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Accusing the federal courts in South Florida of unconstitutional secrecy practices, a national journalists’ group has asked an appeals court to void a wide range of lower court orders that sealed swaths of information related to the prosecution of convicted Colombian drug lord Fabio Ochoa. The Reporters Committee for Freedom of the Press, in a friend-of-the-court brief filed last week in Ochoa’s criminal appeal, also asked the 11th U.S. Circuit Court of Appeals in Atlanta to halt the practice of secretly docketing cases and to require lower courts to justify the need for secrecy in Ochoa’s case at public hearings before any matters could be resealed. The Arlington, Va.-based committee leveled similar criticism about excessive secrecy at the 11th Circuit itself in November in an amicus brief filed at the U.S. Supreme Court regarding another secret dockets case. In its latest brief, the committee argues that in Ochoa’s case and others, the U.S. District Court in South Florida has employed a “secretive administration of justice” that’s been characterized by “closed hearings, sealed docket entries and even the removal of entire cases from the public docketing system.” Judges and magistrate judges involved in those cases “have made no effort” to comply with court precedent regarding the imposition of secrecy. “This level of secrecy strikes at the heart of the public’s First Amendment right of access to criminal judicial proceedings,” says the brief in support of similar arguments made earlier by Ochoa’s defense team. “Collectively, the repeated pattern of secrecy in the proceedings below paints a picture of a court that conducts its business with a casual disregard for the public’s First Amendment right of access.” The brief asks the 11th Circuit to decide one issue — whether secret dockets, sealed docket entries and closed hearings without public notice violate First Amendment protections. Besides what’s happened in the Ochoa cases, the brief says the existence of a secret docket in South Florida was revealed by the disclosure of the secret habeas corpus case of Deerfield Beach, Fla., resident Mohamed Kamel Bellahouel, which the Miami Daily Business Review first reported in March. The Reporters Committee also has filed an amicus brief in Bellahouel’s appeal of secrecy rulings by U.S. District Judge Paul C. Huck and the 11th Circuit, which is pending before the U.S. Supreme Court. Reporters Committee attorneys Lucy A. Dalglish, who is also the group’s executive director, Gregg P. Leslie and James A. McLaughlin submitted the Ochoa brief. Jacqueline Becerra, a spokeswoman for U.S. Attorney Marcos D. Jimenez in Miami, said her office would not comment. The Reporters Committee’s brief is the first in the Ochoa case by a national group. Earlier, the American Civil Liberties Union of Florida and the 1,600-member Florida Association of Criminal Defense Lawyers filed briefs in support of Ochoa. DEFENSE HAMPERED BY SECRECY Fabio Ochoa, an object of government attention for more than 20 years, was convicted in U.S. District Court in Miami in May on drug conspiracy charges following a 3 1/2 week trial before U.S. District Judge K. Michael Moore. In August, Ochoa was sentenced to 365 months in prison. Ochoa was among 33 defendants indicted in 1999 in Miami as part of an investigation into Colombian drug trafficking dubbed Operation Millennium. Ochoa, extradited to the United States in September 2001, was the only defendant to go to trial under heavy security. Some co-defendants remain fugitives. Most reached plea deals with the government. Ochoa’s Miami attorneys, Roy Black and Richard Strafer, have said that Ochoa’s prosecution was part of a corrupt government “program” to induce major Colombian drug traffickers to surrender by selling them advance “sentence reductions.” They argue that Ochoa was indicted because he refused to pay a $30 million bribe to a U.S. Drug Enforcement Administration informant from Miami, Baruch Vega, to arrange his surrender. The attorneys have identified several federal drug defendants in South Florida who were “intermediaries” in that alleged bribes-for-deals scheme but whose drug cases were sealed by the courts. Two of those men were Julio Correa, now missing and presumed murdered, and the imprisoned Nicholas Bergonzoli. Most of Correa’s case was sealed. Bergonzoli’s case was entirely sealed for years until last spring, when Judge Moore unsealed parts of it following an article about the sealing in the Daily Business Review. Ochoa’s pending appeal in the 11th Circuit is based in part on the argument that his defense was hampered by the secrecy in the Bergonzoli and Correa cases. His attorneys claim that court secrecy blocked effective access to a potentially important defense witness who could testify about the government’s corrupt sentence reduction scheme. “Without expressing an opinion as to the truth of these charges, the Reporters Committee submits that an open system of criminal justice would be far less vulnerable to such an accusation,” the committee’s brief says. “But as it stands, the mystery enveloping the proceedings against Bergonzoli, Correa and other figures related to Ochoa’s prosecution only adds fuel to such claims,” the brief says. It has created conditions “under which corruption, or the appearance of corruption, can flourish,” the brief said. The amicus brief filed in Ochoa’s case said secret dockets are illegal and in violation of a 1993 ruling by the 11th Circuit in U.S. v. Valenti. In that decision, a panel of judges ruled that the use of secret dockets was unconstitutional under the First Amendment. That case involved a federal judge in Tampa, Fla., who had sealed docket entries in a political corruption case. “The court should reiterate the principle that secret dockets are unconstitutional, order the public docketing of all cases … and vacate the sealing of the docket entries subject to findings that the secrecy is justified in each instance,” the brief says.

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