MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA

Transcription

1 MILITARY COMMISSIONS TRIAL JUDICIARY GUANTANAMO BAY, CUBA UNITED STATES OF AMERICA v. AHMED MOHAMED AHMED HAZA AL DARBI AE 014 Joint Motion for Instruction on Sentencing Range, Delay in Sentencing Procedures, and Request for Entry of Proposed Order for Trial Schedule February 18, Timeliness This Motion is timely filed pursuant to Rule for Military Commissions (R.M.C.) 905(b) and Military Commissions Trial Judiciary Rule of Court Relief Sought Pursuant to R.M.C. 1005(c) and (e), the parties jointly request that the Military Judge instruct the members, without informing them of the terms of the pretrial agreement (PTA), that the minimum sentence that can be recommended in this case shall be no less than thirteen (13) years of confinement and the maximum sentence shall be no more than fifteen (15) years of confinement. The parties also request that the Military Judge enter the attached Order for Trial Schedule which will, among other things, set the arraignment, pleas, and providence inquiry for 20 February as well as a date for sentencing three (3) years and six (6) months from the date that the Military Judge accepts the Accused s guilty plea. Entry of that Order as proposed, or one similar, will grant the requested delay in the Accused s sentencing proceedings. 3. Overview The Accused and the Convening Authority agreed to a maximum and minimum sentencing range as an express term of the PTA and its Appendix. To effect that agreement, the

2 Government and the Accused agreed to request that the Military Judge defer the sentencing proceedings in this case for a period of three (3) years and six (6) months from the date that the Military Judge accepts the Accused s guilty plea. To effect the sentencing range and delayed sentencing procedure terms of the PTA, the Government and the Accused further agreed to submit this joint request for an appropriate sentencing range instruction and Trial Scheduling Order from the Military Judge. The requested relief is allowed under the rules applicable to military commissions. The requested sentencing range instruction and request for a delayed sentencing is in line with similar sentencing instructions given at previous military commissions convened and conducted in accordance with the same rules applicable to this Commission, and are valid and enforceable terms of the PTA. 4. Facts a. On, December 20, 2013, the Accused signed and provided an Offer for Pretrial Agreement to the Convening Authority seeking to resolve this case via guilty plea. The Convening Authority accepted the offer and entered into the PTA (Attachment B). b. As a negotiated term of the PTA, the Convening Authority agreed that the approved sentence will not exceed 15 years. PTA Appendix 1. c. As an additional negotiated term of the PTA, the Government and the Accused agreed, in order to effectuate the agreed upon sentencing range, to jointly request the Military Judge to instruct the members, prior to deliberation, that the sentence to confinement must be at least 13 years and may not exceed 15 years[.] PTA 8. The parties further agreed that if [t]he Military Judge fails or refuses to instruct the members that the sentence to confinement shall be no less than 13 years and no more than 15 years the agreement in the PTA will be cancelled. PTA 5(e). 2

3 d. As an additional negotiated term of the PTA, the parties agreed to request that the Military Judge delay the sentencing proceedings in my case until 3 years and 6 months from the date the Military Judge accepts my guilty plea, in order to allow me to cooperate with the Government. PTA 19. As with the sentencing instruction, failure of the military judge to delay the presentencing provision cancels the agreement. PTA 5(d). 5. Discussion The Military Judge has the authority to issue the requested proposed Order for Instruction on Sentencing Range (Attachment I) and Order for Trial Schedule (Attachment J) as an appropriate means of effectuating two central terms of the PTA and the parties intent to resolve this case by guilty plea. An instruction on a range of sentences, as a specifically requested and agreed upon term of the PTA, is consistent with the rules applicable to military commissions and is in line with similar sentencing instructions given by recent military commissions operating under the same statute and rules applicable to this Commission. The requested Order for Trial Schedule is also an appropriate exercise of the Military Judge s authority to control the case s schedule. a. The Military Judge has the authority to issue the requested instruction on a sentencing range. Under the rules applicable to military commissions, a sentencing range may be included as a term of the PTA. In its provisions relating to pretrial agreements, R.M.C. 705 authorizes the Convening Authority to enter into a pretrial agreement that includes a promise to: Fulfill such additional terms or conditions requested by the accused, within the power of the convening authority, and not otherwise prohibited under this Manual or chapter 47A of title 10, United States Code. 3

4 R.M.C. 705(b)(2)(F) (2010). In elaborating what additional terms or conditions may be considered at the request of an accused, the Discussion section specifically contemplates including a sentence range term in a PTA: For example, the convening authority may agree to approve no sentence in excess of a specified maximum or outside a specified and agreed upon range, to suspend all or part of a sentence, to defer confinement, or to mitigate certain forms of punishment into less severe forms. R.M.C. 705(b)(2)(F) (Discussion) (2010) (emphasis added). Although this Discussion language is not binding on the Military Judge, it is persuasive authority that indicates the drafters intent that a sentencing range be included within those permissible PTA terms authorized for use at military commissions. The intentional inclusion of a sentencing range as an authorized PTA term in military commissions is highlighted by the fact that this broader language allowing for sentencing range terms is unique to the Rules for Military Commissions. Unlike R.M.C. 705, the comparable Rule for Court-Martial (R.C.M.) 705 pertaining to pretrial agreements does not grant the convening authority broader authority to consider such additional terms or conditions, nor does its Discussion section specify that sentencing range provisions are permissible. See R.C.M. 705(b) (omitting above-quoted language from R.M.C. 705(b)(2)(F)) and R.C.M. 705(b) (Discussion) (including all of the above Discussion language from R.M.C. 705(b)(2)(F), except the key words, or outside a specified and agreed upon range ). Since the Rules for Military Commission are generally based on the Rules for Court-Martial, see 10 U.S.C. 948b(c), any intentional departure from the R.C.M. and accompanying discussion notes should be given substantial weight. The intentional departure of the military commissions rules from court-martial rules in authorizing a sentencing range as a permissible PTA term is further documented in the 4

5 Regulation for Trial by Military Commissions (Regulation) promulgated by the Deputy Secretary of Defense under authority delegated by the Secretary of Defense. Figure 12.1, the sample PTA of the Regulation, specifically envisions a sentencing range as a permissible term of the PTA in paragraph 8: To effect my agreement to a range of confinement, and after full and satisfactory consultation with my defense counsel, I understand and agree that the military judge will instruct the members, prior to deliberation, that the sentence to confinement must be at least (years)(months) and may not exceed (years)(months), as reflected in Appendix A. Regulation Figure 12.1 (2011). The Notes that accompany the Sample Appendix A to Offer for Pretrial Agreement state unequivocally that the drafters of the regulations intended that a sentencing range be a permissible PTA term in a military commission: Contrary to limitations imposed by case-law in the court-martial system, the convening authority may approve an accused s option to plead guilty when the sentence limitation proposed by the accused includes a range limitation of confinement. Regulation Figure 12.2, Note 6 (2011). In addition to authorizing a sentencing range as a PTA term, the rules applicable to military commissions also permit the Military Judge to provide an appropriate sentencing range instruction in order to effectuate such a term. Indeed, R.M.C provides that [t]he military judge shall give the members appropriate instructions on sentence, R.M.C. 1005(a) (2010), and requires that such instructions include [a] statement of the maximum authorized punishment that may be adjudged and of the mandatory punishment, if any. R.M.C. 1005(e)(1) (2010) (emphasis added). 1 In the circumstance of a PTA term calling for a range of punishment, it is consistent with these rules for the Military Judge to provide an appropriate instruction to the 1 There are no mandatory punishments for any of the offenses under the Military Commissions Act of 2009 (M.C.A.), thus this language would have no effect if not intended to describe a sentencing range. 5

6 members on the minimum and maximum punishment in accordance with the sentencing range agreed upon in the PTA. Such an instruction is also consistent with R.M.C. 705(b)(2)(F), since the Convening Authority can agree to other terms that are not otherwise prohibited under the Manual for Military Commissions or the Military Commissions Act of 2009 (M.C.A.) or in violation of law and public policy. R.M.C. 705, for example, specifies that certain kinds of terms are prohibited from inclusion in a PTA, such as terms not freely and voluntarily agreed to by the Accused and terms that deprive the Accused of the right to counsel or to other indispensable guarantees. R.M.C. 705(c)(1). Requesting an appropriate sentencing instruction to implement a permissible and agreed upon sentencing range as a term of a PTA does not fall within these or any other prohibition under the Manual for Military Commissions or other applicable authority. Furthermore, the issuance of this instruction is a material term of the PTA in this case and the agreed upon range must become the minimum and maximum sentences, respectively, or else the parties to the PTA lose the benefit of their bargain. Without an appropriate sentencing range instruction, there is simply no other way to effectuate the minimum punishment side of a PTA sentencing range term. While the Convening Authority can always approve less than the members sentence, he cannot approve more. If the members were to return a sentence less than the agreed-upon minimum it would void both the plea agreement and the plea, frustrating the purpose of the parties. This situation could not have been the intent of the drafters of the military commission rules, who, as discussed above, specifically inserted language permitting the use of sentencing ranges. The rules should therefore be interpreted to avoid that potential inconsistency, allowing the parties to agree, as they have in this case, that in order to effectuate a sentencing 6

