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UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

UNITED STATES OF AMERICA
v.
Reality Leigh Winner
Defendant

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CR 1:17-34
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GOVERNMENT’S RESPONSE TO DEFENDANT’S BRIEF REGARDING THE
ELEMENTS OF THE OFFENSE
I.

INTRODUCTION
On October 3, 2017, the Defendant filed a brief “regarding the elements of the offense

under 18 U.S.C. § 793(e) as they relate to the Government’s ex parte withholding of discovery
under CIPA § 4” (Dkt. No. 112). The government hereby files this response to correct a number
of significant misstatements of the law in the Defendant’s brief. As the government has clearly
conveyed in prior filings and hearings, to convict a defendant under Section 793(e), the
government must prove that a defendant in unauthorized possession of a document containing
information relating to the national defense (hereinafter, “national defense information” or
“NDI”) communicated, delivered, or transmitted that document to someone not entitled to
receive it, or retained it, and knew that doing so was against the law. See, e.g., Dkt. No. 99 at 1213. The defense’s claim that other elements of the crime exist—such as “intent to injure the
United States”—is plainly wrong, and the Court should reject it. Furthermore, notwithstanding

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the Defendant’s claim that Section 793(e) “is a notoriously complicated statute,” Dkt. No. 112 at
1, the meaning of its “essential terms” is “well-settled.” See United States v. Drake, 818 F.
Supp. 2d 909, 916 (D. Md. 2011).
II.

DISCUSSION
Section 793(e) provides as follows:
Whoever having unauthorized possession of, access to, or control over any
document, writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, or note relating to
the national defense, or information relating to the national defense which
information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicates,
delivers, transmits or causes to be communicated, delivered, or transmitted, or
attempts to communicate, deliver, transmit or cause to be communicated,
delivered, or transmitted the same to any person not entitled to receive it, or
willfully retains the same and fails to deliver it to the officer or employee of the
United States entitled to receive it
...
[s]hall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. § 793(e).
To convict a defendant of violating 18 U.S.C. § 793(e) for communicating, delivering, or
transmitting, or for retaining, a “document” (rather than intangible “information”), the
government is required to prove beyond a reasonable doubt that: (1) the defendant had
unauthorized possession of a document; (2) the document related to the national defense; and (3)
the defendant willfully communicated, delivered, or transmitted the document to a person not
entitled to receive it, or willfully retained the document and failed to deliver it to the officer or
employee of the United States entitled to receive it. Id.; United States v. Ford, No. PJM-05-0235
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(D. Md.), Dkt. No. 38 (Jury Instruction No. 41) (Jury Instructions attached); 1 see also United
States v. Abu-Jihaad, 630 F.3d 102, 135 (2d Cir. 2010) (consideration of communication of
intangible information elements of 18 U.S.C. § 793(d)); United States v. Kiriakou, 898 F. Supp.
2d 921, 926 (E.D. Va. 2012) (same); United States v. Kim, 808 F. Supp. 2d 44, 55 (D.D.C. 2011)
(same). 2
Contrary to the Defendant’s claim, the government is not required to prove: (1) that the
disclosure of the classified intelligence reporting could threaten the national security of the

1

Ford was charged with, inter alia, unauthorized retention of national defense information under
18 U.S.C. § 793(e). In Jury Instruction No. 41, the court instructed the jury on the elements of
the offense:
In order to prove the defendant under consideration guilty of Count One in the
Superseding Indictment, the government must prove:
First, that on or about the date set forth in the Superseding Indictment, the defendant had
unauthorized possession or control over documents relating to the national defense of the United
States;
Second, that the defendant willfully retained the same documents and failed to
deliver the documents to an officer and employee of the United States who is entitled to
receive them.
2

18 U.S.C. § 793(e) “has exactly the same structure as § 793(d), except that it applies to those
who have unauthorized, rather than lawful, possession of NDI” and does not require a demand
for the return of the NDI. Kiriakou, 898 F. Supp. 2d at 923 n.2; see also Kim, 808 F. Supp. 2d at
52 n.2.

