Opinion
Criminal Case No. 1:20-cr-239
2021-06-28
UNITED STATES of America v. Alexanda Amon KOTEY, Defendant.
Aidan T. Grano, US Attorney, John T. Gibbs, US Attorney, Raj Parekh, US Attorney, Dennis Fitzpatrick, US Attorney, Alicia H. Cook, United States Attorney's Office, Alexandria, VA, for United States of America. Barry Coburn, Marc Jason Eisenstein, Coburn & Greenbaum PLLC, Washington, DC, Brooke Sealy Rupert, Public Defender, Kenneth P. Troccoli, Public Defender, Office of the Federal Public Defender, Alexandria, VA, for Defendant.
Aidan T. Grano, US Attorney, John T. Gibbs, US Attorney, Raj Parekh, US Attorney, Dennis Fitzpatrick, US Attorney, Alicia H. Cook, United States Attorney's Office, Alexandria, VA, for United States of America.
Barry Coburn, Marc Jason Eisenstein, Coburn & Greenbaum PLLC, Washington, DC, Brooke Sealy Rupert, Public Defender, Kenneth P. Troccoli, Public Defender, Office of the Federal Public Defender, Alexandria, VA, for Defendant.
ORDER
T. S. Ellis, III, District Judge
Defendants Alexanda Amon Kotey and El Shafee Elsheikh are charged with:
i) one count of conspiracy to commit hostage taking resulting in death, in violation of 18 U.S.C. § 1203,
ii) four counts of hostage taking resulting in death, in violation of 18 U.S.C. § 1203 and 2,
iii) one count of conspiracy to murder United States citizens outside of the United States, in violation of 18 U.S.C. § 2332(b)(2),
iv) one count of conspiracy to provide material support to terrorists, in violation of 18 U.S.C. § 2339A, and
v) one count of conspiracy to provide material support to a designated foreign terrorist organization resulting in death, in violation of 18 U.S.C. § 2339B.
Because discovery in this case includes classified materials, that portion of discovery is governed by the Classified Information Procedures Act ("CIPA") § 4, which provides:
The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.
Similarly, Rule 16 of the Federal Rules of Criminal Procedure provides:
At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party's statement under seal.
Rule 16(d)(1), Fed. R. Crim. P.
At issue now is Defendant Alexanda Amon Kotey's motion, by counsel, in opposition to the Court proceeding ex parte on the government's CIPA § 4 filing.
I.
The question presented by defendant's motion is whether CIPA § 4 and Rule 16, Fed. R. Crim. P., permit the Court to proceed ex parte in determining whether certain classified material is discoverable and whether portions of the classified material may be deleted, substituted, or summarized by the government. At least three circuit courts have addressed this question, and each circuit court has persuasively rejected the argument raised by defendant. A.
The Fourth Circuit has not addressed this issue directly. However, in two appeals before the Fourth Circuit in United States v. Moussaoui , the Fourth Circuit described how "CIPA provides procedures for protecting classified information without running afoul of a defendant's right to a fair trial," 591 F.3d 263, 282 (4th Cir. 2010), and described CIPA as "allow[ing] the district court to authorize the government to redact information from classified documents before providing such documents to the defendant during pre-trial discovery." 333 F.3d 509, 514 n. 6 (4th Cir. 2003).
Additionally, in United States v. Smith , the Fourth Circuit closely examined the government's interest in maintaining the nondisclosure of classified material. 780 F.2d 1102, 1107-10 (4th Cir. 1985). In determining that the district court erred in admitting classified material under CIPA § 6, the Fourth Circuit applied the standard of admissibility established in Roviaro v. United States , 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) to the assertion of privilege in CIPA cases. The Fourth Circuit identified the government's "substantial interest in protecting sensitive sources and methods of gathering information," and resisted revealing such material "absent an essential need by a defendant." Smith , 780 F.2d at 1108. Applying Roviaro , the Fourth Circuit determined that the privilege must give way only when the material "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." Id. at 1107 (quoting Roviaro , 353 U.S. at 60-61, 77 S.Ct. 623 ).