7 range term in the PTA, they may further agree to have the military judge provide an appropriate instruction on the minimum and maximum sentence in accordance with that term. Finally, this issue should be considered against the backdrop of recent case precedent supporting the premise that the requested sentencing range instruction is an appropriate means of effectuating the intent of the parties to resolve a military commission case by pretrial agreement. In the military commission cases of United States v. al Qosi (sentenced on 11 August 2010) and United States v. Noor Uthman Muhammed (sentenced on 18 February 2011), the military judge, when confronted with the same issue as outlined herein, provided the requested sentencing range instruction as an appropriate means of effectuating the terms of the pretrial agreement. See United States v. al Qosi, trial transcript at 798 (Attachment C), and United States v. Noor, trial transcript at 557 (Attachment D). Similarly, the military judge in United States v. Khan ruled that a sentencing range would not violate public policy. See United States v. Khan, trial transcript at (Attachment E). Since the al Qosi, Noor, and Khan commissions were convened and conducted under the same rules applicable to this Commission, the parties request that the Military Judge consider the al Qosi, Noor, and Khan decisions as persuasive authority and adhere to this precedent in resolving this case in accordance with the express intent of the parties. b. The Military Judge has the authority to issue the proposed Order for Trial Schedule. R.M.C. 801 gives the Military Judge the authority to Determine the time and uniform for each session of a commission and Subject to chapter 47A of title 10, United States Code, and this Manual, exercise reasonable control over the proceedings to promote the purposes of these rules and this Manual. R.M.C. 801(a)(1) and (3) (2010). The discussion section envisions the Military Judge consulting with counsel for both parties throughout the process to ensure that the trial process is orderly and that the needs of the parties are met. The discussion to R.M.C. 7

8 801(a)(1) states that [t]he military judge should consult with counsel concerning the scheduling of sessions and the uniform to be worn. The discussion to R.M.C. 801(a)(3) states: The military judge should prevent the unnecessary waste of time and promote the ascertainment of truth, but must avoid undue interference with the parties presentations or the appearance of partiality. The parties are entitled to a reasonable opportunity to properly present and support their contentions on any relevant matter. R.M.C. 801(a)(3) (2010) (Discussion). The deferment of presentencing procedures is not unprecedented, either in military commissions practice or in courts-martial. 2 In al Qosi the military judge conducted the plea inquiry on 7 July Following the conclusion of that hearing, the military judge recessed the commission until 9 August 2010, at which point the presentencing phase of the case took place. United States v. al Qosi, trial transcript pages , 497, and 499 (Attachment F). The military judge in the Khan commission found identical language in a PTA to be a valid provision and agreed to recess that case for up to four years before presentencing proceedings. United States v. Khan, trial transcript page 90. Similarly there is precedent for such a delay in the context of courts-martial. In 2009, Gunnery Sergeant Eric Froboese, USMC, pled guilty to several offenses involving the unauthorized disclosure of classified evidence. As part of the PTA in that case, the Convening Authority and the Accused agreed to a delay of up to one year between the date the Military Judge accepted the guilty plea and sentencing. The military judge accepted the PTA in that case. See Marine reservist pleads guilty to leaking intelligence documents, Tony Perry, L.A. TIMES June 12, 2009 (Attachment G). 3 See also Pretrial 2 The practice of delaying sentencing is very common in federal practice, and the parties urge the Military Judge to consider such practice in deliberating and ruling on this motion. 3 GySgt Froboese received a subjurisdictional sentence, so the case was not subject to direct appeal under Article 66, UCMJ. 8

9 Agreement ICO United States v. GySgt Eric Froboese (accused s name redacted) at p. 8, 15(m) (Attachment H). The provision in this case is necessary and meets the intent of the parties. Both the Government and the Defense desire the delay in presentencing proceedings in order to allow the Accused time to cooperate with the Government, as it is likely that other cases potentially calling for the Accused s cooperation will go to trial during this timeframe. Without such a delay the Government will not be able to evaluate the Accused s cooperation, nor will the Accused be able to put on a fulsome case in mitigation by highlighting his cooperation with authorities. Such information is relevant to the members in assessing a proper sentence. See United States v. Sothen, 54 M.J. 294, 296 (C.A.A.F. 2001) (cooperation with the government is mitigating factor that should be considered in making a determination on sentence appropriateness). Without a three (3) year and six (6) month delay in sentencing, the intent of the parties will be frustrated. As with the sentencing range instruction, a three (3) year and six (6) month delay in sentencing is a material provision of the PTA, without which the PTA is cancelled. See PTA 5(d). For the above-stated reasons, the parties request that the Military Judge delay sentencing in this case for a period of three (3) years and six (6) months from the date the Military Judge accepts the Accused s plea and, upon sentencing, instruct the members in this case that the minimum sentence can be no less than thirteen (13) years of confinement and the maximum sentence can be no more than fifteen (15) years of confinement. The attached proposed order (Attachment J) effects such a delay. It also sets the arraignment, pleas, and providence inquiry for 15 to 17 January. 9

10 6. Oral Argument The parties do not request oral argument, but are prepared to argue should the Commission find it helpful. 7. Certificate of Conference The Defense joins this Motion and joins the Government in seeking the relief within the proposed orders. 8. Additional Information None. 9. Attachments A. Certificate of Service. B. Pretrial Agreement. C. United States v. al Qosi, transcript excerpt of sentencing range instruction. D. United States v. Noor, transcript excerpt of sentencing range instruction. E. United States v. Khan, transcript excerpt from PTA inquiry. F. United States v. al Qosi, transcript excerpt of deferment of presentencing procedures. G. Marine reservist pleads guilty to leaking intelligence documents, Tony Perry, L.A. TIMES June 12, H. United States v. GySgt Eric Froboese (accused s name redacted). I. Proposed Order For Instruction on Sentencing Range. J. Proposed Order For Trial Schedule. 10

11 Respectfully submitted, By: //s// LTC Michael Hosang, JAGC, USAR MAJ Charlotte Emery, JAGC, USA Trial Counsel BG Mark Martins Chief Prosecutor Military Commissions //s// Prof. Ramzi Kassem Defense Counsel Main Street Legal Services, Inc. City University of New York School of Law 2 Court Square Long Island City, NY LT Theresa Champ, JAGC, USN Defense Counsel Office of the Chief Defense Counsel Office of Military Commissions 1620 Defense Pentagon Washington, DC

12 Attachment A

13 CERTIFICATE OF SERVICE We certify that on the 18th day of February 2014, we filed AE 014, the Joint Motion for Instruction on Sentencing Range and Delay in Sentencing Procedures, and Request for Entry of Proposed Order for Trial Schedule, with the Office of Military Commissions Trial Judiciary. //s// LTC Michael Hosang, JAGC, USAR MAJ Charlotte Emery, JAGC, USA Trial Counsel BG Mark Martins Chief Prosecutor Office of the Chief Prosecutor Office of Military Commissions 1610 Defense Pentagon Washington, DC //s// Prof. Ramzi Kassem Defense Counsel Main Street Legal Services, Inc. City University of New York School of Law 2 Court Square Long Island City, NY LT Theresa Champ, JAGC, USN Defense Counsel Office of the Chief Defense Counsel Office of Military Commissions 1620 Defense Pentagon Washington, DC 20301

14 Attachment B

15 UNITED STATES ) ) ~ ) ) AHMED MOHAMMED AHMED HAZA ) ALDARBI ) ISN ) U.S. NAVAL STATION GUANTANAMO BAY, CUBA December 20, 2013 OFFER FOR PRETRIAL AGREEMENT I, AHMED MOHAMMED AHMED HAZA AL DARB I, ISN 00768, am presently the Accused under Military Commission charges, dated December 16, I have read the charges and specifications alleged against me, and they have been explained to me by my defense counsel, Prof Ramzi Kassem and Lieutenant Theresa Champ, JAGC, U.S. Navy. I understand the charges and specifications against me, and am aware I have a legal and troral right to plead not guilty and to leave the Government with the burden of proving my guilt beyond a reasonable doubt by legal and competent evidence. Understanding the above, and under the conditions set furth below, and in consideration of the agreement by the Convening Authority to approve a sentence in accord with the limitations set furth in Appendix A, I offer to plead guilty to all charges and specifications. The term "Convening Authority'' as used throughout this agreement includes any current or future official so designated by the Secretary of Defense. I understand that this Offer, if accepted by the Convening Authority, constitutes a binding agreement. I assert that I am, in fact, guilty of the offenses to which I am offering to plead guilty. I understand this agreement permits the Government to avon presentation in a Military Commission of sufficient evidence to prove my guilt. I offer to plead guilty because it will be in my best interest that the Convening Authority grant me the relief set furth above and in Appendix A. I understand that I waive my right to a trial of the filets and to be confronted by the witnesses against me, and my right to avoid self-incrimination insofu.r as a plea of guilty will incriminate me. In making this offer, I state that: 1. I am satisfied with my defense counsel, who have advised me with respect to this Offer, and consider them competent to represent me in this Military Commission. 2. No person bas made any attempt to force or coerce me to make this Offer or to plead guilty. 3. My counsel has fully advised me ofthe nature of the charges against me, my right to deftmd against them, any defense which might apply, and the effect ofthe guilty plea that I am offering to make. I fully understand their advice and the meaning, effect, and consequences ofthis plea.

