*1 Fаrgo argument, In oral Wells indicated Fargo’s 09-01. Wells alternative.” SD that plain- that it in fact determine obli- did fulfill failure to notification own qualified, tiffs not and thus followed were deprive plaintiffs does not gation choosing to of- Treasury guidelines not agreement. of their benefits permanent fer them modifications. SD separately contends Wells Fargo are 09-01. unable to consider We claim of contract the Lucias’ breach such factual assertion on this record and frauds statute of be survive the cannot proceedings. this We are stage agreement modify it is an oral cause position same Seventh Circuit Lucias, however, have al mortgage. The Fargo would posited when it Wells obligations performance full their leged defense, similarly offer this sort .may They therefore under contract. “presents a that such a defense concluded remaining promises. See Sec- enforce dispute factual that cannot be resolved [at Mortg. Loan Trust 2002- v. Sec. Nat’l rest stage].” Wigod, the motion to dismiss 544, 275, 2, Cal.Rptr.3d 167 Cal.App.4th We therefore must reverse at 579. (2008). 284-85 and remand the case for judgment further proceedings. complaint also The Lucias’ contains for of California’s Rosen a claim violation 1788.17, Act, § CiwCode
thal Cal. CONCLUSION Fair Debt version of the federal state’s judgment granting court’s district' Act, Practices U.S.C. Collection RE- motion to dismiss is Fargo’s Wells 1692e, Fargo concedes it §§ Wells 1692f. and REMANDED. VERSED meaning of under the is a debt collector contends, Fargo Act. Wells the Rosenthal
however, debt engaged that it was when it offered the
collection activities demand trial
TPP with its concomitant court, while The district dis
payments. grounds, cor
missing the claim other Fargo was rectly recognized Wells America, UNITED STATES of TPP collection. The engaged debt Plaintiff-Appellee, than an informational circulation. more reached This is same conclusion v. See In re Bank other district courts. SEDAGHATY, Defendant- Pirouz Pro Home
Am. Modification Affordable Appellant. (HAMP) Litig., No. 10- Contract gram No. 11-30342. MD-02193-RWZ, at *6 2011 WL 2011); (D.Mass. Reyes July Wells cf. Appeals, United States Court N.A., C-10-01667JCS, Bank, No. Fargo Ninth Circuit. (N.D.Cal. 30759, at *20 Jan. 2011 WL Argued Submitted Dec. 2012. 2011). Aug. Filed 2013. matter, must reiter As a final we granted court Wells ate that the district complaints
Fargo’s motion to dismiss 12(b)(6), so therefore must Rule we
under complaints. allegations
accept *6 (argued),
Steven T. Wax Federal Public Defender, Portland, OR; Lawrence Mata- sar, Matasar, P.C., Portland, Lawrence OR, for Defendant-Appellant. Kelly A. Zusman (argued), Christopher Cardani, Gorder, Jr., and Charles Franklin Attorneys, Assistant United States Office Attorney the United States for the Dis- Oregon; trict of Virginia Marie Vander Counsel, Jagt, Department United States Justice, D.C., Washington, for Plaintiff- Appellee. fine line appeal illustrates the be- government’s
tween the use of relevant a evidence to document motive for cover inflammatory, up and its use of unrelated evidence about Osama Bin-Laden ter- activity prejudices the jury. rorist SCHROEDER, M. MARY M. Before: This tension was evident both before and McKEOWN, and MARGARET during trial dominates much TALLMAN, Judges. Circuit C. RICHARD appeal. briefing on a Similarly, charged what was tax McKEOWN; Partial by Judge Opinion significant in fraud case fact involved by Judge Dissent and Partial Concurrence materials and multi- amounts of classified TALLMAN. camera, in ex as well as ple parte reviews proceedings. classified classified These OPINION figure prominently in the proceedings ap- possible, we peal. To the extent have McKEOWN, Judge: Circuit opinion written our without reference to case that was trans- This is a tax fraud so as to allow the maxi- classified materials The case formed into a trial on terrorism. mum in this criminal transparency case. Sedaghaty charges that Pirouz stems from opinion, filing To this we are supplement (known Seda) falsified a 2000 char- as Pete seal, concurrently, appropriate under in order tax return organization itable respect opinion classified sub- independence support of summary conceal his that the gov- stitution—a terse , Chechnya, republic provided place movement ernment actual relevant of southern Russia. documents are Caucasus mountains classified defense., helpful opinion his That also branch of the Al- U.S. Seda founded (“Al- Foundation, detail claim re- Inc. addresses more Haramain Islamic foreign garding bank records. Haramain”), charity that a Saudi Arabian suspected funding the U.S. system permits recognize that a We the Che- supporting activities and terrorist hearings requires the court to parte ex engaged in mujahideen (holy chen warriors legitimacy of pass claims related forces) against Russian under jihad violent heavy places information bur- classified *7 aid.1, guise of humanitarian Seda’s recognize also that on We den the court. his claim that was based on defense counsel, know their who best defense could discrepancy on the tax return be interests, a placed are at serious client’s accountant, as as on traced his well his disadvantage challenging pro- in classified end, history engagement on that long peaceful of in a vacuum. Toward ceedings duty seriously record and very and his track of under- behalf of Islam we take our information review of classified work in the United States and take our charitable scrutiny.2 with special abroad. nearly argument the issues on along chap- on all of the U.S. heard 1. was Seda indicted Al-Haramain, dropped very later open ter which was appeal On several limited court. defendant, alleged well as an co- as as issues, hearing with we held an in camera Al-Buthe, who conspirator, Solimán remains government and from the from the counsel fugitive abroad. govern- together, then with the defense and issue, heard parte. one we from ment ex On policy in strong public favor
2. Because of government attorney who was not single proceedings, we public judicial access to 892 tax ability his conviction for viola- the same to make his
Following defense as tions, challenges rulings. a host specific Seda would disclosure оf the classified prosecu- In aim particular, he takes at the 6(c)(1). app. § information.” 18 U.S.C. 3 tion’s failure to disclose its interview notes reject remaining challenges We Seda’s witness, regarding key to a payments handling of classified information un- handling court’s of classified information der CIPA. We also conclude that provisions under the In- Classified that search conducted of (“CIPA”), formation Procedures Act computer Seda’s hard went drives well computer U.S.C. the breadth of app. and beyond explicit limitations of the war- other to a pursuant documents seized war- rant and remand to the district court to rant, evidentiary rulings. and various appropriate scope consider the of items Sedá that deprived also claims he was of a exclusionary seized whether the rule government’s fair by trial refusal to apply. should obtaining aid him in evidence from over- particularly areWe troubled the cu seas, by religious appeal preferences, its errors, mulative effect of these which re of inflammatory its use evidence sulted guilt by admitting illegally association. denying seized while both material main, In the we persuaded by are not impeachment potentially evidence and ex arguments regarding the classified culpatory evidence. See United States v. material, the district evidentiary court’s Wallace, (9th Cir.1988) 1464, 1476 848 F.2d decisions, notion that (emphasizing the cumulative effect of three was one-sided its effort to obtain evi- trial improperly admitting errors impeach- abroad, dence or govern- his view that the witness, ment evidence of a defense erro- ment’s characterization of the evidence neously bolstering testimony of a pros- rose to the of a level constitutional viola- witness, Nonetheless, admitting ecution significant tion. defendant’s there were statements sup- errors that merit a new should have been trial. pressed). Although each these issues We that the government conclude violat- potentially merits a remand or a new trial pursuant ed its obligations Brady own, given multiple, its these significant Maryland, 373 U.S. S.Ct. “ errors, balkanized, ‘a issue-by-issue (1963), by L.Ed.2d withholding signifi- harmless error far review’ is less effective cant impeachment evidence relevant to a than analyzing the overall effect of all the central government After re- witness. errors the context of the evidence intro- viewing record, the classified we also de- ” at duced trial.... States v. United Fred- termine court erred in approving erick, (9th Cir.1996) inadequate substitution for classified Wallace, 1476). (quoting material helpful relevant Con- sidering individually defense. substitution not sat- errors both did *8 isfy requirement summary CIPA’s well cumulatively light in of the evi- “provide the defendant substantially whole, with as a dence we conclude lion,
part prosecution govern- team. The cooperation as well as defense counsel's lawyers ment trial were walled off from cer- procеdures. judgment these Our as to tain material classified so it would not taint government’s discovery violations is not a prosecution. conduct of good on the reflection trial court’s faith ef- procedures We take note careful in- protecting forts ensure a fair trial while by stituted by the district court and followed security. national government protect informa- classified Qur’an locally and distributed the and tures and reverse prejudicial were errors requested copies. who prisoners and to consequence, trial. As for a new remand re- arguments address Seda’s do not we in a horse trainer working as While his sentence. garding Arabia, Rodgers approached was Saudi Al-Buthe, sug- officer who
Al-Haramain supply that Al-Haramain could gested Background 1997, In Qur’ans to the Ashland effort. 1990s, one of Al-Haramain was In the part- into a organizations two entered non-governmental largest Arabia’s Saudi through under- nership “promote peace fifty than offices with more organizations, and Al-Buthe and Seda standing of Islam” aid distributing humanitarian worldwide only U.S. branch opened Al-Haramain’s With religious education. funding (“Al-Haramain-U.S.”). Al-Aqil became it has government, to the Saudi close ties Al-Buthe its president, the U.S. branch’s government offi- by U.S. been described treasurer, secretary. its Seda and Seda Arabia. Way” of Saudi as the “United cials for Al-Haramain- opened 'a bank account edu- aid and from Apart humanitarian successfully Bank of America and U.S. at materials, however, some Al-Har- cational applied tax-exempt status. other funding and offices distributed amain Al-Haramain and its In late both joint Based on sub- to terrorists. support funds for aid to the U.S. branch solicited the United governments
missions Although the efforts Chechnya. people Arabia, Na- the United and Saudi States conducted under the of Al-Haramain were Al- against sanctions implemented tions of the Saudi supervision in countries be- offices eleven Haramain entity through separate gov- By in the Saudi ginning 2002. Committee, created, Relief Saudi Joint alto- Al-Haramain had dissolved ernment these ef- disputed trial it whether year, the United That same gether. in nature or truly forts were humanitarian Al-Haramain designated former States mujahideen operating fund the a cover to Al- Al-Aqil and Solimán Aqil principals Chechnya. in Al-Hara- chapter of Buthe and the U.S. and con- February engineer In Ter- Designated Global “Specially main as England, Dr. Mah- executive struction be- subject to financial sanctions rorists” El-Fiki, Al-Hara- contacted Talaat moud financial providing their role cause of that he wanted to donate saying main groups. Seda came to terrorist support $150,000 Al-Haramain relief. for Chechen by the FBI and investigation' under he could wire El-Fiki instructed chapter of his role in the U.S. IRS because orphans and refu- money poor, for “the of Al-Haramain. Al-Rajhi Bank its Chechnya gees” Arabia, or its Riyadh, account in Saudi Iran to Ash- moved from his native Seda El- in Ashland. account Bank of America land, 1970s. After attend- Oregon, $150,000 Al-Hara- Fiki transferred University, he be- Oregon ing Southern February in Ashland city. main-U.S. account a well-known arborist came Al-Buthe traveled On March the under- 2000. promoting the mission With Oregon. Seda Arabia to bridges from Saudi building standing of Islam to a branch of together the Al-Buthe went community, cdfounded within on March in Ashland David Bank of America his friend Qur’an Foundation with manager to with- the branch and met with up in Ashland. grown who had Rodgers, *9 The $130,000 checks. in travelers draw public lec- Qur’an Foundation hosted The $21,000 following day, Seda withdrew a was used for humanitarian relief check cashier’s made out Al-Buthe. Chechnya. The represented Arabia, Al-Buthe later returned to Saudi Al-Haramain employee “[a]n took bank, cashed the travelers checks at his money most of El-Fiki’s a representa- deposited and check cashier’s into his tive of Abu ‘Umar [a leader of the Chechen account, personal where he often commin- mujahideen], smuggled to be into Chechn- gled personal money with Al-Haramain ya, claiming it was for needy Chechen signed by funds. The counter check families.” bore the notation “Solimán” and the actual In June Al-Buthe returned to deposited cashier’s check Al-Buthe Ashland, reporting to U.S. Customs bore the notation “Donation for Chichania $300,000 in travelers checks from Al-Har- Refugees.” amain purchase for the building of a trial, At significance of Al-Buthe’s Springfield, Missouri, to prayer serve as a use of travelers checks was contested. Having already house. made an initial characterized the use of deposit $60,000, Al-Haramain-U.S. then checks, opposed travelers as to a less- $318,291 paid complete purchase transfer, expensive highly wire as suspi- Springfield building. argued cious and that made the transfer days 11, 2001, Four September after the of funds more difficult to trace. The de- attacks, terrorist several FBI agents came pointed fense out that regularly Al-Buthe speak with Seda. interviewing brought funds in the form of travelers agent testified that Seda had volunteered checks to the United States for Al-Hara- information about Al-Haramain-U.S.’s operating main’s expenses reported and purchase of the Springfield property and Customs, those checks to U.S. so his use of told him paid Al-Haramain-U.S. had be- unusual, travelers checks was not nor did $300,000 $325,000, tween reflecting the it correlate with an effort to conceal the closing price. movement of funds.3 The bank manager testified that up Seda set an appointment later, Wilcox, One month Tom Al-Hara- in advance so that he and Al-Buthe could main-U.S.’s accountant and a former IRS meet person, with her in and that Al- agent, filed Form 990 for Al-Haramain- dress, Buthe came in his traditional Saudi year 2000, U.S. reviewed and produced passport copied his to be for the signed by Seda. Filing a Form 990 records, bank’s personally signed each annual reporting requirement for tax ex- travelers check in front of her. empt organizations. The Form 990 was happened
