United States v. Mascheroni

UNITED STATES OF AMERICA, Plaintiff,

v. PEDRO LEONARDO MASCHERONI, also known as "Luke",and MARJORIE ROXBY MASCHERONI, Defendants.

No. CR 10-2626 BB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Dated: February 9, 2012

MEMORANDUM OPINION

This matter comes before the Court for consideration of Plaintiff's ("the Government") motion requesting entry of a protective order. [Doc. 171] The Court has considered the submissions of the parties and the applicable law, and will enter such a protective order in substantially the form proposed by the Government, as discussed below.

Background

Defendants have been indicted on a number of charges alleging they communicated classified information and conspired to communicate such information, in connection with a conspiracy to participate in the development of an atomic weapon. The case has been pending since September 16, 2010. At the outset of the case, the Government seized 200 boxes of documents from Defendants, containing 276,000 pages of documents. The Government also seized electronic data totaling 5.8 terabytes. In order to fulfill discovery obligations, the Government wishes to give Defendants access to the documents and other data, but is unwilling to do so in the absence of a protective order intended to prevent the inadvertent or advertentdisclosure of classified information allegedly contained in the materials seized from Defendants. The Government has proposed such a protective order ("P.O."), to which Defendants strongly object.

Under the P.O. all of the material seized from Defendants would be treated as potentially classified information, requiring Defendants to deal with it as such.¹ Defendants would not be allowed to use the information in pleadings or place it before the public in any other way, until the information has been submitted for a classification review to a Classified Information Security Officer ("CISO") designated by the Court. Following the classification review, information deemed unclassified would cease to be treated as classified, while information deemed classified would remain subject to the P.O. In sum, the P.O. would require Defendants to examine the provided discovery materials to decide what is useful or relevant, and request a determination from the CISO (by filing a sealed pleading or otherwise) as to the classified status of particular documents or other information. Only after receiving a decision would Defendants' pleadings be unsealed in part or in whole, or would Defendants be allowed to publicly disseminate the information in any way. Significantly, information and material that Defendants do not receive from the Government, but glean from public-domain sources or create themselves, would also be subject to the P.O.

Defendants object to the broad coverage of the P.O. and instead ask the Court to require the Government to first perform a classification review of all the material seized from them. TheGovernment would be required to designate any of the material that is considered classified information, and only material so designated would be subject to the P.O. In addition, any information Defendants obtained from public-domain sources would be presumed to be unclassified. As discussed below, Defendants' proposal would result in an enormous waste of governmental time and resources, requiring a review of vast amounts of data that Defendants may have no intention of using as part of their defense to the charges they face, and would serve little ascertainable purpose other than to delay this case for an indefinite period of time. Furthermore, contrary to Defendants' many arguments, entry of the proposed P.O. will not cause any violation of Defendants' constitutional rights or principles of fairness. Finally, Defendants' proposal would create a real risk that classified information would be inadvertently disclosed to the public. For the reasons discussed below, the Court has authority to adopt the P.O. proposed by the Government, and will do so with a few modifications.

Court's Authority to Enter Protective Order

This case is subject to the provisions of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3 §§ 1-16. Many opinions have discussed the purposes and procedures of CIPA generally, and the Court need not repeat that discussion here. See, e.g., United States v. Lee, 90 F.Supp.2d 1324, 1325-26 (D. N.M. 2000). For purposes of this opinion, the primary relevant CIPA provision is Section 3, which requires the Court, pursuant to motion by the Government, to enter a protective order preventing disclosure of any classified information "disclosed by the United States to any defendant in any criminal case..." Defendants seize on this phrase and argue that a P.O. issued under CIPA Section 3 only applies fully to information the Government has already determined to be classified and has provided to Defendants in connection with this criminal case. They contend CIPA does not impact information that may ormay not be classified, which they already possessed prior to this case, or to possibly-classified information they may find in the public domain or otherwise develop on their own. It is true that Section 3 of CIPA may not fully cover all the types of information potentially involved in this case, and may not grant the Court authority to require the parties to provisionally treat all the information as classified pending a review by the CISO. See, e.g., United States v. Pappas, 94 F.3d 795, 801 (2d Cir. 1996) (CIPA protective order can only prevent disclosure of Defendant's previously-obtained classified information "in connection with trial" and not outside litigation); cf. United States v. El-Mezain, 664 F.3d 467, 519-20 (5th Cir. 2011) (CIPA is concerned with court's power to control discovery; implication is CIPA's reach is limited to pendency of a case). However, several other potential sources of power provide ample authority for the Court's action in this case.

First, as in the Pappas case, there appear to be enforceable contractual relationships involved here that require protection of classified information, whether or not a certain document has officially been subjected to a classification review. See 94 F.3d at 801-02; see also Snepp v. United States, 444 U.S. 507, 507-08 (1980) (discussing contractual relationship between CIA employee and government, which survived termination of employment); United States v. Chalmers, 2007 WL 591948 (S.D. N.Y. 2007, unpublished) (confidentiality agreement can provide protection against disclosure that CIPA does not). Defense counsel all have been granted security clearances or are in the process of obtaining them, and Defendants themselves formerly possessed such clearances. These clearances include a non-disclosure agreement between the United States and the recipient, obligating the recipient in perpetuity to refrain from disclosing classified information unless such disclosure is authorized. [Doc. 195, Exh. 3] Thenon-disclosure agreement applies to all forms of classified information obtained by Defendants or their counsel, not simply information that has already been reviewed by the Government.

In addition, the discovery rules applicable to criminal cases grant the Court broad discretion to enter protective orders of the type proposed here. Fed.R.Crim.P., Rule 16(d)(1) ("At any time the court may, for good cause, ... grant other appropriate relief."). This rule acts in conjunction with CIPA to allow the Court to control the public dissemination of information provided to or obtained by any party during discovery. See, e.g., United States v. Aref, 533 F.3d 72, 78-79 (2d Cir. 2008). It allows the Court to enforce the common-law privilege, held by the Government, against disclosure of state secrets. See id.; see also United States v. Hanjuan Jin, 791 F.Supp.2d 612, 618 (N.D. Ill. 2011). A court may require that CIPA material be not only theoretically relevant but also actually helpful to the defense, before requiring production. See United States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989). Similar logic prevails here.

The Court also has inherent authority to fill in any holes that might possibly remain after application of CIPA, the rules of discovery, and the common-law privilege regarding state secrets. For example, trial courts have the power, under appropriate circumstances, to preclude parties and counsel from making any extrajudicial statements concerning a pending case, in order to preserve a defendant's and the public's right to a fair trial free from prejudicial publicity. See, e.g., United States v. Tijerina, 412 F.2d 661, 666 (10th Cir. 1969); see also Sheppard v. Maxwell, 384 U.S. 333, 361 (1966) (control of sources of prejudicial news items is "concededly within the court's power" and the trial court "might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters."); United States v. Brown, 218 F.3d 415, 423-24 (5th Cir. 2000) (trial courts have a constitutional duty to minimize the effects of prejudicial pretrial publicity, for the benefitof both the defendants and the public). Similarly, a trial court certainly has the power to protect the interests of national security by imposing reasonable restrictions on all parties' use of potentially classified information, particularly information related to atomic weapons, in order to prevent harmful dissemination of such information to the public. The public's interest in preserving national security is at least as great as the public's interest in a fair trial. See United States v. Lee, supra, 90 F.Supp.2d at 1328 (observing it is obvious that no governmental interest is more compelling than the security of the nation).

Information Covered by Protective Order

According to the Government, there is a mixture of materials in the documents and electronic data seized from Defendants. Some documents are marked "Secret" while...