A. Any person subject to Chapter 20 NMSA 1978 who, 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 entity described in Subsection B of this section, either directly or indirectly, any thing described in Subsection C of this section shall be punished as a court-martial may direct, except that if the accused is found guilty of an offense that directly concerns nuclear weaponry, military spacecraft or satellites, early warning systems or other means of defense or retaliation against large scale attack, war plans, communications intelligence or cryptographic information or any other major weapons system or major element of defense strategy, the accused shall be punished by death or other punishment as a court-martial may direct.

B. An "entity" referred to in Subsection A of this section is:

(1) a foreign government;

(2) a faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States; or

(3) a representative, officer, agent, employee, subject or citizen of such a government, faction, party or force.

C. A "thing" referred to in Subsection A of this section is a document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance or information relating to the national defense.

D. No person may be sentenced by court-martial to suffer death for an offense under this section unless:

(1) the members of the court-martial unanimously find at least one of the aggravating factors set out in Subsection G of this section; and

(2) the members unanimously determine that any extenuating or mitigating circumstances are substantially outweighed by any aggravating circumstances, including the aggravating factors set out under Subsection G of this section.

E. Findings under this subsection may be based on:

(1) evidence introduced on the issue of guilt or innocence;

(2) evidence introduced during the sentencing proceeding; or

(3) all such evidence.

F. The accused shall be given broad latitude to present matters in extenuation and mitigation.

G. A sentence of death may be adjudged by a court-martial for an offense under this section only if the members unanimously find, beyond a reasonable doubt, one or more of the following aggravating factors:

(1) the accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute;

(2) in the commission of the offense, the accused knowingly created a grave risk of substantial damage to the national security;

(3) in the commission of the offense, the accused knowingly created a grave risk of death to another person; or

(4) any other factor that may be prescribed by the president of the United States by regulations.

History: 1978 Comp., § 20-12-42, enacted by Laws 1989, ch. 337, § 41.

Effective dates. — Laws 1989, ch. 337 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective June 16, 1989.