940 F.3d 188
6th Cir.2019Background
- Sirous Asgari, an Iranian scientist charged with theft of trade secrets and related offenses, faced criminal trial; the government sought to withhold classified materials from defense counsel under the Classified Information Procedures Act (CIPA).
- The district court conducted an ex parte §4 review of the classified materials, found the government’s secrecy claim colorable, and concluded the materials were not "relevant and helpful," permitting withholding.
- Asgari moved to reconsider after revealing his lead counsel held a Top Secret/SCI security clearance and argued counsel should receive the materials under common-law principles.
- On reconsideration the district court ordered disclosure of the previously withheld classified material to defense counsel; the government appealed immediately under CIPA §7 and obtained a stay.
- The Sixth Circuit held it had jurisdiction to hear the interlocutory appeal under §7, but concluded the district court erred in ordering disclosure based solely on counsel’s clearance and reversed.
Issues
| Issue | Asgari's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether an order giving classified information to defense counsel is an appealable “disclosure” under CIPA §7 | Not a reviewable CIPA disclosure because common-law privileges allow sharing with defense counsel | An order that makes classified information known to persons without prior access is an appealable disclosure under §7 | Appealable: §7 covers orders authorizing disclosure to defense counsel; interlocutory jurisdiction exists |
| Whether the district court properly reopened its ex parte §4 review to rely on defense counsel’s security clearance | Clearance makes disclosure secure; common-law rules permit counsel access | §4 requires ex parte judicial assessment of relevance/helpfulness; counsel’s clearance alone cannot compel disclosure | Clearance alone is not a proper basis to overturn an ex parte §4 withholding decision |
| Proper procedure for §4 relevance/helpfulness determinations | Defense counsel participation is necessary to assess what is helpful | §4 mandates ex parte submissions and seals; the district court must act as confidential arbiter without relying on counsel’s input | §4’s ex parte procedure governs; the court should assess relevance/helpfulness itself before any disclosure to counsel |
| Whether the appellate court may review district-court orders entered after the government’s notice of appeal | Later district-court orders should be reviewable with the appeal | Government’s notice of appeal divested the district court of jurisdiction to act further on the disclosure | Subsequent district-court actions on the disclosure after appeal are not reviewable by the district court; appeal limits further district-court proceedings |
Key Cases Cited
- United States v. Smith, 899 F.2d 564 (6th Cir. 1990) (interlocutory review under §7 allowed where order disclosed classified information to unauthorized persons)
- United States v. Clegg, 740 F.2d 16 (9th Cir. 1984) (CIPA concerns control of disclosures to defendants as well as the public)
- United States v. Moussaoui, 333 F.3d 509 (4th Cir. 2003) (distinguished; involved deposition of enemy combatant rather than a CIPA disclosure order)
- United States v. Amawi, 695 F.3d 457 (6th Cir. 2012) (describes §4 balancing test: relevance, colorable privilege, helpfulness)
- Manrique v. United States, 137 S. Ct. 1266 (2017) (notice of appeal divests district court of jurisdiction over the appealed matter)