In United States v. Al-Farekh , the Second Circuit rejected the contention forwarded by defendant that when defense counsel has an appropriate security clearance a court may not adjudicate CIPA § 4 proceedings ex parte. 956 F.3d 99, 107 (2d Cir. 2020). In so holding, the Second Circuit first noted that "notwithstanding the rarity of ex parte proceedings in criminal matters, there can be no question that a district court's ex parte, in camera adjudication of CIPA motions falls squarely within the authority granted by Congress." Id. Importantly, the Second Circuit found that "[n]othing in the text of § 4 limits the District Court's authority to review classified information ex parte only where defense counsel lacks a security clearance." Id.
The Second Circuit went on to note that CIPA § 4 "makes clear" that it is the district court that decides "in the first instance" whether the classified information is discoverable. Id. Additionally, the Second Circuit found that both the plain text of § 4 and CIPA's structure supported this conclusion. To begin with, CIPA § 6 demonstrates that Congress knew exactly how "to provide for the participation of defendants in certain in camera proceedings." Id. Because § 4 contained no such provision, Congress’ intent is clear. Moreover, as the Second Circuit emphasized "[i]f a defendant's counsel was required to participate in a § 4 proceeding and be provided access to classified information ... the alternative relief authorized in these provisions would be rendered insignificant, if not meaningless." Id. at 107-108.
In conclusion, the Second Circuit held that:
[B]ecause it may well be that the information in a § 4 motion is not discoverable at all, [the defendant's] theory would permit a defendant represented by counsel with a security clearance to gain access to classified information that would otherwise be unavailable to the defendant. That possibility could result in the improper disclosure of information that, by its very nature, may put the national security of the United States at risk.
Id. at 108.
Interestingly, the Second Circuit also approvingly noted that the district court in that case "met ex parte with defense counsel so that counsel could present [the defendant's] theory of the case and his potential defenses." Id. at 109. As the District Court for the District of Columbia stated when confronting the same issue, such a procedure allowed the court to "be in a more informed position to determine whether the government's proposed redactions or substitutions for a particular document adequately provide the defendant with what he needs to pursue his defense." United States v. Libby . 429 F. Supp. 2d 18, 25 (D.D.C.), amended on reconsideration , 429 F. Supp. 2d 46 (D.D.C. 2006).
In the Eastern District of Virginia, Judge Liam O'Grady has also provided the defendant with the opportunity to make such a filing. See United States v. Khweis , Case No. 1:16-cr-143 (E.D. Va. Feb. 14-15, 2017) (O'Grady, J.).
Here, the government has stated that it "has no objection to the defendant pursuing this course, should the Court permit it." See Gov't Opp'n, at 9.
B.
The Sixth Circuit considered a similar question in United States v. Asgari . 940 F.3d 188, 189 (6th Cir. 2019). In Asgari , the government filed a CIPA § 4 motion seeking to withhold irrelevant classified information. The district court initially granted the motion but reconsidered its decision after learning that defense counsel possessed a top-secret security clearance. Id. Having reconsidered the matter, the district court ordered the government to disclose to defense counsel the classified material it had previously declared irrelevant. On appeal, the Sixth Circuit reversed, concluding that "the existence of a security clearance by itself does not change the equation or offer a legitimate basis for changing course, and above all it does not alter the directive of the Act that the district court make these decisions on an ex parte basis." Id. at 191.
Importantly, the Sixth Circuit held that "[n]othing in § 4 suggests that defense counsel has a role to play when the district court assesses the relevance or helpfulness of the classified information. Just the opposite. The statute refers to the district court's assessment of these factors through an ex parte hearing (‘a written statement to be inspected by the court alone’) that occurs without the defendant's knowledge (‘If the court [grants relief] following such an ex parte showing, the entire text of the statement of the United States shall be sealed.’)." Id. at 192 (quoting 18 U.S.C. app. 3 § 4 ). Asgari also explained that CIPA § 4 "vests the district court, a confidential arbiter, with responsibility to evaluate the information's relevance[,]" and "[d]efense counsel's security clearance becomes relevant if and only if the court determines the material should be disclosed." Id. at 191.
C.
The Ninth Circuit considered a similar question in United States v. Klimavicius-Viloria . 144 F.3d 1249 (9th Cir. 1998). In Klimavicius-Viloria , the defendants conceded that the district court could conduct ex parte, in camera review of written material, but argued that CIPA § 4 did not permit ex parte hearings. See id. at 1261. On appeal, the Ninth Circuit disagreed, holding that although "[e]x parte hearings are generally disfavored ... ex parte, in camera hearings in which government counsel participates to the exclusion of defense counsel are part of the process that the district court may use in order to decide the relevancy of the information. Such a hearing is appropriate if the court has questions about the confidential nature of the information or its relevancy." Id. (citation removed) (citing United States v. Yunis , 867 F.2d 617, 620 (D.C. Cir. 1989) ). Therefore, the Ninth Circuit held that the district court had not erred in holding the hearings ex parte.
