U.S. v. Pappas

• Decision Date: 03 September 1996
• Docket Number: D,No. 2097,2097
• Citation: 94 F.3d 795
• Parties: UNITED STATES of America, Appellee, v. Dennis PAPPAS, Defendant-Appellant. ocket 96-1190.
• Court: U.S. Court of Appeals — Second Circuit

Page 795

94 F.3d 795

UNITED STATES of America, Appellee, v. Dennis PAPPAS, Defendant-Appellant.

No. 2097, Docket 96-1190.

United States Court of Appeals, Second Circuit.

Argued June 7, 1996.

Decided Sept. 3, 1996.

Ronald L. Kuby, New York City (Daniel M. Perez, Eve S. Rosahn, Kunstler and Kuby, New York City, on the brief), for defendant-appellant.

Barbara Underwood, Asst. U.S. Atty., Brooklyn, NY (Zachary W. Carter, U.S. Atty., Burton Ryan, Asst. U.S. Atty., Brooklyn, NY, on the brief), for appellee.

Before: NEWMAN, Chief Judge, JACOBS, Circuit Judge, and CHATIGNY, ^* District Judge.

JON O. NEWMAN, Chief Judge:

This appeal requires consideration of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3 (1994), which has infrequently been before the courts. Dennis J. Pappas appeals from the March 5, 1996, order of the District Court for the Eastern District of New York (Thomas C. Platt, Jr., Judge) imposing restrictions upon him and his defense counsel with respect to disclosure of classified information. The order was issued in the course of a pending criminal prosecution of Pappas. We conclude that part of the March 5 order is not appealable, but that the part prohibiting disclosure of information acquired prior to the litigation is appealable. We also conclude that CIPA does not apply to such previously acquired information, but that disclosure might nonetheless be prohibited under ordinary principles of contract law. We therefore dismiss in part, and remand for consideration of the contract issues.

Background

Our presentation of the background of the pending dispute must necessarily be somewhat elliptical since the information the Government seeks to restrict relates to matters of national security. The record and the parties' briefs and appendices have been submitted to the Court under seal and in conformity with applicable regulations governing cases involving classified information. See Security Procedures Established Pursuant to Pub.L. 96-456, 94 Stat.2025 by the Chief Justice of the United States for the Protection of Classified Information, 18 U.S.C.A. app. 3, note (West 1985). We discuss only such facts and allegations as were aired by the parties during oral argument, which was held in open court.

Pappas and his wife are defendants in a criminal case pending in the District Court. Before being indicted, Pappas claimed that his prior activities on behalf of the Government entitled him at least to some favorable consideration, and since the indictment he has sought dismissal because of his prior activities. In response to the defendant's filing of notice of intent to reveal classified information, the Government, invoking CIPA, sought and obtained, ex parte and in camera, a protective order on January 4, 1996. The January 4 order establishes procedures to maintain the confidentiality of classified information and to permit defense counsel to have access to such information, subject to appropriate security clearances. It applies generally to classified information, without distinction as to whether the information was known to Pappas prior to the initiation of the criminal case or was disclosed to him in connection with the case.

Thereafter, Pappas met with reporters at the Metropolitan Correctional Center, and a New York City newspaper published two stories describing what was alleged to be Pappas's activities with the Government. On March 5, the District Court issued a supplemental protective order, which is the subject of the pending appeal. The March 5 order requires Pappas and his counsel to maintain the confidentiality of classified material "received or obtained by the defense whether before or after this order from any agent of the United States in connection with Dennis J. Pappas' alleged participation with any agency in question herein." The March 5 order also unseals some documents previously sealed and requires other documents to be sealed.

Discussion

Pappas's appeal challenges the March 5 protective order primarily on the ground that it prohibits his public disclosure, by "comment, confirmation or denial," of any classified information covered by the order. He particularly objects to the disclosure prohibition to the extent that it prevents him from making public comment on matters already disclosed in a local newspaper. He also challenges the March 5 order's requirement that certain documents be sealed.

I. Appealability

At the outset, we encounter the Government's contention that the March 5 protective order is not subject to an interlocutory appeal. The Government contends that the order is not "final" within the meaning of 28 U.S.C. § 1291, since it is explicitly subject to further CIPA procedures. The Government also deems the order not appealable as an injunction under 28 U.S.C. § 1292(a)(1) on the theory that CIPA, by explicitly permitting a Government appeal of a denial of protective order, 18 U.S.C. app. 3, § 7, impliedly "withholds" an appeal by the defendant from the granting of such an order. Appellant responds that we have entertained an appeal from a protective order barring discussion of a case, see United States v. Salameh, 992 F.2d 445 (2d Cir.1993), and have indicated that such orders are subject to some form of appellate consideration, see United States v. Cutler, 58 F.3d 825, 832-33 (2d Cir.1995); In re Dow Jones & Co., 842 F.2d 603, 609 (2d Cir.), cert. denied, 488 U.S. 946, 109 S.Ct. 377, 102 L.Ed.2d 365 (1988). The Government replies that Salameh involved an order so clearly beyond constitutional limits as to be subject to mandamus under 28 U.S.C. § 1651.

