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United States v. Seng

United States District Court, S.D. New York

June 21, 2017

UNITED STATES OF AMERICA
v.
NG LAP SENG a/k/a "David Ng, " a/k/a "Wu Liseng, " a/k7a "Boss Wu, " Defendant.

          MEMORANDUM & OPINION

          VERNON S. BRODERICK, United States District Judge.

         The indictment in this case charges Defendant Ng Lap Seng with (I) conspiracy to pay bribes and gratuities and to violate the Foreign Corrupt Practices Act ("FCPA"), in violation of Title 18, United States Code, Section 373; (2) payment of bribes and gratuities, in violation of Title 18, United States Code, Section 666; (3) violation of the FCPA as a domestic concern, in violation of Title 15, United States Code, Sections 78dd-2(a)(1)(A), 78dd-2(a)(3)(A), and 78dd-2(g)(2)(A); (4) violation of the FCPA while in the United States, in violation of Title 15, United States Code, Sections 78dd-2(a)(1)(A), 78dd-2(a)(3)(A), and 78dd-2(g)(2)(A); (5) conspiracy to commit money laundering, in violation of Title 18, United States Code, Section 1956(h); and (6) money laundering, in violation of Title 18, United States Code, Section 1956(a)(2)(A). Pending before me is the Government's first ex parte motion pursuant to Section 4 of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3 § 4, and Federal Rule of Criminal Procedure 16(d)(1) for a protective order authorizing the Government to withhold certain material from discovery to Defendant Ng and former Defendants John W. Ashe, Francis Lorenzo, Jeff C, Yin, Shiwei Yan, and Heidi Hong Piao.[1]

         I. Ex Parte Proceedings

         I first consider the appropriateness of deciding this motion ex parte and without an adversary proceeding. As an initial matter, Defendant Ng and former co-Defendant Yin previously submitted a letter motion to gain access to the motion papers filed by the Government in support of its CIPA motion. (See, e.g., Doc 234.) During a conference on September 12, 2016, 1 considered and rejected Defendants' motion. (9/12 Tr. 27:4-32:13.)[2] I see no reason to alter that decision. Further, I note that Rule 16(d)(1) and Section 4 of CIPA both explicitly provide for ex parte filings, with Rule 16(d)(1) stating that "[t]he Court may permit a party to show good cause by a written statement that the court will inspect ex parte, " and Section 4 of CIPA stating that "[t]he 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." In fact, "where the government moves to withhold classified information from the defense, 'an adversary hearing with defense knowledge would defeat the very purpose of the discovery rules.'" United Slates v. Abu-Jihaad, 630 F.3d 102, 143 (2d Cir. 2010) (quoting United Slates v. Are, 533 F.3d 72, 81 (2d Cir. 2008)); see also United Stales v. FA-Hanafl, No. S5 10 CR 162(KMB), 2012 WL 603649, at * 1 (S.D.N.Y.Feb. 24, 2012). I find that, in light of the national security risks identified in this case as to the materials at issue, it is proper for me to consider this motion ex parte.

         II. Overview of CIPA

         The fundamental purpose of CIP A is to "protect[ ] and restrict[ ] the discovery of classified information in a way that does not impair the defendant's right to a fair trial." Aref, 533 F.3d at 78 (alterations in original) (quoting United Slates v. O'Hara, 301 F.3d 563, 568 (7th Cir. 2002)). "Classified information" is defined as "any information or material that has been determined by the United States Government pursuant to an Executive order, statute or regulation, to require protection against unauthorized disclosure for reasons of national security." 18 U.S.C. app. 3 § 1(a). With respect to "discovery of classified information by defendants, " Section 4 of CIP A provides that

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.

Id. app. 3 § 4. The provision does not create any privileges, but rather "presupposes" a governmental privilege and "clarifies district courts' power under Federal Rule of Criminal Procedure 16(d)(1) to issue protective orders denying or restricting discovery for good cause, which includes information vital to the national security." Abu-Jihaad, 630 F.3d at 140 (citation omitted); see also Aref, 533 F.3d at 78.

