Discovery Channel

United States v. Siraj, No. 07-0224-cr (2d Cir. July 9, 2008) (Jacobs, Straub, CJJ, Jones, DJ)

This case holds that, under Fed.R.Crim.P 16(a)(1)(B)(i), a defendant is not entitled to discovery of police reports that memorialize his statements to an undercover officer.

Defendant Siraj was convicted of various offenses relating to his scheme to blow up a subway station in Manhattan. He was dealing largely with an undercover police officer, who would report their conversations to his handler; the handler would then memorialize Siraj’s statements in written reports. The government did not turn over those reports to the defense as pretrial discovery.

The relevant provision, Rule 16(a)(1)(B)(i), requires disclosure of “any relevant written or recorded statement by the defendant.” The court held that this did not cover the reports at issue. Oddly enough, however, the court did not analyze the claim under the language of Rule 16(a)(1)(B)(i) itself. Instead, it looked at Rule 16(a)(1)(B)(ii), which mandates discovery of all statements the defendant makes in response to interrogation by a known government agent. The court concluded that Siraj’s reading of subsection (B)(i) would make subsection (B)(ii) superfluous because “every statement discoverable under subsection (ii) would also be discoverable under subsection (i).”

Second, the court held that, since subsection (B)(ii) expressly makes discoverable only those statements made to known government agents, “Rule 16 implicitly excludes from its scope written memorializations of other oral statements such as those at issue here.”

Finally, the court rejected Siraj’s argument that a 1975 case, Johnson, under which the statements would have been discoverable, applied. Since Rule 16 did not have a provision like (B)(ii) at that time, the case did not govern here.

Comment

This decision is probably correct, although there are better reasons than those cited by the court. The real key here is the word “by” in Rule 16(1)(B)(i). That word seems to limit this provision to statements, or at least writings, attributable to the defendant himself, i.e. those he authored, and not accounts memorialized by others.

It should also be noted that this case is probably not as grave a problem for defendants as it would seem at first glance. It does not seem that Siraj is claiming that he did not get the reports at all. Although one cannot tell for certain from the opinion, it appears that he got the reports as Rule 3500 material of either the undercover or his handler, and that his only real complaint is that he wished he had received them sooner, which he would have under Rule 16. Unfortunately, careless drafting of the opinion makes it difficult to tell for sure. But, obviously, if Siraj got the reports as 3500 material, he would be hard pressed to claim prejudice about the timing of the disclosure. They were, after all, his own statements. The court would therefore not likely be sympathetic to a claim of unfair surprise.

The Secret Guardin'

United States v. Aref, No. 07-0981-cr (2d Cir. July 2, 2008) (Jacobs, McLaughlin, CJJ, Sand, DJ)

In this terrorism prosecution, the court held that the district court can, for “good cause,” restrict a defendant’s access to discoverable material that might impact on national security concerns.

The court first noted that the relevant legal provisions, the Classified Information Protection Act and Fed.R.Crimp.P 16(d)(1), presuppose, without creating, a privilege against disclosing classified information. The privilege itself arises from the “common-law privilege against disclosure of state secrets,” and the court expressly rejected the notion - advocated by some in Congress - that this privilege does not apply in criminal cases. Rather, the court held, the privilege can apply in a criminal case, but it must “give way” when the evidence at issue is material to a criminal defendant’s right to present a meaningful defense.

First, a district court must decide whether the evidence is discoverable at all. Next, it must decide whether the state secret doctrine applies; it does when there is a “reasonable danger” that production of the evidence will expose evidence that, in the interest of national security, should not be exposed, and where the “head of the department” that has control over the matter has said so. If the material is discoverable and privileged, the court must next determine whether it is material to the defense; that is, useful “to counter the government’s case or to bolster a defense.” All of these rulings are reviewed on appeal for abuse of discretion.

Here, the circuit found no abuse of discretion, even though the government did not establish the privilege through the “head” of the relevant “department.” Here, this formality would have been of “little or no benefit.” On its own review, the court agreed that the district court did not deny the defendants any helpful evidence, and that the lower court permissibly relied on ex parte contacts with the government.

Relatedly, this decision also deals with NYCLU’s motion to intervene in the case. First, the court had to decide whether such a motion is even proper. It is, given the public’s First Amendment right to access to criminal proceedings. Since federal courts have the inherent power to formulate procedural rules to implement a remedy for the violation of recognized rights, “a motion to intervene to assert the public’s First Amendment right of access to criminal proceedings is proper.”

The court next held that the standard of appellate review of the disposition of such a motion is abuse of discretion, and that there was no abuse of discretion here.

Finally, the district court did not err in denying NYCLU access to its sealed orders and other documents relating to the privileged materials, although the court stressed that district courts should avoid sealing judicial documents “in their entirety” unless it is truly necessary.