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United States, or (2) the specific mens rea requirements alleged by the Defendant, including
intent to injure the United States. 3
A. Unauthorized Possession
First, the government must prove that a defendant had unauthorized possession of a
document. “Unauthorized possession” means possession of classified information by a person
who: (1) does not hold a security clearance; (2) holds a security clearance without the need to
know; 4 or (3) holds a security clearance, has a need to know, but removed the classified
information from the official premises without authorization. See Ford, No. 05-cr-235 at Dkt.
No. 38 (Jury Instruction No. 42); see also United States v. Truong Dinh Hung, 629 F.2d 908, 919
n.10 (4th Cir. 1980) (“The trial judge provided adequate content for this phrase by advising the
jury that a person would have authorized possession if he had an appropriate security clearance
and if he gained access to the document because it was necessary to the performance of his
official duties.”).

3

As the Defendant concedes, the government need only prove that “the possessor ha[d] reason to
believe” that disclosed information “could be used to the injury of the United States or to the
advantage of any foreign nation.” The government need not prove the “reason to believe”
element in a case such as this, where a tangible document, rather than intangible information,
was disclosed. Dkt. No. 112 at 9-10 n.4; see Kiriakou, 898 F. Supp. 2d at 923 (“[T]he ‘reason to
believe could’ cause injury language applies to intangible communication only, not to documents
or other tangibles.”); Drake, 818 F. Supp. 2d at 916-18.
4

A “need to know” is a determination by an authorized holder of classified information that a
prospective recipient requires access to specific classified information in order to perform or assist
in a lawful and authorized government function. Exec. Order 13526 § 6.1(dd); see Ford, No. 05cr-235 at Dkt. No. 38 (Jury Instruction No. 42).
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The first two prongs of the definition of “unauthorized possession” reflect the definitions
set forth in Executive Order 13526 § 4.1(a)(1-3). The third prong reflects the definition set forth
in Executive Order 13526 § 4.1(d) and also finds support in case law. For example, the
defendant in United States v. McGuinness, 33 M.J. 781 (N.M.C.M.R. 1991), had authority to
access classified material but unlawfully retained it in his private residence located off the base,
and contended that “because he was initially ‘authorized’ to possess the classified materials, he
always remained ‘authorized’ to possess the materials and therefore, he cannot be guilty of
violating § 793(e).” Id. at 784. The United States Navy-Marine Corps Court of Military Review
rejected this argument. In affirming the defendant’s conviction, it held that his “authorized
possession” of classified information became “unauthorized” when it was “remov[ed] . . . to his
home in the civilian community.” Id. at 786 (emphasis added). In particular, the Court of
Military Review held, “[A]ppellant’s initial authorized possession of the classified materials
became unauthorized when he exceeded the parameters of the entrustment given to him to
possess, have access to, or control the classified materials.” Id.
B. Relating to the National Defense
Second, the government must prove that the document contained “information relating to
the national defense.” The term “national defense” has been broadly construed. See Gorin v.
United States, 312 U.S. 19, 28 (1941) (holding that the phrase “information relating to the
national defense” as used in the Espionage Act is a “generic concept of broad connotations,
referring to the military and naval establishments and the related activities of national
preparedness”). The Gorin Court referred approvingly to the district court’s jury instructions,

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which stated that the term “‘national defense’ includes all matters directly and reasonably
connected with the defense of our nation against its enemies.” Drake, 818 F. Supp. 2d at 918-19
(citing Gorin, 312 U.S. at 30).
Courts have commonly held that, to constitute NDI, the information at issue must be
“closely held.” See United States v. Squillacote, 221 F.3d 542, 576-77 (4th Cir. 2000) (stating
that, if the information is obtained “‘from sources that were lawfully available to anyone who
was willing to take the pains to find, sift and collate it,’” then it is not closely held (quoting
United States v. Heine, 151 F.2d 813, 815 (2d Cir. 1945))). “[T]he central issue is the secrecy of
the information, which is determined by the government’s actions.” Id. at 577.
Although the Defendant is correct in stating that whether information constitutes NDI is
a question for the jury and that classification is not determinative of whether information
constitutes NDI, she is wrong in maintaining that the status of the report she allegedly disclosed
“as classified is not remotely dispositive of whether it is national defense information.” Dkt. No.
112 at 7. Indeed, it is well-established that classification is relevant when determining whether
information constitutes NDI. See Truong, 629 F.2d at 918 (“Certainly the classification of the
documents was relevant to the question of whether they related to the ‘national defense.’”);
United States v. Rosen, 240 F.R.D. 204, 206 (E.D. Va. 2007) (“‘Information relating to national
defense’ is sometimes referred to herein as ‘NDI.’ This type of information includes most
classified information.”); United States v. Rosen, 445 F. Supp. 2d 602, 623 (E.D. Va. 2006)
(“[A]lthough evidence that the information was classified is neither strictly necessary nor always
sufficient to obtain a prosecution under § 793, the classification of the information by the

