Opinion
No. 13 CR 572-2
06-16-2014
UNITED STATES OF AMERICA, Plaintiff, v. C. GREGORY TURNER, Defendant.
MEMORANDUM OPINION AND ORDER
The Government has filed an ex parte, in camera motion under Section 4 of the Classified Information Procedures Act ("CT.PA"), 18 U.S.C. App. 3 § 1 et seq., and Federal Rule of Criminal Procedure 16(d)(1) seekinq entry of a protective order that authorizes the prosecution to withhold classified documents from Defendant C. Gregory Turner ("Turner").
After carefully reviewing the Government's motion, the underlying documents, and Turner's ex parte submission, I grant the Government's motion and will enter its proposed protective order for the reasons stated below. The Government is directed to file a redacted version of its CIPA motion on the public docket. See U.S. v. Jin, 791 F.Supp.2d 612, 615 n.1 (N.D. Ill. 2011) (Castillo, J.). The Court-designated Classified Information Security Officer, see Dkt. No. 56, is directed to issue an un-redacted version of this opinion to the Government ex parte and maintain the same under seal. Id.
I.
A grand jury has charged Turner with committing three offenses between November 2008 and April 2010: (1) Count I alleges that Turner conspired to act in the United States as the agent of a foreign government, namely the Republic of Zimbabwe, without providing prior notification to the Attorney General as required by 18 U.S.C. § 95.1(a); (2) Count II alleges that Turner committed the substantive offense of acting in the United States as an unregistered agent of the Republic of Zimbabwe in violation of 18 U.S.C. § 951(a); and (3) Count IV alleges that Turner conspired to provide political consulting, public relations, and lobbying services for three Zimbabwean officials who are "Specially Designated Nationals" without first obtaining a license as required by 50 U.S.C. § 1705(c) and 31 C.F.R. §§ 541.201, 541.204, and 541.405. See Dkt. No. 38 ("Indictment").
The Government certifies that it conducted a thorough search for potentially discoverable information In the present motion, the Government asserts the classified information privilege with respect to "potentially discoverable" documents located during this search. The identity of which holds these documents is a classified fact in its own right.
Any reports, memoranda, or e-mails disseminating the contents of the classified documents at issue in the Government's motion are cumulative evidence whose relevance and helpfulness to Turner need not be addressed separately.
II.
CIPA provides a procedural framework for resolving the Government's motion. See U.S. v. O'Hara, 301 F.3d 563, 568 (7th Cir. 2002) (describing CIPA's "fundamental purpose" as "protecting and restricting the discovery of classified information in a way that does not impair the defendant's right to a fair trial"). The statute "is essentially a procedural tool that requires a court to rule on the relevance of classified information before it may be introduced." U.S. v. Dumeisi, 424 F.3d 566, 578 (7th Cir. 2005) (noting that "CIPA does not create any discovery rights for the defendant.").
The Government's motion invokes Section 4 of CIPA, which provides that:
The court, upon a sufficient showing, may authorize the United States to delete specific 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.18 U.S.C. App.3 § 4 (paragraph break added); see also Fed. R. Crim. P. 16(d)(1) (authorizing courts to deny or restrict discovery based upon an ex parte showing of good cause).
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.
"The Seventh Circuit has not explicitly addressed what standard a district court should apply in analyzing government requests for protective orders under CIPA Section 4." Jin, 791 F.3upp.2d at 618. However, there is widespread agreement among the other circuits on a four-part test for resolving CIPA discovery motions:
[1] When considering a motion to withhold classified information from discovery, a district court must first determine whether, pursuant to the Federal Rules of Criminal Procedure, statute, or the common law, the information at issue is discoverable at all.U.S. v. Sedaghaty, 723 F.3d 905, 904 (9th Cir. 2013) (internal citations and quotations omitted) (paragraph breaks added); see also Jin, 791 F.Supp.2d at 619 (collecting cases in which the First, Second, Fourth, Fifth, Ninth, and D.C. Circuits have applied the "relevant and helpful" standard in resolving CIPA motions). "Several circuits have also recognized or endorsed a final step in determining whether classified information must be disclosed to a defendant: the balancing of the Government's interest in nondisclosure against the defendant's need for the information." Id. at 620-21 (collecting cases).
[2] If the material at issue is discoverable, the court must next determine whether the government has made a formal claim of the state secrets privilege lodged by the head of the department which has actual control over the matter, after actual personal consideration by that officer.
[3] Once a court concludes that the material is discoverable and that the state secrets privilege applies, then the court must determine whether the evidence is relevant and helpful to the defense of an accused.
[4] If the information meets the relevant and helpful test, CIPA § 4 empowers courts to determine the terms of discovery, if any.
The "relevant and helpful" test is based on the Supreme Court's holding in Roviaro v. U.S., 353 U.S. 53 (1957), that the government's interest in protecting confidential informants yields only "[w]here the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause[.]" Id. at 60-61.
