United States District Court, D. Arizona
DAVID G. CAMPBELL UNITED STATES DISTRICT JUDGE
This order addresses Defendants’ request for documents under Rule 16(a)(1)(E)(i) of the Federal Rules of Criminal Procedure and the government’s assertion that the documents are classified and should be withheld from disclosure. The government has filed an ex parte motion under § 4 of the Classified Information Procedures Act (“CIPA”). The Court has considered the parties’ briefing on these issues (Docs. 166, 167) and arguments at various hearings during the last few months.
I. CIPA § 4 and the Procedural Status of this Case.
The purpose of CIPA is to establish “pretrial procedures that will permit the trial judge to rule on questions of admissibility involving classified information before introduction of the evidence in open court.” S. Rep. 96-823, at 1 (1980), reprinted in 1980 U.S.C.C.A.N. 4294. The need for these pretrial procedures arose because of the problem of “graymail.” United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988). When a defendant needed or possessed classified evidence for his defense, the government often would forgo prosecution rather than risk publication of the evidence in open court. CIPA sought to remedy this problem by creating procedures that enable a court to rule on the discoverability or admissibility of classified evidence before trial. As relevant here, CIPA allows a court to prevent the discovery of classified information, or to substitute a summary of this information, upon a “sufficient showing” by the government. 18 U.S.C. App. 3 § 4.
The Ninth Circuit has established a three-step procedure for ruling on CIPA § 4 motions:
When considering a motion to withhold classified information from discovery, a district court must first determine whether . . . the information at issue is discoverable at all. If the material at issue is discoverable, the court must next determine whether the government has made a formal claim of the state secrets privilege, lodged by the head of the department which has actual control over the matter, after actual personal consideration by that officer. Once a court concludes that the material is discoverable and that the state secrets privilege applies, then the court must determine whether the evidence is relevant and helpful to the defense of an accused. If the information meets the relevant and helpful test, CIPA § 4 empowers the court to determine the terms of discovery, if any.
United States v. Sedaghaty, 728 F.3d 885, 904 (9th Cir. 2013) (quotation marks and citations omitted).
In this case, the first step has been satisfied. On October 22, 2014, in response to a motion to compel filed by Defendants, the Court determined that two categories of documents are discoverable under Rule 16(a)(1)(E)(i). Doc. 63. Following that ruling and several other procedural events, the government filed the § 4 motion.
The second step has also been satisfied. Following filing of the § 4 motion, the Court asked the parties to brief the kind of submission the government must make in support of a CIPA § 4 claim. Following briefing, the Court entered an order holding that the government can seek protection under CIPA § 4 only by “making a formal claim of privilege, lodged by the head of the department which has actual control over the discoverable information, after personal consideration by that officer.” Doc. 170 at 3. The Court gave the government 21 days to submit such a formal claim of privilege. The government later submitted a sealed, ex parte document that complies with this requirement.
The Court must now complete the third step - determine whether documents submitted by the government in camera should be withheld from Defendants. To assist in making this decision, the Court asked the parties to brief the legal standard to be applied in deciding whether discoverable documents covered by the state secrets privilege should be disclosed. The parties complied (Docs. 166, 167), and the Court will now set forth the legal test it will apply in making this decision. In a sealed, ex parte order, the Court will explain its basis for concluding whether specific documents reviewed in camera satisfy the legal test.
Although § 4 of CIPA creates a procedure for deciding the discoverability of classified evidence, it does not dictate when the government must disclose such evidence. “CIPA does not expand or restrict established principles of discovery and does not have a substantive impact on the admissibility of probative evidence.” Sedaghaty, 728 F.3d at 903; see also H.R. Conf. Rep. 96-1436, 12 (1980), reprinted in 1980 U.S.C.C.A.N. 4307, 4310 (“[N]othing in [CIPA] is intended to change the existing standards for determining relevance and admissibility.”).
Because CIPA does not set a standard for deciding whether classified information should be discoverable, appellate courts have uniformly turned to the standard articulated in Roviaro v. United States, 353 U.S. 53 (1957). Roviaro addressed when information subject to an “informer’s privilege” must be disclosed to a defendant in a criminal case.The Court in Roviaro explained when the informer’s privilege must give way to a defendant’s need for information:
A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial ...