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A federal appeals court Thursday chastised several South Florida federal district court judges and magistrates for using a secret docketing system to conceal cases related to the prosecution of Medellin drug cartel boss Fabio Ochoa-Vasquez. A three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta issued its rebuke of the judge in an opinion upholding the drug lord’s conviction and sentence of more than 30 years in prison. In a 2-1 decision that runs 84 pages long, the appeals court noted that it had struck down such secret dockets in a 1993 decision, styled U.S. v. Valenti, 987 F.2d 708. But because the lower court eventually unsealed the dockets related to the Ochoa case, the majority determined the issue of the secret docket could not properly be considered. “We nevertheless exercise our supervisorial authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional in Valenti,” the majority declared in the decision, authored by U.S. District Judge B. Avant Edenfield, of the Southern District of Georgia, who was sitting by designation. The majority also ordered some documents that remain sealed to be turned over to Ochoa, because Judge K. Michael Moore never declared why those records should be sealed in the first place. “Those orders denying access, therefore, do not comply with our First Amendment jurisprudence, and we reverse and remand them for reconsideration in light of the established precedent,” Edenfield wrote. However, the court found sealed documents in related drug cases before Judges Moore, Patricia A. Seitz and Donald M. Middlebrooks were not enough to warrant a new trial for Ochoa “because Ochoa was eventually granted access to the majority of documents and he has not shown prejudice.” In 2003, the Daily Business Review first reported about the use of secret dockets in the Southern District of Florida. The so-called “super-sealed” cases raised concerns among defense lawyers and the American Civil Liberties Union of Florida. In one of those cases, U.S. District Judge Paul C. Huck of Miami sealed the docket involving an Algerian man suspected of ties to the Sept. 11 hijackers. Deerfield Beach, Fla., waiter Mohamed Kamel Bellahouel lost on appeal to the 11th Circuit — a decision that was also secret — and the U.S. Supreme Court declined to hear his case. Miami attorney G. Richard Strafer, who is Ochoa’s appellate lawyer, contends there are still cases being hidden on a secret docket in South Florida’s federal courts. The majority also upheld the use of an anonymous jury by Moore. In anonymous juries, a juror’s personal information, including name, address and in this case race, is sealed. The intent is to shield jurors from any danger posed by organized crime syndicates known for trying to influence or intimidate jury panels. But in her dissent, 11th Circuit Judge Rosemary Barkett argued Ochoa should get a new trial because the anonymous jury violated his right to an impartial jury. “A measure that threatens a defendant’s right to a presumption of innocence also necessarily threatens his right to an impartial jury,” Barkett wrote. “If jury anonymity has instilled in jurors the perception that a defendant is dangerous — thereby affecting his presumption of innocence — it has also affected his right to an impartial jury.” She was also critical of Moore for concealing information about the prospective jurors’ race and then using that as the basis for dismissing complaints by defense attorneys that prosecutors were improperly dismissing Hispanics. “We’re disappointed in the majority’s opinion,” said Strafer, “but [we are] certainly going to seek rehearing, and if necessary [certiorari review] to the Supreme Court on the jury issues.” Strafer is a Miami solo practitioner. The defense won a minor victory in the case. The appellate panel ordered Moore to unseal court documents that Ochoa’s attorneys wanted to review, but Moore kept secret. In a statement, the U.S. attorney’s office in Miami said it was “gratified” that the appeals court affirmed Ochoa’s conviction and sentence. “Although we stood prepared to move forward on this case whatever the court’s ruling, our nation can now enjoy a sense of finality in this matter,” said the statement, released by the office of interim U.S. attorney R. Alexander Acosta. Ochoa, now 48, was extradited from Colombia in 2001. He was convicted in 2003 of conspiracy to possess cocaine with intent to distribute and conspiracy to import cocaine into the United States. He was sentenced to 30 years and five months. Ochoa was represented at trial by prominent criminal defense lawyer Roy Black of Black Srebnick & Kornspan of Miami.

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