The allegations against Victor Manuel Rocha, a former U.S. ambassador to Bolivia and alleged Cuban agent, read like a Cold War spy novel. Federal prosecutors accuse Rocha of serving as a covert operative of Cuba, “an authoritarian, Communist state,” during a multi-decade career that provided Rocha with access to the nation’s closely guarded secrets and the opportunity to influence senior decision-makers. The case highlights the persistence of foreign intelligence services in general, and Cuba in particular, as threats to U.S. national security. It should be an interesting case to follow based on the specific charges, the conduct alleged, and the counterintelligence background and implications of the case.

The Charges

The main charge against Rocha, who is entitled to the same presumption of innocence as any criminal defendant, is acting in the United States as an agent of a foreign government without notifying the Attorney General, in violation of 18 U.S.C. § 951. Rocha is also charged with conspiring to commit that crime, in violation of 18 U.S.C. § 371, and using a passport obtained by a false statement, in violation of 18 U.S.C. § 1542

The Department of Justice charged Rocha by complaint before indicting him. This has at least two implications related to differences between complaints and indictments in criminal cases. Both types of accusatory instruments must be supported by probable cause, a familiar, practical standard in criminal law that means there is sufficient information for a person of “reasonable caution” to believe a crime occurred. A prosecutor obtains an indictment by presenting evidence to a grand jury, instructing the jury on the law, and asking the jurors to find probable cause to charge the defendant. The evidence presented to a grand jury remains non-public unless a judge authorizes its disclosure. An indictment does not have to describe in detail a defendant’s criminal conduct or how law enforcement is aware of that conduct. Rather, a federal court can conclude that a prosecutor has established probable cause based on the fact that a grand jury returned an indictment. 

Moreover, Rule 7 of the Federal Rules of Criminal Procedure only requires an indictment to set forth a “plain, concise, and definite written statement of the essential facts constituting the offense charged” and list the law the defendant is alleged to have violated. Although prosecutors have the option of filing a “speaking indictment,” which provides more detail, that choice is up to them. A speaking indictment can provide a defendant with more detail about the charged conduct than necessary as a matter of fairness or expedience, or can be used to inform the public in high-profile cases, particularly when an arrest may be unlikely. Public charges against malicious cyber actors, particularly those that include attribution to government actors, may include this level of detail to warn the public about attacks and provide a diplomatic tool.

 On the other hand, when prosecutors initially charge a defendant by complaint, they must establish probable cause through the affidavit supporting the complaint. The complaint and supporting affidavit become publicly available. And a defendant can only be prosecuted for a felony if prosecutors later charge the defendant by indictment. For those of us watching the case, this means that the affidavit gives us an early view of the prosecution’s case. But why would prosecutors choose to charge by complaint and make that information available to the public and the defendant, when they will have to indict anyway?  

The answer is often the need to move quickly. A criminal suspect may flee, commit additional crimes, destroy evidence, or engage in other conduct that law enforcement decides it must prevent. In such situations, there is no time to present a case to a grand jury. Grand juries are not available 24 hours a day, 7 days a week. When they sit, they generally sit during a portion of business hours, and a particular grand jury may sit for only a few days a month. They hear multiple cases, and in many jurisdictions their time is scheduled far in advance. In a complicated case, a presentation to the grand jury could take multiple meetings. As a result, indictment before arrest is often not possible in emergencies. Moreover, in national security cases, questions about whether and what classified information can be used as evidence may remain unresolved when the operational need, or opportunity, to arrest a defendant arises. That can lead to an arrest on a complaint that charges one or a few counts, which is then followed by a broader indictment.  

That may well be the case with Rocha; CNN reported that prosecutors stated at Rocha’s initial appearance that additional charges will follow. The complaint alleges that Rocha continued to act and conspire to act as a Cuban agent as of the day he was charged. The docket reflects that an indictment has been filed that adds additional counts including wire fraud, making false statements, and passport-related crimes, but no new core national security charges. There may be more counts forthcoming, particularly under the Espionage Act, given that not one, but two prosecutors from the Justice Department’s National Security Division have been assigned to work with the U.S. Attorney’ Office on this case, but more on that below.

Acting as an Agent of a Foreign Government and Section 951

As I have previously described, Section 951 prohibits acting within the United States as an agent of a foreign government without notifying the Attorney General. The term “agent” here is used in the legal sense of a principle-agent relationship, which is also how CIA defines it. In intelligence circles, employees of a service are “officers,” and the people they recruit to act on their behalf and at their direction are “agents” or “assets.” 

Section 951 dates back to the original set of national security laws that Congress enacted as the United States entered World War I. The intelligence activities Section 951 covers are not the same as classic espionage, which CIA for example defines as “the use of clandestine efforts to acquire classified information” or “the unauthorized transmittal of classified information to a foreign nation or entities” with requisite intent. Chapter 37 of the United States Code, entitled “Espionage and Censorship,” punishes spying, or obtaining and transmitting to a foreign adversary classified U.S. national security information, with laws such as Sections 794 (gathering or delivering national defense information to a foreign government) and 798 (disclosing classified communication intelligence or cryptographic information). 

In contrast, Section 951 applies to the much broader set of activities that foreign intelligence services and their agents conduct on U.S. soil. These include influence operations such as recently charged conduct by alleged Russian agents accused of interfering in political processes and spreading propaganda, the “Ghost Stories” cases of the “Russian Illegals” who lived in the United States under deep cover while working for Russian intelligence services, efforts by the People’s Republic of China to forcibly repatriate residents as part of Operation Fox Hunt and to operate covert police stations in New York, and Iranian surveillance of dissidents. Older examples date back to World War I-era German attempts to disrupt the Allied war effort through the purchase chemical plants, weapons manufacturers, airplane patents, and newspapers; Venezuelan financing of an Argentinian political candidate; Iraqi information-gathering about dissidents; and Saudi agents obtaining nonpublic information while working at a social media company. 

