United States v. Mohammad, 3:15-cr-00358

Background

Four defendants (Yahya Farooq Mohammad, Ibrahim Zubair Mohammad, Asif Ahmed Salim, Sultane Roome Salim) were indicted on charges including providing material support to terrorists, conspiracy to commit bank fraud (against Farooq and Ibrahim), and conspiracy to obstruct justice.
Government filed a classified, sealed CIPA § 4 motion ex parte and in camera seeking permission to: delete specified classified material from discovery, substitute summaries of classified statements, and have the submission sealed and preserved for appellate review.
The motion was filed under seal with the Court’s Classified Information Security Officer; a public notice was filed.
Farooq objected, arguing cleared defense counsel should review the government’s § 4 submission and that ex parte review is disfavored; alternatively asked for at least legal arguments to be disclosed or an ex parte opportunity for defense to present information.
The Court reviewed the government’s classified submission in camera and ex parte, met separately with defense counsel to receive information, and concluded the contested classified material is not "relevant and helpful" to Farooq’s defense as presently understood.
The Court granted the Government’s motion: authorized deletion of specified classified information from discovery, allowed substitution of summaries for classified statements, and ordered the government’s § 4 submission sealed and preserved for appellate review; rulings subject to change if trial evidence use differs.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court may review the Government's CIPA § 4 submission ex parte and in camera	Government: CIPA § 4 and Fed. R. Crim. P. 16(d)(1) permit ex parte, in camera submission of classified materials for court inspection	Farooq: Ex parte review is disfavored; cleared defense counsel should review the submission or at least receive legal arguments	Court: Ex parte, in camera review permitted and appropriate; Rule 16 and CIPA explicitly authorize it
Whether cleared defense counsel must participate in the § 4 review	Government: Cleared counsel participation is not required by CIPA § 4	Farooq: Defense counsel with clearance should be allowed to review the submission	Court: Cleared counsel may not participate in the § 4 ex parte review; clearance matters only after court finds discoverability
Whether the classified material is "relevant and helpful" to Farooq's defense under CIPA § 4	Government: Certain classified items should be deleted or summarized because they are not discoverable or can be summarized	Farooq: Contends the Court is ill-equipped to act as surrogate counsel and the materials may be relevant/helpful	Court: After in camera review, the classified information at issue is not relevant and helpful to Farooq (subject to change if government’s trial use changes)
Whether the Government may delete classified items and substitute summaries in discovery	Government: Requests authorization to delete specified items and provide summaries/statements instead	Farooq: Opposes wholesale ex parte deletions without defense review	Court: Grants permission to delete specified classified information and to disclose summaries in lieu of classified material; submission sealed and preserved for appeal

Key Cases Cited

United States v. Hanna, 661 F.3d 271 (6th Cir.) (discusses CIPA § 4 ex parte, in camera review authority)
United States v. Smith, 899 F.2d 564 (6th Cir.) (addresses court inspection of government’s classified submission)
United States v. Amawi, 695 F.3d 457 (6th Cir.) (adopts "relevant and helpful" standard and explains court acts as standby counsel under CIPA § 4)
United States v. Yunis, 867 F.2d 617 (D.C. Cir.) (holds classified information not discoverable on mere theoretical relevance)
United States v. Mejia, 448 F.3d 436 (D.C. Cir.) (discusses protective options under CIPA § 4 and relation to Brady)
Brady v. Maryland, 373 U.S. 83 (explains favorable materiality standard contrasted with CIPA § 4’s broader "relevant and helpful" standard)