991 F. Supp. 2d 86
D.D.C.2013Background
- Defendant James Hitselberger, a linguist working for the U.S. Navy in Bahrain, was observed printing and carrying classified (SECRET) documents on April 11, 2012.
- Two classified pages were recovered from his backpack; additional classified pages were found in his room during a command-authorized search.
- Indictment charges three counts under 18 U.S.C. § 793(e): Count 1 (documents one and two found in backpack on April 11), Count 2 (document three, dated March 8, found in his room on April 11), and Count 3 (a fourth document dated February 13).
- Defendant moved to compel the government to elect between Counts 1 and 2, arguing they are multiplicitous because the government can only prove possession on the same date and location (April 11) and thus represent a single course of conduct.
- Government alleges Count 2 involves possession beginning on March 8, 2012 (i.e., acquired prior to April 11), which would make Counts 1 and 2 separate offenses.
- The court treated the timing of initial acquisition of document three as a factual question for the jury and denied the motion to compel election; it found no basis to dismiss counts as multiplicitous pretrial where material facts are disputed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether simultaneous possession of multiple classified documents can produce multiple § 793(e) violations or is a single offense (multiplicity) | Government: indictment alleges distinct acquisition/retention dates (March 8 for document three; April 11 for others), supporting separate counts | Hitselberger: possession of multiple documents discovered same day/location constitutes a single course of conduct and one offense if no proof of prior possession | Denied motion; court held the question of when document three was first possessed is factual and for the jury; counts not multiplicitous on the face of the indictment |
Key Cases Cited
- Universal C.I.T. Credit Corp. v. United States, 344 U.S. 218 (supreme court decision on unit of prosecution and multiplicity) (explains determining allowable unit of prosecution)
- Sanabria v. United States, 437 U.S. 54 (Supreme Court) (discusses multiplicity and unit of prosecution)
- United States v. Woerner, 709 F.3d 527 (Fifth Circuit) (multiplicity analysis)
- United States v. Hinkeldey, 626 F.3d 1010 (Eighth Circuit) (multiplicity/unit of prosecution)
- United States v. Moses, 513 F.3d 727 (Seventh Circuit) (multiplicity precedent)
- United States v. Ansaldi, 372 F.3d 118 (Second Circuit) (unit of prosecution guidance)
- United States v. Weathers, 186 F.3d 948 (D.C. Circuit) (multiplicity considerations)
- United States v. Johnson, 612 F.2d 843 (Fourth Circuit) (multiplicity and related analysis)
- United States v. Yakou, 428 F.3d 241 (D.C. Circuit) (limits on pretrial resolution where facts in dispute; narrow exception for sufficiency-based dismissal)