What inaccurate in money respects. after Al- several Line 57a Buthe inaccurately represented cashed the travelers checks and de- the cost of the posited the cashier’s check Missouri disput- building purchase $461,542 was also be- ed. attorneys argued $130,000 that it cause was withdrawn Al-Buthe given to Al-Haramain deposited in Al- was marked as a payment for the prayer Rajhi Bank account number which house. Line 1 underestimated the dona- 3. April form, Between October presented Al- and was a with customs like reported Buthe transpor- to U.S. Customs his attorneys all other arrivals. Seda’s main- $777,845 tation of into the United States over tained that report Al-Buthe failed to trips, nine involving different seven of them transfer of El-Fiki’s donation out of the Unit- Every travelers checks. time Al-Buthe re- ed States because he did not know that it was ported transportation currency required. arriving when he was in the United States *10 had The central issue at trial was whether AI-Haramain-U.S. received tions that $21,000 Form -the errors on the 990 were willful. the check misdesignated because prosecution’s theory The was that Seda as a donation. Line Al-Buthe returned to mujahideen wanted to fund the Chechen donations, outgoing representing reported and intentionally false informa- it failed to inaccurate because record also to in an tion his accountant effort to cover $150,000 El-Fiki portion of the whatever up the of to diversion El-Fiki’s donation transferred to Al-Haramain.4 donation was mujahideen. primary the The defense In the obtained a war- theory responsible was that Wilcox was for financial records and rant search mistakes, these had giv- careless that Seda pertaining prepara- to the communications the Al- money give en to Al-Buthe to and tion of the 2000 Form 990 Al-Buthe’s Haramain, transparent and that Seda was $150,000 he report was car- failure Wilcox, FBI, forthright and with and country. gov- he The rying when left the public disposition of Al- about house, searched which ernment Haramain funds desire to U.S.’s and his as' the AI-Haramain-U.S. office doubled in provide refugees aid’ to humanitarian - n hall, nine prayer computers and and seized Chechnya. videos, books, religious with and together in questioned Whén the IRS Wilcox trial, challenged materials. Before price June 2003 about the of the build- beyond the going scope seizures as return, ing reported as on the 2000 tax warrant; court his district denied that AI-Hara- Wilcox said someone at suppress. motion to prepared main—U.S. had the schedule o'f purchase Quickbooks in that he costs Seda, Al-Buthe, jury grand The indicted just purchase had price based and Al-Haramain in a three count indict- trial, tax return on that schedule. At how- alleged conspiracy Count One ment. ever, actually Wilcox admitted he had through the United defraud Statеs $130,000 been the to code the with- one Three, in alleged Two and in crimes counts checks drawal travelers as related § of 18 371. Count Two violation U.S.C. building and that had created purchase he 990, in filing a violation alleged false Form purchase the schedule with erroneous 7206(1). § Count Three U.S.C. maintained, however, that the price. He charged failing with file a Al-Buthe schedule was based Seda’s instructions Currency Monetary Instrument Re- categorize as to how to the checks.5 (CMIR) left the port form when he United $150,000, parties vigorously debated evidence violation of 31 States 5316(a)(1)(A). “money § trail.” After intro- charges related to the U.S.C. Al- ducing demonstrating against eventually Al-Haramain were dis- because, trial, checks Saudi missed the time it was cashed travelers Buthe. check organization. deposited than a Arabia and the cashier’s little more shell argued Riyadh budget expenses of regarding the 4. The defense that because the dona- merely passed through tion AI-Haramain- Those include AI-Haramain-U.S. documents way its to Al-Haramain U.S. on from El-Fiki spreadsheet from the ac- sent Al-Haramain Riyadh, none of the mistakes are material checks countant records travelers require the tax because code did from the and cashier’s check El-Fiki donation "pass-through” to at all. be recorded going The emails also in- to Al-Buthe. desperate pleas from Al-Haramain clude emails be- 5. The also introduced keep records. accountant to Seda better tween Seda Al-Haramain's accountant *11 account, government mujahideen into his own the said with Chechen leader Ul-Khat- money stating: that it the trail far tab had followed go as it could and that Al-Buthe’s actions sorry say I’m to there single is not a misappropriation were consistent with his charity organization Islamic active inside Chechnya at present. Only of some funds and diversion of others to the Red present Cross is in Chechen mujahideen. attempted fund to towns and Seda Therefore, cities. we advise the Mus- receipts documenting introduce his trans- in lims the Muslim countries to a take Al-Buthe, Al- fer of the donation to Mujahideen sincere stand with the Buthe’s transfer of the donation to Al- land of the Caucasus. relief, Haramain for but he was Chechen authenticate the records. unable to government extensively also relied testimony fthe expert, its Evan Kohl- willfulness, government To establish mann, who drew connections Al- between called two former members Ashland Haramain figures officials and such as Ul- prayer house: David Gartenstein-Ross Khattab and Osama Bin-Laden. Kohl- Among and Barbara Cabral. other sub- mann, who had no direct knowledge of the jects, government questioned Garten- case, testified, facts of among other stein-Ross about distribution , things, the former director of the Qur’ans prisoners, donations made to Saudi Joint Relief through Committee refugees, Kosovan support fundraising provided whiсh Al-Haramain relief in prayer at for two house individuals Chechnya, had been “old friend” of planning go fight against Kosovo Bin-Laden’s in the 1980s. Cabral, the Serbs. a convert to Islam who trial, At government frequently re- trial, religion abandoned the before de- (3 foot) ferred to a large foot chart prayer the mosque scribed services at .and with photographs of Seda and his co-defen- prayer Al-Haramain-U.S. house Al-Buthe, dant along with a photograph of Ashland as well as Seda’s marriage to a an Al-Haramain officer in Riyadh who Russian-speaking Providing wife. frequent sent out Chechnya, emails about direct evidence of alleged desire to figure shadowed cutout of a representing fund mujahideen, the Chechen Cabral tes- Al-Haramain’s Riyadh, accountant in tified that Seda solicited funds for the a photograph mujahideen armed mujahideen in Chechnya after Cabral and Ul-Khattab, leader whom Seda did not others Oregon joined from in a pil- know and whom Kohlmann had connected grimage sponsored by to Mecca Al-Hara- jury Bin-Laden. The also watched a main. provided by violent video Kohlmann of a training camp mujahi- for the Chechen In addition to the witnesses from the deen, ground introduced on the which house, prayer introduced a that the image existence a still from the search, number of exhibits seized video on computers Al-Haramain-U.S.’s including videos related to the Chechen “tended to make it likely more that [Seda] mujahideen, religious regarding sup- edicts money intended that the El-Fiki up end port mujahideen, for the plus Chechen mujahideen.” hands of the Chechen emails Seda received and websites Seda visited about Chechnya. trial, During the government referenced also introduced an email from Seda to Al- occasions, Bin-Laden on five different in- Buthe support?” titled “What repro- cluding closing, prosecution where the duced an excerpt published of a interview referred the director of the Saudi Joint Congregational pastor former Church as Bin-Laden’s “best Relief Committee arguments re- prosecution’s participation Mend.” The Ashland active related Seda’s concept jihad, emphasized the peatedly peace in Ashland’s interfaith and communi- times thirty-two over referring to twenty years pas- ties over the she was six-day trial. course of the speaking rally tor and his role out at *12 against homophobic violence after the reli- highlighted The Seda’s government a couple murder of lesbian Ashland in Al-Haramain-U.S., in- gious with activities the 1990s. A local rabbi testified about prisoners to an cluding the distribution of (entitled began how Seda the late 1980s Qur’an coming the “Noble edition of the Judaism, Qur’an”) by Al-Haramain his to learn supplied synagogue to about called “A appendix an Call to contained from how Seda welcomed students the closing: stated at prosecution Jihad.” The synagogue’s school tо Hebrew the Ashland house, defendant, Qur’an prayer the after how met The and Seda with the Noble al-Haramain, working for he started Israeli in 2002 in an Consul General effort prisons this sending to U.S. around charitable gather support to for a relief thousands, 15,000 country, bring together effort could Israelis time, prisoners, people serving violent and Palestinians. like this from al-Haramain getting junk jury conspiracy The of 'convicted Seda jihad obligation is an for Mus- saying filing defraud the a United States lims. return of a tax exempt false on behalf statement, prosecu-
After
this
offering
organization.
thirty-
He was sentenced
Qur’an
tor
tossed the
onto
threw or
years
imprisonment,
three months’
three
jurors.
in front of
table
courtroom
release,
supervised
of
and restitution to
government
did not mention that Seda
Treasury
Department
have
successfully to
Al-Haramain
worked
$80,980.
new
publish
distribution a
edition of
for
Qur’an
without the inflammato-
Noble
sentencing,
trial
After
but before
government
refer-
ry
appendix
reports and
government produced
*13
Al-Haramain
sponsorship
Saudi Arabia’s
Cabral,
peachment evidence about
includ
Hajj.
quoted
say-
of their
Cabral
Seda as
ing government payments and interview
ing
money
“would ... help
notes. This
send blan-
Brady violation therefore
help
mujahideen
kets and food and
merits a new trial.
Chechnya.”
Special
FBI
Agents contacted Cabral
Cabral,
trial,
and her husband Richard
members
After
but
sentencing,
before
house,
of the
prayer
shortly
Ashland
after
disclosed that it had failed to
September
2001.
agents “opened” produce
in discovery
significant
a
amount
cooperating
Cabral as a
witness
2004 of evidence relating to Cabral. The with-
but closed her file in 2006
deciding
after
held material
previously
documented the
that
likely
$14,500
Richard was more
a trial
be
undisclosed
in FBI payments to
witness. The FBI re-opened
$5,000
Cabral
a
(including
payment
Richard
a
witness
passed away.
after Richard
made in
presence)
sepa-
Barbara’s
and a
The FBI interviewed the Cabrals either
payment
rate offer of
to Barbara Cabral
individually
together
or
twenty times
shortly
be-
before trial when
experi-
she was
tween
paid
2008 and
encing
Richard
difficulty.7
financial
The materials
$14,500, and offered Barbara additional fi-
additionally included a
number
undis-
nancial assistance with medical bills
reports,
reports,
after
closed
draft
and notes of
Richard’s death. An FBI Special Agent multiple interviews with both Cabrals as
told Cabral that he would seek authoriza- well as handwritten notes of interviews
$7,500.
tion
pay
trial,
her
Before
the with Barbara Cabral. The government ac-
district court
ordered the
to knowledged that one of the
agents,
cáse
produce
materials,
exculpatory
team,
materials member
prosecution
of the
all
knew
6. The dissent
ly
jury.
takes issue with our recitation
before the
We review each of Seda’s
background
of the
purport-
information. This
regarding
procedural
claims
these
ac-
errors
ed debate over a standard
review
is a
cording
appropriate
to the
standard.
challenge
distraction.
