United States v. Kotey

• Citation: 545 F.Supp.3d 331
• Decision Date: 28 June 2021
• Docket Number: Criminal Case No. 1:20-cr-239
• Parties: UNITED STATES of America v. Alexanda Amon KOTEY, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

545 F.Supp.3d 331

UNITED STATES of America

v.Alexanda Amon KOTEY, Defendant.

Criminal Case No. 1:20-cr-239

United States District Court, E.D. Virginia, Alexandria Division.

Signed June 28, 2021

Aidan T. Grano, US Attorney, John T. Gibbs, US Attorney, Raj Parekh, US Attorney, Dennis Fitzpatrick, US Attorney, Alicia H. Cook, United States Attorney's Office, Alexandria, VA, for United States of America.

Barry Coburn, Marc Jason Eisenstein, Coburn & Greenbaum PLLC, Washington, DC, Brooke Sealy Rupert, Public Defender, Kenneth P. Troccoli, Public Defender, Office of the Federal Public Defender, Alexandria, VA, for Defendant.

ORDER

T. S. Ellis, III, District Judge

Defendants Alexanda Amon Kotey and El Shafee Elsheikh are charged with:

i) one count of conspiracy to commit hostage taking resulting in death, in violation of 18 U.S.C. § 1203,

ii) four counts of hostage taking resulting in death, in violation of 18 U.S.C. § 1203 and 2,

iii) one count of conspiracy to murder United States citizens outside of the United States, in violation of 18 U.S.C. § 2332(b)(2),

iv) one count of conspiracy to provide material support to terrorists, in violation of 18 U.S.C. § 2339A, and v) one count of conspiracy to provide material support to a designated foreign terrorist organization resulting in death, in violation of 18 U.S.C. § 2339B.

Because discovery in this case includes classified materials, that portion of discovery is governed by the Classified Information Procedures Act ("CIPA") § 4, which provides:

The court, upon a sufficient showing, 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, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

18 U.S.C. app. 3, § 4.¹

At issue now is Defendant Alexanda Amon Kotey's motion, by counsel, in opposition to the Court proceeding ex parte on the government's CIPA § 4 filing.

I.

The question presented by defendant's motion is whether CIPA § 4 and Rule 16, Fed. R. Crim. P., permit the Court to proceed ex parte in determining whether certain classified material is discoverable and whether portions of the classified material may be deleted, substituted, or summarized by the government. At least three circuit courts have addressed this question, and each circuit court has persuasively rejected the argument raised by defendant.²

A.

In United States v. Al-Farekh , the Second Circuit rejected the contention forwarded by defendant that when defense counsel has an appropriate security clearance a court may not adjudicate CIPA § 4 proceedings ex parte. 956 F.3d 99, 107 (2d Cir. 2020). In so holding, the Second Circuit first noted that "notwithstanding the rarity of ex parte proceedings in criminal matters, there can be no question that a district court's ex parte, in camera adjudication of CIPA motions falls squarely within the authority granted by Congress." Id. Importantly, the Second Circuit found that "[n]othing in the text of § 4 limits the District Court's authority to review classified information ex parte only where defense counsel lacks a security clearance." Id.

The Second Circuit went on to note that CIPA § 4 "makes clear" that it is the district court that decides "in the first instance" whether the classified information is discoverable. Id. Additionally, the Second Circuit found that both the plain text of § 4 and CIPA's structure supported this conclusion. To begin with, CIPA § 6 demonstrates that Congress knew exactly how "to provide for the participation of defendants in certain in camera proceedings." Id. Because § 4 contained no such provision, Congress’ intent is clear. Moreover, as the Second Circuit emphasized "[i]f a defendant's counsel was required to participate in a § 4 proceeding and be provided access to classified information ... the alternative relief authorized in these provisions would be rendered insignificant, if not meaningless." Id. at 107-108.

In conclusion, the Second Circuit held that:

[B]ecause it may well be that the information in a § 4 motion is not discoverable at all, [the defendant's] theory would permit a defendant represented by counsel with a security clearance to gain access to classified information that would otherwise be unavailable to the defendant. That possibility could result in the improper disclosure of information that, by its very nature, may put the national security of the United States at risk.

Id. at 108.