16 4. I understand that the Convening Authority's acceptance ofthls Offer, including Appendix A, will transform this Offer into an agreement binding upon me and the Convening Authority. 5. I understand that I may withdraw my guilty plea at any time befure sentence is announced by the Military Commission but not after, and that, if I do withdraw my plea of guilty, the agreement that may result from this Offer is canceled. Any such agreement will also be canceled if any ofthe following occurs: a. The Military Commission refuses to accept my guilty plea, as set furth above, or either I rmdify or the Military Commission trodifies my plea to not guilty, or to a lesser degree of guilt during the trial b. Either party to the agreement withdraws from the agreement befure my guilty plea is accepted by the Military Judge. c. My failure to agree with the Government on a stipulation of fact as discussed in paragraphs 16 and 17 below. d. The Military Judge fails or refuses to delay the sentencing proceedings in this case until 3 years and 6 m::mths from the date the Military Judge accepts my guilty plea, as set furth in the procedures descnbed in paragraphs 19 and 20 below. e. The Military Judge fails or refuses to instruct the members that the sentence to confinement adjudged fur me shah be no less than 13 years and no m>re than 15 years, as discussed in paragraph 8 below. 6. I understand the Convening Authority is released from the obligation to approve a punishment as provided in Appendix A to this agreement if: between the announcement of sentence and the Convening Authority's approval of any sentence, I commit any offense under the M.C.A., or engage in any conduct that, if committed by a member of the U.S. anned furces, would be an offense under Sections 877 through 934 oftitle 10, United States Code. I understand that this paragraph is subject to the te~ of paragraph I 5 of this Offer. 7. I understand the Convening Authority has no power to affect my status as an alien unprivileged enemy belligerent, and does not purport to do so by the terms of this agreement. 8. To give effect to my agreement to confinement, and after full and satisfactory consultation with my defense counse~ I agree that, in accordance with R.M.C. 705(b)(l ), 705(b)(2)(F), and I 005(e)(I), the Government and I shall jointly request the Military Judge to instruct the members, prior to deliberation, that the sentence to confinement must be at least 13 years and may not exceed I 5 years, consistent with the consideration contained in Appendix A. I fully understand that without such instruction by the Military Judge, the Military Commission members, per R.M.C. 1005(e)(3), could select a sentence that is greater or less than the agreed upon range. The period of any approved sentence to confinement shall run from the date that the Military Judge accepts my guilty plea. 2 A.D

17 9. I have been informed by my counsel of all my post-trial and appellate rights and fully understand those rights. I knowingly, voluntarily, and expressly waive all rights to appeal my conviction, sentence, and confinement except as provided in this paragraph. In particular, and without limitation, I may bring a post-conviction claim if any sentence is imposed in violation of the sentencing limitation provisions contained in this agreement and Appendix A I knowingly, voluntarily, and expressly waive any right to petition the Convening Authority for a new trial under R.M.C I shall execute whatever documents may be necessary to implement this paragraph and any other provision ofthis agreement and Appendix A, including Military Commissions Form 2330 and any appellate rights statements. I shall sign Military Commissions Form 2330 immediately after the sentence is announced, and then I shall immediately file the signed Military Commissions Form 2330 with the Government. I shall also file the signed Military Commissions Form 2330 with the Convening Authority within 10 days after notice of the action is served on me or my counsel under 10 U.S.C. 950b(c)(4). I further agree that should I or my counsel fail to sign or file such documents in a timely way and in accordance with 10 U.S.C. 950c(b), I will not seek to appeal any part of my conviction or sentence or petition ror a new trial 10. I also understand that I may have a right to attack the conviction and/or sentence imposed collaterally on the grounds that it was imposed in violation of the Constitution or laws of the United States, that I received ineffective assistance from my counsel, that the Court was without proper jurisdiction, or that the conviction and/or sentence was otherwise subject to collateral attack. I understand such an attack is usual1y brought through a motion pursuant to Title 28, United States Code, Section I have reviewed Section 2255 with my counsc~ and understand my rights under the statute. Understanding those rights, and having thoroughly discussed those rights with my counse~ I knowingly and voluntarily waive my right to collaterally attack my conviction and/or sentence, except as provided in this agreement. 11. Once my guihy plea is accepted by the Military Commission, I will not initiate any legal claims against the United States Government, any United States Government Agency or official, or any civilian or civilian agency regarding my capture, detention, or confinement conditions prior to my plea. I further agree to withdraw or dismiss without prejudice any pending litigation regarding my capture, detention, confinement conditions, or alien unlawful enemy combatant or alien unlawful enemy belligerent status. Notwithstanding the furegoing or any other provision of this Offer or Appendix A, after I have served any unsuspended portion of an approved sentence to confinement, I retain the right to seek release from the appropriate United States authorities by challenging my continued detention, if any, through a petition fur a writ ofhabeas corpus or other available remedies. 12. I waive my right to any discovery beyond what the Government is obligated to provide pursuant to R.M.C. 701(b)(l) and 70l{d). I additionally waive any request fur furensic or scientific testing of any physical evidence in the Government's possession. The Government may dispose of any physical evidence upon completion of any habeas corpus proceedings or appellate processes not waived by this agreement or otherwise available to me. 3 A.D. ~c.

18 13. I agree to cooperate fully and truthfully with the Goverrunent. This cooperation includes, but is not limited to, providing complete and accurate infurmation in interviews, depositions, and testim:my wherever and whenever requested by prosecutors from the Office ofmilitary Commissions and the United States Department of Justice, and representatives from United States law enforcement agencies, the military, and intelligence agencies while I remain in United States custody. I agree that the Government may interview me without the presence of my counsel, provided that my defense counsel has received reasonable notice of the intent of the Government to interview me, the opportunity to be present for such an interview, and my defense counsel consents to not being present. The Government will provide my counsel with reasonable notice of: and the opportunity to be present fur, any testiirony by me under oath. 14. I agree not to engage in, or materially support, directly or indirectly, hostilities against the United States or its coalition partners as defined in R.M.C. 1 03(8), or any other organization that I know engages in hostilities against the United States or its coalition partners. 1 S. Should I commit any additional offenses, befure or after the acceptance of my guilty plea, I will be subject to prosecution fur those offenses befure any court or commission having jurisdiction over me. 16. I have entered into a stipulation of fact, including attachments, with the Government (Attachment A). 1 understand that I have an absolute right to refuse to enter into this stipulation of fact; however, I knowingly and voluntarily agree to enter into this stipulation of fact. I understand that I may not ordinarily attack, contradict, or otherwise challenge the stipulation of fact. Ifl do so, on my own or through counse~ the Convening Authority may withdraw from this agreement. I have discussed this decision with my counsel and believe it is in my best interest to enter into this stipulation of fact. 17. I agree that the stipulation of fact and its attachments will be used to determine my guih and to assist in determining my sentence. I have read and fully understand the stipulation of fact and have discussed it with my counsel This stipulation of fact and its attachments are a fair and accurate summary of the facts supporting all charges and specifications to which I am pleading guilty. The facts to which I am stipulating, but of which I do not have firsthand knowledge, are a fair and accurate summary ofthose facts to the best of my knowledge, and I acknowledge the Government could prove those facts beyond a reasonable doubt. The Military Commission may rely on this document to determine my guih and to determine an appropriate sentence, together with all matters presented during the pre-sentencing hearing in this case. The Government and I (through counsel) will offer the stipulation of fact and its attachments, unopposed, to the Military Commission. 18. I knowingly and voluntarily waive the time periods enumerated in R.M.C. 707(a). 19. I shall join the Government in requesting that the Military Judge delay the sentencing proceedings in my case until 3 years and 6 rrontbs from the date the Military Judge accepts my guilty plea, in order to allow me to cooperate with the Government. 4 AD Jl.X-

19 20. The Government, in its discretion, may request that the Military Judge schedule my sentencing proceedings fur a date sooner than 3 years and 6 100nths from the date the Military Judge accepts my guilty plea. Should the Government seek to accelerate the date of my sentencing proceedings in this manner, the Government will notify my counsel at least 90 days in advance of the proposed date fur the pre-sentencing proceeding. 21. I understand that the panel of members ofthe Military Commission, and not the Convening Authority, will determine the sentence in accordance with paragraph 8. I also understand that the offenses to which I am pleading guihy carry the fullowing maximum penalties, in the absence of this agreement: Charge I: Charge II: Charge III: Charge IV: Charge V: Confinement fur life; Confinement fur 20 years; Confinement fur life; Confinement fur life; Confinement for 20 years per specification. 22. At the pre-sentencing proceedings, both the Government and the defense may call live witnesses and present evidence, subject to any rulings by the Military Judge, regarding matters in aggravation and in extenuation and mitigation. 23. I agree not to offer the live testiioony of any detainee held at United States Naval Station, GuantanaiOO Bay, Cuba, and understand that the Government will similarly not offer such live tcstirmny. 24. I agree not to seek to retain or present at a pre-sentencing hearing IOOre than two expert consultants or witnesses at Government expense, a limitation that will also bind the Government. The Convening Authority will consider any request by me fur an expert consultant or witness in accordance with the Rules fur Military Conunissions. 25. At the pre-sentencing hearing, I may submit a statement, sworn or unsworn, orally or in writing, or in some combination thereof 26. Should I or the Government seek to introduce classified evidence during my pre-sentencing hearing, M.C.R.E. 505 and 506 will apply. 27. Once this Offer is accepted, and as a continuing obligation after the Military Judge accepts my guilty plea, I agree that I will not disclose, in any furm, in any manner, or by any means, any information that I am reasonably on notice as being classified United States Government 5 AD