If there were a
to the
evidence,
sufficiency of the
we would review
summary
post-trial
7. One FBI
of a
interview
challenge drawing
all inferences in favor
reported
pay-
of Cabral
her belief that these
prosecution.
of the
Virginia,
Jackson
ments were for the assistance of both Cabrals:
307, 318-19,
U.S.
99 S.Ct.
61 L.Ed.2d
always
money
"Cabral has
felt the
Richard
(1979);
560
la,
United States v. Alvarez-Valenzue-
received from [the FBI] satisfied
mone-
(9th Cir.2000).
1201-02
tary
might
consideration that
have been due
jury's
But the
verdict based on the evidence
help____"
for her and Richard’s
before it is not at issue. What is at issue is
appropriate
whether the
evidence was actual-
upon
to an accused
re-
dence favorable
suppressed
relevant details
process
violates due
where the evi-
quest
moved for a
trial. Seda
prior
material
guilt
material either to
or to
dence is
new trial.
good
faith
punishment, irrespective
findings
made several
The district court
prosecution.” Brady,
faith of the
or bad
Brady claims.
regard to Seda’s
1194. The
tive here.
(9th Cir.2011) (“Where the withheld evi-
opens up
dence
new
impeach-
avenues for
materiality,
In evaluating
we focus
ment,
significant impeachment
[even if
evi-
withholding
on whether the
of the evidence
already
dence was
it can be
introduced]
undermines our trust
the fairness of the
material.”).
argued it is still
resulting
trial and the
verdict. The touch
consistently denied that he solicited funds
probability”
stone is the “reasonable
of a
mujahideen
for
Hajj,
after the
and before
result,
is,
“not
different
whether the
trial, Seda moved to exclude Cabral’s testi-
likely
defendant would more
than not have
mony.
highlighted
Seda’s counsel
received
different verdict with the evi
“those facts [concerning
request
dence, but whether in its absence he re
Hajj]
funds after the
are contested. We
trial,
ceived a fair
understood as
trial
do not believe that that occurred.” In re-
resulting
worthy
a verdict
of confi
sponse,
government argued
strenuous-
Kyles Whitley,
dence.”
514 U.S.
ly for admission of Cabral’s testimony,
434, 115
(1995)
S.Ct.
Here, we zero in jurors’ on whether would have shaded the sup- perceptions pressed materials could provided credibility. have an Cabral’s Although Cabral effective impeachment. motive, means of This is testified about Seda’s Cabral’s mo- not a case impeachment where the testifying evi- tive for was left untouched. mujahideen. no without reference to the a witness are Payments 142 notes also revealed that Cabral erroneous- Singh Prunty, v. thing. See small Cir.1998) (9th FBI ly informed the that Seda traveled to (reversing F.3d Hajj Arabia for a in 2000. Draft Saudi Brady violation because conviction interview summaries revealed additional undisclosed key witness received where example, inconsistencies. For one draft exchange for his benefits “substantial summary an interview with Richard of an testimony,” because “disclosure contained the statement that benefits, “[Richard] provide ... as well agreement Sedaghaty discussing Cabral did not recall themselves, of the benefits as evidence topic supporting mujahe- of Kosovo or substantially impeached ... could have din there” while another draft of the sum- credibility”). witness’s] [the mary excluded that same statement. An- revealed that Cabral notes also Withheld early other draft a conflict revealed about had been agent told the case that she supposed payments the amount of the serious medical issues experiencing Hajj. were collected at the end of the several thousand dollars of left her with materials, suppressed Without expenses. out-of-pocket medical severely Seda’s counsel was limited on by indicating to this agent respоnded examination, explore, cross unable let out might help the FBI be able to her establish, grounds possi- alone for Cabral’s Although la- financially after trial. Cabral Schoneberg, ble bias. See United States v. offer, recall the ter said that she did not (9th Cir.2005) (recog- relatively position unpaid her modest nizing given that the be defense must in- supported medical would have bills opportunity to cross-examine a witness together FBI payments, ference that the explore any falsely testify motive to possible payment, with the offer of future government). order to assist Taken to- were a substantial influence on Cabral’s gether with the substantive issues de- testimony. particularly This inference is above, scribed the undisclosed material strong because of the uncertain nature of paint would have allowed the defense Hardison, promise. See Sivak of, best, shaky at a witness whose picture Cir.2011) (9th (“[W]itnesses 898, 916 grati- influenced her recollection was greater poten- have incentives to lie if the assistance; FBI financial tude to the for its guaranteed through tial are ‘not benefits worst, story making up a witness ”) binding (quoting promise or contract.’ *16 bills, money with the obtain for medical 3375); 683, Bagley, 473 at 105 U.S. S.Ct. revising materials to match her FBI its 1297, Bagley Lumpkin, v. 798 F.2d testimony. story Either could anticipated (9th Cir.1986) (“The more uncertain the jury. the impact have had a substantial greater the agreement, the incentive testimony pleasing promi- make the to the This conclusion is buttressed sor.”) (citation omitted). precedent highlighting the Supreme Court credibility: of “The payments importance The and notes also would have witness jury’s the estimate of the truthfulness and reli provided opening for defense ability given may in well be highlight significant inconsistencies the of witness innocence, instance, it guilt determinative of or and couple’s stories. For Richard possible as the agents upon times told the case that is such subtle factors different testifying falsely in recipients interest of the witness Seda had identified intended liberty may life de simply peo- as “the that a defendant’s or of funds collected Illinois, 264, 360 U.S. Chechnya” refugees,” pend.” Napue v. ple of “Chechen (1959). 1173, arguing that Cabral should be al- 3 L.Ed.2d when 79 S.Ct. testify, deemed of a witness’ motivation lowed exposure “[T]he but, brief, important appeal por- func- “critical” testifying proper is a her its constitutionally protected right trayed her as a “minor witness.” The tion of the Alaska, Davis v. government’s attempt of to minimize her role cross-examination.” 316-17, 94 S.Ct. 415 U.S. her time on the witness stand was because (citation omitted). (1974) L.Ed.2d 347 In comparatively persuasive. brief is not here, Where, important as additional fact, opposite given is true: the limited sup- have grounds impeachment been scope testimony, only of her reason to it we have held that “would have pressed, call Cabral was because her testi- Barbara to the entirely added an new dimension mony рoint critical to the crucial jury’s [the witness]” such States, assessment wilfullness. See Weiler United “ probability ‘there is reasonable 606, 608, 89 L.Ed. 323 U.S. S.Ct. evidence would have al- (1945) (“The that the withheld always touchstone is cred- juror’s tered at least one assessment [of of testimonial ibility; ultimate measure ” Kohring, States v. evidence]’ United quality quantity.”). worth is and not (9th Cir.2011) (quot- 905-06 importance is confirmed her Cabral’s 914). Price, ing 566 F.3d at Such is the starring government’s closing role in the case here. argument, prosecution where the referred Although proof precise destination testimony separate to her four times. was not essential to the con- of the funds Discussing jihad Al-Hara- questioning viction, proof misreporting of willful be- charity, gov- status as a main-U.S.’s yond required. a reasonable doubt was ernment stated: “Barbara Cabral ... tes- briefing government’s before the dis- ... tified that the defendant went to her trict court confirms that “the main issue said, money ‘can we get for the ” jury for the was whether the defendant mujahideen Chechnya?’ Addressing willfully up acted in 2000 and 2001 to cover willfulness, key prosecu- issue the true nature of the El Fiki transaction testimony: tion again turned Cabral’s knowledge of the [ Seda’s] and his intend- represented by ... af- “The willfulness is money by ed use of that Al Haramain to Cabral, Hajj funding ter direct mujahideen Chechnya.” fund the Ca- mujahideen].” The defense also saw [of testimony provided bral’s direct testimony sufficiently damag- Cabral’s evidence that Seda intended to conceal the ing closing argument. to raise in its testimony transactions and her was there- Counsel stated: there call for “Was crucial question fore willfulness. money mujahideen Hajj? after the I government’s other evidence motive I submit not. don’t think that is emphasize was circumstantial. We contrary Bottom line reliable. is really district court’s view: “this was everything you else know about Pete only direct evidence about defendant’s de- Seda.” *17 mujahideen.”
sire to fund the There is also evidence that Cabral’s tes- in fact a “Impeachment espe timony significant impact evidence is had on cially likely jury. particularly sym- to material when it was a impugns be Cabral witness, who,” testimony pathetic of a Bar as a local resident who witness like here, joined prose bara “is critical to the had converted to Islam when she Cabral Brown, prayer cution’s case.” Silva v. 416 F.3d house Seda led and then later (9th Cir.2005). 980, government’s 987 It is ironic that left the faith. The other
903
government possessed
less
some relevant clas-
significantly
either
witnesses were
knowledge
information,
of
had no direct
which
un-
sympathetic,
sified
was handled
Seda,
by the defense to
or were shown
procedures.
procedures
der CIPA
Those
ulterior motives. Ca-
bias or
possible
have
to harmonize a
right
endeavor
defendant’s
government’s only
to be the
appeared
bral
government’s right
to a fair trial with the
¡witness
actually
who was
disinterested
protect
classified information.
See
Seda,
testified in a tеrror-
and she
close
Abvr-Jihaad,
v.
United States
630 F.3d
an effort to
prosecution about
ism-tinged
(2d Cir.2010).
102,
govern-
140
While
guerilla combatants. Nota-
help Muslim
safeguard
ment must
classified information
leaving the witness
bly, as
was
Cabral
security,
in the interest of national
“courts
testimony,
her
one
completing
after
stand
a
protecting
must not be remiss
defen-
jurors whispered
compliment
a
of the
right
meaningful pres-
dant’s
full and
testimony.
juror
The
was ex-
on her
her
entation of his claim to innocence.” Unit-
cused,
juror compli-
that the
but the fact
Fernandez,
148,
F.2d
154
ed States
913
testimony underscores
mented Cabral’s
(4th Cir.1990).
as a witness.
impact
her
filed six motions seek-
description of
prosecution’s
earlier
materials,
ing protection for
all
classified
“critical”
con
testimony as
Cabral’s
granted by
of which were
the district
Kyles,
at
conclusion.
