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Because of South Florida court secrecy rulings, federal prosecutors in the case of convicted narcotics kingpin Fabio Ochoa have a huge and unfair advantage over Ochoa in his appeal, Ochoa’s Miami attorneys argue in a motion before a federal appeals court in Atlanta. In court papers filed last week, G. Richard Strafer and Roy Black complained that while the government can read a potentially relevant 11th U.S. Circuit Court of Appeals decision on court secrecy and prepare its case accordingly, they are not allowed to do so. That’s because of the 11th Circuit’s decision to block access to its March 2003 decision in a separate case, which has given the government “a distinct and unfair advantage,” they contend. Ochoa’s lawyers have asked the appeals court to disclose its secret opinion in the habeas corpus case of Deerfield Beach, Fla., resident Mohamed Kamel Bellahouel — or to declare unconstitutional a court rule that assigns such unpublished opinions “persuasive” value in deciding other cases. “Until full and equal access is granted, these proceedings will not, in fact, be fair to Ochoa and can never be perceived by the public as having been fair,” the attorneys wrote. In a response filed Wednesday, U.S. Attorney’s Office appeals chief Anne R. Schultz in Miami used a no harm, no foul argument to urge the judges to deny Ochoa access to the sealed Bellahouel opinion. “The government will not cite to the sealed opinion or rely on it in any way in arguing its position in this case,” wrote Schultz, whose response didn’t mention Bellahouel by name. Strafer and Black’s filing raises new questions not only about the extraordinary layers of secrecy in the cases of Ochoa and Bellahouel, but also about the controversial federal appellate court practice of issuing “unpublished” opinions. Unlike some other circuit courts, the Atlanta-based 11th Circuit issues most of its opinions in unpublished form, which are harder for parties to access than are published opinions. Despite that, the 11th Circuit considers unpublished opinions to have “persuasive” — though not fully binding — value as precedents. Ochoa’s attorneys essentially are asking whether that is fair to parties who have less — or no — access to such opinions. The opinion Ochoa’s lawyers want to read, however, is more than unpublished — it is secret. If it were merely unpublished, and Ochoa’s lawyers became aware of it, they could ask the court for a copy and probably obtain it. The fact that the opinion is sealed places it completely off-limits to Ochoa, even though what it says might well help him argue his case. “One can imagine circumstances in which this extreme step is necessary,” said Columbia University law school professor Michael C. Dorf, who has written extensively about the impact of unpublished opinions on the law. “You would hope that the courts would try to take intermediate steps to protect security interests.” The 11th Circuit opinion that Strafer and Black want to read was issued under seal March 31 in the habeas corpus case brought by Bellahouel in January 2002 when he was held in federal detention without charge. U.S. District Judge Paul C. Huck and the 11th Circuit have kept Bellahouel’s case secret and off the public docket. The existence of the sealed 11th Circuit opinion in Bellahouel’s case was revealed only recently when the Federal Public Defender’s Office in Miami appealed it to the U.S. Supreme Court. Strafer and Black believe the opinion in Bellahouel’s case might benefit Ochoa’s appeal because it contains the court’s thinking on similar constitutional secrecy issues now at the heart of his appeal. They’ve argued Ochoa has a right to see it under the First Amendment and/or the Classified Information Procedures Act, which provides access to otherwise secret information to attorneys with security clearance. “It strikes me that the fairness argument is strongest if the second case were to come before one or more of the same judges who decided the first case,” Dorf said. “If only one side has an opinion they alone have access to the judges’ thinking.” The names of 11th Circuit panel judges generally don’t become known until shortly before oral argument. In Ochoa’s case, those arguments have not been set and the judges who will hear the appeal are not known. The extreme secrecy that kept Bellahouel’s case completely sealed for more than a year — and remains largely in place today — has drawn national attention. A coalition of about two dozen national media and legal organizations, including The New York Times and American Lawyer Media Inc., which owns the Daily Business Review, are seeking to open Bellahouel’s case to the public. Bellahouel, an Algerian, was detained a month after Sept. 11, when FBI agents tenuously linked him to some of the hijackers in the attacks on New York and Washington. Those hijackers, including ringleader Mohamed Atta, had dined at the Delray Beach, Fla., restaurant where Bellahouel was a waiter. Authorities apparently concluded Bellahouel was no threat, however, and he was allowed to post bond and go home after five months. Last March, the 11th Circuit ruled in secret on the habeas corpus case that Bellahouel filed while he was still in custody. Ochoa’s lawyers now allege the 11th Circuit’s suppression of that unpublished judgment denied Ochoa his due process rights, and “threatens to undermine the very integrity of this appeal.” “One party and only one party in the instant litigation knows the outcome and reasoning of that opinion — the government,” the motion said. “With its unique knowledge of this court’s views on the Southern District’s sealing practices, the government will be free to frame its arguments against Ochoa. … Only