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executive branch is highly probative of whether the information at issue is ‘information relating
to the national defense . . . .’”).
Finally, contrary to the Defendant’s argument, this Court should not require the
government to “demonstrate that the alleged classified intelligence reporting could threaten the
national security of the United States if disclosed.” Dkt. No. 112 at 4 (internal quotation marks
omitted). As explained below, the plain language of Section 793(e) does not impose such a
proof requirement on the government, and at least one court has explicitly said that the
government need not provide such proof. See Kim, 1:10-cr-225 (D.D.C) at Dkt. Nos. 137, 198
(redacted opinions). Properly read, none of the elements of Section 793(e) requires the
government to prove harm—whether potential or actual—to the national security occurring as a
result of an unauthorized disclosure.
The Defendant’s assertion that the government must prove that disclosure of the
classified intelligence reporting could have threatened the national security of the United States
is based on United States v. Morison, in which the Fourth Circuit imposed a “judicial gloss” on
the meaning of “related to the national defense.” 844 F.2d 1057, 1073-74 (4th Cir. 1988). The
Morison decision, however, is not binding, and this Court, like the court in Kim, should reject its
application. As explained in its opinion rejecting the defendant’s motion for reconsideration of
its prior ruling, the Kim court declined to adopt the Morison gloss for five primary reasons, all of
which are equally applicable here. First, the definition in Morison was adopted to avoid
overbreadth concerns, but defendant Kim (like the Defendant, here) had not raised overbreadth
concerns. Second, the Morison court’s definition is inconsistent with the language of the

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statute. 5 Third, the Morison approach requires the jury to second-guess the classification
decision of the information at issue, because an assessment of whether a disclosure could be
potentially damaging to national security “in effect calls into question the classification of the
information insofar as potential damage to national security is a requirement for classification.”
Fourth, even courts in the Fourth Circuit since Morison have not applied Morison in the manner
urged by the defense. Fifth, no court outside the Fourth Circuit has followed Morison on this
issue, and in fact, the court in Abu-Jihaad implicitly agreed with the position the government
advances here—that “the ‘judicial gloss’ the Fourth Circuit placed on ‘national defense
information’ is not appropriate.” See Kim, 1:10-cr-225 at Dkt. No. 198; id. at 9 (citing United
States v. Abu-Jihaad, 600 F. Supp. 2d 362, 386-89 (D. Conn. 2009)). Accordingly, the
government should not be required to prove that the Defendant’s disclosure of the classified
intelligence reporting at issue could threaten national security.
In sum, to show that the classified intelligence reporting related to the national defense,
the government need show only that it falls under the broad definition of “national defense” in
Gorin, and that it was closely held.
C. Willful Communication, Delivery, or Transmission to a Person Not
Entitled To Receive It or Retention
Third, the government must prove that the Defendant willfully communicated, delivered,
or transmitted the NDI to a person not entitled to receive it, or retained it and failed to deliver it

