                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,                       :
                                                :
       Plaintiff,                               :      Criminal Action No.: 12-cr-231 (RC)
                                                :
       v.                                       :      Re Document No.:       37
                                                :
JAMES HITSELBERGER,                             :
                                                :
       Defendant.                               :

                                MEMORANDUM OPINION

DENYING DEFENDANT’S MOTION TO COMPEL ELECTION BETWEEN MULTIPLICITOUS COUNTS

                                     I. INTRODUCTION

       Defendant, Mr. Hitselberger, has been charged by the United States of America on three

counts of violating 18 U.S.C. Section 793(e), for knowingly removing and retaining classified

information from a secure location. He has also been charged on three counts of violating 18

U.S.C. Section 3238, for unlawfully removing public documents from their secured location.

Count one charges Mr. Hitselberger for the unauthorized possession of two documents

containing national security information, found in his backpack on April 11, 2012. Count two

charges Mr. Hitselberger for the unauthorized possession of a third document containing national

security information, found in Mr. Hitselberger’s room on April 11, 2012 and dated March 8,

2012. Count three charges Mr. Hitselberger for the unauthorized possession of a fourth document

containing national security information, dated February 13, 2012. Mr. Hitselberger now argues

that Counts one and two are multiplicitous and thus violate Federal Rule of Criminal Procedure

7(c)(1) and the Double Jeopardy Clause of the Fifth Amendment.
                                 II. FACTUAL BACKGROUND

        James Hitselberger is a 56-year-old linguist. He is fluent in Arabic, Farsi, and Russian.

In June 2011, he was hired by Global Linguist Solutions, which assigned him to work for the

United States Navy at a base in Bahrain. Mr. Hitselberger regularly worked with classified

information. The Government alleges that on April 11, 2012, two supervisors observed Mr.

Hitselberger checking his email in a Restricted Access Area and then printing multiple pages

clearly marked as SECRET from a SECRET printer. Compl. ¶¶12-13, Aug. 6, 2012, ECF No. 1.

This information contained sensitive troop information and intelligence analysis. Compl. ¶12.

        The Government contends that Mr. Hitselberger was observed taking the classified

documents from the printer, placing them into an Arabic-English Dictionary, and attempting to

leave the building with the SECRET documents. Id. Mr. Hitselberger was stopped by his

supervisor and his commanding officer after exiting the building. Id. He was asked by his

supervisor to produce the documents he just printed. Id. At first, Mr. Hitselberger only produced

one document. Id. He surrendered the second classified document when his supervisor asked

what else was in Mr. Hitselberger’s backpack. Id. On April 11, 2012, NCIS Special Agents

conducted a Command Authorized Search and Seizure of Mr. Hitselberger’s living quarters in

Bahrain. Compl. ¶13. Inside, Special Agents found documents classified as SECRET with the

SECRET warning label cut off the top and bottom of the pages. Compl. ¶14. After investigation,

it was determined that Mr. Hitselberger received the documents as an e-mail attachment sent to

several persons on a distribution list. Id.

        The Government now brings an action against Mr. Hitselberger for unlawfully removing

and retaining classified information from a secure location, in violation of 18 U.S.C. Section

793(e). Mr. Hitselberger has been charged with three counts of unlawful retention under Section



                                                 2
793(e): Count one refers to the two documents allegedly found in Mr. Hitselberger’s backpack

on April 11, 2012 (hereinafter “documents one and two”); Count two refers to the one document

allegedly found in Mr. Hitselberger’s room on April 11, 2012 and dated March 8, 2012

(hereinafter “document three”); Count three refers to a fourth document dated February 13, 2012.

Mr. Hitselberger challenges counts one and two as multiplicitous. Count three is not in

contention.


