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United State v. Mohammad

United States District Court, N.D. Ohio, Western Division

June 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
YAHYA FAROOQ MOHAMMAD, et al., Defendants.

          OPINION AND ORDER

          EDMUND A. SARGUS, JR. CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Government's classified, ex parte, in camera Motion for a Protective Order under § 4 of the Classified Information Procedures Act ("CIPA") and Federal Rule of Criminal Procedure 16(d)(1). (See Notice of Filing under CIPA ("Notice") at 1 [ECF No. 172].) For the following reasons, that Motion is GRANTED.[1]

         I.

         Defendants Yahya Farooq Mohammad ("Farooq"), Ibrahim Zubair Mohammad, Asif Ahmed Salim, and Sultane Roome Salim were indicted on September 30, 2015, and charged with (Count 1) conspiracy to provide and conceal material support to terrorists, in violation of 18 U.S.C. § 2339A; (Count 2) providing material support to terrorists, in violation of 18 U.S.C. § 2339A; (Count 3) conspiracy to commit bank fraud, in violation of 18 U.S.C. § 1349 (brought against Farooq and Ibrahim only); and (Count 4) conspiracy to obstruct justice, in violation of 18 U.S.C. § 1512(k). (Indictment at 12-72 [ECF No. 1].)

         The Government accuses Defendants of conspiring to provide, and actually providing, funds and other material support to Anwar al-Awlaki for the preparation and execution of terrorist attacks and killings. (See Indictment at 12, 68.) The Government contends that Defendants conspired to obstruct its investigation into their illicit fundraising by making false statements to the FBI and destroying or concealing records. (Id. at 65-67, 71-72.) And as to Farooq and Ibrahim, the Government additionally alleges that they conspired to raise money for al-Awlaki through various fraudulent credit card and PayPal transactions. (Id. at 68-71.)

         On November 18, 2016, the Government moved for a protective order under CIPA § 4 and Federal Rule of Criminal Procedure 16(d)(1). (See Notice at 1 [ECF No. 172].) The Government requests that the Court (1) conduct an ex parte and in camera review of the Government's § 4 submission; (2) order that the Government's submission be sealed and preserved to be made available to the appellate court in the event of an appeal; (3) authorize the Government to disclose to the defense a summary of statements in lieu of classified information; and (4) authorize the Government to delete specified items of classified information from the documents to be produced to the defense through discovery. The Government has publicly filed a Notice of its Motion. (See id.) The Motion itself was filed under seal with the Classified Information Security Officer for the Court's in camera and ex parte review. (See id.)

         II. A. CIPA § 4

         Under § 4 of Classified Information Procedures Act,

[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. 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.

18 U.S.C. app. 3 § 4. This section, in other words, '"permits the government to have the trial court examine classified information in camera and ex parte and determine whether it is necessary for the defense.'" United States v. Hanna, 661 F.3d 271, 295 (6th Cir. 2011) (quoting United States v. Smith, 899 F.2d 564, 565 n.l (6th Cir. 1990)).

         The Sixth Circuit has adopted the "relevant and helpful" standard for determining under CIPA § 4 whether classified information should be disclosed to the defense. See United States v. Amawi, 695 F.3d 457, 470 (6th Cir. 2012). This standard involves a three-step analysis. First, the Court must determine that the information is relevant. Id. Second, the Court must determine whether the Government has asserted a colorable claim of privilege over the information. Id; see also Hanna, 661 F.3d at 295 ("[A] protective order will only issue against disclosure of 'classified information, '... and 'classified information' is 'information or material that has been determined by the United States Government... to require protection against unauthorized disclosure for reasons of national security.'" (internal citations omitted)). And third, the Court must determine that the information is helpful to the defense. Amawi, 695 F.3d at 470; see also United States v. Yunis, 867 F.2d 617 (D.C. Cir. 1989) (holding that "classified information is not discoverable on a mere showing of theoretical relevance, " but only on a showing that the information is at least helpful to the defense). In applying this analysis, the Court acts, in essence, as "standby counsel for the defendants, " placing itself in defense counsel's shoes and determining what may be relevant and helpful to their case. Amawi, 695 F.3d at 471.

         The relevant and helpful standard under CIPA § 4 is easier to satisfy than the favorable materiality standard under Brady v. Maryland, 373 U.S. 83, 87 (1963). All Brady evidence that is "favorable" is also "relevant and helpful" under CIPA § 4, but not all relevant and helpful evidence is favorable. Amawi, 695 F.3d at 471; see also United States v. Mejia, 448 F.3d 436, 456-57 (D.C. Cir. 2006) ("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"). "Simply stated, evidence that needs to be disclosed under Brady would also need to be disclosed under [CIPA § 4], but not the other way around.' Amawi, 695 F.3d at 471.

         If, after applying the three-step analysis, the Court determines that the classified information is relevant and helpful to the defense, the Court should consider "the protective options short of full disclosure that are set forth in CIPA § 4, namely, permitting the government 'to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the ...


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