U.S. v. Moussaoui

• Decision Date: 14 March 2007
• Docket Number: No. 06-4611.,06-4611.
• Citation: 483 F.3d 220
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Zacarias MOUSSAOUI, a/k/a Shaqil, a/k/a Abu Khalid al Sahrawi, Defendant, and All Plaintiffs Named in 21 MC 97, 21 MC 101, and 03 CV 9849, Intervenors-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

483 F.3d 220

UNITED STATES of America, Plaintiff-Appellant, v. Zacarias MOUSSAOUI, a/k/a Shaqil, a/k/a Abu Khalid al Sahrawi, Defendant, and All Plaintiffs Named in 21 MC 97, 21 MC 101, and 03 CV 9849, Intervenors-Appellees.

No. 06-4611.

United States Court of Appeals, Fourth Circuit.

Argued: November 30, 2006.

Decided: March 14, 2007.

ARGUED: Steven L. Lane, United States Department of Justice, Criminal Division, Washington, D.C., for Appellant. Nathan Lewin, Lewin & Lewin, L.L.P., Washington, D.C., for Appellees. ON BRIEF: Chuck Rosenberg, United States Attorney, David J. Novak, Assistant United States Attorney, R. Joseph Sher, Assistant United States Attorney, Douglas N. Letter, Terrorism Litigation Counsel, United States Department of Justice, Criminal Division, Washington, D.C., for Appellant. Ronald L. Motley, Jodi Westbrook Flowers, Donald A. Migliori, Michael E. Elsner, Robert T. Haefele, Justin B. Kaplan, John M. Eubanks, Motley Rice, L.L.C., Mount Pleasant, South Carolina; Alyza D. Lewin, Lewin & Lewin, L.L.P., Washington, D.C.; Marc S. Moller, Brian J. Alexander, Kreindler and Kreindler, L.L.P., New York, New York; Gregory P. Joseph, Douglas J. Pepe, Gregory P. Joseph Law Offices, L.L.C., New York, New York; Robert A. Clifford, Chicago, Illinois; Richard A. Williamson, Flemming, Zulack, Williamson, Zauderer, L.L.P., New York, New York, for Appellees.

Before WILKINS, Chief Judge, and WILLIAMS and GREGORY, Circuit Judges.

Reversed and vacated by published opinion. Judge WILLIAMS wrote the opinion, in which Chief Judge WILKINS and Judge GREGORY joined.

OPINION

WILLIAMS, Circuit Judge:

This appeal, although arising in the context of Zacarias Moussaoui's criminal prosecution,¹ is unrelated to the merits of the Government's case against Moussaoui. Rather, it concerns only the district court's decision to order the Government to provide to certain victims of the September 11 attacks (the Civil Plaintiffs) non-public discovery materials that the Government had provided to Moussaoui in the course of its criminal case against him. Moussaoui, therefore, is not an actual party to this appeal. Because we determine that the district court lacked the power to institute the orders, we reverse and vacate the district court's orders.

I.

As part of the Government's criminal case against Moussaoui, it provided Moussaoui with millions of pages of documents, including more than 166,000 FBI interview reports and over 1.7 million pages of documents from the FBI's ongoing criminal investigation of the September 11 attacks (the PENTTBOM investigation). In addition, the Government provided a number of other evidentiary materials, such as audio and video tapes and grand jury information. The discovery was produced to Moussaoui's attorneys pursuant to protective orders covering "general discovery materials," "particularly sensitive discovery materials," "Sensitive Security Information" concerning civil aviation security (SSI), and classified information.²

Following the September 11 attacks, the Civil Plaintiffs filed three civil tort suits in the United States District Court for the Southern District of New York against both private airlines, airports, and security services, see In re September 11 Litig., 21 MC 97, and In re September 11 Property Damage and Business Loss Litig., 21 MC 101, and alleged terrorists and sponsors of terrorism, Burnett v. Al Baraka Inv. & Dev. Corp., 03 Civ. 9849. Discovery in those cases has been complicated and contentious. It remains ongoing in the Southern District of New York.