                                          III. ANALYSIS

       At issue is Mr. Hitselberger’s unauthorized possession of three separate documents,

discovered by the government on April 11, 2012. 18 U.S.C. Section 793(e) criminalizes the

unauthorized retention of, and the failure to deliver to appropriate authorities, documents or

information relating to national security. The statute states:

       Whoever having unauthorized possession of, access to, or control over any
       document, writing, code book, signal book, sketch, photograph, photograph
       negative, blueprint, plan, map, model, instrument, appliance, or note relating to
       the national defense, or information relating to the national defense which
       information the possessor has reason to believe could be used to the injury of the
       United States or to the advantage of any foreign nation, willfully
       communicates…or willfully retains the same and fails to deliver it to the officer
       of employer of the United States entitled to receive it…Shall be fined under this
       title or imprisoned not more than ten years, or both.

At dispute here is whether defendant’s simultaneous possession of multiple documents can give

rise to more than one violation of Section 793(e).

       Defense counsel argues that the government will only be able to prove that Mr.

Hitselberger possessed the three documents in question on April 11, 2012. Mot. to Compel

Election of Multiple Counts at 5, March 1, 2013, ECF No. 37. Because the documents were

found on the same day and in relatively the same location (on the base in Bahrain), Mr.

Hitselberger contends that his possession constitutes a single course of conduct, and therefore

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can only give rise to a single violation under Section 793(e). Id. Both parties seem to agree that

the resolution of this motion turns on whether the defendant’s possession of the three documents

occurred solely on April 11, 2012, or whether defendant possessed document three, dated March

8, 2012, prior to April 11.

       The prohibition against multiplicitous punishments is found both in Federal Rule of

Criminal Procedure 7(c)(1), and in the Double Jeopardy Clause of the Fifth Amendment. Rule

7(c)(1) describes the general contents of an indictment, permitting the government to allege in a

single count “that the defendant committed [an offense] by one or more specified means.” Fed.

R. Crim. P. 7(c)(1). The Advisory Committee Notes explain that Rule 7(c)(1) was intended to

“eliminate the use of multiple counts for the purpose of alleging the commission of the offense

by different means or in different ways.” Fed. R. Crim. P. 7, Advisory Committee Note to

Subdivision (c). The Double Jeopardy Clause similarly prohibits multiple offenses for a single

act, stating that no person shall “be subject for the same offense to be twice put in jeopardy of

life or limb.” U.S. Const. amend V. To determine whether a transaction can give rise to multiple

violations of a single statutory provision, courts must determine “[w]hat Congress has made the

allowable unit of prosecution” for the criminal conduct. United States v. Universal C.I.T. Credit

Corp., 344 U.S. 218, 221 (1952). See also Sanabria v. United States, 437 U.S. 54, 70 n. 24

(1978); United States v. Woerner, 709 F.3d 527, 539-40 (5th Cir. 2013); United States v.

Hinkeldey, 626 F. 3d 1010, 1013 (8th Cir. 2010); United States v. Moses, 513 F.3d 727, 732 (7th

Cir. 2008); United States v. Ansaldi, 372 F.3d 118, 124 (2nd Cir. 2004); United States v.

Weathers, 186 F. 3d 948, 952 (D.C. Cir. 1999); United States v. Johnson, 612 F.2d 843, 846 (4th

Cir. 1979).




                                                 4
       Mr. Hitselberger argues that the “retention of information contained in separate

documents on the same date in relatively the same location (the base in Bahrain)” cannot give

rise to multiple violations of Section 793(e). Mot. to Compel Election of Multiple Counts at 5,

March 1, 2013, ECF No. 37. He interprets the term “information” broadly so that the retention of

“any amount of information at a given time constitutes a single unit of prosecution. It is the

course of conduct of retaining information that is the unit of prosecution.” Mot. to Compel 5.

(emphasis added). Mr. Hitselberger seems to agree, however, that his possession of the three

documents would not constitute a single course of conduct if they were acquired on different

days. Mot. to Compel 1. That is to say, if Mr. Hitselberger printed document three without

authorization before April 11, 2012, the date he was allegedly seen printing documents one and

two, then his possession of the documents would be distinct, and he would properly be charged

with two violations of Section 793(e). His motion states:


       [T]he government’s evidence will demonstrate only that [document three] was
       allegedly found in Mr. Hitselberger’s room on April 11, 2012. The government
       has produced during discovery and will offer at trial no evidence that he
       possessed this document prior to that date. Thus, if Mr. Hitselberger knowingly
       and willfully retained national defense information… he did so on a single date,
       April 11, 2012, constituting a single offense.