514 U.S.
firms this
challenges
court. Seda
the court’s han-
(“The
444, 115
likely damage
1555
[of
S.Ct.
matters,
dling
including
of these classified
is best understood
suppressed evidence]
approval
summary,
its
.of an unclassified
prosecu-
by taking the word
parte proceedings,
the use of ex
and the
”).
evi-
Viewing
suppressed
tor....
restriction on defense counsel’s use of clas-
holistically
light
of the other evi-
dence
placed
sified material
the defense had
dence,
evidence “undermines
the withheld
in safekeeping.
in the outcome of the trial.”
confidence
678,
Bagley,
We A. CIPA Provisions important enough changed percep- that a Congress enacted in 1980 CIPA credibility creates a tion of her reasonable help intelligence agen that the “to ensure probability of a' different verdict. See subject cies are to the rule of law and to Shaffer, v: 789 F.2d United States help strengthen the enforcement of laws (9th Cir.1986) (noting that where a 688-89 security designed protect both national testimony “was critical to ... witness’s 96-823, S.Rep. civil No. liberties.” conviction, ... jury’s assessment of (1980), reprinted in 1980 U.S.C.C.A.N. credibility was crucial the outcome expand 4296. does not or CIPA trial.”). “importance In light discovery principles restrict established allowing a full and fair cross-examination impact and does not have a substantive testimony whose witnesses admissibility probative evidence. case,” outcome of the important Johnson, States v. United Brady Seda has established violation (11th Cir.1998); S.Rep. No. 96-823 at trial. States v. merits new United (9th Cir.1993). Brooke, 8, reprinted in 1980 U.S.C.C.A.N. at 4301- Instead, proce
03. CIPA “establishes II. CIPA Claims handling classified information dures for cases,” States v. tax criminal United
Although this is a fraud Aref (2d Cir.2008), case, so that district prosecution discovered that the F.3d *18 904 able, determine the court must next of admissi- questions “on may rule
courts for has made a information be- whether the classified bility involving open privilege, of secrets the evidence mal claim the state fore introduction “ Sarkissian, by department 841 court,” ‘lodged States v. the head United Cir.1988) (citation (9th matter, omit- 959, has actual control over the F.2d 965 which ted). are rеlevant personal CIPA after actual consideration Two sections ” discovery of pretrial governs § here: 4 States v. Klimavicius- officer.’ United defendants, (9th Cir.1998) Viloria, 1249, classified information 144 F.3d 1261 safeguard clas- procedures § (quoting Reynolds, 6 sets out States v. 345 United information, during both before 1, 7-8, sified 727 73 97 L.Ed. U.S. S.Ct. (1953)). trial. that the Once a court concludes and that the state material is discoverable clarify “to intended § 4 CIPA then the court privilege applies, secrets Fed.R.Crim.P. under powers court’s determine whether the evidence is must 16(d)(1) discovery in deny or restrict of an helpful “relevant and to the defense security.”9 national protect order States, accused.” Roviaro v. United 353 Sarkissian, 965; S.Rep. at No. 841 F.2d 53, 60-61, 1 L.Ed.2d 77 S.Ct. 639 U.S. reprinted 1980 at 96-823 Gurolla, (1957); United States provides at 4299. Section U.S.C.C.A.N. (9th Cir.2003). If the information that: test, helpful” meets the “relevant and showing, court, a sufficient upon [t]he § 4 the court to deter- empowers CIPA to de- the United States may authorize discovery, any. mine the if terms classified informa- items of specified lete § app. 3 4. U.S.C. avail- to be made tion from documents discovery through to the defendant able 6,§ to both applies CIPA which Federal Rules Criminal under the guides the pre-trial proceedings, and trial Procedure, summary to substitute making “determinations procedures classified docu- for such the information use, relevance, or admissi concerning ments, ad- or to substitute statement ” bility of information.... classified that the classified mitting relevant facts 6(a). § app. Specifically, CIPA U.S.C. prove. information would tend 6(c)(1) pro § deals with substitutions and § app. 3 4. 18 U.S.C. may vides that a court authorize substi material in form of a motion to tution for classified considering When summary “if it finds that information from dis a statement or withhold classified summary provide the statement or will must first deter covery, a district court substantially whether, defendant with the same abil to the Federal pursuant mine Procedure, statute, disclosure ity or to make his defense as would Rules of Criminal information.” 18 law, specific at issue classified the common the information 6(c)(1). requirement § app. 3 This at all. States v. U.S.C. is discoverable United (9th guarantee Rewald, Cir. arises out of the Constitution’s 847-48 “ 1989). ‘a that all criminal defendants must have is discover If the material issue 16(d)(1) by a that the court cause written statement 9. Federal of Criminal Procedure Rule granted, provides inspect parte. that: If relief is will ex cause, preserve entire text of good must may, for court At time the court restrict, discovery inspec- deny, party’s or under seal. or defer statement tion, grant appropriate 16(d)(1). relief. The or other Fed.R.Crim.P. party good may permit a to show court
905
present
a com-
meaningful opportunity
providing currency
sible for
supplied by
”
Al-Haramain, including
defense.’ Holmes v. South Car-
plete
currency ob-
olina,
319, 324,
1727,
tained
codefendant
547 U.S.
126 S.Ct.
Solimán Al-Buthe
(2006)
USA,
from Al-Haramain'
(quoting
represen-
L.Ed.2d 1039 objected to the substitution and asked either for “an uneditorialized sum- The substitution need not be mary” production or for the of the under- equivalence,” “precise, concrete and the lying material. After careful review the insignificant advantages “fact that tactical issue, materials at we conclude that could accrue to the defendant the use of language unfairly substitution’s colored specified classified information should presentation and, of the information even preclude the ordering court from alter problematic, more the substitution 96-1436, H.R.Rep. native disclosure.” No. helpful omitted facts to Seda’s defense. (1980) (Conf.Rep.), reprinted at 12-13 analysis Further detail and of the substitu- at 4310-11. U.S.C.C.A.N. Neverthe tion is contained in the opinion classified less, purpose the fundamental of a substi with respect to the substitution. The sub- place tution under CIPA is “to the defen statutorily inadequate stitution is because dant, nearly possible, position as provide it does not Seda with “substantial- in if he would be the classified information ly ability the same to make his defense as ... were available to him.” United States specific would disclosure of the classified Moussaoui, (4th Cir. 6(c)(1). § app. information.” 18 U.S.C. 2004); see also Rezaq, United States v. summary The brief contains both incul- (D.C.Cir.1998) (approving patory exculpatory information. On substitutions where information was “[n]o hand, it supports government’s the one might omitted from have been [them] theory that El-Fiki donation went to defense, helpful and the discover [the] mujahideen Chechnya fund the because able documents had no unclassified fea gave money indicates that Al-Sanad disclosed”). might tures that have been representative Al-Sayf,'
to a who the at trial established reli- B. The Substitution gious leader associated with the Chechen acknowledged ad- mujahideen at the time. On the other vance of trial that it had classified informa- hand, that, it supports Seda’s claim as far helpful tion that was to Seda’s defense. knew, as he the donation was to used to be government proposed, and the court fund humanitarian relief. authorized, the following unclassified sum- mary responsive classified material wording summary Tlie bolsters discovery requests: while inculpatory discrediting section exculpatory example,
The U.S. Government obtained informa- section. For presents tion that Sami ‘Abd Al ‘Aziz Al-Sanad first Al-Sanad’s transfer sentence during Al-Sayfs repre- worked 2000 and 2001 for the A1-- of the El-Fiki donation organization respon- govern- Haramain and was sentative as a fact about which the *20 summary excludes exculpatory “obtained information.” The information ment has contrast,, sеntence, by embeds provide second and fails to crucial context for exculpatory skepticism into Al-Sanad’s convey. certain information that it does statement about the and use of destination Although there is no indication bad funds, dismissing something it as Al- the faith, government appears to have This is but one ex- Sanad “has claimed.” looked with tunnel at vision limited issues neutrality deficiencies in the ample of it that believed were relevant. Even surprise . It is no that Seda statement. granting the district court wide latitude in ultimately chose not to use the substitution evidentiary decisionmaking, its as we at trial. must, summary that we conclude is underlying Because the documents are inadequate not because its slanted classified, we are our com- constrained wording fundamentally but more because summary. But it is a ments about incomplete. Clegg it is United States v. underlying principle fundamental CIPA I”), Cir.1984) (9th (“Clegg evenhanded, summary that the be should (upholding rejection of a substitution worded in a fashion and not tilted neutral where the classified documents “are rele- government’s advantage. or shaded vant to the development possible of a de- (1980), S.Rep.. reprint- at 9 See No. 96-823 “government’s fense” and the proposed (stat- ed in 1980 U.S.C.C.A.N. at 4302-03 summaries of the materials are inade- ing “judge that the should ensure that a quate”). illogical It would be to conclude substitution ... is so that the crafted Gov- that a substitution that excludes non-cu- ernment no unfair advantage obtains exculpatory mulative information could , trial”). “provide substantially the defendant with isolation, In the characterization of the ability the same to make his defense as may a sufficient be basis to specific would disclosure of the classified reject troubling, the substitution. More § information” required CIPA 6. 18 however, is the exclusion from the sum- 6(c)(1); app. § U.S.C. see also Mous- mary helpful of further information saoui, 382 (rejecting pro- F.3d 478-79 Seda’s defense. The classified nature of posed that failed to substitutions include highlights the material the awkward na- information); exculpatory Fernandez, 913 argue ture of our review: is forced to rejection F.2d at (upholding pro- for the relevance of the material without posed substitutions because the “substitu- actually knowing classified what the record tions would required jury have contains, while what it we know contains ..., judge [the role and thus defendant’s] but are unable to it public describe on the it, the truth of his statements about in a Amawi, record. See United States v. vacuum”). contextual (6th Cir.2012) (without attempts dissent minimize process, benefit of “the adversarial we importance place must substitution tak ourselves shoes de- counsel, very ing position fense that the evidence ones that cannot would be record, hearsay see the classified act inadmissible with a Seda waived interests”) (citation objection to their view omit- his to the substitution. The dis ted).10 however, say, canWe sent overlooks important the most fаct parte 10. The defense did filé an ex submission in its review court of the classified material. outlining theory its to aid defense admissibility—the summary, mission of the the substitution’s but would not about stipulate it, ad- agreed to its revise or saying, alter “we think it’s did not mission at trial. The nothing.” response, either all or In hearsay or that the substitution was argue only, “Okay,” court said and moved on to Rather, recogniz- inadmissible. otherwise topic. another Later in that hearing, same position in a difficult ing that was judge as the making rulings final *21 exculpatory respect possession to the exhibits, government the the reiterated its trial, right information and Seda’s to a fair position regard summary to the the made the calculated move only stated that the -decision was whether the admission of agree stipulate accept defense wanted to the summary the substitution as a trial exhibit. Not in its current’ form or not. The defense of a slanted and surprisingly, face time, Honor, responded, “At this Your we summary, ulti- unhelpful Seda’s counsel offering pointed would not be it.' We’ve mately stip- withdrew the substitution as a out what we believe needs to be done.” just ulated exhibit before trial. But de- added). (emphasis The defense withdrew ought put not in a Catch- fense counsel be form, time, in that at that exhibit but whereby accept 22 situation it has to explicitly referenced and reiterated its ob- government’s summary deficient or none jection. Seda did not withdraw or waive all. at objection approval his to the court’s of the an argu- The dissent also manufactures government’s summary Nor substitution. presented by government— ment expected could Seda’s counsel have been objections that Seda waived his intelligent offer an substitution or alterna- 20, 2010, August substitution.11 On Seda language, tive since he did not have access objections summary to the filed substitu- underlying to the classified documents. tion and moved for “an uneditorialized Having challenging been unsuccessful summary.” being Without able to access trial, the substitution before re- documents, underlying of the appeal. course is in this objected summary that the omitted rele- fully cognizant are information the in-' We delicate helpful vant and about dividual to whom Al-Sanad transferred task entrusted to the district court in mat- objected fact that funds. He also to the involving ters classified information. To summary language ques- that end, included lays process that CIPA out a defined veracity argued tioned Al-Sanad’s that, such when classified substitutions the defense should be entitled to offer the helpful relevant and to his information is exculpatory actually provided statements defense, placed, the defendant should be Alternatively, Al-Sanad. Seda moved he nearly possible, position “as complete for access to more unclassified would be in if the classified information underlying versions of the materials on Moussaoui, him.” were available to summary presumably which the was also, 477; app. F.3d at see U.S.C. based. Seda never withdrew or waived 6(c)(1). end, § inadequate In the sub- objection. this ability to stitution interfered with Seda’s Although trial, present complete defense. hearing
At a the week before government argues substitution objections defense reiterated' its sufficient, any argument it does not make summary substitution. The that the facts omitted are harmless. See replied stipulate that it would to the ad- objections government simply replied the merits. 11. The to Seda’s Boulware, prior rulings. CIPA CIPA does 384 F.3d court’s United States Cir.2004). (9th not limit the court’s discretion to hold an required by if it is parte
ex conference CIPA Claims C. Other overriding necessity such as the ne- some re- cessity protect claims related to sensitive information four other Seda raises many security, here. nature lated to national as was parte CIPA: the ex potential Thompson, withhold- See- States v. proceedings; CIPA United (9th Cir.1987) information that (recognizing classified ing of additional defense; helpful to acts is relevant and “situations where the court with the document his exclusion of a classified presentation benefit of one side’s are and the claim that possession; counsel’s uneasy compromises overriding with some reveals the search war- classified evidence necessity, quickly such as the need to act by prior illegal surveil- prompted rant was keep or to sensitive information from the *22 lance. party”). opposing Apart general objections from his Proceedings Ex Parte
1. parte proceedings, to the ex Seda claims in challenge to the Seda’s broadside have more fulsome that he should received parte proceedings is a bat- camera and ex subject filings of the of the and that notice already in the federal courts.12 tle lost security-cleared have his counsel should Long parte we underscored that ago “[e]x access to the classified documents in had disfavored,” hearings generally are but discovery. government filed six no classified involving held that a case “[i]n in informing tices Seda that it had filed documents, however, parte, ex in camera camera, parte ex submissions to the court. government in counsel hearings par- which All that apprised of these notices Seda to the exclusion of defense coun- ticipates filed, were pursuant submissions to CIPA part process sel are of the that the district notifying § him that govern thus may court use in order to decide the rele- requested ment authorization from the vancy of the information.” Klimavicius- discovery court to withhold items from Viloria, at 1261. 144 F.3d helpful not relevant and to were especially protests three oc Seda Seda’s defense. court during casions trial in which the held is of the hearings closed with cleared counsel view the failure excused defense of the notices to parties both and then describe unclassified parte prosecut рrovid counsel and met ex with the terms the nature of what had been parte hearings, filings ors.13 These brief ex ed to the court makes the inade Both directly hearings quate. which followed the Federal Rule of Criminal 16(d)(1) counsel, CIPA, § defense were held the court’s Procedure how ever, request clarify explicitly provide parte filings to related to the for ex issues classified, reason, 12. Seda ex 13. For whatever the docket moved to strike sheet does parte appellate excerpts briefs and of record hearings. not reflect these closed The hear- or, alternative, by filed ings should have but the fail- been docketed security-cleared request access for his light do ure to so is harmless in of defense expert We counsel and to the documents. knowledge hearings counsel’s of the and the denied the reasons dis- motion for same transcripts ap- fact that the are available for regard requirements cussed below with pellate review. of CIPA. We reviewed the classified briefs and excerpts parties. of record from both that detailed notice of require parte hearings, and do not the classified ex have been filing provided. be Fed. preserved the content and-made available to us on (“The 16(d)(1) may-permit court R.Crim.P. appeal. retired, The district judge, now party good to show cause a written was meticulous in his review of the classi- inspect the court will ex statement fied material. (“The § 4 court
parte.”);
app.