II.
The principles persuasively elucidated by the circuit courts above, applied here, point convincingly to the conclusion that the CIPA § 4 proceedings in this case should be held ex parte. To begin with, the plain language of CIPA reveals that the statute unmistakably contemplates ex parte consideration of the government's CIPA § 4 briefing. See 18 U.S.C. app. 3, § 4 ("The court may permit the United States to [request deletions, substitutions, or summaries] in the form of a written statement to be inspected by the court alone. ") (emphasis added). In this way, CIPA § 4 confirms the district court's power under Rule 16(d)(1), Fed. R. Crim. P., "to issue protective orders denying or restricting discovery for good cause, which includes information vital to the national security." United States v. Abu-Jihaad , 630 F.3d 102, 140 (2d Cir. 2010) (quoting United States v. Stewart , 590 F.3d 93 (2d Cir. 2009) ). Therefore, CIPA § 4 plainly permits district courts to consider ex parte motions by the government to delete, substitute, or summarize portions of classified material.
Other circuit courts have likewise concluded that that CIPA § 4 and Rule 16(d)(1) allow district courts to review the government's CIPA § 4 filings ex parte and in camera. See, e.g., United States v. Mejia , 448 F.3d 436, 458 (D.C. Cir. 2006) (Finding "no support for the defendants’ claim of the right to participation or access in CIPA or the Federal Rules" and concluding that neither the Sixth Amendment nor the Fifth Amendment's Due Process clause require the defendants’ participation in the CIPA § 4 process); United States v. Pringle , 751 F.2d 419, 427 (1st Cir. 1984) ("[T]he court's ex parte in camera inspection of the documents was authorized under § 4 of CIPA and Federal Rule of Criminal Procedure 16(d)(1)."); United States v. Campa , 529 F.3d 980, 995 (11th Cir. 2008) ("The right that section four confers on the government would be illusory if defense counsel were allowed to participate in section four proceedings because defense counsel would be able to see the information that the government asks the district court to keep from defense counsel's view.").
See also Rule 16(d)(1), Fed. R. Crim. P. ("At any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief. The court may permit a party to show good cause by a written statement that the court will inspect ex parte. ").
Moreover, it is clear that the CIPA § 4 proceedings in this case should proceed ex parte. The government has provided ample support for the conclusion that failing to proceed ex parte in this case would harm national security. And although defense counsel's security clearances mitigate the danger of allowing defense counsel access to the classified material, two factors nonetheless counsel against granting access.
First, failure to proceed ex parte would frustrate the purpose of CIPA § 4 by removing the very protections that the statute provides. As the House Report on the statute explains, "since the government is seeking to withhold classified information from the defendant, an adversary hearing with defense knowledge would defeat the very purpose of the discovery rules." H.R. Rep. No. 96–831, pt. 1, at 27 n.22 (1980). The CIPA § 4 process is designed to allow the government to seek deletion, substitution, or summarization of classified information before the material is made available to the defense. As part of that process, district courts step "in the shoes of defense counsel, the very ones that cannot see the classified record, and act with a view to their interests." United States v. Amawi , 695 F.3d 457, 471 (6th Cir. 2012). In so doing, courts must determine whether potentially discoverable classified material "is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause." United States v. Smith , 780 F.2d 1102, 1107 (4th Cir. 1985) (quoting Roviaro v. United States , 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) ). If the classified material is not relevant and helpful to the defense, the material can be deleted, substituted, or summarized. It is therefore possible that portions of the CIPA § 4 material provided by the government will not be discoverable at all. Thus, defense counsel's participation in the process at this point would improperly permit defense counsel to access otherwise non-discoverable classified information.
The House Report contrasts this procedure with the procedure created to prevent public disclosure of classified information that is already in the defendant's possession. In that situation, because the defendant already possesses the classified information in question, the briefing and hearing is not ex parte , but may be held in camera at the request of the government. See H.R. Rep. No. 96–831, pt. 1, at 3, 27 n.22 (1980).