Salameh did not discuss appealability, though it adjudicated what the enjoined party styled an "appeal," Salameh, 992 F.2d at 446, and the Court gave no indication that the appeal was being treated as a mandamus. Nevertheless, we doubt that Salameh intended to authorize an appeal of a protective order that does not contain the sweeping restraint at issue in that case. Protective orders that only regulate materials exchanged between the parties incident to litigation, like most discovery orders, are neither final orders, appealable under 28 U.S.C. § 1291, see Chase Manhattan Bank, N.A. v. Turner & Newall, PLC, 964 F.2d 159, 162-63 (2d Cir.1992); SEC v. Sloan, 535 F.2d 679, 681 (2d Cir.1976), nor injunctions, appealable under 28 U.S.C. § 1292(a)(1). See Taylor v. Board of Education, 288 F.2d 600, 604 (2d Cir.) ("[N]ot every order containing words of restraint is a negative injunction within 28 U.S.C. § 1292(a)(1).") (citations omitted), cert. denied, 368 U.S. 940, 82 S.Ct. 382, 7 L.Ed.2d 339 (1961). In rare instances, they might raise issues available for review via a petition for mandamus. See In re Steinhardt Partners, L.P., 9 F.3d 230, 233 (2d Cir.1993); Chase Manhattan, 964 F.2d at 163-64.

To the extent that the March 5 order imposed restrictions on the parties' disclosure of materials exchanged in the course of the pending litigation, it is not subject to appeal. However, to the extent that the order prohibits Pappas from disclosure of information he acquired from the Government prior to the litigation, the order is not a typical protective order regulating discovery documents and should be appealable because of the breadth of its restraint. See Salameh, 992 F.2d at 446-47. The Government's contention that CIPA "withholds" appellate jurisdiction is unavailing. CIPA does not deny any appellate jurisdiction that otherwise exists. It simply extends to the Government, but not to the defendant, the opportunity for an interlocutory appeal of protective orders in circumstances where an appeal would not otherwise exist. 18 U.S.C. app. 3, § 7.

II. The Merits

The issue available for appeal is whether the March 5 order may validly prohibit Pappas from disclosing classified information received from the Government prior to this litigation. Since the order is grounded on CIPA, we consider that source of authority first.

A. CIPA Prohibition on Disclosure

CIPA "was designed to establish procedures to harmonize a defendant's right to obtain and present exculpatory material upon his trial and the government's right to protect classified material in the national interest." United States v. Wilson, 571 F.Supp. 1422, 1426 (S.D.N.Y.1983) (Weinfeld, J.). It sought to "minimize the problem of so-called graymail--a threat by the defendant to disclose classified information in the course of trial--by requiring a ruling on the admissibility of the classified information before trial." S.Rep. No. 823, 96th Cong., 2d Sess. 2, reprinted in 1980 U.S.S.C.A.N. 4294, 4295 ("Senate Report "); see United States v. Wilson, 721 F.2d 967, 975 (4th Cir.1983).

The risk of graymail can arise in various circumstances. Sometimes in pretrial discovery proceedings the "defendants and their counsel ... press for the release of sensitive classified information the threatened disclosure of which might force the government to drop the prosecution." Senate Report at 3, reprinted in 1980 U.S.S.C.A.N. at 4296 (statement of Asst. Att'y Gen. Heymann). ¹ In other circumstances, "the government expects to disclose some classified items in presenting its case." Id. at 4, reprinted in 1980 U.S.S.C.A.N. at 4297 (statement of Asst. Att'y Gen. Heymann). In still other circumstances, the defendant has acquired classified information prior to the Government's initiation of a criminal prosecution, and the defendant can be expected to disclose such information in the course of presenting a defense, either at the pretrial or trial stage of the case. The information sought to be protected from disclosure in the pending case is in this third category.

CIPA establishes several procedures to minimize the risk of graymail and to adjust the competing interests of the Government in maintaining its secrets and of the defendant in mounting an effective defense. Several of these procedures are pertinent to the issues arising on this appeal. Section 5...