Ochoa and his counsel will have been kept in ignorance of the court’s views.” Court papers indicate that Ochoa’s attorneys first sought access to the 11th Circuit decision in the Bellahouel case last April after the Review reported that the case existed. Last May, a federal jury in Miami found Fabio Ochoa guilty of conspiring to import and distribute cocaine. Ochoa is appealing both his conviction and his 365-month sentence. Chief among the appellate issues is whether U.S. District Judge K. Michael Moore breached Ochoa’s rights under the First, Fifth and Sixth amendments by denying him access to sealed court records. Ochoa’s defense team contends those sealed records involve potentially helpful defense witnesses and their deals with the government. In particular, his lawyers argue, access to the records would have enabled them to contact and interview drug defendants with first-hand knowledge of a corrupt U.S. government program under which major Colombian narcotics traffickers allegedly were sold advance “sentence reductions” to induce them to surrender to U.S. authorities. Ochoa’s lawyers contend he was prosecuted because he refused to pay a $30 million bribe for an advance sentence reduction. One of those potential witnesses was Nicholas Bergonzoli, who was convicted of conspiracy to import cocaine in U.S. District Court in Miami in January 2002 and sentenced to 39 months in prison. Like Bellahouel’s habeas case, Bergonzoli’s criminal case was completely sealed so that its existence here was unknown. The Daily Business Review first reported on Bergonzoli’s case on May. 9. On May 23, Judge Moore ordered the clerk’s office to list his case on the public docket and unsealed many case documents. Moore’s order came near the end of Ochoa’s trial, and Ochoa’s lawyers said the disclosure was too late to help their client’s case. In their new filing to the 11th Circuit, Ochoa’s attorneys are attacking the 11th Circuit’s Rule 36-2, which assigns “persuasive” value to unpublished opinions. Published opinions are widely distributed and serve as binding precedent. In contrast, unpublished decisions are public but traditionally were not made available by the court outside a specific case. In 1973, the federal Advisory Council for Appellate Justice recommended the use of unpublished opinions as a way of saving time for a heavily burdened judiciary. At the time, before electronic case files, such opinions were not indexed or published outside a specific case file. Now, with electronic case files, they are often available in legal databases. Every year, the federal appellate courts issue thousands of unpublished opinions. In issuing an unpublished opinion, a court is saying that the ruling is essentially perfunctory and consistent with existing precedent. But how those opinions are treated varies from circuit to circuit. Over the years, each of the nation’s 13 circuits has adopted its own rules regarding unpublished decisions, which the federal government, as a party in all federal criminal cases, may access. In an interview, Chief 11th Circuit Judge J.L. Edmondson said, “We do not publish opinions which we believe do not add significantly to the body of law for the circuit. … Lawyers have enough to read, and so do judges.” Under the 11th Circuit rule, unpublished opinions are not considered binding. Still, they can be cited as persuasive authority by judges and lawyers who know about them. Edmondson, who discussed only the rules governing published and unpublished opinions, explained that persuasive power of an unpublished opinion to a convincingly written law review article, newspaper story or court ruling from another circuit. “They are persuasive in the same way as if someone were to cite to us an opinion of the Minnesota State Court of Appeals on point of law. That’s an opinion that in no way would be binding on us, but if it makes sense we might agree with and go forward. “I cannot overstate to you the difference between binding authority and persuasive authority. Binding is the law of the circuit and we take that very seriously. We live and die by our published opinions,” Edmondson said. Other circuits with a similar rule on the precedential value of unpublished opinions are the 1st, 3rd, 5th, 8th and 10th circuits. In contrast, the 4th, 6th and District of Columbia circuits give unpublished opinions full precedential value, according to a survey conducted by Ochoa’s defense team. The 2nd, 7th, 9th and Federal circuits give them no precedential weight. Only the 11th Circuit, however, restricts access to its unpublished opinions, Ochoa’s attorneys found in their survey. It does so by not listing them in the Federal Appendix of cases, and by not providing database access to them. The 11th Circuit also stands alone in its frequency of use of unpublished opinions. Citing a 2002 study by Indiana University Law School dean and professor Lauren Robel, Ochoa’s attorneys found the 11th Circuit published just 17 percent of its opinions, fewer than any other circuit. In contrast, the 7th Circuit in Chicago published 71 percent of its opinions. As Judge Edmondson explained, the absence of a national rule regarding the application of unpublished opinions has left the circuits “to fill in the blanks locally.” Efforts are under way to address that disparity. A proposal is pending at the Administrative Office of the U.S. Courts to amend the Federal Rules of Appellate Procedure. The proposal would apply a uniform standard across the country that would let lawyers cite unpublished opinions when they argue cases in all federal appeals courts. Still, such a change wouldn’t help a defendant in Ochoa’s shoes. The opinion he wants is also sealed.

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