5

Kim was charged under 18 U.S.C. § 793(d), but the relevant “relating to the national defense”
language in subparts (d) and (e) is identical.
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to the officer or employee of the United States entitled to receive it. Transmission to a person
not entitled to receive the information, and retention, are self-explanatory. As the Fourth Circuit
stated in Morison:
Both [Section 793(d) and (e)] plainly apply to “whoever” having access to
national defense information has under section 793(d) “wilfully communicate[d],
deliver[ed] or transmit[ted] ... to a person not entitled to receive it,” or has
retained it in violation of section 793(e). The language of the two statutes
includes no limitation to spies or to “an agent of a foreign government,” either as
to the transmitter or the transmittee of the information, and they declare no
exemption in favor of one who leaks to the press. It covers “anyone.” It is
difficult to conceive of any language more definite and clear.
844 F.2d at 1063 (first alteration added).
Turning to the willfulness standard, the Defendant, at the outset, correctly provides the
definition of willfulness from Bryan v. United States, 524 U.S. 184 (1998), that applies to the
charged crime. However, the Defendant then incorrectly claims that there are a number of
“specific mens rea requirements” that apply. See Dkt. No. 112 at 9-13. Contrary to the
Defendant’s claims, the law is clear: to meet the Bryan standard, the government need prove
only that the Defendant knew her conduct was unlawful. Given the Defendant’s employment
and security clearance history, with the attendant extensive security training she received, this is
a low hurdle for the government, and the Defendant’s claim that the government must provide
“any discovery that bears on the Defendants’ [sic] state of mind” is overly broad. Dkt. No. 112
at 8; see Kiriakou, 898 F. Supp. 2d at 925 (“Kiriakou was a government employee trained in the
classification system who could appreciate the significance of the information he allegedly
disclosed. Accordingly, there can be no question that Kiriakou was on clear notice of the
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illegality of his alleged communications.”); id. at 926-27 (denying defendant’s requests for
discovery that would support a good faith defense “because any claim that he acted with a
salutary motive, or that he acted without a subversive motive, when he allegedly communicated
NDI to journalists is not relevant to this case”).
Courts have explicitly held that, in Section 793 cases, the government need only meet the
“simple” willfulness standard set forth in Bryan, and not the “specific” mens rea requirements as
alleged by the Defendant. See Drake, 818 F. Supp. 2d at 916 (“To prove Mr. Drake unlawfully
retained documents under Section 793(e), the Government need prove only that he acted with
simple willfulness.”); id. at 917 (“It is irrelevant whether the defendant personally believed that
the items related to the national defense. . . . The language ‘has reason to believe’ does not
create a subjective test for the entire statute and does not change or modify the meaning of
willfulness.”); id. at 918 (explaining the applicability of the Bryan standard). 6
Finally with respect to the “willfulness” standard, the Defendant erroneously claims that
the government “must prove that the Defendant intended to injure the national security of the
United States” in disclosing the classified intelligence reporting. Courts have uniformly held that

6

The Defendant also cites the jury instructions in United States v. Gowadia in claiming that the
government must prove more than simple willfulness. See Dkt. No. 112 at 9-10 (citing United
States v. Gowadia, No. 1:05-486-SOM-KSC (D. Haw.) at Dkt. Nos. 508, 730). Gowadia was a
much different case, as it also involved intangible information as well as charges under 18
U.S.C. § 794, all of which had to be accounted for in a single set of jury instructions. Moreover,
Gowadia was charged in the Ninth Circuit, not the Eleventh Circuit. In any event, the cases cited
by the Defendant regarding due process considerations, judicial estoppel, and vagueness, see
Dkt. No. 112 at 10, have no bearing here, as no rights are conferred on this Defendant as a result
of the government agreeing—under a different set of facts in a different Circuit—to prove more
than required under applicable law.
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Section 793 does not require proof of such intent. See, e.g., Abu-Jihaad, 630 F.3d at 135;
Hitselberger, 991 F. Supp. 2d 101, 106 (D.D.C 2013) (explaining the applicability of simple
willfulness standard in Bryan, and describing the “core of ‘willful’ misconduct” as “act[ing] with
the knowledge or intent to disregard the law, not an evil intent to injure the United States”); Kim,
808 F. Supp. 2d at 55 (reciting the elements of the offense); Kiriakou, 898 F. Supp. 2d at 925
(“[I]n the few jurisdictions where the disclosure of intangible NDI in violation of § 793(d) has
been prosecuted, the government has not been required to prove that the defendant intended to
harm the United States or to aid a foreign government.”). The only Section 793 case that the
Defendant cites in support of her position, Truong, does not actually stand for that position. 7 In
fact, Truong claimed on appeal that his conviction under Section 793(e) was invalid because
“793(e) itself does not contain evil intent as an element necessary for a conviction.” 629 F.2d at

7

The First Amendment cases cited by the defense are inapposite. As the Fourth Circuit stated in
Morison, “[a]ctually we do not perceive any First Amendment rights to be implicated here.” 844
F.2d at 1068. The court later explained:
[I]t seems beyond controversy that a recreant intelligence department employee
who had abstracted from the government files secret intelligence information and
had wilfully transmitted or given it to one “not entitled to receive it” as did the
defendant in this case, is not entitled to invoke the First Amendment as a shield to
immunize his act of thievery. To permit the thief thus to misuse the Amendment
would be to prostitute the salutary purposes of the First Amendment. Sections
793(d) and (e) unquestionably criminalize such conduct by a delinquent
governmental employee and, when applied to a defendant in the position of the
defendant here, there is no First Amendment right implicated.
Id. at 1069-70.