18 U.S.C.
may permit the United States to make
Helpful
2. Relevant and
Information
request for such authorization
the form
The district
improperly
court did not
inspected by
statement
of written
be
helpful
withhold relevant and
information
alone.”).
complied
the court
The notices
discovery
§
from
under
CIPA
or Federal
constitutionally
and were
ade-
with CIPA
16(d)(1).
Rule of Criminal Procedure
See
quate—Seda
process right
has no due
Gurolla,
simply confine our review agents Government searched admissibility classified materi- pursuаnt in 2004 a valid home als....”). search the seizure of a authorizing warrant protective The district limited or- court’s limited set of documents: financial records right der did not violate Seda’s to counsel prepa communications related to the right present or his defense. See ration tax govern of the 2000 return. The (“The Moussaoui, right F.3d at 289 search, however, ment from the emerged at any point communicate with counsel articles, with much more: news records of absolute.”). proceedings is not Chechnya, visits to various websites about justified by compelling order was national scenes, photographs of Chechen war security concerns and the restrictions were other documents were introduced limited to a single document that was *24 relevant to v. trial charges. Morgan See as evidence of desire to fund (2d Bennett, Cir.2000) 204 F.3d mujahideen. Chechen (“[T]he not, impor- court should absent an The famously pro- Fourth Amendment protect tant need to countervailing inter- “right tects people be secure est, ability restrict the defendant’s to con- houses, in their ef- persons, papers, and his ... attorney, sult with but when such a fects, against unreasonable searches and present need is is difficult fulfill in and ” Const, To seizures.... U.S. amend. IV. ways, carefully tailored, other limited right, provides it that “no effectuate this right restriction on the defendant’s to con- issue, upon probable Warrants shall but counsel is permissible.”). sult cause, affirmation, supported by Oath or 4. Fruits of Unlawful Surveillance particularly and describing place to be searched, persons things and the to be or speculates classified prior question materials contain evidence of unlaw- seized.” de Id. The we consider govern- 15. Seda also a concern raises reflect that no one has accessed the docu- attorneys agents participated ment except or in the the court In- ments and the Classified occasion, Security district court’s review of the material that was one formation Officer on placed facility. together in the The and secure records and the defense counsel with the Officer, representations Security of the Classified Information Classified Information Security entrusted with Officers the material another occasion. concerning whether the search was unreason- Evidence subscription novo is Return, to a agents relied on the affidavit false Form 990 Tax able because Code, violation of support expand of the warrant Title United States 7206(1), Section scope authorized items détailed described the at- Hurd, affidavit, year 2000, tached for the limit- warrant itself. See United States n (9th Cir.2007) (consider- following: ed to the 499 F.3d ing scope whether a search is within communications, Records and includ- question a warrant is a of law reviewed de ing electronic and records communica- novo). involving tions the individuals or entities above, рertaining to the preparation of incorporated warrant at- two search 2000; an IRS Form 990 for year (A B) sup- tachments and an affidavit relating accounts, Records to bank porting probable cause for the search. See transactions, records, bank bank safe Health, Inc., United States v. SDI Future records, deposit purchases asset or (9th Cir.2009) (“A 684, 699-701 568 F.3d sales, transactions, other financial expressly incorporates warrant an affidavit lists, donor and donee involving year when uses ‘suitable words of refer- 2000 which relate to the individuals or ”) Towne, (quoting ence.’ United States v. above; -entities (9th Cir.1993)). relating Records to credit card ac- affidavit described Al-Haramain-U.S. and counts, records, and transactions involv- structure, its detailed the El- facts about ing year which relate to the donation, Fiki pur- Al-Haramain-U.S.’s individuals or entities above. Springfield pray- chase of the Ashland and ' added).17 (emphasis houses, er and inconsistencies on the 2000 The warrant contained similar language tax return. The affidavit also included (CMIR) currency for the reporting viola- background information from articles news tion, expressly limiting the evidence sei- Chechnya, about the conflict in investiga- zure to “records of financial transactions Al- tions into connections between several and communications” between October Haramain branches and funding February pertaining terrorism, and statements of Al-Hara- same named individuals and entities. Nei- funding main’s former director about ther B Attachment A nor referenced mujahideen. the Chechen Chechnya mujahideen. or the A Attachment described the location of B permitted gov- Attachment also *25 (also Seda’s home Al-Haramain-U.S. computer equipment ernment to review to headquarters). Attachment B listed five it practical determine whether would be to individuals and five entities associated with and, not, copy search or it on site if al- the violations and it detailed to the items lowed the to remove the com- seized:16 be puters any order to “extract and seize Relating Evidence to the Tax Violation data that falls within the list of items be selectively quotes 16. The five individuals listed were: 17. The Pirouz dissent from the Al-Buthe, Sedaghaty, fact, Aqeel Solimán Al- reading. support warrant its broad In Al-Kadi, Aqeel, Mansour Mahmoud Talaat plain language explicitly of the warrant El-Fiki. The five entities listed were: A1Har- narrowly. limits the items to be seized more amain; Foundation; A1 Haramain Al Hara- Foundation, Inc.; main Islamic Al Haramain Headquarters Riyadh. aka Al Haramain currency and concerning the” tax B dence Attachment above. described seized” at- any reporting violations “described to return required describes sixty days. The affidavit tached affidavit.” that list within outside of data filing separate, sections both willful - computers from nine removed Agents -violations, return and the CMIR of a false experts house, computer forensic for each and requirements with the along of search terms evolving list used an cause for the supporting probable evidence for useful computers through the comb read- Adopting the commonsense search. financial records In materials. addition for incorporated affidavit was ing that the describing prepa- and communications describing of the of- purpose specific return, agents seized tax ration of the cause establishing probable fenses items, internal including hundreds of other parsing require hyper-technical does docu- organizational Al-Haramain-U.S. language. articles, internet ments, records.of news about Chechn- to various websites access of the warrant likewise plain text to Al-Haramain-U.S. ya, webpages sent is to be seized. clearly delineates what listsprvs, of photographs Che- by various BE heading “ITEMS TO Under scenes, articles about chen war “[ejv- SEIZED,” B Attachment states stop the searches moved civic life. Seda is concerning the” tax violation idence suppress media and to electronic of following,” then dis- to the ‘.‘limited beyond scope that was records, documents, financial tax cusses warrant.18 “pertaining and associated communications motion, court denied Seda’s The district of an IRS preparation Form charged require that the “crimes reasoning concerning 2000.” “Evidence year beyond and thus records proof of intent charge similarly is limited the” CMIR appropriate- financial records were simple financial transactions and asso- records of seized, support ly such as evidence between the listed ciated communications mujahideen.” Chechnyan the efforts of from 1997 to 2003. The individuals sthe cited SDI Future The district court in the affidavit to the evidence reference Health, proposition for the 568 F.3d at concluding request for au- sought is the incorporated the war- that an affidavit list- thorization to search “for the evidence curative of de- “potentially rant is in Attachment B and to seize the ed fects.” Therefore, there is no reason to same.” defining scope affidavit as read the doubt, references the warrant
Without Instead, to be seized. that list affidavit, the items is to what question but the B contained in Attachment to the war- pro- the text plain meaning effect. “evi- rant.19 the warrant seeks vides the answer: in order to Ashland office consistently argued that the seizure Haramain-U.S.’s
18. Seda search, scope exceeded the probable because it cause for the lists was unlawful establish argument, Seda's coun- At oral "correspondence, the warrant. ''financial records” such war- argued instruments, contracts, the seizure exceeded the sel receipts, negotiated *26 incorpo- scope affidavit was rant’s even if the records,” plus doc- and other bank statements rated into the warrant. "income, concerning expenses, umentation purchases, communications with tax asset affidavit, fact, consistent with a 19. The is preparers and other officers.” The affidavit focusing financial authorization limited specifically interest in "transac- references an pertaining to communications records and Quick- organization’s the tion details from de- and the CMIR: the 2000 tax return years.” program for the 1999 and 2000 books Al- scribing likely to be found at documents
913 if the affidavit is Even understood materials seized “were given relevant the nature of the charges.” describe evidence “relevant” to the viola- tions, that far flung does authorize the adopt government’s To approach Relevance, scope agents’ search. of would permit a kitchen probable sink course, standard; language is’not cause affidavit to overrule express of the warrant controls. United States scope limitations of the warrant itself. (9th Cir.1982) Tamura, 694 F.2d 595 The issue here is not whether the warrant (“As rule, general a pur- searches made incorporated the affidavit. That is not in specifically suant to warrants enu- doubt—instead the issue is scope seized.”) (citation may merated items be May reference. a broad ranging prob- omitted). The warrant lim- expressly able cause serve to expand affidavit in scope ited and did not include items express limitations imposed by a magis- such as the records of visits to websites in issuing trate the warrant itself? We Chechnya, about the communications unre- believe the answer is no. The affidavit as preparation lated to the of the tax return a whole cannot trump a limited warrant. with individuals never named or refer- Our cases have not dealt with this situa affidavit, general enced in the or the back- Rather, directly. tion we have considered ground information about the Chechen cases in which an affidavit could cure a mujahideen that were seized. The dissent defective warrant. That circumstance has that all suggests of this evidence is neces- arisen when there is a clerical error or sary required to establish the rea. mens when the warrant is overbroad but could But it by is not authorized the warrant. particularized be cured a affidavit. Upon failing to find evidence of willfulness Towne, 997 F.2d at (affirming 54 in the pertaining prepara- records principle “well-settled that a warrant’s tion of the tax return that were authorized overbreadth can be cured an accompa- seized, to be should not be nying particularly affidavit more de- through computers able to comb seized”) (citation scribes the items to be plucking out new forms of evidence that omitted); Bowler, United States. v. investigating agents may have decided (9th Cir.1977) F.2d (holding useful, be at least not obtaining without presence that the of the correct address Heldt, new warrant. See United States v. the sworn typo- affidavit could correct a (D.C.Cir.1981) (“[T]he warrant). graphical Here, error particularity requirement of the fourth however, there is no error in the warrant prevents amendment the seizure one for the affidavit to cure. The error is with thing under a warrant describing another. seizure, which exceeded the warrant’s taken, toAs what is to be nothing is left to scope. See v. Angelos, United States the discretion of the officer executing (10th Cir.2006) (noting warrant.”) (internal quotation marks “it apparent problem that the lies in the omitted). citation In light specific execution, constitutionality, and not the warrant, warrant”). limitations of the it is difficult to the search We have never held embrace the government’s justification that an expand scope affidavit could logical that the search terms legitimate beyond “bore con- express warrant its nection to the affidavit” and that all of the limitations nor do we do so here. magistrate judge browsing religious could not have known websites or his corre- agents from the affidavit that the instead in- spondence with friends and co-workers. tended to seize records of Seda’s internet
914 the author of er would elevate with the conclusion approach accords
Our
cause
probable
affidavit
incorporated
of
treatment
a warrant
D.C. Circuit’s
647,
issuing
the
the warrant.
judge
432
649 over
Kaye,
v.
