U.S. v. Yunis

• Decision Date: 30 January 1989
• Docket Number: No. 88-3160,88-3160
• Citation: 867 F.2d 617
• Parties: , 27 Fed. R. Evid. Serv. 792 UNITED STATES of America, Appellant, v. Fawaz YUNIS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 617

867 F.2d 617

276 U.S.App.D.C. 1, 27 Fed. R. Evid. Serv. 792

UNITED STATES of America, Appellant, v. Fawaz YUNIS.

No. 88-3160.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 9, 1989.

Decided Jan. 30, 1989.

John F. De Pue, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., J. Ramsey Johnson, Asst. U.S. Atty. and Jennifer Gold, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellant.

Francis D. Carter, Washington, D.C., (appointed by the court), for appellee.

Before SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

This is an interlocutory appeal by the United States seeking review of a District Court order releasing classified information under the Classified Information Procedures Act ("CIPA"), 18 U.S.C.App. Secs. 1-16 (1982). ¹ Section 7 of CIPA, 18 U.S.C.App. Sec. 7, provides for the instant interlocutory appeal. The order in question permits discovery of fourteen transcripts of taped conversations between an informant and the defendant/appellee, Fawaz Yunis, whose trial for crimes allegedly committed during an international hijacking is now pending. After reviewing the transcripts in camera, we hold that the contents of the transcripts were on the whole not relevant to the defendant's guilt or innocence and the few statements that were even marginally relevant were not sufficiently helpful or beneficial to the defense to overcome the classified information privilege. We conclude that the District Court abused its discretion in ordering the disclosure of the transcripts to the defense.

I. FACTUAL BACKGROUND

A. Incident, Investigation, Informant, and Apprehension.

Appellee Fawaz Yunis ("Yunis" or "appellee") is a Lebanese citizen awaiting trial for air piracy, ² conspiracy, ³ and hostage taking, ⁴ inter alia, arising out of the June 11, 1985, hijacking of Royal Jordanian Airlines flight number 402. ⁵ On that date, five armed men boarded the aircraft at Beirut International Airport, taking hostage the crew and approximately sixty passengers, including three Americans. The hijackers ordered the pilot to fly to Tunis. After Tunisian officials twice refused to permit the aircraft to land, the hijackers ordered the aircraft to Damascus, Syria, after brief stops in Cyprus and Sicily for food and fuel. When Syrian officials refused to permit the aircraft to land at Damascus, the hijackers ordered the aircraft to return to Beirut, more than thirty hours after its initial departure. In Beirut, the hijackers exited the aircraft and held a press conference. Yunis allegedly read a statement. The hijackers evacuated the crew and passengers, blew up the aircraft, and escaped into the Lebanese countryside.

Immediately after the hijacking, several United States agencies, led by the Federal Bureau of Investigation, sought to identify, locate and capture the hijackers. Government efforts after several months of investigation focused on Yunis as the probable ringleader of the five hijackers.

The FBI then recruited as a government informant Jamal Hamdan, a Lebanese acquaintance of Yunis. Over the next several months, Hamdan and Yunis met on many occasions. Conversations between the two were intercepted by some undisclosed law enforcement intelligence-gathering source or method. As old friends and in order for Hamdan to make Yunis feel relaxed, the two discussed many matters, most of which were completely unrelated to the hijacking or any other terrorist operation or criminal activity. Even the District Court characterized the transcripts of these conversations as something "interesting for an Ann Landers column or Dorothy Dixon [sic] or someone of that sort ... just pure trivia." Brief for Appellant at 10.

After the investigation had produced sufficient evidence, the FBI obtained a warrant for Yunis's arrest. Hamdan lured Yunis from Lebanon to international waters off the coast of Cyprus under the ruse of conducting a narcotics deal. On September 13, 1987, Hamdan and Yunis traveled on a small motor boat to a yacht manned by FBI agents who apprehended Yunis shortly after he boarded the yacht. From the yacht, they transferred Yunis to a United States Navy munitions ship, the U.S.S. Butte, which carried him to the aircraft carrier, the U.S.S. Saratoga. A military aircraft transported Yunis from the U.S.S. Saratoga to Andrews Air Force Base outside of Washington, D.C. He was subsequently arraigned in the United States District Court for the District of Columbia. On October 1, 1987, a District of Columbia grand jury returned a nine count superceding indictment for crimes arising out of the hijacking.