On March 31, 2006, the Civil Plaintiffs filed in the Eastern District of Virginia a "Motion to Intervene for the Limited Purpose of Being Heard in Connection With Access to Certain Portions of the Record" at the conclusion of Moussaoui's criminal trial. (J.A. at 240.) Although the motion reflected only a desire to be heard in connection with access, the motion was quickly followed by a "Motion for Access to Certain Portions of the Record," (J.A. at 245), which went far beyond the record and contended that lawyers representing Moussaoui "should not be given a greater level of access to documentary evidence relating to those attacks than the attorneys representing victims, and family members of victims, who were brutally murdered on that day." (J.A. at 249.) The substance of the motion was a request for access to "all of the [G]overnment's information they turned over to the defense counsel in the . . . various discovery procedures ongoing over time." (J.A. at 261.) The Civil Plaintiffs cited the Crime Victims Rights Act (CVRA), 18 U.S.C.A. § 3771 (West Supp.2006),³ and Title IV of the Air Transportation Safety and System Stabilization Act (ATSSSA), Pub.L. No. 107-42, 115 Stat. 230, 237 (2001),⁴ as authority for their request. The Government, on the other hand, argued that access to such information could be granted only through the course of civil discovery in the Southern District of New York.

At an April 7, 2006 hearing, the district court⁵ initially commented that the relief requested was "a long shot." (J.A. at 255.) Over the course of the hearing, however, the district court became persuaded that the CVRA and ATSSSA evidenced Congress's unique interest in providing the Civil Plaintiffs with access to the discovery. (J.A. at 274 ("This situation is unique not just because there's a general victims statute but because Congress did pass a specific statute for the victims of September 11. That puts this in a somewhat unique posture, and I'm not so sure that the government is actually acting in the full spirit of what Congress intended there.").) The district court also expressed its opinion that it had "always been troubled by the degree to which our government keeps things secret from the American people." (J.A. at 273.) Furthermore, it noted that "the trial judge in [the Southern District of] New York is frustrated" and that the Eastern District of Virginia was not an "illogical" place to request the discovery. (J.A. at 281.) After the hearing, the district court granted the motion to intervene and ordered, inter alia, that the Civil Plaintiffs be provided access to "non-classified and non-SSI evidence." (J.A. at 290.)

On April 14, 2006, the Civil Plaintiffs submitted a broad discovery request, including classified and SSI materials and such things as every document from the PENTTBOM investigation produced to Moussaoui, every document collected by the 9/11 Commission that was produced to Moussaoui, and electronically searchable copies of all relevant FBI interviews. Although the district court's order exempted classified materials and SSI, the Civil Plaintiffs' requests were not so limited. Shortly thereafter, the defendants in the civil actions requested access to any materials being provided to the Civil Plaintiffs pursuant to the district court's order.

On April 21, 2006, the Government filed a motion for reconsideration, arguing that there was no legal basis for the district court's order. On May 19, 2006, the district court held a hearing and noted that it was "disappointed" by the breadth of the discovery requests. (J.A. at 320.) Nonetheless, the court stated from the outset that it was going to "be a very short hearing, because [it was] not reconsidering [the] order." (J.A. at 320.) Instead, the district court noted that "whether a particular discovery request is relevant or appropriate to the litigation to which it is connected is far more properly left to the judge who is responsible for the overall case, and Judge Hellerstein [the district court judge presiding over the civil action in the Southern District of New York] has been working diligently with the parties." (J.A. at 321.) Although the district court again failed to cite any direct law or rule in support of its initial order, it continued to maintain that the CVRA and ATSSSA "totally change the [legal] landscape." (J.A. at 324.)

The district court then entered a second order, stating that "the relevance of any particular discovery request made by the intervenors to the government pursuant to this Order must be determined by the district judge presiding over the civil litigation [in the Southern District of New York] out of which the discovery request arises." (J.A. at 333.) The order also purported to grant the Southern District of New York the authority to alter the Eastern District of Virginia court's "protective orders to allow for disclosure to additional qualified attorneys." (J.A. at 333.) On June 15, 2006, the Government filed a notice of appeal.

II.

As an initial matter, we must satisfy ourselves that we have jurisdiction to hear the Government's appeal. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ("The requirement that jurisdiction be established as a threshold matter springs from the nature and limits of the judicial power of the United States and is inflexible and without exception." (internal quotation marks and alteration omitted)). The Government contends that the district court's order allowing the Civil Plaintiffs to intervene for the purposes of obtaining discovery is immediately appealable under the collateral order exception to 28 U.S.C.A. § 1291 (West 2006), and, alternatively, that a writ of mandamus would be appropriate in this instance. See 28 U.S.C.A. § 1651 (West 2006) (authorizing federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law"). Because none of the traditional concerns that often lurk throughout criminal appeals by the Government are present, and the Government's appeal is completely separate from and collateral to its underlying prosecution against Moussaoui, we agree that this case represents one of the exceedingly rare instances in which the collateral order doctrine should apply in the criminal context.

A.

The Government's right to appeal...