F.2d
United States
Cf.
States,
10,
(D.C. Cir.1970):
in Johnson
333 U.S.
13-
description
“It is the
v. United
(1948) (not-
14,
367,
warrant,
68
915
however, but
instead
papers
seized
and seized .that
beyond
scope
of the
beyond
records
those the warrant author- warrant. See
Payton, 573
United States v.
859,
(9th Cir.2009)
v. Rettig,
ized. See United States
589 F.3d
864
(reversing
(9th Cir.1978)
F.2d
(concluding conviction where “search of [defendant’s]
although
sufficiently computer
that
the warrant was
without explicit authorization in
particular,
executing “agents
did not
the warrant exceeded the scope of that
warrant”).
their search in
faith
good
confine
illegal
seizure of this evi-
objects
warrant,
of the
and that
pur-
while
dence was not without consequence, as
it,
porting to
they substantially
execute
much
illegally
of the
seized evidence was
interpretation
exceeded
reasonable
admitted to
government’s
bolster the
theo-
provisions”).
ry
its
Unlike cases where the
that Seda sympathized with and sought
magistrate judge
filling
erred
out
mujahideen.
Tamura,
to aid the
Cf.
warrant but
the government reasonably
597 (declining to order a new trial
judge’s approval,
where,
relied on the
here the
despite unlawful seizure of items
magistrate judge properly authorized the
warrant,
outside the scope of the
“[a]ll
agents
warrant but the
did not follow it.
the documents introduced at trial were
Hurd,
(holding
See
ing receipts. four Seda analo- distortion of the evidence. Seda recorded his transfer of receipts those of (termed gizes to his case United States v. Wester- to Al-Buthe the El-Fiki donation dahl, 1083, (9th Cir.1991), AHIF-3) in 1086 and the 945 and other two AHIF-2 though which held that even a defen- of we Al-Buthe’s transfer receipts recorded may compel government dant not Riyadh in Al-Haramain the donation to 705). witness, immunity offer to a intention- 704 use exhibits and (rejected defense al the fact-finding process distortion of any authenticate of was unable to Seda immunity may denying prosecu- constitute these four exhibits. torial misconduct. See also United States excluded ex- properly The district court (9th Straub, v. Cir. 538 F.3d 1160 they un- 704 and were hibits 705 because 2008) (“Even where the has government 901; authenticated. Fed.R.Evid. Orr immunity riot a defense for denied witness £A, America, & 285 F.3d Bank NT of very purpose distorting of the fact- (“[ajuthentieation Cir.2002) (9th аis 773 process, government may have finding (in- precedent admissibility”) condition against the deck the defendant stacked omit- quotation ternal citation marks way severely the fact- that has distorted ted). trial, government At introduced trial.”). finding process Not does AHIF- receipts—AHIF-2 the other support argument, record not Seda witnesses, for 3—through multiple not also misunderstands role of the court substance, argue it could their but so discovery he vis-a-vis the seeks. receipts were fabricated. The district This involved evidence case substantial these “not for court’s admission of exhibits abroad, presented from which truth” obstacles their but to corroborate the fabrica- Nevertheless, parties. parties both both theory, not an abuse discretion tion was investigations conducted overseas deprive of a fair nor did Seda trial. were to obtain from able some evidence hearsay apply rule not evidence does foreign example, For sent “to Seda offered a foundation for later countries. establish an investigator Egypt and Saudi Arabia showing, through other admissible evi- witnesses, dence, including interview Seda’s co- it was false.” See United (9th po- defendant Al-Buthe. located a Knigge, States v. 832 F.2d 1108 Cir.1988) China, tential witness the court (quoting Anderson v. United granted States, 211, 220, testimony Seda’s motion to allow 41 U.S. S.Ct. (1974)). videoconference. The sent 'Contrary L.Ed.2d to Seda’s assertion, agents by Egyp- to observe an interview admission of these limited tian authorities with govern- El-Fiki. The receipts arguing did not him from preclude sought ment to in- theory pursuant also records jury. his through powers ternational treaties and its Fact-Finding 2. Distortion financial in- subpoena documents from Process § stitutions. See U.S.C. 5318. Some successful, these efforts were while others Seda claims that he suffered from Although were not. both faced ob- sides govern- uneven because playing field abroad, obtaining stacles in evidence from used foreign ment its resources to obtain there was no “stacked deck.” inculpatory evidence but failed to assist him To obtaining exculpatory obtaining evi- assist from dence, Egypt, specifically bank records from Sau- Seda asked court to order the depositions Egypt. Legal di Arabia and from to use a Mutual Assis- (“MLAT”) Treaty discovery tance between Unit- skew the process because the Egypt ed States and his behalf. decision to issue a rogatory letter rests express preclude terms of the MLAT squarely court, within the discretion of the reliance on it as a source government. Seda’s discov- not the See United States v. Treaty (9th ery: provisions Cir.1958). of this Staples, “[T]he shall right part any rise to a on the give Upon request, "the district court ... private person to obtain- evi- rogatory issued a letter asking govern- ” Treaty *30 dence .... Between the Govern- ment of Saudi obtaining Arabia to assist in of America ment of the United States and deposition from Al-Sanad or facilitating Republic Egypt the Arab of on- Mutual voluntary testimony his at trial. The court Matters, Legal Assistance in Criminal response. received no The court declined art; 1(4), 3, 1998, May U.S.-Egypt, T.I.A.S. rogatory to issue Egypt letters with 12948; Texas, No. v. see also Medellin 552 El-Fiki, respect son, his and his em- 491, 3, 1346, 506 n. U.S. S.Ct. ployee potential because the testimony was (2008) (describing, L.Ed.2d 190 the “back- not Liner, material. See United States v. ‘[¡Interna- ground ... presumption that (8th Cir.2006) 435 F.3d (explain- agreements, directly tional even those ben- case, that ing in a criminal moving “the efiting private persons, generally do not party must show the witness’s unavailabili- private rights provide pri- create or for a ty materiality and the of the witness’s vate cause of action in domestic courts’” testimony”). El-Fiki and the associated (Third) (quoting Restatement Foreign Seda, in Egypt witnesses did not know did § Law of the Relations United States Seda, not communicate with and had no (1986))). a, p. Comment knowledge of either Seda’s intent with re- gard to the tax return or , the ultimate only Not does claim fail Seda’s disposition of the donation. The court did express treaty, under the terms of the in concluding abuse its discretion that authority district court had no to order the regarding El-Fiki’s intent use of the mon- treaty pro Executive Branch to invoke the ey probative was not of Seda’s own state of pri cess to obtain evidence abroad for a mind and thus was neither material nor Rosen, vate citizen. See United States v. necessary to ensure a fair trial. ,(E.D.Va.2007)-(ex 240 F.R.D. 213-14 plaining right compulsory pro that “the Appeals only
cess extends far as a own court’s B. to Fear process powers, and cannot be stretched to argues government ap Seda that compelling include treaty invocation of pealed religious prejudices guilt by and process powers available to the Exec deprived association and thus him a fair Branch”). utive Westerdahl analo trial, especially light of the exclusion of gy, immunity which relates to in the do some of his rebuttal evidence. See United context, mestic does not extend to the Waters, (9th States v. 627 F.3d 354-56 world of international treaties. Our re Cir.2010). Because this case is being sent complete view of the record also reveals trial, back for a new we need not reach government’s discovery that conduct this say issue. It suffices to factfinding did not distort the process. charge here relates to a false tax return analogy organiza Seda’s Westerdahl also filed on of a tax-exempt behalf tion, fails regard rogatory. to the letters allege support does not material government’s confident position on Seda’s mo to terrorism. We are that the rogatory tions for letters hardly recognize could district court will fine line very for the existence of lying evi reason necessary probative separating the search exclusionary declaring rule falsity from evidenсe of willful dence Third, disregards opinion role of a terrorist cast unlawful. would by guilt express fear appeals Judge Hogan’s Michael based District unduly prejudice thereby . findings rulings on the association factual and his Elfgeeh, United States proceedings tes- impact challenged witness potential (2d Cir.2008) (recogniz- evidentiary hearing. timony following an linking defendant ing that “evidence And, fourth, opinion the ex- discounts he is not in a trial in which terrorism traordinary Department efforts likely to cause terrorism is charged with discovery criminal to abide its Justice prejudice”). undue exten- and the district court’s obligations dealing oversight those efforts sive PART, IN REVERSED AFFIRMED extremely national secu- with the sensitive PART, A AND FOR IN REMANDED investiga- rity underpin concerns TRIAL. NEW *31 case. prosecution tion and of this TALLMAN, concurring Judge, Circuit in part dissenting part: in and I from a arising a tax case This is fraud organiza- on a charitable by false declaration the the Contrary approach taken was claiming tax return a donation recitation, tion’s in a case majority in its factual in mosque Missouri purchase used to conviction, involving a criminal “all reason- in to terrorists actually when it was sent in favor of inferences are to be drawn able The and sentence Chechnya. conviction in the government, any conflicts the and also known imposed Sedaghaty, on Pirouz are to be in favor of the resolved Seda, affirmed. To as Pete should be v. Alvarez- jury’s verdict.” United States colleagues reverse the my wish to extent (9th Valenzuela, 1201-02 this and remand rulings district court’s Cir.2000). Furthermore, evidence is “[t]he trial, respectfully for a new I dissent.1 case in favor- light to be considered most determine able to the Overall, fails to opinion the majority’s fact could whether rational trier of manner in exemplary account take into have found the essential elements of handled this judge trial which seasoned beyond a doubt.” Id. received crime reasonable to ensure that the defendant case jury after an trial, despite and 1201. The convicted Seda a fair its substantive eight-day majority opinion trial and the challenges. There are several logistical analysis. legal majority’s faithfully apply has failed to this critical flaws First, jury’s resolu- principle of the defer- deference to the contravention verdict, contested review. jury’s opin- appellate tion of facts on ence we owe respecting jury’s fact-finding inappropri- The rule ion’s recitation the facts sufficiency confined to of the evi- ately perspective written from is not Second, majori- challenges theory posited dence defense the case. Kim, majority unduly ty. the text of United States v. constricts Cir.1994) (9th (“[0]n appeal we re- the under- disregards search warrant and opinion contemporaneously seal in the be cautioned filed under 1. Readers of this should my analysis completely Security custody that to understand of the Clаssified Information security requires necessary clearance Officer. dissent, portion the classified of this review light factual most view the record could have concluded on this evidence that verdict.”).2 favorable to the this was Al-Buthe’s “cut” for serving as ' ' (cid:127) the courier. example majority’s A prime slant in favor of the defense is its dismissive Al-Háramain advertised more than a government’s key discussion of the evi- donations, dozen bank accounts to collect dence of Seda’s in structuring global willfulness maintained a presence in at least 50 countries, the funds transfer to hide its intended operated an annual purpose.3 The defendants’ budget decision to million for its charitable $30-$80 structure the transaction in the form of work. One would expect organization money traveler’s checks to move the from of this size to keep banking automated Oregon Chechnya Yet, makes no sense if tracking records its donations. when benign their intentions were there pressed during the investigation for docu- nothing $150,000 to conceal. Once the Al-Hara- transaction, mentation of the Al- Foundation, main Islamic Inc. branch of- only present Haramain could through legal (Al-Hara- Ashland, fice Oregon based counsel purported two “receipts” with main-US) $150,000 received the deposit hand-written differing amounts for the Egyptian wired from London do- same transaction. con- nor, El-Fiki, Dr. Mahmoud Talaat Hasan vincingly argued these documents were defendants could easily quickly have phony, and the district properly court ad- wire-transferred the funds Al-Haramain mitted'them for the purpose limited Foundation, Islamic Inc.’s main office impeachment. jury very well could *32 (Al-Haramain) Saudi Arabia in- through have believed from the presented evidence ternational correspondent banks at a cost that the transaction was structured in this of about manner $15. so that the traveler’s checks could easily be converted into untraceable cash Instead, $1,300 the spent defendants in in the Middle East with Al-Buthe taking charges .