20 information, except to my cleared defense counsel during the course of their representation of me, or to the Military Commission as ini:mnation in mitigation at sentencing as provided in paragraphs 22 and 25 above. I further understand and acknowledge that if I do make any such disclosure, it will constitute a material breacb of the conditions of the plea agreement and the Convening Authority will be free to pursue the remedies tor such breach as set fi>rth in this agreement. 28. Pursuant to the Regulation fi>r Trial by Military Commission, Chapter 12, Section 12-7(c), the Convening Authority agrees to recommend to the Commander, Joint Task Force, Guantanarm Bay (JTF-GTMO) that, between the time that I plead guihy and the time that I am sentenced and fi>r as long as I am fully and truthfully cooperating with the Government as required by this agreement, as determined by the Convening Authority, 1 continue to be detained under conditions appropriate fi>r law of war detainees and no rmre austere than the conditions under which I am presently held. The fuilure of Commander, JTF-OTMO to act in accordance with this recommendation will not render the pre-trial agreement voidable and is not grounds fi>r me to withdraw from the pre-trial agreement; the Convening Authority will have fulfilled his obligation under this provision by making the request to Commander, JTF-GTMO. I understand that the Convening Authority has no power to control the local ion or conditions of my detention or confinement, to release me from military or civilian detent ion or confinement, or to compel the United States Government to release me from detentxm as an alien unprivileged enemy belligerent. 29. As a condition precedent to my entry of a plea at my arraignment, the United States will have provitcd me a copy of the diplomatic notes exchanged between the United States and the Kingdom of Saudi Arabia These notes constitute a written agreerrx::nt between the United States and the Kingdom ofsaudi Arabia concerning the support ofboth Governments i>r my transfer to Saudi Arabia to serve the remainder of my approved sentence ifl comply with the terms ofthis agreement and I request such transfer effective after completing rour years in United States custody following the acceptance of my plea. I understand that my transfer to Saudi Arabia is contingent upon the consent ofthe IUngdom of Saudi Arabia and that this plea agreement does not and cannot bind the Kingdom of Saudi Arabia to consent to my prisoner transfer request. I further understand that any prisoner transfer request may not be acted upon until I actually submit such a request, and any prisoner transfer request is completely separate from this pre-trial agreement that I am entering into with the Convening Authority. I understand that, if the Kingdom of Saudi Arabia ultimately denies my prisoner transfer request, that denial wou1d have no impact on this agreement, and I woukl remain bound by this agreement. I understand that the continued service of my sentence will be under the conditions, laws and procedures as established by the Kingdom of Saudi Arabia. No other inducements have been made by the Convening Authority, or any other person, which affect my offer to plead guilty. 30. I have taken into account that other U.S. Government agencies have indicated willingness to positively endorse a request by me, through the Office ofthe Chief Prosecutor, fi>r repatriation to Saudi Arabia after I have served fi>ur years of confinement in United States custody from the date the Military Judge accepts my guihy plea, ifi have met all the conditions herein and the Convening Authority has approved my sentence. However, I recognize that the decision to 6

21 accept my transfer is ultimately made by the Kingdom of Saudi Arabia, and this agreement cannot and does not obligate the Kingdom of Saudi Arabia to grant my request fur transfer. No other inducements have been made by the Convening Authority, or any other person, which affect my offer to plead guilty. 31. In further consideration fur the benefit that I am receiving under this pretrial agreement, I also agree, after I am transferred to Saudi Arabian custody, never to enter the United States of America, her territories, possessions, military installations, airspace, consulates, or embassies. If I enter into any such area, the remaining portion of any approved sentence, if any, shall be carried out in United States custody, explicitly revoking the provisions of paragraph 28 and Appendix A of this agreement. I understand and agree that I will also waive any legal actions that may be brought at that time, in any forum, as a result of my violation oft his agreement. 32. If this Offer is not accepted by the Convening Authority, if the Convening Authority or I withdraw :from this agreement, or ifthe Convening Authority terminates this agreement, then this Offer, the Appendix thereto, the stipulation of fact, and my providence inquiry cannot be used to establish my guilt concerning anyofthe offenses with which I have been charged in this case. 33. Befure the Military Judge accepts my guilty plea, I may change or withdraw that plea fur any reason. After the Military Judge accepts my guihy plea, but befure sentence is announced, I may seek permission :from the Military Judge to change or withdraw any portion of my plea, and the Military Judge, in his or her discretion, may permit me to do so. lfl change or withdraw my guilty plea, the Convening Authority may terminate this agreement. 34. The statements contained in this Offer and Appendix A contain all the tenus, conditions, and other provisions of my Offer and represent the entire agreement with the Convening Authority. There are no other inducements that are not expressly contained in this agreement that affect my offer to plead guilty. Any rrodification of this agreement shall be effective only if made in writing and signed by the Convening Authority and me. 35. The Govenunent agrees that, after the announcement of my sentence by the Military Commission, no further criminal charges will be brought against me pursuant to the Military Commissions Act of2009 fur my conduct in the offenses described in the stipulation of fact that I have entered into with the Government (Attachment A) understand that, if any agreement resulting :from this Offer is canceled fur any reason stated above, then this Offer, the Appendix thereto, the stipulation of fact, and my providence inquiry cannot be used to establish my guilt concerning any of the offenses with which I have been charged in this case. 7

22 This document and Appendix A include all of the terms of this offer to plead guiliy and no other inducements have been made by the Convening Authority or any other person that affect my offer to plead guiliy. Dee- 2@, 2c t] 1 Date AHaeAHMEDHAZA AL DAABI We certify we gave the accused the advice referred to above, we exp1ained to him the elements ofthe offense(s), and we witnessed his voluntary signature to this offer fur a pretrial agreement. v (b_. Zc'l7 Date ctt> lli' ( \'?> Date Prof. Ramzi Kassem Member of the Bar of the State ofnew York _k~~ LT Theresa Champ, JAG~ USN Certified under Article 27(b) UCMJ 7 I recommend (acceptance) ~r~ject iobt of this offer. '{ (es ~~ Date ~l~i~.q- Legal Advisor to the Convening Authority The foregoing instrument, including Appendix~ dated December 20, 2013, is r~t~ (Fejected):" ~ feb Date PaulL. Oostburg Sanz Convening Authority 8

23 UNITED STATES ) ) V. ) ) AHMED MOHAMMED AHMED HAZA ) ALDARBI ) ISN ) ) U.S. NAVAL STATION GUANTANAMO BAY, CUBA December 20, 2013 APPENDIX A TO OFFER FOR PRETRIAL AGREEMENT As consideration for the offer ofthe accused to plead guilty as set forth in the Offer for Pretrial Agreement, dated December 20, 2013, the Convening Authority will undertake that: 1. The Convening Authority will not approve a sentence of confinement of more than fifteen (15) years. 2. Upon sentencing, if the Office of the Chief Prosecutor, in consultation with prosecutors from the Department of Justice and appropriate representatives from United States law enforcement, the military, and intelligence agencies, represents to the Convening Authority that I have provided full and truthful cooperation amounting to substantial assistance to the Government as required under Paragraph 13 ofthe Offer for Pretrial Agreement, the Convening Authority will recommend to JTF-GTMO that I continue to be detained under conditions appropriate for law of war detainees, per paragraph 28 of the Offer for Pretrial Agreement. Substantial assistance does not require that my cooperation directly result in an arrest, prosecution, or conviction. 3. As required by R.M.C. 1105, 1106, and 1107, the Convening Authority will consider matters submitted by the accused and defense counsel for the accused. In approving a sentence, the Convening Authority further agrees to consider any arguments that I may submit in mitigation, including without limitation, arguments concerning the nature of my capture, detention, and confinement. 4. In the event that I am repatriated to the Kingdom of Saudi Arabia in accordance with paragraphs 29 and 30 of the Offer for Pretrial Agreement, after five (5) years having lapsed since the repatriation, at my request, the Convening Authority will consider suspending a portion of the sentence as the Convening Authority determines to be appropriate. Among the factors that the Convening Authority will consider in w hether to suspend shall be the representations of the Offic.e of the Chief Prosecutor that I have fulfilled the tenns of the Offer for Pretrial Agreement and the representations of the Kingdom of Saudi Arabia that I have cooperated fully with the terms of my repatriation. Should the Convening Authority, in his sole discretion under R.M.C , determine that I have provided full cooperation to United States and Saudi Arabian authorities, the Convening Authority will suspend confinement that exceeds 9 years from the date that the Military Judge accepted my plea The period of suspension shall run for a period equivalent to the length of the approved sentence, at the conclusion ofwhich time, unless sooner vacated, the suspended portion will be remitted.

24 5. Except as provided in my Offer for Pretrial Agreement, I waive any right to assert a claim for any day-for-day credit against my sentence to confinement based on any capture, detention or confinement prior to the date that the Military Judge accepts my plea. (This is the original Appendix A submitted with the Offer for Pretrial Agreement.) 2::>Cec2.al3 ~ Date AH AMMED AHMED HAZA ALDARBl I certify I advised the accused ofthe effect of the foregoing and I witnessed his voluntary signature to this Appendix A. Member of the Bar of the State ofnew York ao "'tlt.~ ~ ~~~~ Date LT Theresa Champ, JAG, USN I recommend (acceptance) ~ejestig~ of this Appendix A. ~i~ ~ Legal Advisor to the Convening Authority The foregoing Appendix A is approved in conjunction with the Pretrial Agreement, dated December 20, FEB Date Paul L. Oostburg Sanz Convening Authority 2 A.D

25 Attachment C

26 bear in mind that the accused is to be sentenced only for the offenses of which he has been found guilty. Some of you may have prior experience with courts-martial wherein an accused is given credit for confinement that was served prior to trial. That is not the case here, as no pretrial confinement credit will be given the accused; however, you must not adjudge an excessive sentence in reliance upon any possible credit for the accused s detention prior to today s session. You may, however, consider, when you are deliberating on an appropriate sentence, the duration of the accused s pretrial detention, which is from 15 December 2001 to today, that is 8 years, 7 months, and 27 days, when determining an appropriate sentence. You must not adjudge an excessive sentence in reliance upon any possible mitigating action by the convening authority or some other authority. A single sentence shall be adjudged for both of the offenses of which the accused has been found guilty. Your sentence must be individualized to this accused. You must sentence Mr. al Qosi only for the offenses to which he has pled and been found guilty. You may not sentence him for the offenses or the acts of others. The minimum sentence that may be adjudged in this case is confinement for no less than 12 years. The maximum sentence that may be adjudged in this case is confinement for no more than 15 years. 798

27 Attachment D

28 UNCLASSIFIEDI/FOR:PUBLIC RELEAS'E 3 individualized to~ this a:ccu's~tl. You must.serr:tence.nooa-?nly fo:t :4 those of fenses to w hi-ch he. ha's pled guilty and.been found guilt,y, 11 who viola;t,e the la w. '1 1 heqr.:ln'c lu~e : first., JTehab:iJitat.ion of th~: l2 W,z;opgdoe~ ;. S,e-C..nQ., ~UI't'iS[Iment or the.w:tongdq~p.; t}1i.td, p:rto.te;e,t, ial'y: OI 13 Sl)ciet:y f.r,om the :w.;t0ng_cto;e :t; and fourth, de:tet:rence: :o:f.the wrongdoer }4 a nd those who.kno.w of his crime. and ':Sentence front committ;:tttg-.ther s:am-e 1:5 o:f.fens:e or sfrtiila:i:' 'Offenses. Th'e weight t0 be giv<eh ari.y or.all ov.f' 16 those reasons; along with a.ll the.<!) t het se'r'lt~ncing matters in this 17 ce:ts~, rests sole ly wlthijr yollli: discretion V.~G.I.A~$JFIEDJ/FO.R PUB,LfC RELe.A$1='.... " ' ::.,. ~....