I share the concern expressed by several courts about the "awkward nature" of applying this four-part framework in an ex parte setting: "[Turner] is forced to argue for Che relevance of material without actually knowing what the classified record contains, while [I] know what it contains but [am] unable to describe it on the public record." Sedaghaty, 728 F. 3d at 906; see also U.S. v. Stewart, 590 F.3d 93, 132 (2d Cir. 2009) (explaining how CIPA "place[s] all parties involved (except perhaps the government) at a substantial disadvantage"); U.S. v. Meija, 448 F.3d 136, (D.C. Cic. 2006) (noting that "defendants and their counsel...are in the best position to know whether information would be helpful to their defense").
In an effort to alleviate, these concerns, I granted Turner leave to file an ex parte submission explaining what information would be helpful his defense. See Sedaghaty, 728 F.3d at 906 n.10 (following a similar approach). In reviewing Turner's submission, I "place [myself] in the shoes of defense counsel, the very ones that cannot see the classified record, and act with a view to [Turner's] interests." U.S. v. Amawi, 695 F. 3d 457, 471 (6th Cir. 2012); see also U.S. v. Rezaq, 131 F.3d 1121, 1142 (D.C. Cir. 1998) (noting that courts should "err on the side of protecting the interest of the defendant" when determining whether classified documents are relevant, and helpful).
III.
A.
The first, prong of the four-part framework for analyzing CI?A discovery motions--whether the classified documents at issue would ordinarily be discoverable--is satisfied here based on the Government's abrupt change in position. In its original ex parte submission, the Government, argued that classified documents were not discoverable under Federal Rule of Criminal Procedure 16; the Jenks Act, 18 U.S.C. § 3500; or Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. See Pl.'s Mot. at 32-33. However, in a supplemental filing, the Government changed positions and now concedes that classified documents contain inculpatory evidence that is ordinarily discoverable. See U.S. v. Baker, 453 F.3d 415, 421 (7th Cir. 2006) (citing cases from Sixth and D.C. Circuits for the proposition that "Rule 16 requires the production of inculpatory as well as exculpatory evidence, which might assist in preparation of a defense"). The Government also acknowledges that that would ordinarily be discoverable. See Fed. R. Crim. P. 16(a)(1)(B)(i).
Thus, by the Government's own admission, documents it. seeks to withhold from Turner would ordinarily be discoverable
8.
The second prong of the four-part CI PA framework is also satisfied because the Government has validly asserted the classified information privilege. The classified declaration submitted with the Government's ex parte motion explains why disclosing underlying documents (and their attachments) could expose intelligence sources and methods and harm U.S. national security. See Jin, 791 F.Supp.2d at 620-21 (rinding valid assertion of state secrets privilege based, in part, on sworn declaration of FBI's Assistant Director of Counterintelligence); see also U.S. v. Yunis, 367 F.2d 617, 623 (D.C. Cir. 1989) (explaining that "much of the government's security interest [in classified information] lies not so much in the contents of [communications], as in the time, place, and nature of the government's ability to intercept [such communications] at all").
C.
The Government devotes most of its ex parte motion to the third prong of CIPA's four-part framework for discovery motions: whether the classified documents are "relevant and helpful" to Turner's defense.
"To be helpful or material to the defense, evidence need not rise to the level that would trigger the [G]overnment's obligation under Brady v. Maryland, 373 U.S. 82 (1963), to disclose exculpatory information." U.S. v. Aref, 533 F.3d 72, 30 (2d Cir. 2008); see also Mejia, 448 F.3d at 456-57 ("While Brady information is plainly subsumed within the larger category of information that is "at least helpful" to the defendant, information can be helpful without being 'favorable' in the Brady sense.").
In analyzing whether the classified documents are relevant and helpful, the Government anticipates that Turner will raise the. following defenses: (1) that he did not act with the requisite mens rea for the charged offenses; (2) that he did not act as the agent of a foreign government; (3) that he did not provide any prohibited services to Specially Designated Nationals. I have also considered Turner's ex parte submission outlining the defenses he intends to raise at trial. However, given the ex parte nature of this proceeding, I take the broadest possible view of how the classified documents might be "relevant and helpful" to Turner's defense.
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The classified documents the Government seeks to withhold from Turner are not helpful to his defense. Therefore, I need nor reach the fourth prong of the framework for CIPA discovery motions that requires balancing the government's interest in secrecy against Turner's interest in disclosure. Yunis, 967 F.3d at 625 (declining to apply balancing test in a similar posture).
V.
The Government's ex parte motion tor entry of: a protective order authorizing the prosecution to withhold classified documents from. Turner is GRANTED for the reasons stated above. The Government is directed to file a redacted version of its ex parte motion on the public record. The Classified Information Security Officer is directed to issue an un-redacted version of this opinion to the Government ex parte and maintain the same under seal.
ENTER ORDER:
/s/_________
Elaine E. Bucklo
United States District Judge
Dated: June 16, 2014