United States v. Hausa

232 F. Supp. 3d 257, 2017 U.S. Dist. LEXIS 66587, 2017 WL 1372660
CourtDistrict Court, E.D. New York
DecidedJanuary 12, 2017
Docket12 Cr. 0134 (BMC)
StatusPublished

This text of 232 F. Supp. 3d 257 (United States v. Hausa) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Hausa, 232 F. Supp. 3d 257, 2017 U.S. Dist. LEXIS 66587, 2017 WL 1372660 (E.D.N.Y. 2017).

Opinion

MEMORANDUM DECISION & ORDER

COGAN, District Judge.

Before me is defendant’s motion to declare the Classified Information Procedures Act (“CIPA”), 18 U.S.C. app. Ill, unconstitutional as applied in this case because it violates defendant’s Fifth and Sixth Amendments rights and because the Government is using its declassification authority as a “sword” to deny defendant his rights to discovery under the Federal Rules of Criminal Procedure. Significantly, every court in the country, including the Second Circuit, that has addressed arguments that CIPA is unconstitutional, has rejected these challenges and upheld its constitutionality. See, e.g., In re Terrorist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93 (2d Cir. 2008); United States v. Anderson, 872 F.2d 1508 (11th Cir. 1989); United States v. Wilson, 750 F.2d 7 (2d Cir. 1984); United States v. Wilson, 732 F.2d 404 (5th Cir. 1984); United States v. Wilson, 721 F.2d 967 (4th Cir. 1983); United States v. Al Fawwaz, No. S7 [260]*26098-cr-1023, 2014 WL 6997604 (S.D.N.Y. Dec. 8, 2014); United States v. Hitselberger, 991 F.Supp.2d 91 (D.D.C. 2013); United States v. Lahiji, No. 3:10-506, 2013 WL 550492 (D. Or. Feb. 12, 2013) United States v. Drake, 818 F.Supp.2d 909 (D. Md. 2011); United States v. Hashmi, 621 F.Supp.2d 76 (S.D.N.Y 2008); United States v. Rosen, 518 F.Supp.2d 798 (E.D. Va. 2007); United States v. Lee, 90 F.Supp.2d 1324 (D.N.M. 2000); United States v. Ivy, No. 91-00602-04, 1993 WL 316215 (E.D. Pa. Aug. 12, 1993); United States v. Yunis, 924 F.2d 1086 (D.C.Cir. 1991); United States v. Poindexter, 725 F.Supp. 13 (D.D.C. 1989); United States v. Jolliff, 548 F.Supp. 229 (D. Md. 1981).

Similarly, I find defendant’s arguments to be without merit and thus deny defendant’s motion.

I. The Propriety of the Government’s Declassification Authority

The defense accuses the Government of tactically using its “unfettered discretion” to selectively declassify certain intercepted communications of defendant that it intends to introduce into evidence, while avoiding declassifying other communications that contain “invaluable exculpatory information that is material to his defense.” The defense argues that this “cherry-picking” of incriminating communications to declassify deprives him of discovery that he is entitled to under the Federal Rules of Criminal Procedure and mandates finding that the application of CIPA in this case is unconstitutional. This argument is not grounded in the facts of this case or the applicable law.

First, this argument is completely merit-less in.light of the Government’s explicit statements in its opposition brief that it “does not seek to rely on these [intercepted] communications at trial.” The Government is not tactically cherry-picking statements to gain an advantage; it has decided to forgo using all of the intercepted communications, and thus it will not declassify any particular statement. This means that defendant’s accusation that the Government is using its classification authority as a sword to benefit itself while simultaneously hindering defendant is invalid.

Second, defendant’s assertion that the Government’s classification authority has deprived him of “invaluable exculpatory information that is material to his defense” is unsubstantiated. The Second Circuit has held that pursuant to the discretion that CIPA confers upon a district court, the court may enter an order permitting the government to “withhold altogether ‘classified information that might have been otherwise discoverable,’ as long as this information is neither ‘helpful [n]or material to the defense.’ ” In re Terrorist Bombings, 552 F.3d at 122 (quoting United States v. Aref, 533 F.3d 72, 76, 80 (2d Cir. 2008) (internal citation omitted). Following this authority, I had previously reviewed the classified source material in camera and met with defense counsel ex parte to listen to a presentation about anticipated defenses. After this presentation, I ordered that, in complying with its disclosure obligations, the Government may produce to the defense substituted classified summaries for a large amount of classified source material. See March 26, 2016 Memorandum Decision & Order. In that Order, I made explicit findings that the Government had properly invoked the state secrets privilege; that the summaries retain whatever potential exculpatory or impeachment value that the underlying source material possesses; that any information withheld from the summaries is not helpful to the defense; and that providing the summaries to cleared defense counsel satisfies the Government’s disclosure obligations. Id.

[261]*261Now, after reviewing the classified summaries, defendant claims that the Government has placed “critical voluminous evidence off-limits.” The defendant, however, cannot articulate a single, even hypothetical, reason why the classified source material is helpful, let alone material or exculpatory. The defense also fails to give any explanation as to why the substituted summaries, which I previously found as even easier to read and comprehend than the underlying source material, are not adequate for the purposes of presenting a defense. Defendant’s conclusory statement that he is deprived of invaluable exculpatory evidence is insufficient to find a discovery error, much less an constitutional error. See In re Terrorist Bombings, 552 F.3d at 126 (“[P]roduction of materials to a party’s attorney alone falls within the common meaning of ‘discovery.’”); see also United States v. Abu Ali, 528 F.3d 210, 248 (4th Cir. 2008) (“To overcome the governmental privilege, the defendant must come forward with something more than speculation as to the usefulness of such disclosure.”)

Despite defendant’s claim that the application of CIPA is unique in this case because defendant is being denied access to his own statements, this fact does not alter my analysis. Federal Rule of Criminal Procedure 16(a)(1)(A) and (B) provide that the Government, upon a defendant’s request, must disclose certain of defendant’s oral, written, and recorded statements, but this right is not absolute. A court may “for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief.” Fed. R. Crim. P. 16(d)(1). Concern for national security undoubtedly qualifies as good cause. Cf. Haig v. Agee, 453 U.S. 280, 307, 101 S.Ct. 2766, 2782, 69 L.Ed.2d 640 (1981) (“[N]o governmental interest is more compelling than the security of the Nation.”).

Indeed, in United States v.

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Bluebook (online)
232 F. Supp. 3d 257, 2017 U.S. Dist. LEXIS 66587, 2017 WL 1372660, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-hausa-nyed-2017.