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United States v. Asgari

United States District Court, N.D. Ohio

July 11, 2019




         This case presents the question whether, in a criminal prosecution, the government can withhold potentially relevant and helpful evidence from a defendant. And this case presents the question whether the government should give a defense attorney with a high security clearance at least a non-classified summary of the general nature of the material withheld when the Court has ordered that defense attorney to share the summary with no one unless the court approves disclosing the summary.

         On June 27, 2019, the government filed notice of filing a Classified Ex Parte, In Camera, and Under Seal Motion for a Protective Order under the Classified Information Procedures Act.[1] Shortly thereafter, the Court issued an order granting the government's request to withhold discovery from the defense.[2] With limited information regarding the government's case and less information regarding the defense case, the Court found the proffered materials not helpful to the defense case.

         Defendant moved the Court for reconsideration of that order. Defendant argued that it had not been given notice or an earlier chance to object to it.[3] The government opposed the motion.[4]

         On July 8, 2019, the Court granted Defendant's motion in part, issuing a narrow ruling that, inter alia, required the government to make a secure location available to Defense attorney Federal Public Defender Stephen Newman to view the classified materials by Wednesday, July 10, 2019.[5] The Court found that this would strike the proper balance between the public's national security interests and Defendant's right to a fair trial.

         Defense attorney Newman is a retired Marine Colonel. Since 1984, he has had a clearance and he holds a Top Secret-Sensitive Compartmented Information (TS-SCI) security clearance, making him eligible to have access to information classified at or above Top Secret.

         With the order, the Court concluded that classified information needed to be protected but that defense counsel was better positioned to show that evidence could be relevant or helpful to the defense. The Court doubted that the withheld information would give Defendant any new defense options but the Court understood it had little information to make that determination.

         The Court's order required Attorney Newman not disclose to anyone any information from the review without a Court order. The Court believes that defense counsel Newman's lengthy military service and high-level clearance made the risk that classified information would be disclosed almost non-existent.

         Shortly after the Court's ruling, the government filed a notice of interlocutory appeal from the order and moved to stay the district court proceedings.[6] This morning, July 11, 2019, the Court held a telephone hearing with counsel for the parties. At that hearing, the government represented that it had never given defense counsel any description or summary of what the withheld material was.

         After finding that the government had given no summary of the nature of the materials, the Court directed the government to disclose generic descriptions without classified information. The Court surmised that Defense Attorney Newman might agree with the Court's finding that the withheld materials gave no new defense avenues. If so, the summaries and Defense Attorney Newman's withdrawal of the request to examine the documents could end the need for appeal.

         The Court never directed the government to provide classified information in the summaries. Instead, the Court ordered the government to give general summaries without classified information, classified sources or classified methods.

         The Court believed summaries might end defense counsel's request to examine the withheld materials.

         During the hearing, the parties noted that, as the Classified Information Security Officer had used the wrong social security number when attempting to verify defense counsel Newman's clearance, the government had not yet verified Newman's clearance, but that this would likely be resolved as soon as the correct social security number was used.

         Trial is set for Monday, July 15, 2019.


         “The Classified Information Procedures Act (CIPA), 18 U.S.C.App. 3, provides a set of procedures for federal courts to follow when the government seeks to protect classified information from disclosure.”[7] CIPA is primarily a procedural statute. CIPA does not give admissibility rules for classified information or otherwise alter criminal procedure rules. Nor does CIPA expand or limit the government's discovery obligations. Instead, ...

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