Robert Patrick Hoffman II, 39, of Virginia Beach, Va., has been indicted by a federal grand jury for allegedly attempting to provide classified information to individuals who he believed to be representatives of the Russian Federation.
According to the indictment, Hoffman is a U.S. citizen born in Buffalo, N.Y., who served for 20 years in the U.S. Navy until his retirement in November 2011. While serving in the Navy, Hoffman was a Cryptologic Technician, which required him to maintain Top Security clearance. Hoffman also had access to sensitive information and special programs.
The indictment and other court documents reveal that Hoffman allegedly supplied “drops” of classified information in September and October 2012 to individuals he believed to be part of the Russian Federation. Hoffman was, in fact, engaging in communications with undercover FBI agents. However, Hoffman was solicited by the FBI agents following his return from a trip to Eastern Europe. Apparently, a letter was mailed to Hoffman “from Moscow” that inquired into his interest in assisting the Russian Federation and requested an immediate response.
Although Hoffman responded to the letter, he never came into actual contact with any Russian nationals, hence the attempt charge under 18 U.S.C. § 794(a). Further, Hoffman argued at his detention hearing that he provided some information as a means to gain the interest and trust of the Russian Federation before reporting the communications to the FBI. Hoffman eventually reported the interactions to the FBI, but since they were behind the whole operation, it obviously provided no benefit to him. With the weight of the evidence against him, the judge ordered that Hoffman be detained until trial.
18 U.S.C. § 794(a) is an espionage statute, and carries with it the potential for up to life in prison, and even death under certain circumstances. To sustain a conviction, the government must be able to prove that the defendant acted intentionally or with reason to believe that the disclosed information will be used to cause injury to the United States. Further, the information must be communicated, delivered, or transmitted, or the defendant must attempt to do so. Lastly, the information must be related to the national defense of the United States.
From a defense perspective, particularly at this early stage in the proceedings, an in-depth review of the evidence is critical. The evidence must be reviewed to determine the defendant’s mental state and whether he/she acted with the specific intent to cause injury to the U.S., whether the defendant attempted to transmit information, and whether such information is so sensitive as to qualify as related to national defense. The evidence must also be evaluated to determine the viability for any justifiable defenses.
Hoffman’s mental state is a major component in this case. If he was acting with the intent to gain the trust of the Russian Federation in order to ultimately benefit the FBI, then the argument that he intended to cause injury to the U.S. fails. Further, court documents indicate that the information that was allegedly communicated or transmitted to the undercover FBI agents pertained to methods of tracking U.S. submarines, including technology and procedures. The issue of whether Hoffman transmitted information does not appear to be in dispute; thus, the relevancy turns to the type and classification of the information, and whether it relates to national defense.
In addition to the two key issues above, another defense that appears to jump out immediately is entrapment by the FBI agents, due to their solicitation of Hoffman. However, an entrapment defense can be a difficult argument to make, particularly because the defendant must prove that he was induced to commit the crime by solicitation plus some overreaching or improper conduct on the part of the government, and that he was not otherwise predisposed to commit the crime. Solicitation by the government, is not in and of itself entrapment.
The defense’s strategy going forward should focus on the strength of the evidence as to Hoffman’s mental state, specifically whether he formed the intent necessary to commit attempted espionage, and whether the information that was communicated to undercover FBI agents did, in fact, relate to national security. Such details may mitigate the ultimate result of the outcome of the case and will effect the defense’s next steps and viability of potential defenses.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or firstname.lastname@example.org.
Feds Utilize FISA and Charge Orange County Pharmacist with Providing Material Support to Terrorists and False Statements.
The U.S. Attorney’s Office for the Central District of California recently announced the indictment of Oytun Ayse Mihalik, a Turkish citizen and resident of La Palma, California. The 4-count indictment names Ms. Mihalik and alleges that she sent three wire transfers to an individual in Pakistan with knowledge that the money would be used to prepare for and carry out attacks that would kill United States military personnel overseas. Ms. Mihalik is also alleged to have provided the FBI and the Department of Homeland Security with false statements during the course of the agencies’ investigations into her wire transfers.
The allegations against Ms. Mihalik are substantial. The charge of providing material support to terrorists carries a statutory maximum penalty of 15 years in federal prison. Ms. Mihalik is facing three of these charges. Additionally, the charge of making false statements in a matter involving international terrorism carries a maximum sentence of eight years in federal prison. Even though the charges carry significant maximum penalties, the most unsettling aspect of these charges against Ms. Mihalik is that the charges are premised on classified evidence that neither Ms. Mihalik nor defense counsel has reviewed.
The Foreign Intelligence Surveillance Act (“FISA”) permits the U.S. Government to perform electronic surveillance and physical searches to obtain intelligence in the U.S. on foreign powers (such as enemy agents or spies) or individuals connected to international terrorist groups. As such, most of the information and evidence collected pursuant to such surveillance and searches pertains to the national defense and is classified. The prosecution may therefore protect the interests of the United States by requesting protective orders or offer to provide redacted summaries of the evidence against the defendant pursuant to the Classified Information Procedure Act (“CIPA”). Nonetheless, CIPA provides the defense with some very valuable tools.
Therefore defense counsel must be familiar with CIPA. Proper access to classified information is critically important to ensuring the government is put to its burden of proof and to afford defense counsel a meaningful opportunity to put forth applicable defenses. However, the defense’s needs are tempered by CIPA to avoid instances of “graymail” by defendants who might threaten to reveal classified information if prosecuted without saying what the evidence was or allowing the court to determine its relevance.
Accordingly, CIPA states that “if a defendant reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving criminal prosecution, the defendant shall . . . within 30 days prior to trial . . . notify the attorney for the United States and the court in writing.” Failing to follow such procedure risks empowering the court to deny the defense from accessing, reviewing, disclosing, or otherwise benefiting from classified information in its case. There is also a continuing obligation to disclose and describe any new classified information that may come up. This continuing responsibility states that such disclosures should be made “in writing as soon as possible” to both the attorney for the government and the court.
Defending national security related crimes presents both intellectual and procedural challenges. Defense counsel should therefore be well versed in both national security and criminal jurisprudence.
The author of this blog is Erich Ferrari, an attorney specializing in Federal Criminal Defense matters. If you have any questions please contact him at 202-280-6370 or email@example.com.