Case: 16-6001 Document: 00117147050 Page: 1 Date Filed: 04/27/2017 Entry ID: 6087064

No. 16-6001

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

UNITED STATES OF AMERICA,

Appellee

v.

DZHOKHAR A. TSARNAEV,
Defendant-Appellant

GOVERNMENTS OPPOSITION TO APPELLANTS MOTION TO

DISCLOSE ON APPEAL GOVERNMENTS EX PARTE FILINGS AND
PROCEEDINGS IN THE DISTRICT COURT

The United States hereby opposes defendant-appellant Dzhokhar A.

Tsarnaevs Motion to Disclose on Appeal Governments Ex Parte Filings and

Proceedings in the District Court. For the reasons set forth below, Tsarnaevs

motion should be denied.

Background

Defendant-appellant Dzhokhar A. Tsarnaev appeals from the district

courts judgment convicting him on 30 counts, including the use of a weapon

of mass destruction resulting in death, in violation of 18 U.S.C. 2332a(a)(2),

and bombing a place of public use resulting in death, in violation of 18 U.S.C.

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2332f(a)(1), (a)(2), and (c). During the course of the prosecution, the

government filed a number of documents ex parte, and the district court held a

number of ex parte conferences with the government, resulting in 26 ex parte

docket entries. The defense also communicated with the court ex parte on

numerous occasions, resulting in more than 400 ex parte docket entries. After

the appeal in this case, the government disclosed to the defense 13 of the 26

government ex parte documents, but 13 of these documents remain ex parte and

under seal because they include classified information or are otherwise

confidential.

On February 21, 2017, Tsarnaev filed in the district court a sealed

Motion to Disclose Ex Parte Filings and Proceedings, seeking disclosure of the

remaining 13 ex parte docket entries. Doc. 1719. The government opposed this

motion, explaining its reasons for doing so in a sealed, ex parte filing. See Docs.

1722, 1723. On March 24, 2017, the district court denied Tsarnaevs motion in

a minute order, explaining that [t]he requested materials, as well as the ex

parte materials involving the defendant, are on the docket and are available to

the Court of Appeals for review. Dkt. Entry 1732.

Having been unsuccessful in the district court, Tsarnaev moved in this

Court for disclosure of the remaining ex parte filings. He says, At this initial

stage of the appeal, Appellant is not seeking to litigate the question of whether,

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in the first instance, the government should have been allowed to proceed ex

parte . . . before the district court. Defs Mot. 5. Instead, Tsarnaev seek[s]

the disclosure of the thirteen remaining proceedings so that counsel may

adequately address that and other issues in the merits briefing. Id. As an

alternative to disclosure, he asks this Court to order the government to

provide a log of the subject area and asserted grounds for non-disclosure . . . of

each undisclosed ex parte filing or proceeding, so that meaningful disclosure

litigation may occur prior to merits briefing. Id. at 10.

Argument

This Court should deny Tsarnaevs motion for three reasons.

A. Tsarnaevs claims should be resolved after full briefing.

First, Tsarnaev has cited no statute or rule of appellate procedure that

entitles him to litigate one appellate issuewhether the district court properly

conducted ex parte proceedings or properly denied his motion to disclose

before litigating all of his other appellate issues. In fact, the established

procedure is just the opposite: appellants must raise their claims all at once in

their briefs on appeal, not in stages. Claims that the district court deprived a

defendant of necessary information arise with some frequency on appeal. A

criminal defendant may argue, for example, that the district court erred in

failing to disclose potentially discoverable materials that it had reviewed in

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camera. See United States v. Mehanna, 735 F.3d 32, 65-66 (1st Cir. 2013); United

States v. Brimage, 115 F.3d 73, 78 (1st Cir. 1997). The normal procedure in

such cases is for the defendant to raise such a claim in his appellate brief and

for the court of appeals to review the undisclosed information in camera in

order to determine whether the claim has merit. See Mehanna, 735 F.3d at 65

(We have inspected the governments in camera submission.); Brimage, 115

F.3d at 78 (Like the district court, we have reviewed the reports submitted in

camera.). There is no compelling reason why this established procedure

should not be followed here. See United States v. Innamorati, 996 F.2d 456, 487-

88 (1st Cir. 1993) (resolving defendants challenge to ex parte proceedings in the

district court as part of the overall appeal).

In Mehanna, the defendant filed a motion very similar to Tsarnaevs

present motion, asking this Court to order disclosure of ex parte

communications. Motion for Release of Transcript of Ex Parte

Communication Relating to Exculpatory Materials or Alternative Relief,

United States v. Mehanna, No. 12-1461 (1st Cir. Oct. 3, 2012). He argued that

disclosure was necessary for defense counsel to assess the facts and brief to

this Court any issues that the facts may raise, including a possible claim under

Brady v. Maryland, 373 U.S. 83 (1963). Id. at 2. This Court denied Mehannas

motion. Order of Court, United States v. Mehanna, No. 12-1461 (1st Cir. Nov.