Foreign intelligence activity is limited only by the creativity of the services that conduct it, but the common thread in Section 951 cases is that a defendant agreed to act as a foreign government’s agent in the United States, received and followed instructions from that foreign government, and (generally not surprisingly) did not notify the Attorney General of his or her status as a foreign agent. As a matter of law and as reflected by the range of prosecutions over the last century, the scope of the statute is broad, although Section 951 charges based on an individual’s conduct while employed by the U.S. government are unusual.

The Rocha Case

Bearing in mind that Rocha is presumed innocent, the allegations in the complaint affidavit and details such as the Justice Department’s staffing of the case provide insight into where this case may be heading. The government accuses Rocha of acting as a “covert agent” of Cuba’s intelligence services while serving in the State Department in capacities that provided him access to highly sensitive and classified information. These include roles as political and military officers early in his career, a staffer at the National Security Council (NSC), a higher-level position in the U.S. office in the Swiss Embassy in Cuba, and then Ambassador to Bolivia. After leaving government service, Rocha served as an advisor to U.S. Southern Command. All of these positions provided him with both access to information and the opportunity to influence leaders. 

While many Americans may focus on the significance of other countries such as Russia, China, Iran, and North Korea in foreign affairs, the region that Rocha covered has always been critical to U.S. national security. For example, there were reportedly more than 3,000 U.S. combat personnel in Honduras during Rocha’s time there amid allegations that Nicaraguan Sandanistas were crossing the border. The significance of Rocha’s position in Cuba is self-evident. Rocha was Ambassador to Bolivia during a critical period for that nation’s democratic character and alignment with the United States. And any secret access to anyone serving on the NSC staff or advising a combatant command is a major accomplishment for a foreign intelligence service.

Paragraphs 27 through 31 of the complaint affidavit show the value of that access. Those paragraphs recite that Rocha had “unique access” to “nonpublic United States government information” and that he was not authorized to disclose that information to a “hostile intelligence service.”  They also recount Rocha’s training in, and acknowledgement of, rules governing the disclosure of classified information. Statements such as these are usually used to predicate the “willfulness” or other mental state element of Espionage Act charges, such as 18 U.S.C. Sections 793, 794, or 798. Those charges require prosecutors to prove that a defendant knew that he or she was not allowed to take, retain, or disclose classified information or that he or she intended or had reason to believe that disclosing the information could harm the United States. Prosecutors’ choice to include these allegations in the Rocha complaint could indicate that Espionage Act charges are being considered or are forthcoming. 

Other parts of the complaint point to the possibility that the government believes that Rocha engaged in classic spying. Tradecraft terminology such as “spotting,” “assessing,” and “recruiting;” paroles;” “surveillance detection routes;” and “legends” permeate the document. And Paragraph 60 quotes Rocha as stating to the undercover officer posing as a Cuban intelligence officer, “it’s having access to information that’s important.”  

The complaint also places Rocha’s motive squarely within the “I” of the Cold War-era acronym of reasons that people spy:  money, ideology, compromise, and/or ego, or MICE. The complaint quotes Rocha as stating that he helped “strengthen[] the Revolution” over 40 years, referring to the United States as “the enemy,” and taking deep offense when his loyalty to Cuba was questioned. Although prosecutors are not required to prove motive, it can be powerful evidence of intent (or willfulness).

And then there is the staffing issue. Court records indicate that two very capable prosecutors (and my friends and former colleagues) from NSD’s Counterintelligence & Export Control Section (CES) are assigned to the case. CES covers Section 951 prosecutions, but also specializes in Espionage Act charges and the Classified Information Procedures Act (CIPA). It is entirely possible CES has assigned two prosecutors for reasons unrelated to the case, or to help protect classified information about the investigation that led to Rocha’s arrest. But this may also indicate that more charges remain in the works. Moreover, the story of the FBI’s undercover operation to investigate Rocha – albeit told by, well, an FBI special agent (“agent” meaning “officer” or “employee,” of course) – describes an admirable job by FBI counterintelligence and, potentially, other U.S. government agencies. This all combines to make the Rocha case one to watch as it develops.

Other Take-Aways

Of course, many national security prosecutions, like other criminal prosecutions, end in guilty pleas. As a result, the public does not always learn all of the facts underlying the case. That may well happen here. If it does, the case still provides important reminders for the American public. 

First, the counterintelligence threat persists, notwithstanding public focus on terrorism, domestic extremism, cyberattacks, and other dangers. Spying and clandestine activities are some of the oldest forms of statecraft and are always occuring in the background of international affairs.

Second, the United States should not believe that rival or adversary nations simply fade away or dial down their intelligence activities. Cuba is an excellent example of a small nation, far from a superpower, that may have receded from public awareness in the United States in recent years but that runs a highly effective intelligence service and maintains close ties to Russia

Finally, the threat that foreign intelligence services present is not limited to espionage. Clandestine activities of undeclared foreign agents such as influence operations, collection of information that is unclassified but still non-public (such as economic, scientific, or technical information), suppression of dissent, and targeting of minority groups are familiar tools for adversaries of the United States and may affect the average U.S. resident more directly than the theft of classified information. WIth the experience of Russian interference in 2016, particularly heading into an election year, non-espionage activity of foreign intelligence services presents real dangers that the United States public must not ignore.

IMAGE: The Department of Justice seal is seen on a lectern ahead of a press conference in Washington, D.C. on Nov. 28, 2018. (Photo by MANDEL NGAN/AFP via Getty Images)