his trip to the former Soviet-bloc country in August 2011, he had personally met and delivered a gift to the President of that country.
On or about September 21, 2012, the Federal Bureau of Investigation (FBI) undertook a " false-flag operation" with respect to Defendant. Supervisory Special Agent Stephen Laycock, of the FBI's Counterintelligence Engines Program, explained that a false-flag operation is an undercover operation where an intelligence service assumes the identity of a foreign intelligence service. In Defendant's case, the FBI assumed the identity of the Russian Federation's intelligence service in order to determine whether Defendant had been cooperating, or was willing to cooperate, with foreign intelligence operatives.
On or about September 21, 2012, a second female undercover agent approached Defendant's home in Virginia Beach, VA. That undercover agent, who testified at trial under the pseudonym of " Olga Doe," approached Defendant's home at approximately 8:20 A.M. Eastern Standard Time. The Agent's approach to the home, and interaction with Defendant, was subject to video and audio recording by the FBI. The video recording of that interaction was played at trial. See Gov.'s Trial Ex. 15A (videotape of September 21, 2012 package delivery to Defendant by FBI); Gov.'s Trial Ex. 15B (transcript of September 21, 2012 package delivery to Defendant by FBI).
After Ms. Doe rang the doorbell multiple times, Defendant opened the door. The undercover Agent announced that she was looking for " Robert," and after Defendant affirmed his identity, the Agent stated that she was there to deliver something to him on behalf of a " friend" in Moscow, Russia. The undercover FBI Agent handed Defendant the package and stated " just read it, umm . . . follow the directions, and I might be seeing you again." Gov.'s Trial Ex. 15B, at 3. The interaction concluded at approximately 8:29 A.M.
Defendant's name and address appeared in Russian on the envelope delivered by the undercover FBI Agent on September 21, 2012. Gov.'s Trial Ex. 16.
Defendant's name and address appeared in Russian on the exterior of the package delivered by the undercover FBI Agent on September 21, 2012. Within the package was a letter and medal. The letter, written in broken-English, represented that " comrades" in " special service" of the former Soviet-bloc country Defendant had visited in August 2011 had recommended contacting him, as it was believed his " technical expertise" could prove useful in solving a " special problem." The letter expressed a willingness to pass Defendant " generous compensation in exchange for special help and information." The letter directed Defendant to send an email to a specified address on or before September 28, 2012, with the subject to read " Hello from Hawaii." Trial testimony explained that persons trained in counterintelligence matters, as Defendant had been, would recognize that subject line to be a " parole" --a code word or phrase used by a recipient of a message to confirm the sender's identity. The letter further requested that, in his reply, Defendant confirm the date he met " our friends" in the former Soviet-bloc country " for positive identification." The letter assured Defendant that " security will be highest priority," and directed him to discuss the letter's contents with no one, and destroy the letter once it was read and understood. Gov.'s Trial Ex. 17. Accompanying the letter was a medal
--a copy of the Soviet Order of the Red Banner. Gov.'s Trial Ex. 18. An " operations log" maintained by Defendant throughout his interaction with what he believed to be foreign intelligence operatives evidences that he had identified a number, " 308," engraved on the back of the medal and believed it would serve as " the Rosetta stone for decrypting future correspondence."
Later that same day, at approximately 3:46 P.M. Eastern Standard Time, Defendant responded to the specified email address with the subject line reading " Hello from Hawaii." As requested, Defendant stated in his response that he had traveled overseas from August 3-24, 2011. Defendant concluded the email by stating: " I look forward to renewing our friendship." Gov.'s Trial Ex. 19.
Utilizing the pseudonym " Alexei Vorovnin," FBI Agents responded to Defendant's email on September 23, 2012 at approximately 1:26 P.M. Eastern Standard Time. The sender represented that he could be referred to as " Vladimir," and that he was a representative of the Russian security services based in Washington, DC. Vladimir stated that " [f]urther instructions and tradecraft will come soon once provided by our directorate in Moscow." Until then, Vladimir requested that Defendant answer a number of questions, including: (1) " [d]o you still have access to military information" ; (2) " [w]hat classified compartments can you access" ; (3) " [a]re you able to photograph [military] installations?" ; and " [w]hat are your specific requests in exchange for aiding us?" Vladimir concluded the email by explaining that Defendant's reply ...