Muntasser v. Ridge et al

MOTION for Leave to File Declaration of A.U.S.A. Michael Ricciuti Ex Parte and Under Seal

D. Mass.December 30, 2004

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS EMADEDDIN MUNTASSER, ) ) Petitioner, ) ) v. ) Civil No. 04-CV-11259 RWZ ) THOMAS RIDGE, Secretary of ) Department of Homeland Security, et al., ) ) Respondents. ) RESPONDENTS' MOTION FOR LEAVE TO FILE DECLARATION EX PARTE AND UNDER SEAL Respondents hereby move the Court for leave to file the declaration of Michael D. Ricciuti ex parte and under seal. In support of this motion, Respondents state: 1. The United States Attorney's Office for the District of Massachusetts is currently conducting an investigation that substantially relates to this civil litigation, and the details of that investigation are crucial to Respondents' request to stay these civil proceedings. 2. Assistant United States Attorney Michael D. Ricciuti is the lead prosecutor in the criminal investigation of Mr. Muntasser. 3. Details and information contained in Mr. Ricciuti’s declaration are Case 1:04-cv-11259-RWZ Document 18 Filed 12/30/2004 Page 1 of 4 privileged, law enforcement information, and cannot be made public. Further, they are so sensitive that they cannot be provided to Petitioner or his counsel because doing so would jeopardize the integrity of Mr. Ricciuti's ongoing criminal investigation. The federal courts have recognized that in limited and appropriate circumstances the government may rely on ex parte submissions. See, e.g., National Council of Resistance of Iran v. Dep't of State, 251 F.3d 192 (D.C. Cir. 2001); Clifford v. United States, 136 F.3d 144, 149-51 (D.C. Cir. 1998); ACLU Foundation of Southern California v. Barr, 952 F.2d 457, 461 (D.C. Cir. 1991); United States v. Flemmi, 233 F. Supp. 2d 75, 78 (D. Mass. 2000). The courts have also consistently recognized the need to protect the integrity of ongoing criminal investigations. See, e.g., United States v. Flemmi, 233 F. Supp. at, 78; Javier H. v. Garcia-Bostello, 218 F.R.D. 72, 74-75 (W.D.N.Y. 2003); Benevolence Int'l Foundation, Inc. v. Ashcroft, 200 F. Supp. 2d 935, 939-41 (N.D. Ill. 2002). 4. Mr. Ricciuti's declaration is not attached to this motion. If the Court grants this motion, Counsel for Respondents will arrange to have a copy of Mr. Ricciuti's declaration delivered to chambers. Case 1:04-cv-11259-RWZ Document 18 Filed 12/30/2004 Page 2 of 4 Respectfully submitted, Respectfully submitted, MICHAEL J. SULLIVAN MICHAEL P. LINDEMANN United States Attorney Assistant Director /s/ Mark Grady, AUSA for Anton Giedt /s/ Mark Grady for Linda Wernery ANTON GIEDT LINDA S. WERNERY Assistant U.S. Attorney Senior Litigation Counsel 1 Courthouse Way Office of Immigration Litigation John Joseph Moakley Courthouse Civil Division, U.S. Dep't of Justice Suite 9200 P.O. 878, Ben Franklin Station Boston, MA 02210 Washington, D.C. 20044 (202) 616-4865 Dated: December 30, 2005 Counsel for Respondents Case 1:04-cv-11259-RWZ Document 18 Filed 12/30/2004 Page 3 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS EMADEDDIN MUNTASSER, ) ) Petitioner, ) ) v. ) Civil No. 04-CV-11259 RWZ ) THOMAS RIDGE, Secretary of ) Department of Homeland Security, et al., ) ) Respondents. ) ORDER AND NOW, to wit, this _____ day of _______________, 2004, upon consideration of Respondents' Emergency Motion for a Limited Stay of Proceedings and Respondents' Motion for Leave to File Declaration Ex Parte and Under Seal, IT IS HEREBY ORDERED that said Motions are GRANTED, and proceedings, including any discovery, are hereby STAYED pending resolution of the federal criminal investigation of Petitioner. Within ninety days of the date of this Order, Respondents shall provide the Court with a status report, which may be filed ex parte and under seal, detailing the progress and status of the criminal investigation. ______________________________ UNITED STATES DISTRICT JUDGE Case 1:04-cv-11259-RWZ Document 18 Filed 12/30/2004 Page 4 of 4