United States v. Hossain

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

No. 19-CR-606 (SHS)

United States District Court, S.D. New York

September 21, 2021

OPINION & ORDER

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

In this action, the government alleges that defendant Delowar Hossain attempted to provide material support or resources for terrorism and attempted to make a contribution of funds goods, and services to the Taliban in violation of 18 U.S.C § 2339(A), 50 U.S.C. § 1705(a), and 31 C.F.R §§ 594.201, 594.204, 594.205, and 594.310. (Superseding Indictment ¶¶ 1-2, ECF No. 55.) After determining that this action involved classified information the government sought a protective order from this Court pursuant to section 4 of the Classified Information Procedures Act ("CIPA"). (Letter from the Gov't dated June 5, 2020, ECF No. 25.) CIPA section 4 permits the Court to "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. On June 19, 2020, after considering the government's submission in camera and ex parte, the Court granted a protective order. (Order, ECF No. 26.)

In February 2021, the government sought additional protective measures for the classified information involved in this case pursuant to a different provision of CIPA-CIPA section 6. (See Gov't's Mot., ECF No. 81.) CIPA section 6 provides that "the United States may request the court to conduct a hearing to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding." 18 U.S.C. app. 3 § 6(a). Any such hearing "shall be held in camera if the Attorney General certifies to the court in such petition that a public proceeding may result in the disclosure of classified information." Id. Pursuant to the Attorney General's certification that a public proceeding might result in the disclosure of classified information, the Court held a CIPA section 6 hearing in camera, with both the government and defense counsel in attendance, on September 13, 2021. For the foregoing reasons, the government's requested protective measures are granted in full.

I. Discussion

A. Factual Background

As charged in the Superseding Indictment, defendant Delowar Hossain attempted to travel outside the United States for the purpose of joining the Taliban, a terrorist group, and to kill United States nationals located overseas. (Superseding Indictment ¶ 1, ECF No. 55.) The government avers that the bulk of the evidence it intends to introduce at trial consists of communications between the defendant and two confidential human sources-CHS-1 and CHS-2 (the "CHSs") - "during which the defendant described in detail his plan to travel to Afghanistan, join the Taliban, and fight against American soldiers as part of the defendant's self-professed plan of jihad." (Gov't's Opp'n to Def/s Mot. to Compel at 3, 19, ECF No. 45; Compl ¶ 3, ECF No. 1.) At trial, the government intends to call the CHSs to testify in detail about their meetings and conversations with Hossain. (See, e.g., Gov't's Mot. at 44, ECF No. 80.)

Because the government believes that certain security measures are necessary to protect the identities of the CHSs and the disclosure of classified information, the government has moved this Court for certain protective measures to be implemented at trial, including limited courtroom closures and limitations on cross-examination. The requested measures the government seeks are as follows:

1. During the testimony of the CHSs, only the Court, essential courtroom personnel, the defendant, the defendant's counsel, the defendant's close family, the Government's trial team, and one member of the district's press pool are permitted to be present in the courtroom;

2. This partial closure of the courtroom shall be tailored as follows: (a) a live audio broadcast of the CHSs' testimony shall be made available to the public at another location in the courthouse; (b) transcripts of the CHSs' testimony shall be made publicly available as soon as feasible after their testimony; and (c) the public docket shall be updated promptly to reflect the disposition of this motion seeking a partial courtroom closure, including the fact that, during the testimony of the CHSs, the measures set forth above will be implemented;

3. Public disclosure of the identities of the CHSs in connection with the trial of this matter is prohibited;

4. Public disclosure of the identity of an undercover officer of the New York City Police Department (the "UC") who participated in the investigation of the defendant is prohibited;^[1]

5. The CHSs are permitted to testify using only the first names by which they were known to the defendant during the investigation of this case;

6. The CHSs are permitted to enter and exit the courthouse and courtroom through nonpublic entrances on the dates of their testimony, and the courthouse staff and U.S. Marshals Service shall assist the Government to make the necessary arrangements for the use of such non-public entrances by the CHSs;

7. Any videos, photographs, or other images of the CHSs that are shown in open court, or otherwise made available to the public, shall be altered to pixelate or otherwise obscure their faces (this measure shall not apply to materials viewed only by the Court, essential courtroom personnel, the jury, the defendant, his counsel and close family, and the Government's trial team);

8. The use of all non-official recording and photographic devices and methods, including sketching, is prohibited during the CHSs' testimony;

9. The defense shall not elicit at trial, during cross-examination of the CHSs, or otherwise, personal identifying information relating to the CHSs or the UC;

10. The defense shall not elicit at trial, during cross-examination of the CHSs, or otherwise, information about the CHSs' participation in other investigations or undercover activities unrelated to the defendant;

11. The defense shall not elicit at trial, during cross-examination of the CHSs, or otherwise, information relating to operational aspects of the means and methods used by law enforcement to record and capture the defendant's communications, such as the installation, placement, location, and concealment of recording devices, and the technology used to capture the defendant's electronic communications; and

12. The defense shall not elicit at trial, during cross-examination of the CHSs, or otherwise, information relating to any classified training received by the CHSs.

(See Gov't's Mot, ECF No. 81-1.)

Hossain does not oppose measure number 5 (CHSs can testify using only first names), 6 (CHSs can use non-public entrances and exits to the courthouse and courtroom), and 9 (the defense shall not elicit personal identifying information relating to the CHSs or the UC).^[2] The Court therefore grants the government's request for those protective measures. Hossain opposes the remaining measures on the grounds that the proposed closure measures are unnecessary to protect the identities of the confidential sources and the integrity of any investigations.

The Court addresses the government's remaining requests for protective measures in two distinct categories: proposed courtroom closures-those designed to protect the identities of the CHSs-and proposed limits on cross-examination-those designed to prevent the unauthorized disclosure of classified information.

A. The Government's Request for Courtroom Closures

The government seeks to partially close the courtroom during the testimony of the CHSs. Specifically, the government seeks to prohibit persons other than the Court, essential courtroom personnel, the defendant, the defendant's counsel, the defendant's close family, the Government's trial team, and one member of the district's press pool from being present in the courtroom while the CHSs are testifying. (Gov't's Mot. at 2-3, ECF No. 81-1.) The government suggests that the partial closure of the courtroom be tailored as follows: (a) a live audio broadcast of the CHSs' testimony shall be made available to the public at another location in the courthouse; (b) transcripts of the CHSs' testimony shall be made publicly available as soon as feasible after their testimony; and (c) the public docket shall be updated promptly to reflect that if this motion is granted, the measures set forth above will be implemented. (Id. at 3.)

The government also seeks to prevent public disclosure of the identities of the CHSs in connection with the trial, public disclosure of any videos, photographs, or other images of the CHSs unless those materials are altered to pixelate or otherwise obscure their faces, ^[3] and to prevent the use of all non-official recording and photographic devices and methods, including sketching, during the CHSs' testimony. (Id. at 4.)

Members of the public and the press "have a qualified First Amendment right to attend a criminal trial." Waller v. Georgia, 467 U.S. 39, 44 (1984). Ordinarily, there is a "presumption of openness." Press-Enterprise Co. v. Superior Court of California, Riverside Cnty., 464 U.S. 501, 510 (1984). "The Sixth Amendment, in turn gives a defendant a right to a public trial." United States v. Alimehmeti, 284 F.Supp.3d 477, 485 (S.D.N.Y. 2018) (citation omitted). Therefore, "[t]he power to close a courtroom where proceedings are being conducted during the course of a criminal prosecution ... is one to be very seldom exercised, and even then only with the greatest caution, under urgent circumstances, and for very clear and apparent...