govinfo:USCOURTS-dcd-1_24-cr-00573-1

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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 
UNITED STATES 
 
v. Criminal Action No. 24-573 (JDB) 
ABRAHAM TEKLU LEMMA 
 
 
 
MEMORANDUM OPINION & ORDER 
 Before the Court is a dispute about the admissibility of evidence either as intrinsic to the 
charged crime of espionage or under Federal Rule of Evidence 404(b). Because the five categories 
of evidence that the government seeks to introduce are either intrinsic or admissible under Rule 
404(b), the government may introduce the evidence at trial. 
Background 
The Espionage Act imposes criminal penalties on “[w]hoever, with intent or reason to 
believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, 
communicates, delivers, or transmits, or attempts to communicate, deliver or transmit, to any 
foreign government . . . information relating to the national defense.” 18 U.S.C. § 794(a). 
Participants in a conspiracy to violate section 794 face the same penalties. Id. § 794(c). And 
proving a violation requires showing willfulness. See Gorin v. United States, 312 U.S. 19, 27-28 
(1941); United States v. Hung, 629 F.2d 908, 918-19 (4th Cir. 1980). The indictment in this case 
charges Lemma with violating section 794 (a) and (c) by leaking national defense information to 
senior Ethiopian officials while working for various U.S. government agencies. See Indictment, 
Dkt. 56. 

 
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The government seeks to introduce five categories of evidence. First, that Lemma misused 
classified government systems to improperly find, review, obtain, copy, and print national defense 
information related to Ethiopia . See Gov’t’s Notice 3, Dkt. 108. Second, that he extracted, 
mishandled, and unlawfully retained that information . Id. Third, that Lemma engaged in (a) 
foreign financial dealings; (b) foreign contacts, including with Ethiopian government officials and 
his handlers; (c) carrying out requests by foreign officials to search for and obtain classified U.S. 
information; (d) efforts to obtain a foreign passport ; (e) his own espionage activities ; and (f) 
concealing knowledge of his handlers’ espionage. Id. at 4. Fourth, that he provided false 
information to his government employer about those foreign activities and contacts. Id. at 5. And 
fifth, that he passed classified materials to a friend in the United States and to a family member 
and business partner in Ethiopia. Id. 
In opposition, Lemma takes issue with the government’s effort to introduce evidence as to 
certain of Lemma’s foreign contacts in Ethiopia and his attempt to obtain an Ethiopian passport as 
well as his passing of classified materials to individuals other than Ethiopian government officials. 
See Def.’s Opp’n & Mot., Dkt. 115.1 Following the Court’s ruling on other pretrial motions, the 
government no longer intends to present evidence in its case -in-chief about Lemma passing 
classified information to individuals outside the Ethiopian government. Gov’t’s Reply 4, Dkt. 119. 
Lemma’s motion to exclude is now ripe for review. 
Legal Standard 
Rule 404(b) allows for admitting evidence of “any other crime, wrong, or act” for purposes 
“such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 
 
1 Although the government’s filing is styled as a motion to admit evidence and Lemma’s response is styled 
as an opposition, the D.C. Circuit has explained in the context of the Speedy Trial Act that the government’s 404(b) 
filing is a “notice” and the opposition thereto is a “motion to exclude.” United States v. Marshall, 669 F.3d 288, 293-
94 (D.C. Cir. 2011). 

 
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mistake, or lack of accident[,]” but not for proving a person’s character to show they “acted in 
accordance with th [at] character” on a given occasion. Fed. R. Evid. 404(b). It is “a rule of 
inclusion rather than exclusion.” United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000). 
Moreover, evidence that is “intrinsic” to or “intertwined with the commission of charged 
crimes” is not “subject to Rule 404(b)’s limitations.” United States v. McGill, 815 F.3d 846, 879 
(D.C. Cir. 2016). Evidence is intrinsic where it is of “an act that is part of the charged offense” or 
“uncharged acts performed contemporaneously with the charged crime if they facilitate the 
commission of the charged crime.” Id. (citation modified); see also United States v. Alexander, 
331 F.3d 116, 126 (D.C. Cir. 2003) (explaining that evidence is intrinsic if it is “offered as direct 
evidence of a fact in issue ”). But evidence is intrinsic only within a “narrow range of 
circumstances” and “there is no general ‘complete the story’ or ‘explain the circumstances’ 
exception to Rule 404(b).” Bowie, 232 F.3d at 929 ; see also United States v. Roberson , 581 F. 
Supp. 3d 65, 71 (D.D.C. 2022) (Bates, J.) (same) ; McGill, 815 F.3d at 88 1 (admonishing the 
district court for its “overly capacious understanding of what can be introduced as intrinsic 
evidence”). 
Under Rule 403, courts may still exclude relevant evidence not barred by Rule 404(b) if its 
probative value is substantially outweighed by a danger of “unfair prejudice, confusing the issues, 
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” 
Fed. R. Evid. 403. 
Application 
Taking in turn each category of evidence the government still intends to introduce, 
categories 1 and 2 are plainly intrinsic to the crime because improperly obtaining, extracting, 
mishandling, and retaining national defense information is part and parcel of leaking such 

