United States District Court, D. Arizona
Marc Turi, Defendant: Jean-Jacques Cabou, Thomas Dean
Ryerson, LEAD ATTORNEYS, Perkins Coie LLP - Phoenix, AZ,
Turi Defense Group, Defendant: Jean-Jacques Cabou, Thomas
Dean Ryerson, LEAD ATTORNEYS, Alexis Elizabeth Danneman,
Perkins Coie LLP - Phoenix, AZ, Phoenix, AZ.
USA, Plaintiff: David A Pimsner, LEAD ATTORNEY, U.S.
Attorney's Office, Phoenix, AZ; Kristen Brook, LEAD
ATTORNEY, U.S. Attorneys Office - Phoenix, AZ, Phoenix, AZ;
William Mackie, LEAD ATTORNEY, Julie Ann Edelstein, U.S. Dept
of Justice - National Security Division, Washington, DC.
G. Campbell, United States District Judge.
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.
CIPA § 4 and the Procedural Status of this
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.
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).
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.
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 ...