29

30 Attachment E

31 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 1 2 sentence in this case based on a guilty plea is confinement for life? Remember I told you that earlier ACC [MR. KHAN]: Okay MJ [COL POHL]: ---- without a pretrial agreement. ACC [MR. KHAN]: Give me a second, please. MJ [COL POHL]: Sure. ACC [MR. KHAN]: Please. MJ [COL POHL]: Look at Appendix A. This is what the Convening Authority promises to do for you. The first thing is he says approved sentence will not exceed 25 years, okay? Let's move on beyond that. If you read down later in paragraphs ACC [MR. KHAN]: Yes, sir MJ [COL POHL]: and 3, basically what it says, assuming you provide full and truthful cooperation substantial assistance, a provision which is also in your pretrial agreement, assuming you do that, he will approve no sentence to exceed 19 years. Do you understand that? ACC [MR. KHAN]: Nineteen years from today. MJ [COL POHL]: Okay. That is what we got to, exactly. ACC [MR. KHAN]: Exactly. MJ [COL POHL]: Therefore, that, we talked about it earlier, 19 years is the most he can approve. Now, he has the UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 76

32 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT discretion to approve anything less than that. He can do that. Let's assume he approves the 19 years for our discussion now, all right? If the approved sentence is 19 years confinement, that four years, four year sentencing, that starts today and that comes off the ACC [MR. KHAN]: I understand MJ [COL POHL]: ---- assuming you meet the requirements of the pretrial agreement. You understand that? ACC [MR. KHAN]: Yes, sir. MJ [COL POHL]: It is not coming off what the members may adjudge, it's what the Convening Authority will approve. 12 ACC [MR. KHAN]: Yes, sir MJ [COL POHL]: Both sides agree with the interpretation of that provision? TC [MS. SULLIVAN]: Yes, Your Honor, yes. MJ [COL POHL]: Okay. DC [LTC JACKSON]: Yes. 18 ACC [MR. KHAN]: Excuse me, sir. Just one second MJ [COL POHL]: Sure. TC [MS. SULLIVAN]: May I make one clarification, Your 21 Honor? MJ [COL POHL]: Sure. TC [MS. SULLIVAN]: To clarify what you said, approved UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 77

33 UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT sentence not to exceed 25 years, the Convening Authority will approve no more than 19, provided the cooperation provision. MJ [COL POHL]: Yes, exactly. I understand there is the possibility it could be 25 as opposed to 19. I will get back to that when I get to that provision. I wanted to explain the four-year thing. TC [MS. SULLIVAN]: Thank you. MJ [COL POHL]: Ready, Mr. Khan, to continue? 9 ACC [MR. KHAN]: Yes, sir, I'm ready MJ [COL POHL]: Again, on paragraph 9 you agree to waive that, give up all rights to appeal this conviction except as provided in the agreement under the narrow circumstances. Do you agree with that? ACC [MR. KHAN]: Yes, sir. MJ [COL POHL]: Paragraph 10 is kind of the same thing, you give up the right to collaterally attack the conviction and/or sentence except as provided in the agreement. You understand that? ACC [MR. KHAN]: I got it. MJ [COL POHL]: Basically you give up your rights to appeal the findings and/or sentence except under those narrow circumstances. Do you understand that? 23 ACC [MR. KHAN]: Yes. UNOFFICIAL/UNAUTHENTICATED TRANSCRIPT 78

34 Attachment F

35 UNCLASSIFIED//FOR PUBLIC RELEASE than that provided in this agreement, and that would be specifically under the information in Appendix A, that it may be canceled if you commit any offense chargeable under the Military Commissions Act or if you fail to otherwise fulfill the terms of this agreement between the time that the sentence is announced and the time that the sentence is approved? Do you understand that provision? ACC [MR. AL QOSI]: Yes. MJ [LT COL PAUL]: Do you also understand that if this pretrial agreement is canceled for any reason, then your offers to plead guilty to these two offenses cannot be used against you in any way at any time to establish your guilt? Do you understand that as well? ACC [MR. AL QOSI]: Yes. MJ [LT COL PAUL]: Mr. al Qosi, do you also understand that no other promises have been made by the Convening Authority, or any other person, that may potentially affect your offers to plead guilty? [The translator did not provide a translation.] CDC [MR. REICHLER]: I believe he answered. ACC [MR. AL QOSI]: Yes. Yes. MJ [LT COL PAUL]: And in regards to your pretrial agreement, Mr. al Qosi, you have also agreed that if I find your pleas of guilty 490 UNCLASSIFIED//FOR PUBLIC RELEASE

36 UNCLASSIFIED//FOR PUBLIC RELEASE provident and I accept them, then there will be a sentencing hearing, that that sentencing hearing will be held on the 9th of August, and that also that you will join with the government in a request for a tailored sentencing instruction in regards to the sentence that the members may impose. Do you agree to this provision of your pretrial agreement? ACC [MR. AL QOSI]: Yes. MJ [LT COL PAUL]: And at this time, Mr. al Qosi, do you have your copy of Appendix A to review? CDC [MR. REICHLER]: Can we have just a---- MJ [LT COL PAUL]: Certainly. CDC [MR. REICHLER]: ----few seconds? [The defense counsels conferred with the accused.] CDC [MR. REICHLER]: Thank you, Your Honor. MJ [LT COL PAUL]: And Mr. al Qosi, will you again look at page 2? [The accused did as directed.] MJ [LT COL PAUL]: And is that your signature on page 2 of Appendix A? ACC [MR. AL QOSI]: Yes. MJ [LT COL PAUL]: And did you read this document carefully at the time that you signed it? ACC [MR. AL QOSI]: Yes. 491 UNCLASSIFIED//FOR PUBLIC RELEASE

37 UNCLASSIFIED//FOR PUBLIC RELEASE 1 2 MJ [LT COL PAUL]: Mr. al Qosi, in accordance with your plea of guilty, this commission finds you: Of Charge I, conspiracy, and of the specification of Charge 1: Of Charge II, with providing material support for terrorism: As well as The Specification Of Charge II: You may be seated. Guilty. Guilty. Guilty [The accused and his defense counsels did as directed.] MJ [LT COL PAUL]: As stated earlier, the sentencing portion of this commission will be held on 9th of August. Before that time, I will provide both sides with a copy of my proposed sentencing instructions that will be given to the members. I have been provided the government request for a tailored sentencing instruction; I have granted that request. That instruction will be included, but if either side has any specialized instructions or specific instructions that they want included, I m giving you until next Friday, which is the 16th of July, to provide those to the court. Also, I would also like by next Friday, a list provided to me as well as to opposing counsel of any sentencing doc--of any documents. I don t actually need the documents themselves, I just want to be given a list of the documents that are proposed to be provided by both sides during the sentencing portion of the trial. 497 UNCLASSIFIED//FOR PUBLIC RELEASE

38 UNCLASSIFIED//FOR PUBLIC RELEASE DC [CDR LACHELIER]: There s three, Your Honor, yes. MJ [LT COL PAUL]: We ll just include that all as Appellate Exhibit 98. So Appellate Exhibit 98 will include three pages. DC [CDR LACHELIER]: I m handing the court reporter three pages. [CDR Lachelier handed the court reporter Appellate Exhibit 98.] MJ [LT COL PAUL]: Thank you. And those are the three waivers for defense counsel who were not present today. Anything else to take up before we adjourn until the 9th of August? TC [CDR PADGETT]: No, ma am. DC [MR. REICHLER]: No, ma am. Thank you very much. MJ [LT COL PAUL]: Court s in recess until 9 August. [The R.M.C. 803 session recessed at 1207, 7 July 2010.] [END OF PAGE] UNCLASSIFIED//FOR PUBLIC RELEASE

