                                 CORRECTED COPY

UNITED STATES ARMY COURT OF CRIMINAL APPEALS
                                       Before
                          MULLIGAN, HERRING, and BURTON
                              Appellate Military Judges

                            UNITED STATES, Appellee
                                         v.
                             Major SEIVIRAK INSON
                           United States Army, Appellant

                                   ARMY 20130557

                Headquarters, 8th Theater Sustainment Command
               Stefan R. Wolfe and David L. Conn, Military Judges
    Lieutenant Colonel Terri J. Erisman, Acting Staff Judge Advocate (pretrial)
           Colonel Paul T. Salussolia, Staff Judge Advocate (post-trial)


For Appellant: Captain Brian J. Sullivan, JA; William E. Cassara, Esquire (on
brief); Captain Amanda R. McNeil Williams, JA; William E. Cassara, Esquire (on
reply brief).

For Appellee: Colonel Mark H. Sydenham, JA; Major Steven J. Collins, JA; Captain
Anne C. Hsieh, JA (on brief).


                                   29 February 2016
                               ---------------------------------
                               SUMMARY DISPOSITION
                               ---------------------------------

Per Curium:

       An panel of officer members sitting as a general court-martial convicted
appellant, contrary to his pleas, of one specification of dereliction of duty, one
specification of forgery, one specification of adultery, one specification of violating
18 U.S.C. § 793(d) (Gathering, Transmitting, or Losing Defense Information
(Lawful Possession and Delivery)), and five specifications of violating 18 U.S.C. §
793(e) (Gathering, Transmitting,, or Losing Defense Information (Unauthorized
Possession and Willful Retention)), in violation of Article 92, 123, and 134,
Uniform Code of Military Justice, 10 U.S.C. §§ 892, 923, and 934 (2006)
[hereinafter UCMJ]. The panel sentenced appellant to be dismissed from the service,
to be confined for ten years, and to a total forfeiture of all pay and allowances. The
INSON—ARMY 20130557

convening authority approved the findings and sentence as adjudged, and credited
appellant with 331 days against the sentence to confinement.

         Appellant’s case is before this court for review under Article 66, UCMJ.
Appellate defense counsel raises eleven errors, two of which merit discussion and
relief. 1 After review of the entire record, we find no evidence that appellant’s
adulterous relationship was prejudical to good order and discipline in the armed
forces. Furthermore, we find insufficient evidence to support appellant’s conviction
for delivering national defense information. We will provide relief in our decretal
paragraph.

                                     I. Adultery

       In accordance with Article 66(c), UCMJ, we review issues of legal and factual
sufficiency de novo. United States v. Washington, 57 M.J. 394, 399 (C.A.A.F.
2002). The test for legal sufficiency is “whether, considering the evidence in the
light most favorable to the prosecution, a reasonable factfinder could have found all
the essential elements beyond a reasonable doubt.” United States v. Turner, 25 M.J.
324 (C.M.A. 1987); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979); United
States v. Humphreys, 57 M.J. 83, 94 (C.A.A.F. 2002). In resolving questions of
legal sufficiency, we are “bound to draw every reasonable inference from the
evidence of record in favor of the prosecution.” United States v. Barner, 56 M.J.
131, 134 (C.A.A.F. 2001). The test for factual sufficiency is “whether, after
weighing the evidence in the record of trial and making allowances for not having
personally observed the witnesses, [we] are [ourselves] convinced of the accused’s
guilt beyond a reasonable doubt.” Turner, 25 M.J. at 325.

       Specification 1 of Charge V alleged appellant, a married man, wrongfully had
sexual intercourse with AB, a woman not his wife, and that said conduct was to the
prejudice of good order and discipline in the armed forces and of a nature to bring
discredit upon the armed forces. Appellant raises as error that there is no evidence
that the conduct was of a nature to bring discredit upon the armed services. 2 We
need only to look to one piece of evidence (Prosecution Exhibit 60) to resolve this
assignment of error. Prosecution Exhibit 60 is an email exchange between appellant
and a civilian, Mr. S.O. The email exchange includes appellant discussing with Mr.
S.O. appellant’s relationship with AB saying in part that AB has been great and is
“committed to staying with me even if my wife is back with me.” Furthermore,
appellant states he is not sure “if divorce is the right thing to do.” Freely informing


1
 We have also reviewed those matters personally raised by appellant pursuant to
United States v. Grostefon, 12 M.J. 431 (C.M.A. 1982), and they are without merit.
2
 We note appellant concedes that he not only engaged in sexual intercourse with
AB, but that he fathered a child with AB.