$130,000 service into divide $21,000 personal his or nefarious use. $1,000-denomination Express American extremely evidence, traveler’s checks that are In diffi- addition to jury this the cult to trace once To cashed. further ob- suspicious heard evidence of other related their plan they scure withdrew another behavior Seda and his confederates. $21,000 a payable as cashier’s check made significantly, Most there was the deceitful co-defendant, Al-Buthe, Solimán per- manner in which Seda hid the actual use of sonally. $150,000 Evidence showed he later depos- Oregon “donation” from his personal accountant, Wilcox, ited it in his bank account in by falsely Tom claim- Riyadh, jury Saudi Arabia. A reasonable ing kept it was in the United States and when, here, majority implies stronger 2. The that our court must the defendant ac- light view the facts in most favorable knowledged suppоrts the evidence jury to the verdict when the has defendant by opting challenge verdict not the evi- challenged sufficiency of the evidence. sufficiency. dence’s only wrong, Jasper, This is not see SEC v. (9th Cir.2012) (stating charge ultimately 3. The that Seda was con- way relate the "[w]e facts here in the most of, filing victed a fraudulent tax return under jury though to the verdict” even favorable 7206, requires § 26 U.S.C. that a violator sufficiency of the evidence was not raised on “ n willfully return, any makes and subscribes appeal), logic. jury but it defies When a statement or other ... document not be- issue, reaches a verdict on we must re- every to be lieve[d] true and correct as to spect jury necessarily the facts the found to added). (emphasis matter.” prerogative reach that verdict. That is even com- a Chechen $462,000 portion statement price of in included Army of the Cauca- Missouri, purchased of the Islamic mosque mander Springfield, Ul-Khattab, that Is- operations. sus, complaining Al-Haramain-US Ibn expand prop- providing support that Al-Buthe is the fact charities were Then there lamic negotiable transport contained erly mujahideen. declared The email to the occasions, total- nine other Only subject Support?” instruments line “What two-and-a-half-year $777,845, $150,000 over ing received month later Seda in He question. events period Za- of “Use El-Fiki with a notation from prior Monetary Instrument Currency filed your noble participate kat in order to traveled, signifi- but each time he Report Brothers in Chech- to our muslim support when he carried not do so cantly did nia.”4 $151,000 instruments from negotiable testimony gov- jury heard from also Oregon to Saudi Arabia. Kohlmann, expert witness Evan ernment obviously thought the entire jury role of Al-Haramain described the who money reeked of criminal handling of the funding and its conflict the Chechen intent, by its verdict. The as evidenced chari- activity guise under the terrorist of the structured transactions complexity he process The “normal” donations. table willfulness powerful national, in “foreign that a described was money from the true use of the to hide the national, words, a non[-]Chechen other (IRS) he when Internal Revenue Service with a suitcase of between [$] would travel tax non-profit false return. subscribed the $500,000, a coun- bring 100 and would nefarious be- laundry this list of Despite nearby Chechnya,” try “[f]rom havior, majority recognize fails to across money would be couriered there the important this evi- cumulative effect of Chechnya the border into the Caucasus dence, ultimately resulted in the which help support distributed to and be
jury’s verdict. Al-Hara- mujahideen in field.” The disparities, financial from the Aside original copy main also included website introduced at was other evidence there *33 Jibrin, Abdallah Bin by of a fatwa5 Sheikh the tax intent to lie on trial to show Seda’s cleric. It called for a senior influential purpose to which form and hide the real mujahideen] “[s]upply [the Muslims to incriminating An the funds were put. support material which weapons with and during found the search email was fight struggle utilize to and they would com- in which Seda was Seda’s residence ob- fight who them.” Muslims were those directly Al-Haramain in municating with Mujahideen] fi- “[s]upport ligated [the following receipt of a battle- Arabia Saudi need for nancially they as dire [we]re Chechnya. On on activities report field clothing.” food just a month before the January why jury the found It is not hard to see donation, copied El-Fiki the defendant willfully failed to disclose to the Al-Buthe a that Seda to co-defendant into an email equivalent by a cleric "is the pillars and is 5. A fatwa issued one of the of Islam 4. Zakat is obligatory charity, regarding giving ruling particular alms or simi- issue the of a provide Muslims, “Zakat means to chari- upon lar to a tithe. it is incumbent Islam or Muslims,” ty suffering which some inter- issuing person anyone who follows the pret include to Muslim “distribut[ion] given.” the advice fatwa to follow fighting larger opponent,” fighters who are mujahideen at war with the like the Chechen army. Russian 501(c)(3) § IRS the trae activities of his tions were defined as “electronic records organization signed charitable when he involving communications the individu- informational Form 990 tax return. The or als entities” associated with the viola- and the circumstan- subjects defendants’ activities tions. The of the search warrant surrounding tial evidence defendants, them mirrored included the two two other operandi employed by officials, the modus those known Al-Haramain the donor -of smuggled money Chechnya, money who ultimately delivered to the Che- by upon public- mujahideen, called the fatwa announced chen as well as five related ly Furthermore, on Al-Haramain’s own website. Cou- Al-Haramain entities. pled incriminating computer evidence search warrant defined a procedure careful recovered forensic examiners from computers his to search for all “records stored drives, jury deleted hard any could reason- or modified in during form.” If ably infer that Seda was well aware of the search the law enforcement computer per- recipient’s intended use for donations sonnel determined it practical was not from complete Al-Haramain-US. the search of computers on-
site, then the computers could be “seized II transported to an appropriate law en- laboratory forcement [forensic] for re- incriminating from seized view.” prayer Ashland house fell properly Seda’s scope within the of the search warrant. way difference the majority defense, On behalf of the the majority approaches the search inquiry warrant re- opinion argument manufactures its to limit flects a fundamental difference in our scope agree of the search. We views of how searching agents guided are argument advanced in steadfast his the court’s authorization of items to be incorpo- briefs—that the affidavit was not in light seized of the more detailed state- However, (and major- rated—is untenable. ments in the incorporated physically ity’s newly argument created invalidating present) affidavit of establishing facts First, the search is also probable flawed. refuses cause for its issuance. The ma- acknowledge properly jority when read as upon focuses the words “limited to a whole the language following”- warrant’s allowed for ignoring pages while the 33 And, the collection of the records seized. outlining multi-year joint detail FBI/ second, agents even if the investigation exceeded the “as described IRS/ICE warrant, intended scope the search attached affidavit” incorporated by refer- exclusionary rule should not bar the use of ence.
the collected evidence good based on the complexity illegal “The of an scheme faith exception. may not be used as shield to avoid detection when the State has demonstrat-
A
probable
ed
cause to believe that a crime
The search warrant
probable
described the
has been committed and
cause to
TO BE
“ITEMS
SEIZED” as all
that
in
“[r]ec
believe
evidence
this crime is
ords and
to
all
suspect’s possession.”
communications”
include
v. Mary-
Andresen
land,
concerning
2737,
the subscription
“[e]vidence
427 U.S.
480 n.
96 S.Ct.
Return,
(1976).
a false Form 990 Tax
in violation
923
a call
encouraged
agents
sites and listserv emails
execute the search.” United States
Inc.,
v.
SDI Future Health
description
to arms and corroborated the
568 F.3d
(9th Cir.2009).
and its
activities
of Al-Haramain
terrorist
say
“When we
that a
Judge Hogan’s
affidavit.
factual
may
warrant
facially
be so
deficient that it
regarding
express
determinations
precludes
reliance,
reasonable
what we
incorpo-
terms of the search warrant and
‘[ojfficers
mean is
poised
a
conduct
clearly
rated affidavit were not
erroneous.
search should be able to ascertain that
Giberson,
United States
527 F.3d
such a warrant
fails to offer sufficiently
Cir.2008) (“We
(9th
...
review
detailed instruction and instead leaves
”
underlying
findings
district court’s
factual
Towne,
guessing
them
as to their task.’
error.”).
for clear
[t]he er, if read, these documents are correctly preventing arbitrary and unreasonable argument this fails. The warrant in this privacy; invasions of the search warrant case is not broadly underinclusive. It al- tangible itself is the that pre- evidence lows for the collection of all evidence relat- cautions have been taken ensure that preparation ed to the of a false tax return. no such invasion has occurred. When It is the affidavit then zeros in on the requests the officer who authorization the investigation already had un- search, magistrate who covered related Al-Haramain and its authorization, grants such and the offi- funding mujahideen’s connections to cers who execute expressly the search Chechnya. ap- activities The affidavit rely upon given set of papers contain- propriately narrowed the search to these words, ing given they identify series of activities, underlying why reason that set of and that series of papers falsified the Al-Haramain-US’s tax return. proof proper precau- words as the Luk, supra, ap- Just as described prevent tions were taken to an unrea- propriately incorporated affidavit “cured” sonably invasive search. any warrant, potential overbreadth of the majority’s argument collapses. Towne, and the United States v. (9th Cir.1993). principle
It is a “well-settled that "awar- overbreadth can great pains rant’s be cured went to accompanying affidavit that particu- comply more with the limitations of the warrant. be seized.” Id. Before larly giving independent describes items his approval, Luk, United States v. (citing Magistrate Judge 859 United John States Coo- (9th Cir.1988)). ney warrant, An supporting affidavit read the search warrant, attachments, “part poten- of a and therefore agent’s and the case sworn (1) defects, tially affidavit, curative of ... if incorporated by reference. Prior search, expressly incorporated warrant conducting prosecution the affida- (2) agent developed vit reference and the affidavit either and the case a search physically is attached or at procedure designated warrant to be followed with accompanies seizing computer-search proto- least the warrant while officer and *36 924 cull examiners to nearly 20 tion with forensic agent briefed The case
col. focus on the individuals copy a relevant data and agent each gave and agents on site probable in the affidavit of read.7 All of the and items listed warrant search computer available search re- were cause. When documents search warrant n crime, unrelated during evidence of an further reference vealed on site for re- attorney immediately sought also and obtained personal agents search. Seda’s and affidavit warrant the search second search warrant. viewed property he was summoned when consulted agent The case son.
Seda’s
prosecutor
with the
throughout the search
court conducted
Additionally, the district
regarding the seizure
legal guidance
for
issue,
evidentiary hearing
this
documents were
items. Some
particular
that
specifically found
Judge Hogan
son
with
only after Seda’s
seized
.talked
agents
was reasonable and
search
voluntary
gave
attorney on site
issuing magistrate
faithfully followed the
consent.
conducting
the com-
judge’s directions
searches,
appropriate
employing
regarding
puter
majority’s concerns
judge
The district
concluded
possible protocols.
affidavit and the
“kitchen sink”
warrant,
the affidavit
including
au-
that “the
coming
papers
across
not
dangers of
warrant, was reason-
My incorporated into the
misguided.
are
thorized
the search
and the
ably specific
sought
as to the items
acknowledge the exten-
colleagues barely
appropriate protocols
followed
required
sive forensic reconstruction
And,
intermingled materials.”
separate
from
de-
any usable evidence
salvage
in-
charged require proof of
investigation then
crimes
“[t]he
hard drives. The
leted
team,
finan-
beyond simple
and thus records
independent taint
unre-
tent
employed an
seized,
through
appropriately
cial records were
investigation,
this
to sift
lated to
of the efforts
support
such as evidence of
gained
materials
from
the electronic
mujahideen.”