 
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information to a foreign government. Equally, category 4 is intrinsic because lying to his 
government employer about his travel to Ethiopia and contacts with Ethiopian government 
officials and handlers while there facilitated the ongoing espionage by mitigating the risk of 
detection. And categories 3 (c), (e), and (f) are intrinsic because they concern Lemma and his 
handlers’ espionage activities . Thus, Lemma does not even challenge those categories of 
information except through the vague assertion that there is “extraneous information larded 
throughout [those] categories.” Def.’s Opp’n & Mot. 5. And the government no longer intends to 
introduce c ategory 5 evidence about Lemma passing classified information to a f riend in the 
United States and family member in Ethiopia. Gov’t’s Reply 4. That leaves only part of category 
3 in dispute. 
Lemma argues that it would waste the Court’s and jury’s time to introduce evidence as to 
3(b) Lemma’s contacts with nongovernmental foreign nationals in Ethiopia and ( d) his efforts to 
obtain a foreign passport. Def.’s Opp’n & Mot. 4.2 For its part, the government argues that such 
evidence is intrinsic or at least admissible under Rule 404(b) because it is relevant to the mens rea 
element of willfulness and the crime of conspiracy. Gov’t’s Reply 2-3. 
The Court agrees with the government that Lemma’s undisclosed foreign contacts and 
efforts to obtain an Ethiopian passport are probative of his state of mind because they bear on 
whether he knew that what he was doing was illegal (and therefore had to be concealed from his 
employer government agencies ). See Bryan v. United States , 524 U.S. 184, 191 -92 (1998) 
(explaining that generally “in the criminal context, a ‘willful’ act is one undertaken with a ‘bad 
 
2 Lemma also argues that the only purpose of introducing the disputed evidence is “to impermissibly 
establish” in the jury’s mind that Lemma has “a propensity to transmit” national defense information. Def.’s Opp’n 
& Mot. 8. However, that particular concern relates to the category 5 evidence, and the government now disclaims any 
intent to introduce such evidence in its case -in-chief. Likewise, therefore, there is no related risk of unfair prejudice 
from the risk of such a propensity inference. Contra id. at 10-11. 

 
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purpose[,]’” which is to say that “the defendant acted with knowledge that his conduct was 
unlawful” (quotation omitted)); see also, e.g., Office of Director of National Intelligence, Security 
Executive Agent Directive 3: Reporting Requirements for Personnel with Access to Classified 
Information or Who Hold a Sensitive Position at 3 -6 (June 12, 2017), https://www.dni.gov/files/
NCSC/documents/Regulations/SEAD-3-Reporting-U.pdf (requiring contractors with access to 
classified information to report foreign travel, foreign contacts, foreign bank accounts, and 
applications for a foreign passport); Gov’t’s Notice 4 n.1 (listing statutes, regulations, and policy 
statements on security and reporting requirements) . Lemma’s efforts to surreptitiously obtain an 
Ethiopian passport are also probative of an escape plan in the event of heightened risk of detection. 
And Lemma choosing to ask his handler to get the passport for him is relevant “ for the 
nonpropensity purpose of proving the relationships among coconspirat ors.” McGill, 815 F.3d at 
884-85. 
Both kinds of evidence are therefore admissible under Rule 404(b). See United States v. 
McGill, 815 F.3d at 879 (“ In conspiracy prosecutions, the prosecution is usually allowed 
considerable leeway in offering evidence of other offenses to inform the jury of the background of 
the conspiracy charged and to help explain to the jury how the illegal relationship between the 
participants in the crime developed. ” (citation modified)). And the Court sees no reason why 
introducing such probative evidence would waste the Court’s and jury’s time, so there is no Rule 
403 problem either. 
The question remains whether the evidence is also intrinsic to the charged crime and 
therefore not subject to any Rule 404(b) limitations. 3 The indictment identifies Lemma’s efforts 
 
