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Sentencing on Possession of Classified Documents

In United States v. Aquino, 2009 WL 279274 (Feb. 6, 2009), the defendant received and retained documents containing classified information government information pertaining to the current regime in the Phillipines, United States military strategy and training methods, and ongoing criminal investigations. Aquino pled to a single count under 18 U.S.C. § 793(e), which prohibits the willful transmission, communication, or retention of documents relating to the national defense of the United States by an unauthorized possessor. At the hearing Aquino admitted to retaining the documents and knowing the documents were classified and could be used to injure the United States or aid a foreign government.

At sentencing, the parties disagreed over which of the relevant guideline sections, § 2M3.2 (which carries a higher base offense level and covers statutes that proscribe diverse forms of obtaining and transmitting national defense information and carries a mens rea requirement that must have intent or reason to believe the information would injure the United States or be used to the advantage of a foreign government) or § 2M3.3 (with a lower offense level and applies to a range of statutes that proscribe various offenses involving the transmission or communication of national defense information and the disclosure or receipt of classified information) applied.

The district court applied §2M3.2, based mostly on the mens rea requirement. The Third Circuit reversed, holding that the applicable guideline section was §2M3.3, despite defendant's admission that he knew the documents could be used to injure the United States or to the advantage of a foreign nation. The Court found that the §2M3.2 mens rea requirement applied only to intangible information (as opposed to the tangible documents here) and required transmission rather than retaining of the information. Thus, §2M3.3 applied.

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