Additionally, it is notable that the Advisory Committee's notes to Rule 16 offer a similar explanation to that in the House Report:
In some cases it would defeat the purpose of the protective order if the government were required to make its showing in open court. The problem arises in its most extreme form where matters of national security are involved. Hence a procedure is set out where ... the court may permit the government to make its showing, in whole or in part, in a written statement to be inspected by the court in camera.
Rule 16, Fed. R. Crim. P., Advisory Committee's Note.
Second, although defense counsel possess security clearances, possession of a security clearance alone is insufficient to access classified information. Importantly, individuals with an appropriate security clearance will only have access to classified information if they have a "need to know" that information. See Exec. Order No. 13526, §§ 4.1(a)(3), 6.1 (dd), 75 Fed. Reg. 707, 720, 728-29 (Dec. 29, 2009) ("A person may have access to classified information provided that (1) a favorable determination of eligibility for access has been made ...; (2) the person has signed an approved nondisclosure agreement; and (3) the person has a need-to-know the information."). As the Second Circuit emphasized in Al-Farekh , "defense counsel does not ‘need to know’ classified information that is neither helpful nor material to the defense of his or her client." 956 F.3d at 109 n. 19. Thus, under CIPA § 4 and Rule 16(d)(1), consideration of the government's § 4 filings should clearly proceed ex parte.
See also United States v. Libby , 429 F. Supp. 2d 18, 24 & n.8 (D.D.C. 2006) ("It is axiomatic that even if the defendant and his attorneys had been granted the highest level of security clearances, that fact alone would not entitle them to access to every piece of classified information this country possesses."), as amended , 429 F. Supp. 2d 46 (D.D.C. 2006).
Seeking to avoid this conclusion, defendant argues that even if CIPA § 4 and Rule 16(d)(1) allow ex parte proceedings, defendant has a constitutional right to participate. Specifically, defendant claims—without citing any case law—that he will be "deprived of his right of counsel and confrontation ... as well as other fair trial rights" if defendant is not permitted to participate in the CIPA § 4 proceedings. Def. Opp'n, at 5. Defendant's argument plainly fails. To begin with, the contention that defendant's right to confrontation is in any way implicated by proceeding ex parte is foreclosed by the Supreme Court's decision in Pennsylvania v. Ritchie , which held that "the right to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination," and does not create a right to pretrial discovery. 480 U.S. 39, 52, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). To the extent that defendant makes any Fifth Amendment Due Process claims, those claims are meritless; any Fifth Amendment Due Process right is limited to material within the realm of Brady and its progeny, and is effectively protected by the procedures set forth under CIPA § 4. See United States v. Mejia , 448 F.3d 436, 458 (D.C. Cir. 2006) (finding no constitutional bar to proceeding ex parte under CIPA § 4 ). Furthermore, with respect to defendant's right to a fair trial, the Fourth Circuit has made clear that "CIPA provides procedures for protecting classified information without running afoul of a defendant's right to a fair trial." United States v. Moussaoui , 591 F.3d 263, 282 (4th Cir. 2010). Therefore, defendant clearly does not have a constitutional right to participate in the CIPA § 4 proceedings.
However, in order to allow full consideration of defendants’ perspectives in the adjudication of the government's motion, defendants will be given an opportunity to present, ex parte , any defenses they plan to assert and their theory of the case in general. Furthermore, the government will be required to provide (not ex parte ) the elements of each of the charged offenses in order to aid the Court's deliberation. If defendants disagree with any of the offense elements provided by the government, defendants may file any opposition to the government's briefing within three days of the government's filing.
Accordingly,
It is hereby ORDERED that Defendant Alexanda Amon Kotey's motion in opposition to proceeding ex parte on the government's CIPA § 4 motion (Dkt. 65) is DENIED.
It is further ORDERED that defendants are invited to file a brief informing the Court as to defendant's theory of the case and any potential defenses defendants may wish to assert. Any such brief may be filed by defendants ex parte and under seal, and shall be filed by Friday July 16, 2021 at 5:00 p.m.
It is further ORDERED that the government is DIRECTED to file a brief providing the elements of each of the charged offenses by Friday, July 9, 2021 at 5:00 p.m. If defendants disagree with the elements as provided by the government, they may file any opposition by Tuesday, July 13, 2021 at 5:00 p.m.
It is further ORDERED that an ex parte, in camera hearing on the government's CIPA § 4 motion, if necessary, will be held on Friday, July 23, 2021 at 1:00 p.m.