Espionage and Related Offenses - Offenses Involving National Defense and Weapons of Mass Destruction

injure the United States or be used to the advantage of a foreign government.

Historical Note:: Effective November 1, 1987. Amended effective November 1, 2003 (see Appendix C, amendment 654).

§2M3.3. Transmitting National Defense Information; Disclosure of Classified Cryptographic Information; Unauthorized Disclosure to a Foreign Government or a Communist Organization of Classified Information by Government Employee; Unauthorized Receipt of Classified Information

(a) Base Offense Level:

(1) 29, if top secret information; or

(2) 24, otherwise.

Commentary

Statutory Provisions: 18 U.S.C. §§ 793(d), (e), (g), 798; 50 U.S.C. § 783(b), (c).

Application Notes:

1. See Commentary to §2M3.1.

2. If the defendant was convicted of 18 U.S.C. § 793(d) or (e) for the willful transmission or communication of intangible information with reason to believe that it could be used to the injury of the United States or the advantage of a foreign nation, apply §2M3.2.

Background: The statutes covered in this section proscribe willfully transmitting or communicating to a person not entitled to receive it a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense. Proof that the item was communicated with reason to believe that it could be used to the injury of the United States or the advantage of a foreign nation is required only where intangible information is communicated under 18 U.S.C. § 793(d) or (e).

This section also covers statutes that proscribe the disclosure of classified information concerning cryptographic or communication intelligence to the detriment of the United States or for the benefit of a foreign government, the unauthorized disclosure to a foreign government or a communist organization of classified information by a government employee, and the unauthorized receipt of classified information.

Historical Note:: Effective November 1, 1987. Amended effective November 1, 1993 (see Appendix C, amendment 481).

§2M3.4. Losing National Defense Information

(a) Base Offense Level:

(1) 18, if top secret information was lost; or

– 258 –

Last reviewed October 2023