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As the sprawling trial of accused Colombian drug kingpin Fabio Ochoa continues in federal court in Miami, Ochoa’s attorneys have asked the 11th U.S. Circuit Court of Appeals to prohibit prosecutors and judges from hiding information essential both to their client’s defense and the public’s right to know. Ochoa’s attorneys, Roy Black and appellate counsel G. Richard Strafer, have asked the 11th Circuit to put an end to a court docketing practice in the Southern District of Florida that has concealed entire civil and criminal cases from public view. They contend the hiding of information by the government and the court has hampered their ability to defend their client. They want the appeals court to unseal all remaining documents related to the case. The American Civil Liberties Union of Florida and the 1,600-member Florida Association of Criminal Defense Lawyers have joined with Ochoa’s attorneys to oppose what they contend is an illegal system in South Florida of maintaining separate public and nonpublic federal court dockets. In amicus briefs filed Monday, they ask the appeals judges to order the Southern District “to cease maintaining a secret dual docket.” “These procedures have created an air of secrecy around the affected criminal cases, which breeds suspicion and distrust of the government in the public — something which has already been demonstrated in the present case by stinging media coverage describing clandestine activities and secret dockets,” says the ACLU’s 19-page brief. In their appellate brief on Ochoa’s behalf filed last week, Black and Strafer argue their client has been victimized by an improper collaboration between prosecutors and the judiciary. They claim that prosecutors and judges have choked off the flow of government information to which Ochoa is rightfully entitled to defend himself. In particular, they say, the government is hiding scandalous evidence of a U.S.-backed scheme in the 1990s to extort millions of dollars from South American drug traffickers by selling them “sentence reductions” in advance of their surrender to authorities. Black and Strafer cite the use of nonpublic docketing procedures by the U.S. District Court for the Southern District of Florida that have served to hide the existence of some cases. That includes cases involving alleged intermediaries in the extortion scheme such as Nicholas Bergonzoli, a Colombian who was convicted, sentenced and imprisoned last year on a charge of conspiracy to import cocaine. As the Daily Business Review reported earlier this month, even though Bergonzoli was jailed last year in Miami, there is absolutely no record of his case in the court’s docketing system. The appellate brief argues that the court’s use of such a “dual docketing system” violates both Ochoa’s and the public’s First Amendment and common-law rights of access to court proceedings, as well as eroding the separation of powers between the executive and judicial branches of government. “The more frequently courts seal documents and proceedings in already filed cases for the ostensible purpose of furthering the goals of law enforcement, the more the courts will appear to have become partners with prosecutors in achieving those same goals,” the brief says. The ACLU’s brief, drafted by the St. Petersburg, Fla., office of Carlton Fields, focuses on the First Amendment right of access by the public and the press. “Our principal point is that the court’s sealed docketing system violates that right,” said Randall C. Marshall, the ACLU’s Miami-based legal director. The Carlton Fields lawyers who drafted the brief are Sylvia H. Walbolt, John R. Blue, Rachel A. Ramsey, Stacey K. Sutton and Robert E. Biasotti. The brief filed by the Florida Association of Criminal Defense Lawyers was not immediately available. According to its author, Miami lawyer Benjamin S. Waxman, it focuses on how the rights of individuals “are implicated and impinged by any practice of maintaining secret dockets and completely veiling from public view sealed proceedings.” Waxman is a partner in Robbins, Tunkey, Ross, Amsel, Raben, Waxman & Eiglarsh. Matthew Dates, a spokesman for U.S. Attorney Marcos Jimenez in Miami, on Tuesday declined comment. Previously, Dates has said the office would not comment about the use of secret dockets. Chief U.S. District Judge William J. Zloch did not respond to a request for comment. In a previous response to questions submitted in writing, Court Clerk Clarence Maddox has said his office “does not employ a ‘dual’ docketing system. We use a single docketing system — the integrated case management system — for all our docketing work.” In 1993, in U.S. v. Valenti, the 11th U.S. Circuit ruled that the use of dual dockets was unconstitutional under the First Amendment. The case involved a federal judge in Tampa, Fla., who had sealed docket entries in a political corruption case. “The Middle District’s maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings,” says the opinion in U.S. v. Valenti. That ruling is a cornerstone in each of the appellate pleadings. In their new brief, Black and Strafer urge the court to unequivocally reaffirm Valenti and lay the matter to rest “forever.” “The court should, once and for all, ban the use of such a system in this circuit and permanently enjoin both the district court and the U.S. attorney’s office from creating another one,” says the brief, which urges that all dockets still under seal be unsealed. Black and Strafer argue that if it turns out the federal government extorted cash from drug dealers to bankroll right-wing paramilitary groups in Colombia — as has been alleged in the case previously — the secret docketing system will be blamed “for the concealment of such a scandalous program from the press and the public.” Black and Strafer also are asking the appellate court to enforce established procedures for handling requests to seal and unseal court proceedings. The