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The 2nd U.S. Circuit Court of Appeals tackled two cases of first impression Wednesday as it upheld the conviction in the Northern District of two men in a terror financing sting operation. The court set the standard for determining what relevant classified information a criminal defendant is entitled to in discovery and addressed both the “propriety and standard of review of motions to intervene in a criminal case.” 2nd Circuit Judges Dennis Jacobs and Joseph McLaughlin and, sitting by designation, Southern District of New York Judge Leonard Sand decided the appeal in United States v. Aref, 07-0981-cr. McLaughlin wrote for the panel. The court also issued an 11-page summary order rejecting challenges to the evidence and other claims by defendants Yassin Muhiddin Aref and Mohammed Mosharref Hossain, who were convicted in Albany, N.Y., in March 2007 of conspiring to conceal $50,000 from the purported sale of what a government cooperator represented to be a surface-to-air missile that terrorists would use to target New York City. At oral argument, Hossain raised a defense of entrapment, which the Circuit explained in its summary order requires first a showing that the government induced Hossain to commit the crime and second that he lacked the predisposition to commit the crime. Prosecutors here conceded inducement but argued that it met its burden to show that Hossain was predisposed. The Circuit found that the “government’s evidence of predisposition sufficed because it showed the accused’s ready response to the inducement, to commit the crime.” Before trial, the government moved under the Classified Information Procedures Act (CIPA), 18 U.S.C. app. 3, for two protective orders sealing what would otherwise be discoverable material. Aref moved for discovery of any evidence gleaned from warrantless surveillance and suppression of any evidence that was obtained illegally. He also moved to dismiss the indictment. On March 10, 2006, District Judge Thomas J. McAvoy, who had reviewed the classified information sought to be protected under CIPA by the government ex parte and in camera, denied the Aref motion. On March 28, 2006, McAvoy said his March 10 order and the government’s opposition to the Aref motion would be sealed because “the government’s interest in protecting the national security and preventing the dissemination of classified information outweighs the defendants’ and/or the public’s right of access to these materials.” The New York Civil Liberties Union moved to intervene on July 6, 2006, to obtain access to McAvoy’s order sealing both the government’s response to the Aref motion and the judge’s order denying that motion. The judge responded by ordering the government to file publicly a redacted version of its opposition that revealed just a few paragraphs describing Aref’s motion along with a declaration of a government official made in support of the government’s opposition. But McAvoy went on to otherwise deny the NYCLU’s motion on Feb. 22, 2007. On the appeal, McLaughlin said that it is “important to understand that CIPA §4 presupposes a governmental privilege against disclosing classified information.” While Federal Rule of Criminal Procedure 16 authorizes protective orders restricting discovery in the interests of national security, he said “it leaves the relevant privilege undefined.” The Circuit found that a statement by the House of Representatives Select Committee on Intelligence that “the common law state-secrets privilege is not applicable in the criminal arena” was a “remarkable proposition” that “sweeps too broadly.” The panel said the cases cited in support of this notion actually do not hold that the government cannot claim the state secrets privilege in criminal cases and “we hold that the applicable privilege here is the state-secrets privilege.” The cases, Reynolds v. United States, 345 U.S. 1 (1953), United States v. Coplon, 185 F.2d 629 (2d Cir. 1950), and United States v. Andolschek, 142 F. 2d 503 (2d Cir. 1944), “make clear that the privilege can be overcome when the evidence at issue is material to the defense.” McLaughlin said this standard “is consistent with Roviaro v. United States, 353 U.S. 53 (1957), where the U.S. Supreme Court held in a criminal case that the government’s privilege to withhold the identity of a confidential informant ‘must give way’ when the information ‘is relevant and helpful to the defense of an accused or is essential to a fair determination of a cause.’” He said the court was adopting the Rovario standard for “determining when the government’s privilege must give way in a CIPA case.” Under that standard, a court must first determine if the classified information held by the government is discoverable. If the court finds the information is privileged, it must then “decide whether the information is helpful or material to the defense.” “To 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,” the panel said. Reviewing McAvoy’s decision for abuse of discretion, the Circuit found no such abuse. “We have carefully reviewed the classified information and the government’s sealed submissions and agree with the district court that the government has established a reasonable danger that disclosure would jeopardize national security,” the circuit said, adding that the district court did not deny the defendants “any helpful evidence.” On the standard for the motion to intervene, the panel said the court had “implied, but not squarely held that such a motion is appropriate to assert the public’s First Amendment right of access to criminal proceedings.” It continued, “We now hold that: (1) such a motion is proper, and (2) the applicable standard of review is abuse of discretion.” Under the circumstances here, the Circuit said, there was no abuse of discretion by McAvoy. NO ERROR FOUND IN SEALING Finally, the 2nd Circuit turned aside claims by the NYCLU that the district court erred in sealing all of its March 10, 2006, order and most of the government’s March 10, 2006, opposition. But the Circuit also made a point of urging district judges “to avoid sealing documents in their entirety unless necessary to serve a compelling governmental interest such as national security.” Assistant U.S. Attorneys William C. Pericak, Elizabeth Coombe and Brenda Sannes represented the government, which did not return a call for comment. Aref was represented by Terrence L. Kindlon and Kathy Manley of Kindlon Shanks & Associates in Albany. “I feel like somebody hit me in the face with a pie,” Kindlon said Wednesday. “I am profoundly disappointed and slightly surprised. We were feeling some optimism here. We thought there were some significant issues that dealt not just with the law but with some of the events that occurred throughout the course of the trial.” Kindlon, who learned from New York Times articles that the case against his client was built with the aid of warrantless wiretaps, said he was dismayed when he received the judge’s March 10 order, which revealed nothing, and the government’s March 10 opposition, which was three blank pages signed by the prosecutor. “I was jumping around yelling things like ‘Kafka’ and asking whether they could do this and the 2nd Circuit just said they can,” Kindlon said. “If I’m a criminal defendant I have the right to see evidence against me.” He added, “They made me get a security clearance and once I had one, no one would tell me any secrets.” Kindlon said he is preparing a motion for a rehearing en banc by the 2nd Circuit and, given that the Circuit decided issues of first impression, a petition for a writ of certiorari to the Supreme Court. Hossain was represented Kevin Luibrand of Albany, who could not be reached for comment. Corey Stoughton, Arthur Eisenberg and Christopher Dunn represented the New York Civil Liberties Union.

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