39 Attachment G

40 Eric Froboese I Marine reservist pleads guilty to leaking intelligence... ADVllRTISEMnNT Subscribe/Manage Account Place An Ad LAT Store Jobs Cars Real Estate Rentals More Classifie& Custom l'liblishjng LOCAL U.S. WORLD BUSINESS SPORTS ENTERTAINMENT HEALTH UVING TRAVEL OPINION L.A. NOW POLITICS CRJME EDUCATION o.c. WESTSIDE NBIGH.BORHOODS ENVIRONMENT OB!TIIAlUES FIND!.OCAL YOU ARB HERE: LAT flo rue - Collections ADS BY GOOGLE Marine reservist pleads guilty to leaking intelligence documents June 13, 3009 I Tony Perry CAMP PENDLETON- A Marine gunuery sergeant pleaded guilty Thursday to lealdng secret intelligence information to a Los Augeles County Sheriffs Department deteetive for use by an anti-terrorism task force. Eric. L. Froboese, an intelligence specialist, admitted giving documents to Marine Col. Lany Richards in 2003 and 2004 even tbougb be knew Richards did not have the "need-to-know" clearance to get them. ADS BY GOOGLE ADVER'flSBMENT Is a Foreclosure coming? this attywill stop it Pri11Ce William,Fairfax,Loudoun ~ ~~ Are You Writing a Book? Get a free guide to professional editing & publishing options. ~.lllniverst oo..m Selling Your Home? Value? Free Mkt Analysis & Property SearclJ t96 Listing Pee or Free Short Sale. ~_.:i.mlruiliill'm.run Silk Wedding Flowers Beautiful Bonquets, Bulk Quantities LGBT Friendly Supplier ~..lll..= In his job as a sheriffs detective, Richards, a Marine reservist, was a co-founder of the Los Angeles Terrorism Early Wanting Group. Froboese, also a reservist, is a sheet-metal worker in civ!uan life. from 'll!e ARCHfVI!S Water polo. anyone? In Afghani$1an? Apri/16, 20JO Judge orders Marine reservist's discharge AprU3, 2007 Marine Was Pired Unfairly,l.awycrSays Apl'll. s.:1003 Training Hike by Marine Reservists July 9, 1989 Froboese could face 10 years in prison and a dishonorable discharge. Under a plea agreement with military prosecutors, his sentencing could be delayed up to a year while he pro~ides information against other Marines in the case, including Richards. Military offic.ials have not disclosed whether Richards, who is on paid leave from the Sheriffs Department, will be recalled to active duty and charged. Froboese admitted giving information to Ricb.ards while being stationed at Camp Pendk'ton and while in Kuwa.it and Iraq. Much of the time, Richards was not on active duty~~oith the Marines and was working instead with the anti-terrorism group, which is based in Norwalk. During a three-hour court-martial hearing at Camp Pendleton, th.e prosecution, defense and the judge, Lt. Col. Peter Rubin, did not disclose what information was contained in the documents. The ouly agenc:y mentioned as having had information leaked to Richards was the Central Intelligeuce Agency. Rubin issued a gag order to all sides. Tile American Civil Liberties Union bas filed a Freedom of Information Act request to detemlirte if the inteltigence included spying on civilialis, particularly Southern California Muslims all(! their mosques. Fonned in1996, the Terrorism Early Wanring Group was meant to bring together intelligence analysts from local, state and federal agencies. It remains w1clear why the group, even after the Sept. u, 2001, terrodst attacks, apparently d!d uot have access to intelligence collected by other agencies. 1 of2.2115/2012 6:35 p

41 Eric Froboese I Marine reservist pleads gui lty to leaking intellig~nce... articles.latimes.com/2009/jun/12/l ocal/me-leak 12 Froboese answered Rubin's questions In a clear, unwavering voice. Rubin read portions of the plea agreement, which reporters were not allowed to see. In the agreement, Froboese said he gave the documents to Richards for "law enforcement purposes to fight terrorism." In exchange for pleading guilty to charges from 2003 to mid-2004, prosecutors.dropped charges from mid-2004 through tol.w.perry@latimes.oom ADS BY GOOGLE Is He Cheating On You? 1) Enter His Address 2) See Hidden Pies & Social Profiles Now! Sookeo.crun!CbCllliug-Soouse-Searclt Bariatric Surgery Seminar Understand The Surgical Benefits Limited Space Register Today! Swgk:alN;sodatesVHC.con! " ~ FEATURED ; '" '"" '""" ' '"' '" '"""' i i ;!c.i Anattt.G mtm-es 1 I, Taking the bang out of pressure cooking Making borne lh'ing easier Glen Campbell at,td Alzheimer's disease MORE: Russians are leaving the countiy in droves 2012 Honda CR-V sports all-new looks inside and out 0$ Al\gtle$ ~ Copyright 2012 LosAngelcs'l'irues lndexbykeyword )Index by Date I Privacy Policy j 1'crms ofsctvicc 2of2 2/15/2012 6:35 PJ

42 Attachment H

43 f~.-:r:.:. ~ () U N :I T E D v. DEPARTMENT OF THE NAVY GENERAL COURT-MARTIAL NAVY AND MARI:NE CORPS TR:IAL JUDICIARY WES~ERN JUDICIAL CIRCUI~ S T A T E S MEMORANDUM OF PRETRIAL AGREEMENT GUNNERY SERGEANT {Part I) U.S. MARINE CORPS RESERVE I, Gunnery Sergeant, U.S. Marine Corps Reserve, the accused in a general court-martial, in exchange for good consideration and after thorough consultation with my defense counsel, do fully under stand and agr ee to the following terms and conditions: I agree to enter pleas of GUILTY as indicated below. I do so fully understanding that the Convening Authority may approve any sentence adjudged by.the court-martial, but shall order executed only that sentence which does not exceed the lesser of the sentence contained in Part II {the Maximum Sentence Limitation Appendix) of this agreement or the sentence adjudged by this court-martial. 2. This agreement (Parts I and II) constitutes all the conditions and understandings of both the government and myself regarding the pleas in this case. There are no other agreements, written or otherwise. 3. I understand that the convening authority in this case may approve and order executed any lawfully adjudged sentence awarded by this court-martial, or any automatic sentence or portion thereof, except as specifically limited by Part II, the sentence limitation portion of this agreement. I also understand that the sentence limitation portion of this agreement addresses, each of the following distinct parts of the sentence that may be adjudged in this case: (1) punitive discharge, {2) confinement and/or restraint, (3). forfeiture and/or fine, {4) reduction in pay grade, and (5) any other lawful punishment that may be adjudged. 1 Appellate Exhibit XVIII 1 of 17

44 .... C) 4. I am satisfied with my retained civilian and detailed military defense counsel and consider them qualified to represent me at this court-martial. 5. I am entering into t4is agreement freely and voluntarily. Nobody has made any attempt to force or coerce me'into making this agreement or into pleading guilty. 6. I have been fully advised by my defense counsel of, and I fully understand and comprehend the meaning and effect of, my guilty pleas and all attendant effects and consequences, including: a. The possibility that I may be processed for administrative discharge from the United States Marine Corps. I understand that such an administrative discharge could result in an other than honorable characterization of service, unless otherwise limited by this agreement, even if part, or all, of the sentence, including a punitive discharge, is suspended or disapproved for any reason. b. The possibility that the Bond Amendment, 50 U.S.C. 435b, Section 3002, may prevent me from obtaining a security clearance if I am convicted, sentenced, and incarcerated for a term exceeding 1 year, or I receive a dishonorable discharge. c. The possibility that paragraph (b) (2) (B) of the Hiss Act, 5 u.s.c. 8312, may prevent me or my survivor or beneficiary from receiving any military or federal annuity or retirement pay which I may be due as a result of my service, if the executed sentence in my case includes a dishonorable discharge. 7. I understand that I may ask permission to withdraw any of my pleas of guilty at any time before they are actually accepted by the military judge. I also understand that I may ask to withdraw any of my pleas of guilty after they have been accepted, but before sentence is announced, and the military judge may, at his/her discretion, permit me to dq so. 8. I understand that this pretrial agreement may become null and void, and the convening authority can withdraw from this agreement, in the event that any of the following occur: a. I fail to plead guilty as required by this agreement; 'J b. The court refuses to accept any of my pleas of guilty; Appellate Exhibit XVIII 2 of 17

45 (J c. The court sets aside any of my pleas of guilty for whatever reason, including upon my request, before sentence is announced; d. I fail to satisfy any material term of this agreement; or e. I fail to plead guilty as required by this agreement at a rehearing should one occur. 9. I understand that if this agreement becomes null and void, then my offer to plead-guilty and enter into this agreement cannot be used against me in any way in determining whether I am guilty or not guilty of the charges alleged against me at this court-martial or in determining an appropriate sentence I understand that if the approved sentence includes a punitive discharge or confinement in excess of 90 days (or 3 months), whether the sentence is suspended or not, Article 58a of the UCMJ and 0152 of the JAGMAN require that I suffer automatic administrative reduction in pay grade to the lowest enlisted paygrade, E-1, unless the Convening Authority takes action to remit or suspend the automatic reduction. 11. I understand that if the adjudged sentence includes either a punitive discharge and confinement, or confinement in excess of six months, whether the sentence is suspended or not, Article 58b of the UCMJ requires the automatic imposition of forfeitures of all pay and allowances due during any period of confinement served, unless the Convening Authority takes action to waive or defer the automatic forfeiture provision. Forfeitures, whether awarded or automatic, take effect upon the convening authority's action in this case or 14 days after sentence is adjudged, whichever is earlier. I understand that I may request in writing th?tt the convening authority defer execution of forfeitures until the convening authority takes action in this case. I also understand that I may request that the convening authority waive automatic forfeitures for a period up to six (6) months from the date of the convening authority's action. Finally, I understand that if I am held in confinement beyond my End of Active Obligated Service (EAOS) date, then I will not receive any pay or allowances by operation of law, regardless of the terms of this agreement. 12. I understand that should I commit any misconduct (i.e., any act or omission in violation of the UCMJ or any punitive statute of the United states Code which constitutes a material breach of this agreement) after the signing of this pretrial agreement but before the completion of the sentencing portion of my trial, 3 Appellate Exhibit XVIII 3 of 17

