United States v. Hossain, 19-CR-606 (SHS)

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: SIDNEY H. STEIN, U.S. District Judge.
• Parties: UNITED STATES OF AMERICA, v. DELOWAR HOSSAIN, Defendant.
• Docket Number: 19-CR-606 (SHS)
• Decision Date: 23 November 2020

UNITED STATES OF AMERICA,
v.
DELOWAR HOSSAIN, Defendant.

19-CR-606 (SHS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

November 23, 2020

OPINION & ORDER

SIDNEY H. STEIN, U.S. District Judge.

Defendant Delowar Hossain moves to compel notice and discovery of "all surreptitious government surveillance that caused his electronic and telephonic communications with others to be recorded, monitored, or otherwise surveilled, and that revealed information about his financial transactions, online activities, and personal contacts, domestic and overseas." (Def.'s Mot. to Compel at 1, ECF No. 44.) For the reasons set forth below, the Court denies Hossain's motion to compel certain disclosures and for an ex parte conference pursuant to CIPA section 2, and request for an expedited section 3500 disclosure schedule.

I. BACKGROUND

In this action, the government alleges that Delowar Hossain attempted to provide material support and resources for terrorism in violation of 18 U.S.C. § 2339(A), by attempting to travel overseas to join the Taliban, and attempting to make a contribution of funds, goods, and services to the Taliban in violation of 50 U.S.C. § 1705(a) and 31 C.F.R. §§ 595.201, 595.204, 595.205, and 594.310. (Superseding Indictment ¶ 1-2, ECF No. 55.) After determining that this case involves classified information, the government sought a protective order from this Court pursuant to section 4 of the Classified Information Procedures Act ("CIPA"). (Gov't's Letter dated June 5, 2020, ECF No. 25.) On June 19, 2020, after considering the government's submission in camera and ex parte, the Court granted the protective order. (Order, ECF No. 26.)

Hossain subsequently filed a motion to compel, requesting that the government provide "any outstanding written or recorded communications attributable to Hossain in the government's attorneys' possession, custody, or control, or that the attorneys could know to exist through due diligence." (Def.'s Mot. to Compel at 1-2, ECF No. 44.) Hossain also contends that he has a "statutory and constitutional right to notice and discovery" of the classified surveillance techniques the government used to monitor his communications with others and urges the Court to compel the government to disclose

Page 2

"all surreptitious electronic surveillance it conducted of Hossain's third-party communications." (Def.'s Mot. to Compel at 2-3, ECF No. 44.) He seeks to identify all types of surveillance investigators used to develop evidence in this case in order to "examine . . . whether any of the government's evidence is derived from unlawful surveillance." (Id. at 16.) In the alternative, he requests the Court to hold an ex parte conference with the defense pursuant to CIPA section 2 to allow the defense to argue for reconsideration of the Court's June 19 protective order. (Id. at 3-4.) The government, in turn, contends that it has no duty to disclose the information Hossain seeks. See Gov't's Mem. in Opp'n, ECF No. 45.

II. DISCUSSION

A. Legal Standard

The government has a robust and well-established duty to disclose certain types of information to criminal defendants. Under Brady v. Maryland and its progeny, the government has a duty to disclose favorable evidence where "the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87 (1963). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985); see Strickler v. Greene, 527 U.S. 263, 281-82 (1999) ("The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State . . . and prejudice must have ensued."). The government's duty under Brady "covers not only exculpatory material, but also information that could be used to impeach a key government witness." United States v. Coppa, 267 F.3d 132, 135 (2d Cir. 2001) (citing Giglio v. United States, 405 U.S. 150, 154 (1972)).

The government's duty to disclose information under Rule 16 of the Federal Rules of Criminal Procedure extends to a broader range of information than that required by Brady. For instance, under Rule 16, "[u]pon a defendant's request, the government must disclose to the defendant . . . any relevant written or recorded statement by the defendant" as long as "the statement is within the government's possession, custody, or control; and the attorney for the government knows—or through due diligence could know—that the statement exists." Fed. R. Crim. P. 16(a)(1)(B). Similarly, the government "must permit the defendant to inspect and to copy or photograph" documents or data, among other objects, "if the item is within the government's possession, custody, or control" and the document or data is 1) "material to preparing the defense," 2) "the government intends to use the item in its case-in-chief at trial," or 3) "the item is obtained from or belongs to the defendant." Fed. R. Crim. P. 16(a)(1)(E).