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918. The court agreed that Section 793(e) does not require “evil intent,” and rejected the
argument that the absence of that requirement rendered the statute overbroad. Id. at 918-19
(contrasting Section 793(e) with other sections of the Espionage Act). It is thus indisputable that
the government need not prove intent to injure the United States to convict a defendant under
Section 793(e). 8

8

Insofar as the court in Rosen required the government to prove a defendant’s bad faith purpose
to either harm the United States or to aid a foreign government, see United States v. Rosen, 520
F. Supp. 2d 786, 793 (E.D. Va. 2007), that requirement clearly would not apply here for two
reasons. First, the Rosen court explicitly tied that interpretation to the “reason to believe”
language that applies only to “oral disclosures rather than document disclosures.” Id. Second,
the judicial gloss imposed in Rosen can be attributed to the concern that the defendants were
employees of the American Israel Public Affairs Committee, rather than clearance-holding
government employees familiar with the classification system. For this reason, the defense’s
reliance on Rosen throughout its brief is misplaced. As the Kiriakou court stated in
distinguishing Rosen:
The government argues that the reasoning in Rosen is inapplicable to its case
against Kiriakou because “Kiriakou had a recognized obligation not to divulge
classified, national defense information to those not entitled to receive it.” Gov.’s
Resp. at 10. The government’s argument is well taken. Specifically, Kiriakou
was a government employee trained in the classification system who could
appreciate the significance of the information he allegedly disclosed.
Accordingly, there can be no question that Kiriakou was on clear notice of the
illegality of his alleged communications. The facts thus clearly differentiate his
case from Rosen.
Kiriakou, 898 F. Supp. 2d at 925. Like Kiriakou, the Defendant was a government employee,
trained in the classification system, who could appreciate the significance of the information she
disclosed and was aware of the illegality of doing so. See also Hitselberger, 991 F. Supp. 2d at
106 (“Even if the classification system is not 100% accurate, as Mr. Hitselberger claims, his
training places him on notice that the government considers information contained in classified
documents important to national security.”).

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III.

CONCLUSION
As set forth above, the government must prove the following in this prosecution: (1) the

Defendant had unauthorized possession of the classified intelligence reporting; (2) the classified
intelligence reporting related to the national defense; and (3) the Defendant willfully
communicated, delivered, or transmitted the classified intelligence reporting to a person not
entitled to receive it, or willfully retained the same and failed to deliver it to the officer or
employee of the United States entitled to receive it. This Court should reject the Defendant’s
attempts to add additional elements of proof, which are contrary to well-established precedent. 9
Respectfully submitted,
R. BRIAN TANNER
ACTING UNITED STATES ATTORNEY
//s// Jennifer G. Solari
Jennifer G. Solari
Assistant United States Attorney

//s// David C. Aaron
David C. Aaron
Trial Attorney
U. S. Department of Justice
National Security Division
//s// Julie Edelstein
Julie A. Edelstein
9

Notably, the relief the government seeks under Section 4 of the Classified Information
Procedures Act (“CIPA”), 18 U.S.C. App. III, is appropriate even if considered under the
defense’s incorrect statement of the law.
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Trial Attorney
U. S. Department of Justice
National Security Division

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CERTIFICATE OF SERVICE
This is to certify that I have on this day served all the parties in this case in accordance
with the notice of electronic filing (“NEF”) which was generated as a result of electronic filing in
this Court.
This 13th day of October 2017.
R. BRIAN TANNER
ACTING UNITED STATES ATTORNEY
//s// Julie A. Edelstein
Julie A. Edelstein
Trial Attorney
600 E Street, N.W.
Washington, D.C. 20004
(202) 233-2260