procedures were established to give the parties, the public and the news media opportunity to object to secrecy on constitutional or other grounds. Time and again, the brief says, the government failed to comply with those existing procedures, and U.S. District Judge K. Michael Moore, who is presiding over the Ochoa case, failed to enforce them. “In this case, the limited discretion district courts possess to seal presumptively public court proceedings was breached at every step of the way and in every possible way,” Black and Strafer write. In their brief, Black and Strafer also level allegations of unfair treatment of their client by the 11th Circuit itself in keeping secret a ruling in a separate case. The brief reveals that on April 16, Ochoa’s lawyers filed an emergency motion to intervene in the sealed civil case of a young Algerian immigrant named Mohamed Kamel Bellahouel. At the request of a deputy appellate court clerk, the motion was filed under seal. Bellahouel was a waiter at a Middle Eastern restaurant in Delray Beach, Fla., in 2001; his customers apparently included several of the Sept. 11 hijackers. He was detained for five months after a movie theater employee told the FBI that Bellahouel had gone to watch a movie with one of the hijackers. Bellahouel was later released by the government. Though specific information about Bellahouel’s case isn’t publicly available, he subsequently filed suit against the former warden of the Federal Correctional Institution in South Miami-Dade. The Daily Business Review reported on the existence of the undocketed civil case in early March when a three-judge panel of the 11th Circuit meeting in Miami closed its doors to the public to hear the case. A published court calendar was altered to omit Bellahouel’s name from the public record, and the court’s computer records were later altered to remove from public view any information about the case, No. 02-11060. After reading about the Bellahouel case in the Review, Black and Strafer sought immediate access to any opinion issued by the appeals court. They didn’t get it. Instead, without acknowledging that the case exists or that an opinion has been rendered, the 11th Circuit allowed Ochoa’s lawyers to pursue the matter as part of their interlocutory appeal of a previous ruling by Judge Moore. In that ruling, Moore summarily denied Ochoa’s challenge to previous orders that sealed a swath of proceedings and government documents in the case. The new appellate brief in Ochoa’s case argues that because any opinion by the 11th Circuit in Bellahouel’s case is potentially binding on Ochoa, it should be released to Ochoa’s lawyers. They argue that it is a violation of both the First Amendment and Fifth Amendment due process rights for the government but not Ochoa to have access to that ruling. Knowledge of that opinion, they say, gives prosecutors an advantage over the defense. “Even without citing openly to any decision in Bellahouel, the government and the court will be free to have, in effect, a secret ex parte dialogue during briefing and oral argument,” the brief says. Even concerns for national security, if they exist, are “no basis to keep secret an entire legal opinion issued by the court on a constitutional question.” “Surely, any discussion by the court of legal principles and precedents governing the First Amendment right of access to court documents and the court’s own jurisdiction to entertain an appeal about that right involve non-classified material that can and should be openly filed and published,” the brief says. “It would be both ironic and tragic if the court were to issue an opinion in this case defining the scope of a criminal defendant’s First Amendment right of access to the courts through procedures that themselves denied that defendant the same access afforded his opponent in the litigation. Black and Strafer also ask that their new appeal not be heard by any of the judges who participated in the Bellahouel appeal. Those judges were Ed Carnes, Stanley F. Birch Jr. and Procter Hug Jr., who is a senior U.S. Circuit judge from Reno, Nev. Bellahouel’s attorneys, Federal Public Defender Kathleen Williams in Miami and her office’s appeals chief Paul Rashkind, are apparently under a gag order and won’t comment on the case or even acknowledge they represent Bellahouel. Prosecutors Dexter Lee and Anne Schultz, Rashkind’s counterpart at the U.S. Attorney’s office in Miami, also have declined comment. Black and Strafer argue that the public credibility of the federal justice system is threatened by what has happened in Ochoa’s case and several criminal cases associated with it, like Bergonzoli’s. That’s particularly true, they say, because law enforcement officials have used as proactive informants drug traffickers with secret criminal cases pending in court against them. They say if the government wants to use informants whose identities are kept secret for security reasons, they shouldn’t file cases against them in the court system, which is required to provide public access to information. “Once Executive Branch officials take the step of filing a case, thereby involving the role of the judiciary, they must either live with the consequences of that choice or dismiss the case,” the brief says. Black and Strafer warn of the serious political consequences of collaboration between prosecutors and the judiciary in hiding cases and case information from the public docket. “When the two branches collaborate to perpetuate an undercover operation that is not subject to public scrutiny the public and the citizens accused will inevitably lose confidence in the independence of the judiciary,” the brief says. “The ‘foundation of the Republic will not crack’ if the federal government fails to put Fabio Ochoa in a federal prison,” the brief concludes. “It will shatter, however, if the American people come to believe that their judicial system cannot be trusted.”

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