46 such misconduct may be the basis for the convening.authority to unilaterally withdraw from the pretrial agreement, rendering the entire agreement null and void..i further understand that if I commit misconduct after the date of the sentencing portion of my trial, but before the date of the convening authority's action, the convening authority may, after first complying with notice and hearing requirements consistent with Article 72, UCMJ and R.C.M. 1109, withdraw from the sentence limitation provisions of this agreement. Should the convening Authority withdraw from the sentence limitation provisions of this agreement based on misconduct occurring after the date of the sentencing portion of my trial but before action is taken in my case, I understand that any provisions in the pretrial agreement relating to suspension of any aspect of my sentence would become null and void in all respects, and that the entire sentence adjudged at my court-martial may be approved and imposed upon me. () 13. I also understand that should I commit any misconduct after the date of the Convening Authority's action, or violate any of the conditions of suspension stated in this agreement during the period in which any part of my sentence is suspended, the Convening Authority may, after complying with the procedures set forth in R.C.M. 1109, vacate any periods of suspension agreed to in this pretrial agreement or as otherwise approved by the Convening Authority, and that previously suspended portion of. my sentence could be imposed upon me. 14. I understand that I may be placed on appellate leave under the provisions of Article 76a of the UCMJ, if the sentence, as approved, includes an unsuspended punitive discharge. I understand that an individual placed into an appellate leave status will normally not receive any pay or allowances. I further understand that receipt of pay and/or allowances while in an appellate leave status will depend on the amount of accrued leave I have accumulated and chose to use, and on the sentence awarded by this court-martial. Furthermore, I agree that, should a punitive discharge be adjudged, I will submit, on the date of the conclusion of my trial, a written request to be placed on voluntary appellate leave. 15. Specially Negotiated Provisions. As consideration for this agreement, and after having fully discussed the issue with my defense counsel: a. I agree to plead guilty before a military judge and request sentencing by members, with at least 1/3 enlisted representation; Appellate Exhibit XVIII 4 of 17

47 . ~. ~~:. : ~~ ~ b. I agree to waive my right to an Article 32, UCMJ, Pretrial Investigation. I fully understand the natur e and purpose of an Ar ticle 32, UCMJ, Pretrial Investigation, and the rights that I would have at such a hearing. I understand that upon acceptance of this agreement, the charge(s) and specification(s) may be referred to trial by general courtmartial without an Article 3'2, UCMJ, i nvestigation or hearing;. c. If I am provided a grant of testimonial immunity, I agree to tes t ify trut hfully if called as a witness in the Article 32 hearings, depositions, motions heaii~gs, administrat ive hearings, and/or trials, if any, testimony may be relevant. I further agree to fully cooperate in the court-martial process and any other punitive, judicial, or administrative proceeding requested of m.e by the Convening Authority, to include interviews with appropriate law enforcement aut hori t ies and the trial and defense counsel involved in the case, as well as any other reasonable request made of me; () J d. I agree to en t er into an unclassified Stipulation of Fact, which is attached as Appendix I to this pretrial agreement. I agree that the fact s contained therein are true and may not be contradicted by eit her side. I further agree not t o object to the stipulation's admission during the providence inquiry, on the merits, and/or during the pre~entencing proceeding; e. The government agrees to produce up to three (3) witnesses of my selection from within a 500 mile radius of Camp Pendleton during the sentencing phase of my court-martial. The government agrees to produce these witnesses at the expense of the government, pr ovided that I agree not to request, at government expense, the presence of any additional witnesses located outside of Camp Pendleton, California. Additionally, the government agrees to provide for t he remote testimony via Video Teleconference (VTC) or telephone of up to three (3) military witnesses, if t hose witnesses.are deployed during the sentencing phase of my court-martial, provided I notify the government of my sentencing witnesses not less than thirty (30) days prior to the sentencing phase of my trial. This provision does not interfere with my abilit y to present an effective and complete case in extenuation and miti gation, as I may call any additional witnesses I desire outside of Camp Pendletonf California, at n o. expense to the government. Addit i ona ~l y, this provision has not interfered with my selection of witnesses or Appellate ~xhibi t XVIII 5of 17

48 in presenting a case in extenuation and mitigation, as I intend to use alternative means to present this material; f. The government specifically agrees not to object to the admission into evidence of unclassified written statements in extenuation and mitigation, so long as they are provided to the government at least thirty (30) days in adva~ce of my presentencing hearing; g. I specifically agree not to object to the admission into evidence of written statements, affidavits, or the transcript of my providence inqliiry, offered by the government during my presentencing proceeding, on the basis of hearsay, foundation, authenticity, best evidence, or cumulativeness. The government agrees to provide the defense with copies of the proposed prosecution sentencing exhibits at least fifteen (15) days in advance of the pre-sentencing hearing; 0 h. I agree, and am fully prepared, to go to trial and offer to go to trial, for the purpose of the court to accept my pleas, no later than fifteen (15) days after this agreement is approved. I understand that I will not be deemed to have breached this agreement if the judiciary cannot schedule my trial in accordance with this provision of the agreement; i. That, as consideration for this agreement, I agree to the admissibility, for any and all purposes, of any and all classification reviews and related affidavits and unclassified redactions of classified information and damage assessments of the loss or.compromise of classified information pertaining to my case, identified with more particularity as: (1) Maziarz-Froboese JWICS of 29 March 2004; (2) CIA msg bearing date time group Z Mar 04; (3) CIA msg bearing date time group Z Dec 03; (4) CIA msg bearing date time group Z Jan 04; (5) CIA msg bearing date time group Z Dec 03; (6) CIA msg bearing date time group Z Dec 03. I will not object to the assertion of the classified information privilege, M.R.E. 505, over the classified information pertaining to my case identified above. I will not object to the military judge's or members' consideration of the 6 Appellate Exhibit XVIII 6 of17

49 () 0 classification reviews and related affidavits, and unclassified redactions when formulating an appropriate sentence in this case. My defense counsel and I will be given the opportunity to review all classification review affidavits, damage assessments and unclassified redactions derived from classified documents relevant to my case, identified above, which the government intends to use in my pre-sentencing hearing at least fifteen (15) days in advance of my pre-sentencing hearing. I acknowledge I have had an adequate opportunity to consult with, and have so consulted with my defense counsel, regarding the meaning and ramifications of this term of the pretrial agreement; j. That, as consideration for this agreement, I agree that I will not seek to admit into evidence any classified information during any court proceeding in my case. By this paragraph, it is my intent that all sessions of the court will be conducted in an unclassified forum. Additionally, it is my intent that the record of trial will contain no classified information. As used in this agreement, classified information is marked or unmarked classified information, including oral communications, that is classified under the standards of Executive Order 12958, or under any other Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security; and unclassified information that meets the standards for classification and is in the process of a classification determination as provided in Sections 1.2 and 1.3(e) of Executive Order 12958, or under any other Executive order or statute that requires protection for such information in the interest of national security. I acknowledge I have had an adequate opportunity to consult with, and have so consulted with my defense counsel, regarding the meaning and ramifications of this term of the pretrial agreement; k. I have been fully advised by my defense counsel that my case has been designated a National Security Case under JAGMAN equired by JAGMAN 0137, the Convening AUthority must request "ssion from the Secretary of the Navy to enter into this pretrial a ent. If the Convening Authority is unable to obtain permission the Secretary of the Navy to enter into this pretrial agreement, the of this pretrial agreement will become null and vo~u~- 1. That, as further consideration for this agreement, I agree that after trial by court-martial, I will not seek to obtain a national security clearance or access to classified information for a period of 10 years. I further agree that I will not seek employment requiring a national security clearance Appellate Exhibit XVIII 7 of 17

50 IJ or requiring access to classified information for 10 years. As used in this agreement, classified information is marked or unmarked classified information, including oral communications, that is classified under the standards of Executive Order 12958, or under any other Executive order or statute that prohibits the unauthorized disclosure of information in the interest of national security; and unclassified information that meets the s-tandards for classification and is in the process of a classification determination as provided in Sections 1.2 and 1.3(e) of Executive Order 12958, or under any other Executive order or statute that requires protection for such information in the interest of national security. Should I attempt to seek employment requiring a national security clearance or requiring access to classified information at any time after signing this agreement, but before I have completed serving the entire sentence (including any period of suspension or probation) as finally approved and executed, the convening authority may consider this misconduct and either unilaterally withdraw from the agreement, withdraw from the sentencing limitation provisions of the agreement, or vacate the suspended portions of punishment as allowed pursuant to the relevant stage of the case when the convening authority discovers the misconduct and takes action. I acknowledge I have had an adequate opportunity to consult with, and have so consulted with my defense counsel, regarding the meaning and ramifications of this term of the pretrial agreement; m. I agree, along with the government, that sentencing in my.case will be delayed for three-hundred and sixty days (360) days after the entry of pleas in order to conduct post-providence debriefings, to include interviews and polygraph examinations, and to cooperate in the investigation and pros-ecution of cosubjects involved in my case. I further understand and agree that the Convening Authority, at his sole discretion, may reduce the period of delay between entry of my pleas and sentencing if the Convening Authority determines that my cooperation is no longer needed for debriefings, investigation and prosecution of co-subjects, and/or polygraph examinations. I request that the convening authority and/or courts exclude this delay as delay attributed to the defense for purposes of R.C.M. 707, if applicable. I enter into this provision having full knowledge and understanding of my due process rights to speedy pre-trial and post-trial actions and appellate review under R.C.M. 707 and the Sixth Amendment of the u.s. Constitution which have been explained to me by my defense counsel. My defense counsel have also explained to me the rules established by Barker v. Wingo, 407 U.S. 514 (1972), United States v. Becker, 53 M.J ~,!,., til..:i.!:( Appellate Exhibit XVIII 8 of 17