3 This distinction is of limited import because “ the only consequences of labeling evidence ‘intrinsic’ are to 
relieve the prosecution of Rule 404(b) ’s notice requirement and the court of its obligation to give an appropriate 
limiting instruction upon defense counsel's request .” Bowie, 232 F.3d at 927. And the government has already 
 

 
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to obtain a foreign passport as an overt act in furtherance of the conspiracy, so it forms part of that 
charged offense. See Indictment ¶ 42; 18 U.S.C. § 794(c); United States v. Hitt, 249 F.3d 1010, 
1015-16 (D.C. Cir. 2001) (explaining that courts are bound by the language of the indictment in 
determining the scope of the conspiracy and therefore whether overt acts are in furtherance of that 
conspiracy). 
However, the indictment makes no mention of Lemma’s contacts with nongovernmental 
foreign persons, although it labels his failure to report his contacts with co-conspirators as a manner 
or means and overt act of the conspiracy . See Indictment ¶¶ 16(g)(vii), 24, 60. The government 
argues that these nongovernmental foreign contacts are relevant to Lemma’s state of mind and 
therefore the element of willfulness, Gov’t’s Reply 2-3, but they are not “direct evidence” on that 
issue, Alexander, 331 F.3d at 126. And those contacts do not form part of the substantive offense 
because they do not involve leaking national defense information to a foreign government. See 18 
U.S.C. § 794(a). 
The only remaining way that the nongovernmental foreign contacts evidence could be 
intrinsic is if th ose uncharged acts were contemporaneous with and facilitated the offense of 
espionage. McGill, 815 F.3d at 879. They were plainly contemporaneous with the multiyear 
conspiracy, which ended only when Lemma was arrested in August 2023. See Indictment ¶ 1; 
Arrest Warrant, Dkt. 6 . However, the Court is unconvinced that these activities facilitated the 
charged crimes. To facilitate a crime, an act must “promote, help forward[,] or assist in bringing 
about a particular end or result.” Roberson, 581 F. Supp. 3d at 73 (quoting Facilitate, Oxford 
English Dictionary (3d ed. 2009)). There is no indication here that Lemma’s nongovernmental 
 
provided notice of its intent to use this evidence at trial. So, the only benefit to the defense of the evidence coming in 
only under Rule 404(b) is an entitlement to a jury instruction upon request that the evidence may not be considered 
for propensity purposes. 

 
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foreign contacts helped in the offense. On the contrary, maintaining those ties may have increased 
the risk of detection of the espionage scheme. That may be why the government only tentatively 
says these relationships “could be relevant based on the defense at trial.” Gov’t’s Reply 3. 
Thus, although it is admissible under Rule 404(b), the nongovernmental foreign contacts 
evidence does not fall within the “narrow” ambit of intrinsic evidence. Bowie, 232 F.3d at 929.4 
* * * 
Because the evidence the government seeks to introduce is either intrinsic or admissible 
under Rule 404(b), the government may introduce it at trial . Accordingly, [115] defendant’s 
motion to exclude evidence is hereby DENIED. 
 /s/ 
 JOHN D. BATES 
 United States District Judge 
Date: May 20, 2026 
 
4 Lemma does not specifically challenge category 3(a)—relating to foreign financial dealings—but the Court 
finds that those undisclosed dealings bear on Lemma’s intent as well as a potential motive to spy. So, this evidence 
is likewise admissible under Rule 404(b) , and the Court can discern no Rule 403 problem . But it is not intrinsic 
evidence for the same reasons as discussed above regarding the nongovernmental foreign contacts . And as to the 
unchallenged part of category 3(b), Lemma’s undisclosed contacts with Ethiopian government officials are intrinsic 
to the charged offense at least to the extent that the officials were co -conspirators and admissible under Rule 404(b) 
as probative of intent otherwise. 

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