U.S. v. Clegg, 83-3126

• Decision Date: 14 August 1984
• Docket Number: No. 83-3126,83-3126
• Citation: 740 F.2d 16
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Eugene Ray CLEGG, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 16

740 F.2d 16

UNITED STATES of America, Plaintiff-Appellant, v. Eugene Ray CLEGG, Defendant-Appellee.

No. 83-3126.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 2, 1984.

Decided Aug. 14, 1984.

Alix Foster, Asst. Federal Public Defender, Seattle, Wash., for defendant-appellee.

Jerald Olson, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellant.

On Appeal from the United States District Court for the Western District of Washington.

Before KENNEDY, SKOPIL and NELSON, Circuit Judges.

SKOPIL, Circuit Judge:

This is an interlocutory appeal by the United States seeking review of the district court's order compelling disclosure of classified information. We affirm.

Clegg was charged through a second superseding indictment of exporting firearms in violation of 18 U.S.C. Sec. 922(a)(1) and 22 U.S.C. Secs. 2778(b)(2) and (c). During pretrial proceedings, Clegg filed a motion under Fed.R.Crim.P. 16(a)(1)(C), requesting the court to order the government to produce documents in the possession of the Department of State, the Department of Defense, and the Central Intelligence Agency which allegedly contained information of defendant's gunrunning. The government opposed the request, asserting that the information sought was not material to the preparation of a valid defense and that any such documents would likely be subject to the Classified Information Procedures Act ("CIPA"), 18 U.S.C.App. III Secs. 1-16 (1982).

The district court granted Clegg's discovery motion and directed the government to produce the requested documents and information. The government submitted classified and unclassified documents to the district court in camera ex parte hoping to establish that the documents were not material to the defense. The district court allowed defendant to submit in camera ex parte an affidavit setting out in detail why the requested information was material to the preparation of the defense. After review the district court ruled the documents were discoverable.

The government then sought to bring the classified documents under the protection of CIPA and asked the district court to reconsider its previous ruling permitting discovery of the classified documents or, in the alternative, to allow substitution of a summary and to delete some of the information in the classified documents. The district court, after an in camera ex parte review of the documents and a review of the alternative substitution with deletions, ruled that the classified documents were material and discoverable under Rule 16, and that the proposed alternative substitution with deletions was deficient and not acceptable.

The government appealed.

DISCUSSION

A. Jurisdiction Over Appeal.

Clegg moves this court to dismiss the appeal for lack of jurisdiction. His challenge is to section 7 of CIPA, 18 U.S.C.App. III. Sec. 7 (1982), which provides inter alia:

(a) An interlocutory appeal by the United States ... shall lie to a court of appeals from a decision or order of a district court in a criminal case authorizing the disclosure of classified information, imposing sanctions for nondisclosure of classified information, or refusing a protective order sought by the United States to prevent the disclosure of classified information.

Clegg argues that "disclosure" means to the public, not to the defendant. He contends that the Act uses the word "discover" or "discovery" when referring to information passing from the government to the defendant, and "disclosure" when referring to information being made public by the defendant....