Page 3

However, CIPA, which 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," limits a defendant's entitlement to discovery under Rule 16 in cases involving classified information. United States v. Mostafa, 992 F. Supp. 2d 335, 337 (S.D.N.Y. 2014) (quoting United States v. Pappas, 94 F.3d 795, 799 (2d Cir. 1996)). CIPA "presupposes a governmental privilege against disclosing classified information"—the "state-secrets privilege"—which authorizes the government to withhold classified information vital to national security unless "the evidence at issue is material to the defense." United States v. Aref, 533 F.3d 72, 78-79 (2d Cir. 2008) (emphasis omitted); see also United States v. Abu-Jihaad, 630 F.3d 102, 140 (2d Cir. 2010). Under CIPA's procedures, "[t]he court . . . may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure" upon submission of a "written statement to be inspected by the court alone." 18 U.S.C. app. 3 § 4. CIPA therefore "clarifies district courts' power under Federal Rule of Criminal Procedure 16(d)(1) to issue protective orders denying or restricting discovery for good cause . . . includ[ing] . . . information vital to the national security." Aref, 533 F.3d at 78.

In determining whether the government's state-secrets privilege "must give way" to a defendant's right to prepare his defense in a CIPA case, courts in this district apply the standard first enumerated in Roviaro v. United States, 353 U.S. 53, 61 (1957). In Roviaro, the U.S. Supreme Court held that the government's right to withhold an informant's identity requires "balancing the public interest in protecting the flow of information against the individual's right to prepare his defense." Id. at 62. The U.S. Court of Appeals for the Second Circuit has determined that in CIPA cases the district court should first determine whether the information at issue is discoverable, and if it is, the court should next determine whether "there is a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged" and whether "the privilege is lodged by the head of the department which has control over the matter, after actual personal consideration by that officer." Abu-Jihaad, 630 F.3d at 141 (quoting Aref, 533 F.3d at 80). Finally, the court should determine "whether the information is helpful or material to the defense, i.e., useful to counter the government's case or to bolster a defense." Id. (quoting United States v. Stewart, 590 F.3d 93, 131 (2d Cir. 2009)). "Only when information is relevant or helpful to the defense must the Court then take the third step of balancing the 'public interest in protecting the flow of information against the individual's right to prepare his defense.'" Mostafa, 992 F. Supp. 2d at 338 (quoting Roviaro, 353 U.S. at 62).

Page 4

B. Request for Disclosure of CIPA-protected Information

First, the Court rejects Hossain's challenge to the Court's ex parte consideration of the government's CIPA section 4 application. (Def.'s Mot. to Compel at 3, ECF No. 44.) That contention is baseless. CIPA explicitly authorizes courts to allow the government to "delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure" upon submission of a "written statement to be inspected by the court alone." 18 U.S.C. app. 3 § 4. As the Second Circuit has noted, allowing "an adversary hearing with defense knowledge would defeat the very purpose" of CIPA. Aref, 630 F.3d at 81. As such, the Second Circuit has held that "[b]oth CIPA section 4 and Rule 16(d)(1) authorize ex parte submissions." Id.

The Court also rejects Hossain's challenge to the Court's June 19 protective order. (Def.'s Mot. to Compel at 3, ECF No. 44.) On June 19, 2020, after considering the government's submission in camera, the Court first determined that the information the government sought to protect was classified. (Order at 1, ECF No. 26.) The Court then applied the three-part Roviaro test to determine whether Hossain was nevertheless entitled to disclosure of this classified information to assist him in preparing his defense. As explained in the Order, the Court found that 1) disclosure of the classified information described in the government's submission could reasonably be expected to cause serious damage to the national security, that 2) the head of the department which has control of the classified...