51 () (C.A.A.F. 2000}, and United States v. Moreno, 63 M.J. 129 (C.A.A.F. 2006). I voluntarily agree to the delay between the acceptance of my guilty pleas and my sentencing proceeding in order to: (1) allow me to cooperate with the government and thereby possibly strengthen my sentencing case in,mitigation; and (2} continue to collect military pay and allowances at my present rank of Gunnery Sergeant (E~7) until the announcement of my sentence. For these reasons, I will suffer no prejudice from such a delay; n. I further understand that if I am granted testimonial immunity, I will be given an order to cooperate completely with those federal law enforcement authorities and other federal government officials as may be designated by the Convening Authority in any matter as to which my cooperation may be relevant. I understand that the grant of testimonial immunity will apply to any information I provide to government agents during debriefings, including interviews and polygraph examinations, conducted pursuant to this agreement. If I am granted testimonial immunity and the order by the Convening Authority referred to above: (1) I agree to complete the polygraph rights waiver form pursuant to DoD Directive and DoD Regulation ~R prior to taking a polygraph examination referred to below. Although my only obligation under this provision is to complete the polygraph rights waiver form, I understand that should I not give my consent to the polygraph on the rights waiver form, I still may be found in violation of a different portion of this agreement because of my failure to-cooperate. I also understand that because of the grant of immunity I will be given by the Convening Authority, I am not able to invoke the privilege against self~incrimination provided for on the polygraph rights waiver form. I understand that though I may have the right to consult with counsel as provided for on the polygraph rights waiver form, I also understand that I remain obligated under this agreement to cooperate fully and completely in answering all questions put to-me during any polygraph that I am administered as part of this agreement. I understand. that I have a continuing obligation to safeguard classified information, including the information I previously disclosed, lost, or compromised; (2.) I agree that I shall submit to and cooperate in all debriefings, to include interviews and polygraph examinations, requested by the investigators specified by the Convening Authority, which interviews and polygraph examinations shall concern the loss or disclosure of any classified information for Appellate Exhibit XVIII 9 of 17

52 C) which I have knowledge or in any matter which my cooperation may be relevant. I understand that my cooperation shall extend to disclosing my knowledge of the actual or potential compromise of classified material or information by me or by any person or entity whatsoever. I also understand that these debriefings may also include questions typically asked in a polygraph examination for ascertaining if a person may continue to hold a Top Secret security clearance; (3) I agree that I shall answer all questions fully and completely, both orally and, where requested, in writing, to the best of my knowledge and belief. I will submit to as many debriefings, to include interviews and polygraph examinations, at such times and places as may be specified by the Convening Authority, as are necessary in the view of the Convening Authority, to ensure that I have made a full and truthful disclosure as to the above matters; C) (4) I agree that I shall fully cooperate with investigators to resolve any issues arising from polygraph examination results indicating that I have provided deceptive or "no opinion" responses to any questions. I understand that such cooperation may extend to additional debriefings, to include interviews and polygraph examinations. I also understand that if I continue to provide deceptive or "no opinion" responses to any questions which cannot be resolved after two (2) re-tests, that such responses shall be grounds for the Convening Authority, in accordance with the procedures detailed in paragraph 15n ( 4), ( 5), and ( 6), to unilaterally withdrawal from this agreement; (5) I understand that if information is given to the Convening Authority indicating that I have violated the provisions of subparagraphs "(1)", "(2)", or "(3)" of paragraph "15n" of this agreement after sentencing but prior to the Convening Authority having taken action on the record of trial, the Convening Authority may, after first complying with notice and hearing requirements consistent with Article 72, UCMJ and R.C.M. 1109, withdraw from the sentence limitation provisions of this agreement. I further understand that should the Convening Authority withdraw from the sentence limitation provisions of this agreement that any provisions in the pretrial agreement relating to suspension of any aspect of my sentence would become null and void in all respects, and that the entire sentence adjudged at my court-martial may be approved and imposed upon me; Appellate Exhibit XVIII 10 of 17

53 (6) I understand that if information is given to the Convening Authority that I have violated the provisions of subparagraphs "(1)", "(2)", or "(3)" of paragraph "15n" after the date of the Convening Authority's action, but before I have completed serving the entire sentence (including any period of suspension or probation) as finally approved and executed, the Convening Authority may, after complying with the procedures set forth in R.C.M. 1109, vacate any periods of suspension agreed to in this pretrial agreement or as otherwise approved by the Convening Authority. I understand that should the convening authority take such action, the previously suspended portion of my sentence could be imposed upon me; (7) I understand that I will be entitled to present evidence based on a polygraph examination from an independent source if, during a hearing conducted pursuant to subparagraphs "(4)" or "(5)" of paragraph "15n," the Convening Authority wants to consider the results of polygraph examinations, including a polygraph examiner's opinion that I provided "no response" or deceptive responses and the basis for those opinions. I understand that if I elect to have such an examination, the Convening Authority has agreed to pay for one (1) alternative polygraph examination from an independent source. I also understand that the independent source polygrapher must hold, or be able to gain, the necessary security clearance in accordance with current regulations. I agree that the results and charts of any independent polygraph examination paid for by the Convening Authority will be forwarded to the Convening Authority for his review; o. The government agrees to withdraw and dismiss the charges and specifications to which I have agreed to enter pleas of Not Guilty after.the military judge accepts my guilty pleas. The government further agrees not to re~prefer or re-refer these charges and specifications if my pleas remain provident and the findings are affirmed throughout the entire review process. These charges and specifications may be re-preferred and/or rereferred if: (1) the findings are set aside and a rehearing is ordered, (2) a new trial is ordered, (3) this agreement becomes null and void. p. Except as provided in paragraph 15(o) above, the convening authority agrees not to seek further prosecution, through the Military Justice or United States Federal Criminal Justice system, against me for any offenses reasonably arising from the evidence currently in the possession of the u.s. government, whether or not that evidence forms the basis of an Appellate Exhibit XVIII 11 of 17

54 ,....f". :: ~ ~ (J offense contained in the charges that have been referred to this court-martial. q. The government agrees not to punishments received by other associated martial, during my sworn or unsworn statement, if I choose to make one, in accordance with Uni ted States v. Grill, 48 M.J. 131 (C.A.A.F. 1998). 16. I ~gree to enter please as follows: C) ication 1: In that Marine Corps Rese~ve, while on active duty, Individual Drill Training and Annual Training periods, who knew of his du.ties at or near Camp Pendleton, California, and multiple other locations, on divers occasions from on or about 27 June 2003 to on o~ about 28 January 2006, was willfully derelict in the performance of his sworn duties as an Intelligence Specialist Staff Non-commissioned Officer in that he failed to obey the orders and -regulations that required him to safeguard information marked as classified up to the secret level with which he had been entrusted, as it was his duty to do. Specifica 2: In that Gunnery Sergeant U.S. Marine Corps Reserve, while on active duty, Individual Drill Training and Annual Training periods, did, at or near Camp Pendleton, California, and multiple other l ocations on divers occasions from on or about 27 June 2003 to on or about 28 January 2006, violate a lawful general regulation, to wit: SECNAVINST dated 17 March 1999, with Change 1 dated 19 June 2000, and Change 2 dated 23 January 2001, by wrongfully failing to restrict access to classified information to authorized personnel with a need-to-know by allowing Colonel Larry J. Richards USMCR to access classified 12 Guilty, except for the words "27 June 2003 to on or about 28 January 2006;" substituting therefore the words "August to on or about Jurie Of the excepted words, Not Guilty; of the substituted words, Guilty; of the specification as excepted and substituted, Guilty Guilty, except for the words "27 June 2003 to on or about 28 January 2006," substituting therefore the words "August 2003 to on or about June 2004." Of the excepted words, Not Guilty; of the substituted words Guil ; of 0451 Appellate Exhibit XVIII 12 of 17

55 ormation, a person not entitled to receive such classified information, in violation of paragraphs of SECNAVINST on 3: In that Gunnery Sergeant U.S. Marine Corps Reserve, while on e duty, Indivi~ual Drill Training and Annual Training periods, did, at or near C arnp Pendleton, California, and multiple other locations, on divers occasions from on or about 27 June 2003 to on or about 2 8 January 2006, violate a lawful general regulation, to wit: SECNAVINST dated 17 March 1999, with Change i dated 19 June 2000, and Change 2 dated 23 January 2001, by wrongfully disseminating classified information outside of the Department of Defense wit hout the permission of the originato.r of the classified information to Colonel Larry J. Richards, USMCR, a person not entitled to receive such classified information, in violation of paragraphs 8-1, 8-2 and 8-3 of SECNAVINST ecification 4' In that Gwmery Sergeant U.S. Marine Corps Reserve, while on c ~ve uty, Individual Drill Training and Annual Training - periods, d i d, at or near Camp Pendleton, California, and multiple other locations, on divers occasions from on or about 27 June 2003 to on or about 28 January 2006, viol ate a lawful general regulation, to wit: SECNAVINST dated 17 March 1999, with Change 1 dated 19 June 2000, and Change 2 dated 23 January 2001, by wrongfully failing to adhere to the requirements for the transmission and transportation of classified information by transmitting classified information over unauthorized net works such as unclassified networks, unclassified telephone and facsimile machines, and by personally transporti ng classified information to Colonel Larry J. Richards, USMCR, a person not entitled to receive such classified information, in violation o f paragraphs 9-2, 9-3, 9-4, 9-6, 9-10 and 9-11 of SECNAVINST the specification as excepted and substituted, Guilty Guilty, except for the words "27 June 2003 to on or about 28 January 2006," and "8-2,". substituting therefore the words "August 2003 to on or about June " Of the excepted words, Not Guilty; of the substituted words, Guilty; of the specification as excepted arid substi tuted, Guilty Guilty, except for the words "27 June 2003 to on or about 28 January 2006," substituting therefore the words ~'August to on or about Jnne ;, Of the excepted words, Not Guilty; of the substituted words, Guilty; of the specification as excepted and substit uted, Guilty Appellate Exhibit XVIII 13 of 17