U.S. v. Carriles

• Decision Date: 25 August 2009
• Docket Number: No. EP-07-CV-87-KC.,EP-07-CV-87-KC.
• Citation: 654 F.Supp.2d 557
• Parties: UNITED STATES of America, Plaintiff, v. Luis Posada CARRILES, Defendant.
• Court: U.S. District Court — Western District of Texas

654 F.Supp.2d 557

UNITED STATES of America, Plaintiff, v. Luis Posada CARRILES, Defendant.

No. EP-07-CV-87-KC.

United States District Court, W.D. Texas, El Paso Division.

August 25, 2009.

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David B. Deitch, John Williams Vanlonkhuyzen, Paul Edward Ahern, U.S. Department of Justice, Washington, DC, Joseph H. Gay, Jr., Assistant U.S. Attorney, San Antonio, TX, Margaret Feuille Leachman, United States Attorney's Office, El Paso, TX, for Plaintiff.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered the "Government's Motion for a Protective Order" ("Motion") (Doc. No. 145), "Miami Herald Publishing Company and the Associated Press's [collectively "the Press"] Motion to Intervene for the Limited Purpose of Opposing the Government's Motion for a Protective Order" ("Motion to Intervene") (Doc. No. 153), and "Defendant's Motion for Production of Government's Log Asserting Nature of Sensitive Materials" ("Motion for Production") (Doc. No. 166). For the reasons set forth herein, the Government's Motion is GRANTED IN PART, the Motion to Intervene is GRANTED IN PART, and the Motion for Production is DENIED.

I. BACKGROUND

Defendant Luis Posada Carriles ("Defendant") is charged by an eleven-count superseding indictment with perjury, obstruction of administrative proceedings, and making false statements in a naturalization proceeding. See Superseding Indictment (Doc. No. 133) at 1. The charges stem in part from statements Defendant made to an Immigration Judge about his involvement in bombings in and around Havana, Cuba, as well as related statements in a New York Times article. See id. at 4-7. Defendant's prosecution has received and continues to receive widespread media attention. See, e.g., David Adams, Release of Anti-Castro Militant Stokes Debate, ST. PETERSBURG TIMES (FLA.), Apr. 21, 2007, at 1A; Evan Perez, Cuban Exile Indicted by US, WALL ST. J., Apr. 10, 2009, at A4.

On June 5, 2009, the Government filed its Motion. The Government seeks a protective order, pursuant to Federal Rule of Criminal Procedure 16(d), "regarding the handling of sensitive but unclassified discovery material that has been or will be disclosed by the United States to [Defendant]." See Mot. 1. The Motion includes a proposed protective order for the Court's consideration. See id. at 8-11 ("Proposed Protective Order"). Specifically, the Government seeks to "limit inappropriate or damaging public disclosure" of sensitive materials, which "include[s] but may not be limited to" reporters' unpublished materials, information involving a foreign government, medical records, and material from an agent's personnel files. Id. at 3 & n. 1. The Government argues that its Proposed Protective Order, which is applicable to unclassified discovery materials the Government would mark as sensitive, effectively prevents unwarranted dissemination while preserving Defendant's rights. Id. at 4-5.

Under the terms of the Proposed Protective Order, Defendant would be prohibited from disseminating sensitive discovery materials to prospective witnesses without prior approval from the Court and would be prohibited from disseminating sensitive discovery materials to the media under any circumstances. See Proposed Protective Order 2. Additionally, the Proposed Protective Order would require that any papers filed with the Court involving sensitive discovery materials, as well as any responses to such papers, be filed under seal. Id. at 3.

On June 26, 2009, Defendant filed his opposition to the Government's Motion, arguing that the Government has failed to show good cause for entry of a "broad, blanket protective order" and that its Proposed Protective Order would unduly restrict Defendant's right to prepare his defense. See Opp'n and Resp. of Luis-Posada Carriles to Gov't's Mot. for Protective Order ("Defendant's Response") (Doc. No. 151) at 1-2, 6. In the "Government's Reply to Defendant's Opposition to [the] Government's Motion for a Protective Order" ("Government's Reply") (Doc. No. 152), the Government argues that "the numerous advantages an umbrella protective order has in any large-scale or complex litigation" are present here. Gov't's Reply 9.