         The Second Circuit has found that the governmental privilege contemplated under CIPA has its origins in the state secrets privilege, which "allows the government to withhold information from discovery when that disclosure would be inimical to national security." Abu-Jihaad, 630 F.3d at 140-41 (quoting Zuckerbraun v. Gen, Dynamics Corp., 935 F.2d 544, 546 (2d Cir. 1991)). In determining whether a criminal defendant's right to present a defense overrides the state secrets privilege, courts apply a three-part test, which first asks "whether the material in dispute is discoverable, " Id. at 141. The discoverability of evidence is governed by Rule 16, which at "its most inclusive, " "requires the government to produce any written or recorded statements made by the defendant and in the government's possession if the statements are 'relevant.'" El-Hanafi, 2012 WL 603649, at *3. If the material is discoverable, courts then determine "when the state-secrets privilege applies." Abu-Jihaad, 630 F.3d at 141. "For purposes of this test, the state-secrets privilege applies if '(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. (quoting Are/, 533 F.3d at 80). Finally, "if the privilege applies, [courts consider] 'whether the information is helpful or material to the defense, i.e., useful to counter the government's case or bolster a defense.'" Id. (quoting United States v. Stewart, 590 F.3d 93, 131, 2d Cir. 2009)); see also United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989). '"In considering 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.'" United States v. Zazi, No. 10-CR-60 (JG), 2011 WL 2532903, at *2 (E.D.N.Y.June 24, 2011) (quoting In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 125 (2d Cir. 2008)). Importantly, "[t]o be helpful or material to the defense, evidence need not rise to the level that would trigger the Government's obligation under Brady v. Maryland, 373 U.S. 83 (1963), to disclose exculpatory information." Aref, 533 F.3d at 80. Information is helpful, viewed against discovery already provided, if it "creates 'a reasonable likelihood that the testimony could affect the judgment of the trier of fact.'" El-Hanafi, 2012 WL 603649, at *4 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 874 (1982)). Once a Court has determined that the information is relevant or helpful, the Court must then balance the "public interest in protecting the flow of information against the individual's right to prepare his defense." United States v. Mostafa, 992 F.Supp.2d 335, 338 (S.D.N.Y. 2014) (quoting Roviaro v. United States, 353 U.S. 53, 62 (1957)).

         III. The Protective Order

         I have reviewed, in camera, the classified motion, the declarations of Government officials supporting the motion, and certain documents I specifically requested to review. In addition, I have also reviewed other non-classified materials and documents in making my determination. Although I have not reviewed all of the classified materials, the Government described in detail the materials it possesses. Upon careful examination of the Government's motion papers and the abovementioned documents, I find that disclosure of the classified materials would jeopardize national security. For reasons that are apparent, I do not discuss the specific justifications behind this determination herein, but rather conclude with certainty that the Government has adequately identified specific facts that mandate application of the privilege and has followed the procedural requirements for asserting the privilege. Additionally, because I conclude that the classified materials are either not relevant whatsoever to this case and/or are not material or helpful to the defense, [3] the Government's motion for a protective order deleting the classified materials from discovery is granted.[4]

         With respect to the classified materials, the Government submits specific reasons for why the information it seeks to delete from discovery is neither helpful nor relevant to the defense. See Abu-Jihaad, 630 F.3d at 142 n.35 ("[Classified information is not discoverable on a mere showing of theoretical relevance, ..." (quoting Yunis, 867 F.2d at 623)). The Government further explains that it has since de-classified and produced some of the materials.

         Even if these materials were discoverable-and most are not--Ng would not be able to use the material to "bolster his defense or to counter the government's case, " nor would the information contribute to the formulation of a "more effective defense strategy." Stevens, 985 F.2d at 1180. Indeed, none of the information in the classified documents "goes to the innocence of the defendant vel non, impeaches any evidence of guilt, or makes more or less probable any fact at issue in establishing any defense to the charges." Yunis, 867 F.2d at 624. Rather, much of the information has "nothing whatsoever to do with any issue in this case or any criminal activity at all." United States v. Abu-Jihaad, No. 3:07CR57 (MRK), 2008 WL 346121, at *5 (D. Conn. Feb. 4, 2008). Additionally, according to and as described by the Government, some of the information is duplicative of information already produced by the Government to Defendant Ng as part of the discovery in this case. In fact, I have reviewed some of the non-classified material represented by the Government to be duplicative of certain classified materials and agree, in those instances, with the Government's conclusions.

         IV. ...


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