New York Federal Criminal Practice Blog
July 20, 2008

Second Circuit and SDNY Judge Issue Three Notable Rulings on Pre-Trial Disclosure

As this blog has previously lamented (see here), the discovery rights of defendants in criminal cases, unlike in civil cases, are oddly in inverse proportion to the high stakes at issue.  Three new decisions address discrete issues relating to pre-trial disclosure in criminal cases.  Two provide little comfort to defendants, but one – dealing with the disclosure of classified information – sets out some important procedures to balance the defendant’s right to a fair trial against the need to protect national security. 

Aref – Standard for Disclosure of Classified Material

In United States v. Aref, 2008 WL 2598018 (2d Cir. July 2, 2008) (a money-laundering prosecution that arose out of a terrorist sting operation), the Second Circuit addressed an issue of first impression: the standard for determining what relevant classified information a criminal defendant is entitled to receive during discovery. 

In Aref, the government had moved under Fed.R.Crim.P. 16(d)(1) (which authorizes a district court to issue protective orders denying or restricting discovery for good cause) and Section 4 of the Classified Information Procedures Act (“CIPA”) (which sets out procedures for “[d]iscovery of classified information by defendants”) for a protective order permitting it to withhold certain classified information that would otherwise be discoverable. 

On the defendants' appeal, the Second Circuit held that while the government may invoke the common-law state-secrets privilege underlying Section 4 of CIPA, that “privilege can be overcome when the evidence at issue is material to the defense.”  In Aref, the Court adopted the following three-step analysis – reviewable under an abuse of discretion standard – for a district court to follow in determining when the government’s privilege must give way in a case where classified information is at issue:

First, is the classified information discoverable?

Second, if it is, does the state-secret privilege apply because (1) there is “a reasonable danger that compulsion of the evidence will expose ... matters which, in the interest of national security, should not be divulged,” and (2) the privilege is “lodged by the head of the department which has control over the matter, after actual personal consideration by that officer”?

Third, if the information is both discoverable and privileged, then is it also “helpful or material to the defense,” i.e., not necessarily Brady material, but useful “to counter the government’s case or to bolster a defense”?

In Aref, conducting its own review of the classified information at issue and the government’s sealed submissions, the Court found no abuse of discretion and affirmed the district court’s findings.  Notably, in reaching its conclusions, the district court had held a series of ex parte conferences, not just with the government (as authorized under CIPA and approved by the Aref Court), but also with defense counsel “to assist the court in deciding what information would be helpful to the defense.”

Vilar – Early Production of 3500 Material Denied

United States v. Vilar, 05 Crim. 621, currently pending before Judge Sullivan in the Southern District, has already produced a very interesting search and seizure decision discussed here.  Now, in a new decision in this case, 2008 WL 2531195 (S.D.N.Y. June 22, 2008), the court has considered but rejected a creative motion from the defense requesting early disclosure of 18 U.S.C. § 3500 material (prior statements of government witnesses), so that the defense could determine whether evidence to be presented at trial is tainted by illegal seizure. 

First, the court reiterated, as it had pointed out in its earlier decision, that the defense had no right to litigate taint issues prior to trial.  Second, and more significantly, the court pointed out that it had no authority to compel early disclosure of Section 3500 material bearing on alleged violations of Fourth Amendment rights.  The language of Section 3500 itself only requires disclosure after the witness’s direct testimony, and the only carve-out of these mandates in Second Circuit case-law is for exculpatory or impeaching evidence under Brady, which concededly was not at issue here. 

The court concludes: “The Court expects the government to abide by its disclosure obligations under Brady as well as its pledge to produce Section 3500 material no later than two weeks prior to the trial in this action.”

Siraj – Early Disclosure of Statements Made to UC Officer Denied

Finally, in United States v. Siraj, 2008 WL 2669321 (2d Cir. July 9, 2008) (also a case involving a foiled terrorist plot), the Court addressed another issue of first impression: whether written police reports that memorialize non-interrogation oral statements made by a defendant to an undercover officer must be produced upon demand under Federal Rule of Criminal Procedure 16(a)(1)(B)(i) (which provides that upon a defendant’s request, the government must disclose to the defendant “any relevant written or recorded statement by the defendant”).  Answering in the negative, the Court reasoned that to hold otherwise would render other provisions of Rule 16 superfluous.  As the Second Circuit Blog points out, however, the defendant would at least have received these reports as last minute disclosures under 18 U.S.C. § 3500, and so could not claim unfair surprise.  Having them earlier, however, would certainly have helped the defense strategize for trial, and more importantly, may have encouraged more meaningful plea negotiations.

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