On June 30, 2009, the Press filed its Motion to Intervene, arguing that it has standing to challenge the proposed protective order, and that the proposed protective order "would unlawfully restrict the [P]ress' First Amendment right to gather the news and receive protected speech" and would "impermissibly restrict[] the public and [P]ress' First Amendment right to access judicial records." Mot. to Intervene 1, 4. In the "Government's Response to Third Parties' Motion to Intervene for the Limited Purpose of Opposing the Government's Motion for a Protective Order" ("Government's Response") (Doc. No. 154), the Government states that it does not oppose the Press's intervention, but that "commonplace protective orders for documents furnished to the defense in compliance with discovery obligations [do not] violate the First Amendment." Gov't's Resp. 1-2 & n. 1. On July 10, 2009, the Press filed its Reply, stating that it is "not requesting that the parties provide [it] with any discovery documents," but is requesting that parties filing documents under seal justify such sealing and that the Press's attorneys be provided documents the Government deems sensitive so that the Press may challenge whether those documents should be covered by a protective order. See "Miami Herald Publishing Company and the Associated Press's [Reply]" ("Press's Reply") (Doc. No. 155) at 4-5 (underline in original). Finally, on July 15, 2009, the Government filed a sur-reply "seek[ing] to underscore how unprecedented and inappropriate the [Press's] proposed relief would be." "Gov't's Surreply to [Press's Reply]" ("Government's Sur-Reply") (Doc. No. 156).

On July 16, 2009, the Court requested that the Government produce the discovery material for which it requests a protective order for in camera review, together with "an explanation providing . . . the interest sought to be protected by each item or group of items of discovery material. . . ." Order, July 16, 2009 (Doc. No. 157) at 1-2. On August 14, 2009, the Government submitted the material to the Court.¹ On August 17, 2009, the Defendant filed his Motion for Production, requesting that the Government's submission to the Court be served upon defense counsel. See Mot. for Produc. 1.

II. PRELIMINARY ISSUES

A. Press's standing to intervene

The Press must have standing in order to intervene for the purposes of opposing the Government's Motion. See, e.g., Deus v. Allstate Ins. Co., 15 F.3d 506, 526 (5th Cir.1994) ("In sum, [intervenors] have no personal interest affording them standing to intervene. As a matter of law, therefore, the intervention motion is denied."). The Government does not oppose the Press's intervention. See Gov't's Resp. 1 n. 1. Because standing is jurisdictional, however, the Court considers it at the outset. See, e.g., United States v. Gurney, 558 F.2d 1202, 1202 (5th Cir.1977).

The Government's Proposed Protective Order may arguably affect the Press's rights to gather the news and access judicial records; thus, the Press "does have standing to challenge [that] protective order for abuse or impropriety." See Grove Fresh Distrib., Inc. v. Everfresh Juice Co., 24 F.3d 893, 898 (7th Cir.1994) (citations omitted); see also Davis v. E. Baton Rouge Parish Sch. Bd., 78 F.3d 920, 927 (5th Cir.1996) (granting standing to challenge "orders imped[ing] the news agencies' abilities to gather the news"). Accordingly, the Press's Motion is granted as to its request to intervene in this case. Of course, whether "[the Press's] constitutional claims might ultimately be found to be without merit is irrelevant to the standing inquiry. Such a determination goes to the substantive merits of the claims, not to [the Press's] standing to assert such claims." Herald Co. v. McNeal, 511 F.Supp. 269, 272 (E.D.Mo.1981).

B. In Camera Showing

Federal Rule of Criminal Procedure 16(d)(1) grants courts discretion to permit a party seeking a protective order to make its showing ex parte, and requires that such showing be placed under seal if a protective order is ultimately issued. FED. R.CRIM.P. 16(d)(1) ("The court may permit a party to show good cause by a written statement that the court will inspect ex parte. If relief is granted, the court must preserve the entire text of the party's statement under seal."). In its Motion for Production, Defendant requests access to the Government's August 14, 2008, submission. Mot. for Produc. 1. Additionally, the Press requests that the Government provide its attorneys with copies of all documents which may be covered by the Government's Proposed Protective Order. Press's Reply 5.

The purpose of the Government's Motion is, among other things, to prohibit Defendant from disseminating discovery materials which Defendant will receive in the normal course of discovery. See Mot. 2-3. If Defendant were to receive those materials before a protective order is in effect, the very interests the Government seeks to protect could be harmed before their validity could be determined. See FED.R.CRIM.P. 16 advisory committee's note (stating that while ex parte proceedings "are disfavored and not to be encouraged," they are appropriate "if any adversary proceeding would defeat the purpose of the protective or modifying order"); see also United States v. Bocra, 623 F.2d 281, 285 (3d Cir.1980) ("The submission of discovery materials to the court for an in camera inspection . . . is commonly used when the Government's need for preserving confidentiality over the materials must be balanced with the defendant's constitutional right to evidence material to his defense.") (citing, inter alia, United States v. Brown, 539 F.2d 467, 470 (5th Cir. 1976) ("Brown I")). More importantly,...