Mot. to Compel 1. As such, the dispute turns on a factual issue – when Mr. Hitselberger began

his unauthorized possession of document three.1


       Defendant asks this court to apply a summary judgment standard in evaluating the

indictment. The D.C. Circuit has recognized, however, that while the Federal Rules of Criminal

Procedure allow for pretrial motions on questions of law, there is no mechanism that resembles

the civil motion for summary judgment. United States v. Yakou, 428 F.3d 241, 246 (D.C. Cir.

       1
         The fact that defendant does not challenge Count three, involving a fourth document, as
multiplicitous confirms this understanding as well.

                                                 5
2005) (internal quotations omitted). 2 Federal Rule of Criminal Procedure 12(b) does allow a

party to “raise by pretrial motion any defense, objection, or request” but only allows those

motions “that the court can determine without a trial of the general issue.” Fed. R. Crim. P. 12(b)

(emphasis added). “The general issue has been defined as evidence relevant to the question of

guilt or innocence.” Yakou, 428 F.3d at 246 (citing to United States v. Barletta, 644 F. 2d 50, 58

(1st Cir. 1981)) (internal quotations omitted); See also United States v. Ayarza-Garcia, 819 F.2d

1043, 1048 (11th Cir. 1987).


   The government’s indictment charges Mr. Hitselberger with unlawfully acquiring and

retaining documents one and two on April 11, 2012 and unlawfully acquiring and retaining

document three on March 8, 2012. Indictment 2, Feb. 28, 2013, ECF No. 33. If these allegations

are true, then both parties agree that Mr. Hitselberger is properly charged with two separate

violations of Section 793(e). If the government is able to prove to the jury that Mr. Hitselberger

obtained document three prior to April 11, 2012, Mr. Hitselberger appears to agree that the

counts are not multiplicitous. Instead, defendant merely argues that the government has no

evidence to prove that document three was acquired prior to April 11. This is a question of fact

for the jury, not the bench, as evidence will have to be presented relevant to the question of

defendant’s guilt or innocence.3 Fed. R. Crim. Pro. 12(b). For this reason, the court does not find

that counts one and two are multiplicitous.


       2
         United States v. Yakou does recognize a small exception to this rule. It allows the bench
to dismiss an indictment on sufficiency-of-the-evidence grounds where the material facts are
undisputed, only an issue of law is presented, and the government has not objected to the motion
for dismissal. 428 f.3D 241. 246-7 (2005). That is not the case here. The government has
objected to defendant’s motion. And whether Counts one and two are multiplicitous turns on a
disputed question of fact, not law.
       3
        The defendant argues that when a timely multiplicity objection is raised, the proper
remedy is to require the government to elect between the multiple counts. Mot. to Compel 3.
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                                      IV. CONCLUSION

       For the foregoing reasons, defendant’s motion to compel election between counts one and

two is DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.


Dated: November 1, 2013                                           RUDOLPH CONTRERAS
                                                                  United States District Judge




Every case that defendant cites in support of this proposition, however, has required the
government to elect between multiple counts only because the district court already found the
indictment to be multiplicitous. See, e.g., United States v. Universal C.I.T. Credit Corp., 344
U.S. 218, 229 (1952) (requiring election of counts after the district court held that defendant’s
acts constituted a single course of conduct and only gave rise to one violation under the Fair
Labor Standards Act); United States v. Ketchum, 320 F.2d 3, 4, 8 (1963) (finding an election
remedy appropriate though not deciding the issue after the district court found several counts
multiplicitous); United States v. Wilder, 2008 WL 2004256 at *2 (E.D. Wisc. 2008) (requiring
election between two counts after possession of a firearm and the ammunition were found to be
multiplicitous under 18 U.S.C. Section 922(g)(1)); United States v. Phillips, 962 F. Supp. 200,
201 (D.D.C. 1997) (same). Because we do not find that counts two and three are multiplicitous
at this time, we find no reason to compel the government to elect between the counts.

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