Interestingly, the Second Circuit also approvingly noted that the district court in that case "met ex parte with defense counsel so that counsel could present [the defendant's] theory of the case and his potential defenses." Id. at 109. As the District Court for the District of Columbia stated when confronting the same issue, such a procedure allowed the court to "be in a more informed position to determine whether the government's proposed redactions or substitutions for a particular document adequately provide the defendant with what he needs to pursue his defense." United States v. Libby . 429 F. Supp. 2d 18, 25 (D.D.C.), amended on reconsideration , 429 F. Supp. 2d 46 (D.D.C. 2006).³

B.

The Sixth Circuit considered a similar question in United States v. Asgari . 940 F.3d 188, 189 (6th Cir. 2019). In Asgari , the government filed a CIPA § 4 motion seeking to withhold irrelevant classified information. The district court initially granted the motion but reconsidered its decision after learning that defense counsel possessed a top-secret security clearance. Id. Having reconsidered the matter, the district court ordered the government to disclose to defense counsel the classified material it had previously declared irrelevant. On appeal, the Sixth Circuit reversed, concluding that "the existence of a security clearance by itself does not change the equation or offer a legitimate basis for changing course, and above all it does not alter the directive of the Act that the district court make these decisions on an ex parte basis." Id. at 191.

Importantly, the Sixth Circuit held that "[n]othing in § 4 suggests that defense counsel has a role to play when the district court assesses the relevance or helpfulness of the classified information. Just the opposite. The statute refers to the district court's assessment of these factors through an ex parte hearing (‘a written statement to be inspected by the court alone’) that occurs without the defendant's knowledge (‘If the court [grants relief] following such an ex parte showing, the entire text of the statement of the United States shall be sealed.’)." Id. at 192 (quoting 18 U.S.C. app. 3 § 4 ). Asgari also explained that CIPA § 4 "vests the district court, a confidential arbiter, with responsibility to evaluate the information's relevance[,]" and "[d]efense counsel's security clearance becomes relevant if and only if the court determines the material should be disclosed." Id. at 191.

C.

The Ninth Circuit considered a similar question in United States v. Klimavicius-Viloria . 144 F.3d 1249 (9th Cir. 1998). In Klimavicius-Viloria , the defendants conceded that the district court could conduct ex parte, in camera review of written material, but argued that CIPA § 4 did not permit ex parte hearings. See id. at 1261. On appeal, the Ninth Circuit disagreed, holding that although "[e]x parte hearings are generally disfavored ... ex parte, in camera hearings in which government counsel participates to the exclusion of defense counsel are part of the process that the district court may use in order to decide the relevancy of the information. Such a hearing is appropriate if the court has questions about the confidential nature of the information or its relevancy." Id. (citation removed) (citing United States v. Yunis , 867 F.2d 617, 620 (D.C. Cir. 1989) ). Therefore, the Ninth Circuit held that the district court had not erred in holding the hearings ex parte.

II.

The principles persuasively elucidated by the circuit courts above, applied here, point convincingly to the conclusion that the CIPA § 4 proceedings in this case should be held ex parte.⁴

To begin with, the plain language of CIPA reveals that the statute unmistakably contemplates ex parte consideration of the government's CIPA § 4 briefing. See 18 U.S.C. app. 3, § 4 ("The court may permit the United States to [request deletions, substitutions, or summaries] in the form of a written statement to be inspected by the court alone. ") (emphasis added). In this way, CIPA § 4 confirms the district court's power under Rule 16(d)(1), Fed. R. Crim. P., "to issue protective orders denying or restricting discovery for good cause, which includes information vital to the national security." United States v. Abu-Jihaad , 630 F.3d 102, 140 (2d Cir. 2010) (quoting United States v. Stewart , 590 F.3d 93 (2d Cir. 2009) ).⁵ Therefore, CIPA § 4 plainly permits district courts to consider ex parte motions by the government to delete, substitute, or summarize portions of classified material.

Moreover, it is clear that the CIPA § 4 proceedings in this case should proceed ex parte. The government has provided ample support for the conclusion that failing to proceed ex parte in this case would harm national security. And although defense counsel's security clearances mitigate the danger of allowing defense counsel access to the classified material, two factors nonetheless counsel against granting...