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INSON—ARMY 20130557

others outside the military that you are engaging in such conduct is more than
sufficient to support a finding of service discrediting.

       However, our review of the record discloses no evidence to show that
appellant’s behavior had any impact on the unit. The government basically concedes
this point in its brief, stating that evidence on this prong of the terminal element is
minimal. We find the evidence to be less than minimal and insufficient to sustain a
finding of guilty as to that language.

                        II. Delivering Defense Information

       Specifications 2 through 7 of Charge V allege violations of 18 U.S.C. 3 § 793,
commonly referred to as the Espionage Act. Specification 2 concerns a violation of
subsection 18 U.S.C. § 793(d) while the remaining specifications allege violations of
18 U.S.C. § 793(e). The difference in these two sections is that subsection (d)
requires the perpetrator to be in “lawful possession” of national defense information
while subsection (e) requires the perpetrator to be in “unauthorized possession” of
national defense information. Specification 2 and Specification 4 of Charge V
concerned the exact same document and covered the same time period. Specification
2 alleged appellant while “lawfully having possession of” the document willfully
delivered the document to a person who was not entitled to possess such
information. Specification 4 alleged appellant while “having unauthorized
possession of” the document willfully retained the document.

       Prior to trial the defense raised the issue whether these two specifications
were an unreasonable multiplication of charges. The defense questioned how
appellant could be in both “lawful” and “unauthorized” possession of the same
document at the same time. The government argued that it was charged this way to
meet the exigencies of proof. It was possible that the evidence could show appellant
was in lawful possession at one time but then, with the passage of time, reached a
point where he was in unauthorized possession. The military judge allowed both
specifications to go trial saying he would revisit the issue on sentencing should that
become necessary. At the close of the government’s case, the defense request to
reserve a motion for a finding of not guilty pursuant to Rule for Courts-Martial 917
[hereinafter R.C.M.] was granted, although defense did not state which specification
this reserved motion involved. When later asked by the military judge about this
R.C.M. 917 motion, the defense stated they had no such motion.

      The evidence presented at trial does not sustain a finding that appellant was in
“lawful possession” of the document at the time of delivery. The delivery of the
document in question occurred during a barbeque at appellant’s residence. There
was no evidence in the record of trial to support a finding that appellant lawfully


3
    Corrected


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INSON—ARMY 20130557

possessed this classified document at his home. Rather, the evidence supports a
finding that appellant’s possession of this document and other national defense
information at his home was unauthorized. Consequently, appellant’s conviction for
delivery of defense information cannot stand.

                                  CONCLUSION

     Having completed our review and in consideration of the entire record, we
AFFIRM only so much of Specification 1 of Charge V as finds:

             In that, [Appellant], a married man, did, on the island of
             Oahu, on divers occasions, between on or about 1 January
             2009 and 18 July 2012, wrongfully have sexual
             intercourse with AB, a woman not his wife, such conduct
             being of a nature to bring discredit upon the armed forces.

      Specification 2 of Charge V is set aside and DISMISSED.

      The remaining findings of guilty are AFFIRMED. We are able to reassess the
sentence on the basis of the error noted and do so after conducting a thorough
analysis of the totality of circumstances presented by appellant’s case and in
accordance with the principles articulated by our superior court in United States v.
Winckelmann, 73 M.J. 11, 15-16 (C.A.A.F. 2013) and United States v. Sales, 22 M.J.
305 (C.M.A. 1986). The military judge, in merging Specification 2 of Charge V
with Specification 4 of Charge V for sentencing, removed any taint caused by the
presence of Specification 2. We are confident that based on the entire record and
appellant’s course of conduct, the panel would have imposed a sentence of at least
that which was adjudged, and accordingly we AFFIRM the sentence.

      We find this reassessed sentence is not only purged of any error but is also
appropriate. All rights, privileges, and property, of which appellant has been
deprived by virtue of that portion of the findings set aside by our decision, are
ordered restored.


                                       FOR THE COURT:
                                       FOR THE COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       Clerk of Court




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