Chechnyan
distinguish
[Chechen]
between those
search and
Furthermore,
search,
Hogan determined
Judge
scope
were within
“[g]iven the nature of the data and
agent
not. The case
de-
that were
those
deleted,
that it
the ae-
conjunc-
terms in
the fact
had been
specific search
veloped
Ortega-Jimenez, 232 F.3d
agent
United States v.
case
was both the affiant
7. Because the
warrant,
1325,
(10th Cir.2000);
and led the execution of the search
see also Massa-
regarding
be
any concerns
the seizures should
n.
Sheppard,
v.
468 U.S.
chusetts
by the Tenth Circuit:
foreclosed. As noted
(1984) ("the
warrant
is considered
apartment
stairs
“separate
which had a
incorporated
affidavit. Based on and distinct” entrance and a different
majority
Groody, the
states that “an affi-
street address than the one listed on the
upon
davit cannot be relied
to authorize a warrant. Kaye,
search warrant. First, Second, We should follow the Herring, Leon and and accord- faith under Third, Fifth, Seventh, Eighth, Tenth and is not warranted. ingly, exclusion Eleventh Circuits and the United States Appeals Court-of for the District of Colum-
Ill
bia, all of whom
recognized
have
this dif-
Hogan conducted a full evidentia
ference in
Judge
procedural -posture and given
im
ry hearing
proposed
requisite
to consider
deference to
trial
court’s
regarding
factual
peachment
findings
appeal.
evidence
Barbara
on
Jemigan, 492
1062,
(Bea, J.,
trial.
Cabral discovered after
We should F.3d at
1062-64
dissenting)
case).
(citing
discussing
defer to the district court’s factual find
and
each
This is
erroneous,
ings,
clearly
although legal
which were not
in because
analyzed
issues are
novo,
upholding
legal
his
determination that the
de
“a Brady determination is inevita-
bly
evidence was not material un
a
inquiry, involving ques-
undisclosed
contextual
83,
Brady Maryland,
v.
373
tions of
der
U.S.
83
both law and fact.” United States
(1963).
(5th
1194,
471,
Cir.2004).
10
215
v. Sipe,
S.Ct.
L.Ed.2d
388 F.3d
479
majority applies complete
apply appellate
de novo review Our sister circuits
defer-
three-step inquiry
give
and fails to
ence to a
factual findings
court’s
district
appropriate
bearing
level of deference
owe
on Brady materiality,
recog-
we
here,
the trial court. Unlike
for its
nize that
judge—who
stan-
the trial
listened to
review,
witnesses,
majority
upon
dard of
relies
a
testimony,
heard their
evidentiary
they
case that did not involve an
gave
superi-
watched as
it—is
fara
hearing regarding
Brady
position
violation. or
materiality
assess
than we
Pelisamen,
United States v.
On March
well before
30, 2010,
during
enhancement
August
trial on
er relation
mencement of
materiality
sentencing phase.
disclosed Barbara Cabral as
United States
testimony
question
“testify
who would
obser-
Cabral’s
a[b]out
witness
given
clear
that this was
attending functions at
a little more
vations made while
only
investigation,
they
evidence about de-
really the
direct
discovered that
hard drives had
mujahideen.
been deleted.
It was
fendant’s desire
fund
through
computer
forensic
examination
Ultimately, Judge Hogan chose not to im-
that the
was able to laborious-
sentencing enhancement for ter-
pose the
ly
incriminating
restore the
information
testimony was
rorism to which Cabral’s
n
piece together
inculpatory
the'
evi-
3A1.4(a).
§
relevant. U.S.S.G.
dence in this case.
willfulness,
Also, relevant to
there was
n
quantity
alternative,
Given
inde-
significant,
independent
other
evidence,
pendent
cu-
and when considered
jury’s finding.
Daveed
supporting
mulatively,
unlikely
it is
that the failure-to
Gartenstein-Ross,
employee
a former
husband,
payments
disclose the
to Cabral’s
Al-Haramain-US,
independently testified
Richard,
notes,
and the interview
which
gathering money
talked about
arguably might
impeached
have
her testi-
mujahideen
in Kosovo. There
forces
mony, materially prejudiced the defense.
ample
evidence in the record from
Judge
As
Hogan,
presided
who
over the
emails and other
seized from Seda’s
items
trial,
found.
so
prayer
at the
computers
Ashland
house
The majority opinion’s reference to dis-
covertly
support
showed his intent to
crepancies in the interview notes of Rich-
mujahideen Chechnya, including
vis-
ard
are irrelevant.
Cabral
Because he
sites,
multiple
pro-
its to
Jihadi web
passed away during
investigation
listserv,
mujahideen
Chechen
and battle-
this case and was therefore unavailable
photographs
mujahideen.
field
cross-examination,
during trial for
any rel-
government obtained still
from
photos
*41
evant
he
in-
during
statements
made
the
mujahideen
Seda’s home taken from
vestigation would have been inadmissible
fundraising
training
showing
camp,
video
under Federal Rule of Evidence 802 as
items,
as other
as well
seized
with the
hearsay
subject
hearsay,
within
not
to an
son,
of
consent
defendant’s
whose counsel
exception.
present during
jury
was
the search. The
findings
The district court’s factual
are
background expert testimony
heard
about
erroneous,
clearly
majority
not
and the
relationship
Chechen conflict and the
in failing
give appropriate
errs
to
defer-
Al-Haramain,
between
Saudi Joint Re-
Judge Hogan correctly
ence.
determined
Committee,
support
muja-
lief
for the
substantially
the error was not so
hideen.
injurious as to
a new trial
warrant
because
jury
damning,
certainly
Most
the result would have been no different.
entitled to infer from the deletion of the
682,
Bagley,
See
tice since 2001 that he was under investi- IV8 gation prior to execution of the search February warrant agents Contrary majority’s ruling, 2004. When computers years summary complied seized his three into the unclassified with the analysis 8. The to a unclassi- unclassified dissent constrained discussion 930 summary Information or state- of the whethеr unclassified Classified
requirements
(CIPA).
app.
to
Act
18 U.S.C.
of admitted
can be crafted
Procedures
ment
facts
creation of an
permits
§
law
effectively
production
4. The
substitute for
or substitu-
summary report
themselves,
unclassified
documents
cannot be
which
admitting relevant
security.
tion of a statement
for reasons of national
disclosed
in lieu of dis-
helpful
§
defense
facts
4.
app.
18 U.S.C.
government
The
closing state
Id.
secrets.
summary report given
unclassified
Rule of
Federal
has the burden under
complied
18 months
trial
to Seda
before
Procedure 16 to disclose
Criminal
requirements
as defined
of CIPA
and materi-
favorable to the accused
“both
6(c)(1).
§
“The
ac-
district court must
Bag-
guilt
punishment.”
or
al either
cept
provide
if it will
[the substitution]
(citing
ley,
at
dants and who The defense to the introduction position government’s best to know whether information summary, but offers defense, helpful be to are for explanation proposing stipula- [but] would their no not disadvantaged by permitted to in being slightly get not tion form so as to revised ... jury see the information and assist before the claim that the Al-Sanad’s information’s money in to legitimate court its assessment of the wаs be for hu- used purposes The determine helpfulness”). Chechnya. court must manitarian initially summary whether there is material and exculpatory defense marked the analysis protection complete fied evidence. A under the more dissent of the Classified Security the substitution is in the classified Information included Officer. just why then ten defense pursue Exhibit but counsel chose not to Defense trial raised its first concern days objection further, before their nor offer the exhib- hearing contents. In a seven regarding its it at trial. We should countenance this stated, later, “I want to days Judge Hogan tactical appeal maneuver on where Seda reit- again.” at that Defense counsel look objection by failing waived preserve regarding his concern the sum- erated it at trial. hearing prior mary, but same Judge Hogan went to extraordinary objection, de- Judge Hogan ruling on lengths to conduct multiple pro- in camera At fense counsel the exhibit. withdrew ceedings appropriately review related trial, the team did not renew the defense classified information an effort to meet objection summary. to the unclassified the commands of CIPA. There no was preserved appeal An issue is for “where abuse of discretion in the court’s authoriza- objection an has been the substance of summary, tion of the substituted but be- thoroughly explored and the trial court’s waiver, cause of the we should not even ruling explicit and definitive.” United reach this issue. (9th Palmer, F.3d States v.
Cir.1993). Although require- “there is no party engage ment that a a futile and V preserve formalistic ritual to the issue for capable A judge district court had a appeal,” that is not this case. United Varela-Rimra, 1174, daunting task in overseeing complex this States v. (9th Cir.2002). case, 1177-78 and the fairly record shows he bal- competing anced the interests stake. summary provided had been scope The search did not exceed the time to litigate defense with sufficient over properly authorized warrant and its incor- its contents. The defense team never of- porated procedures affidavit. The em- an fered alternative version to the trial ployed its creation and execution were a possible court consideration as com- measured and The district appropriate. promise.9 The defense team did not afford findings clearly court’s factual were not Judge Hogan opportunity an to make an erroneous, and the determination that the objec- “explicit ruling and definitive” on its potential impeachment regarding prior withdrawing tion the exhibit. Nor objection did the defense team reiterate its Barbara Cabral did not warrant a new at trial to preserve appeal. issue on trial was correct. The unclassified sum- mary appropriately complied with the re-
By failing acceptable to offer an alterna- quirements оf CIPA and balanced the tive, failing “explicit seek and defini- protect security need national objection, ruling failing tive” on the *43 present right a defense. Under trial, object summary’s language to the circumstances, got these difficult choosing prior to withdraw the exhibit trial,” though might “fair even not have trial, any challenge Seda waived to this Oklahoma, “perfect one.” Ross v. been claim. Deference is owed to defense coun- 81, 91, trial 487 U.S. S.Ct. strategy, specu- sel’s and we cannot (1988). reasons, I jury spoken late now after the has as to L.Ed.2d 80 For these argues majority specific 9. The the court’s words that defense counsel attention position was not alternative to offer it considered “editorialized” and rec- which However, trial, language. days ten before pejorative ommended less alternatives. brought certainly defense could have counsel the trial affirm conviction would rulings.
court’s America,
UNITED STATES
Plaintiff-Appellee, TORLAI, Jr.,
Gregory Peter
Defendant-Appellant.
No. 11-10359. Appeals, States
United Court
Ninth Circuit. Jan. 2013.
Argued Submitted Aug.
Filed 2013. notes objection enced. made no The defense previously for twelve undisclosed inter- time, prosecutor’s now cites the but views the FBI conducted example govern- an statement as and her witness Barbara Cabral husband inflammatory ment’s rhetoric. things, Among other Richard Cabral. also insinuated a con- prosecution reports notes and revealed defense jihad: nection between and violent paid FBI had for the first that the time [i.e., sending Qur’ans It prison- to U.S. $14,500 over the course of Richard Cabral sponsored by al- huge project ers] was a investigation, that at least one of those Arabia with Haramain Saudi their Wah- payments presence -made in the habi, They jihad propaganda. violent Cabral, FBI and that had Barbara get a foothold the United States. to Barbara payment made offer of Ca- their man. And out Pete Seda becomes bral before trial. hateful, goes crazy jihad into this stuff prisons. separate motions for Seda filed two focused a new trial: the first motion testified, among other Seda’s witnesses prosecution’s what he as the characterized things, role as Al-Haramain-U.S.’s motion, prejudice and the second character, appeal charity, good and his dismissal religious alternatively sought A which political moderate beliefs. Brady witnesses, related to the violation. charges, impeaching potential for agent however, The district court denied both motions.6 government, notes. The reports only eight disclosed Analysis twenty interviews nothing and revealed about payments spouse. either Brady I. The Claim testimony Cabral’s was the evi- found, As the district court “the directly linking dence Seda to an effort to only direct evidence about desire [Seda’s] mujahideen. fund the Chechen Cabral mujahideen,” to fund the came from Bar Hajj—a testified that after a pilgrimage to Cabral, bara prosecution witness who the Richard, Seda, Mecca—that she made with Despite showcased as critical. a defense others, group Seda asked the to re- request, withheld materi money turn to him unused received from al, significant, and non-cumulative im