B. Discovery Proceedings and District Court Decision.

After arraignment, counsel for Yunis on November 10, 1987, filed several motions, including Defendant's Motion to Compel Discovery Under Rule 16 and for Production Under Brady v. Maryland. Joint Appendix ("J.A.") at 69. The motion requested, inter alia:

1. Documents generated by other federal agencies, to include military and intelligence organizations in connection with this case.... This is to include any foreign governments who assisted.

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12. Copies of all tapes or documentation of conversations between Jamal Hamdan and Mr. Yunis.

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22. Any and all information concerning any tapes or wire taps used in this case. The request includes, but is not limited to, any intercepted wire, oral or electronic communications, mobile tracking devices, pen registers and trap and trace devices. The breadth of the request covers past or present operations whether domestic (warrant required) or national security in nature and authorization.

J.A. at 70, 71 & 73 (emphasis added).

The United States filed an omnibus response to all of Yunis's motions. Government's Omnibus Response to Defendant's Pretrial Motions, J.A. at 78. This response argued that Yunis had failed "to explain the relevance of each portion of his broad request and ha[d] failed to state the provision of law which entitles him to discovery of each item." Id. at 79. In particular, the government argued that "a criminal defendant is not entitled to know everything that the government's investigation has unearthed if it is not used at trial." Id. at 80. Regarding Yunis's request for tapes or documentations of conversations between him and the informant, the government stated:

We have provided tapes and transcripts of the conversations between Hamdan and Yunis which will be offered in evidence.... [A] multi-agency search was initiated to locate other materials pertaining to surveillance of the defendant.... These will be the subject of an ex parte in camera submission to the [District] Court pursuant to Section 4 of CIPA and Rule 16(d) of the Federal Rules of Criminal Procedure.

Id. at 87. Simultaneously the government filed a motion for a pretrial conference under Section 2 of CIPA to consider matters relating to classified information. Government's Motion for Pretrial Conference Pursuant to the Classified Information Procedures Act. J.A. at 90. ⁶

Pursuant to Section 4 of CIPA and Federal Rule of Criminal Procedure 16(d), on

December 28, 1987, the government filed the first of several ex parte in camera pleadings. These pleadings, filed over the next ten months, argued that disclosure of the transcripts would harm national security. The first ex parte in camera pleading included a declaration from a senior government official describing the national security implications of complying with Yunis's broad discovery request, particularly the risk of disclosing intelligence sources and methods.

On January 25, 1988, the District Court ordered the government to furnish an index and summary of the contents of all the recordings of the conversations between Hamdan and Yunis which had not already been furnished to Yunis. Pretrial Memorandum Order No. 2, United States v. Yunis, Criminal No. 87-0377 (D.D.C. Jan. 25, 1988) (J.A. at 237, 241-42). In an ex parte in camera filing, the government furnished the Court the indices of all the transcripts on February 1 and supplied eight of the transcripts on February 3. The government also submitted the declarations of two more senior government officials explaining the national security implications that would likely result from disclosure. On June 6, the government filed yet another declaration from a government official discussing the national security implications of compliance with Yunis's discovery motion.

Unsatisfied with the government's ex parte in camera filings regarding the risk to national security of disclosure, the District Court ordered the government to provide defendant's counsel with, inter alia, "[a]ll audio and video tapes and/or transcripts of conversations between defendant and Jamal Hamdan." Order, United States v. Yunis, Criminal No. 87-0377 (D.D.C. July 18, 1988) (J.A. at 266). ⁷

The government immediately moved for reconsideration. At an ex parte in camera hearing the next day, July 19, a government attorney outlined in detail the specific damage to both national defense and foreign affairs if the government was ordered to release this information.

After further ex parte in camera proceedings, on September 27, 1988, the District Court ordered the government, "after appropriate redactions of all sensitive and classified national security matters and information," to deliver to defense counsel, inter alia,

[a]n English translation of all taped conversations between defendant and the witness Jamal Hamdan, including all conversations taped and recorded by Jamal Hamdan and translation of any other taped and recorded conversations between the two which Jamal Hamdan has had knowledge of and has been shown.

Pretrial Memorandum Order No. 6, United States v. Yunis, Criminal No. 87-0377 at 11 (D.D.C. Sept. 27, 1988) (J.A. at 269, 278-79).

In ruling on Yunis's request for discovery and the...