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United States of America v. Mohammed Wali Zazi

June 24, 2011


The opinion of the court was delivered by: John Gleeson, United States District Judge:


Defendant Mohammed Wali Zazi awaits trial on charges arising out of his alleged obstruction of the government's investigation into a plot by his son, Najibullah Zazi, and several co-conspirators to detonate improvised explosive devices in the New York City subway system.*fn1

The government contends that, in the days preceding Najibullah's arrest in Colorado on September 19, 2009, Zazi*fn2 conspired with others to destroy evidence of Najibullah's bomb-making activities, in fact destroyed that evidence, and made false statements to agents of the Federal Bureau of Investigation regarding the nature of his interactions with a Queens imam and the adoption status of his biological nephew, Amanullah Zazi. (Superseding Indictment, dkt. #42.)

Before me is the government's motion for a protective order pursuant to both the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3, §§ 1-16, and Federal Rule of Criminal Procedure 16(d)(1). (See Notice, dkt. #54.) In its classified submission, the government seeks two forms of discrete relief. First, it requests that I authorize the substitution of classified and unclassified summaries for classified source material which the government believes may contain exculpatory and impeachment evidence that must be disclosed in accordance with Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and their progeny. The summaries would then be provided to defense counsel, although the classified summaries would remain unavailable to defendant personally. Second, the government requests that I issue an order confirming its conclusion that it has no obligation under federal law to produce certain classified materials to the defense.

On June 17, 2011, in the government's presence, I reviewed the subject materials in camera. Based on that review, and for the reasons set forth below -- though my "discussion of the classified information is necessarily circumspect," United States v. Abu-Jihaad, 630 F.3d 102, 141 (2d Cir. 2010) -- I now grant the motion in its entirety.

A. CIPA Standards

The purposes behind CIPA and the rules governing motions for Section 4 protective orders are by now thoroughly catalogued in judicial opinions issued within the Second Circuit and elsewhere. I present them briefly here.

"CIPA establishes rules for the management of criminal cases involving classified information." In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 115 (2d Cir. 2008). "Its animating purpose is to harmonize a [criminal] defendant's right to obtain and present exculpatory material with the government's need to withhold information from discovery when disclosure would be inimical to national security." Id. at 115-16 (internal quotation marks and citations omitted). CIPA "creates no new rights of or limits on discovery of . . . classified information," United States v. Yunis, 867 F.2d 617, 621 (D.C. Cir. 1989), nor does it alter existing rules regarding the admissibility of evidence. Rather, it overlays the framework appearing in Federal Rule of Criminal Procedure 16, which itself "authorizes district courts to restrict discovery of evidence in the interest of national security." United States v. Aref, 533 F.3d 72, 78 (2d Cir. 2008) (citing Fed. R. Crim. P. 16(d)(1) & advisory committee's note to 1966 amendment); see also United States v. Smith, 780 F.2d 1102, 1106 (4th Cir. 1985) (en banc) (labeling CIPA "merely a procedural tool requiring a pretrial court ruling on the admissibility of classified information").

The relevant CIPA provision provides that [t]he 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.

CIPA § 4. Construing this section, the Second Circuit in Aref enunciated a three-part test for determining whether classified material should be subject to disclosure to a criminal defendant. "[T]he district court must first decide whether the classified information the Government possesses is discoverable."*fn3 Aref, 533 F.3d at 80. "If it is, the district court must then determine whether the state-secrets privilege applies," which requires the separate findings that "(1) there is a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged, and (2) the privilege is lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." Id. (internal quotation marks omitted). Finally, "[i]f the evidence is discoverable but the information is privileged, the court must next decide whether the information is helpful or material to the defense, i.e., useful 'to counter the government's case or to bolster a defense.'" Id. (quoting United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir. 1993)).

"'[I]n assessing the materiality of withheld information,'" a court must "'consider[] not only the logical relationship between the information and the issues in the case, but also the importance of the information in light of the evidence as a whole.'" In re Terrorist Bombings, 552 F.3d at 125 (quoting Stevens, 985 F.2d at 1180). The principle that privileged classified information, to be discoverable, be "helpful" to a defendant equally "applies to sub-elements of individual documents." United States v. Rezaq, 134 F.3d 1121, 1142 (D.C. Cir. 1998) ("[I]f some portion or aspect of a document is classified, a defendant is entitled to receive it only if it may be helpful to his defense.").

B. Suitability of Ex Parte Proceedings

In a letter filed prior to the court-scheduled deadline for the government's CIPA submission, defense counsel challenges the ex parte nature of the proceedings absent "exceptional circumstances," which counsel argues are lacking here. (Dkt. #53, at 2.) The Second Circuit, however, recently rejected this argument in another case and, in doing so, reaffirmed ex parte consideration of CIPA motions as the rule. See Abu-Jihaad, 630 F.3d at 143 ("In such circumstances, a district court's decision to conduct ex parte hearings manifests no abuse of discretion."); accord United States v. Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998); Rezaq, 134 F.3d at 1143. In light of that decision, and of the statutory language that governs CIPA proceedings, I conclude that an ex parte presentation is the preferable course in ruling on the government's motion.*fn4

Defense counsel "does not dispute that Section 4 of CIPA and Rule 16(d)(1) of the Federal Rules of Criminal Procedure both authorize ex parte proceedings." Abu-Jihaad, 630 F.3d at 143. Section 4 provides that a "court may permit the United States to make a request for [a protective ...

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