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15, 2012). The Court said it would consider a Brady claim in the ordinary

course . . . if and when it is briefed, but the Court was not at present

disposed to consider on the merits individual claims of error prior to briefing

and argument on the appeal as a whole. Id. The Court should follow the

same course here, and consider the merits of Tsarnaevs disclosure claims after

full briefing.

B. The district court correctly concluded that the remaining ex parte

matters should not be disclosed.

Second, Tsarnaevs motion should be denied because the district court

correctly concluded that the requested ex parte documents should not be

disclosed. This Court has recognized that, in a variety of contexts, the

requirements of confidentiality [can] outweigh the interest in adversarial

litigation and permit a court to rule on an issue in camera without the

participation of an interested party. Innamorati, 996 F.2d at 487. For

example, Federal Rule of Criminal Procedure 16(d)(1) expressly authorizes

the court to deny discovery of information . . . based on an ex parte showing . . .

of the need for confidentiality. Id. The Classified Information Procedures

Act (CIPA) permits the ex parte submission of affidavits by the government in

support of a protective order authorizing the non-disclosure of national

security information. Id. And under Franks v. Delaware, 438 U.S. 154, 98 S.

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Ct. 2674, 57 L. Ed. 2d 667 (1978), courts often make an in camera assessment

of the veracity of a confidential government informant and the harm from

revealing his identity. Id. Indeed, Tsarnaevs defense team apparently

understood that ex parte communications are often appropriate, considering the

defense was involved in more than 400 ex parte filings or proceedings and has

maintained that the need for these documents to remain confidential

outweighs the interest in adversarial litigation.

Tsarnaev argues that pre-briefing disclosure of the remaining

government ex parte documents is necessary to fully protect his rights under

the Fifth, Sixth, and Eighth Amendments. Defs Mot. 5. Without disclosure

of these ex parte matters, he argues, counsel for Appellant will be unable to

meaningfully raise the issue of whether these proceedings should have

occurred ex parte. Id. at 6. But if disclosure were always required in order to

allow the defense to prepare for an appeal, then proceedings could never

remain ex parte. Under this Courts precedent, that is clearly not the case. See

Innamorati, 996 F.2d at 487. And as it relates to classified information, CIPA

specifically provides that [i]f the court enters an order granting relief following

such an ex parte showing, the entire text of the statement of the United States

shall be sealed and preserved in the records of the court to be made available to

the appellate court in the event of an appeal. 18 U.S.C. App. 3, 4. Thus,

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CIPA contemplates that ex parte proceedings relating to classified information

will remain ex parte on appeal. See United States v. Sedaghaty, 728 F.3d 885, 908-

09 & n.12 (9th Cir. 2013).

Moreover, the Fifth and Sixth Amendments add nothing to Tsarnaevs

argument. This Court, along with other circuits, has rejected constitutional

challenges to the ex parte procedures authorized by Rule 16(d)(1) and CIPA.

United States v. Pringle, 751 F.2d 419, 427 (1st Cir. 1984) (rejecting the

defendants contention that the protective orders issued by the district court

[after ex parte in camera inspection] violated their due process rights). See

United States v. Mejia, 448 F.3d 436, 458 (D.C. Cir. 2006) (rejecting a Sixth

Amendment challenge); United States v. Porter, 701 F.2d 1158, 1162 (6th Cir.

1983) (rejecting a Fifth Amendment claim). And courts have upheld the use of

ex parte procedures in other contexts. See United States v. El-Mezain, 664 F.3d

467, 567 (5th Cir. 2011) (Numerous courts have held that FISAs in camera

and ex parte procedures are adequate and withstand constitutional scrutiny.).

The fact that this is a death penalty case changes nothing. See Defs Mot. 7-8.

Although defense counsel in capital cases have a duty to advocate vigorously

for their client, they do not have an unqualified right to access classified and

otherwise confidential information.

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Nor does the fact that Tsarnaevs appellate counsel have obtained

security clearances in the past change the analysis. See Defs Motion at 9 n.4.

Counsels possession of a clearance is a necessary, not a sufficient, condition to

obtain access to classified information, and it does not alone override the

governments interest in preventing disclosure of classified information. See

United States v. Sedaghaty, 728 F.3d 885, 909 (9th Cir. 885) ([T]he simple fact

that defense counsel held security clearances does not mean that the attorneys

were entitled to access the governments CIPA filings.); ElMezain, 664 F.3d

at 568 (approving, in the context of the Foreign Intelligence Surveillance Act,

denial of discovery to cleared defense counsel because of the governments

substantial interest in maintaining secrecy); United States v. Daoud, 755 F.3d

479, 484-85 (7th Cir. 2014) (reversing district court order to disclose classified

material to cleared defense counsel and noting that it is not true that any

concerns about disclosure were dissolved by defense counsels security

clearances); United States v. Abu Ali, 528 F.3d 210, 253 (4th Cir. 2008) ([W]e

have no authority [] to consider judgments made by the Attorney General

concerning the extent to which the information in issue here implicates

national security).

The district court correctly declined to disclose to Tsarnaev the few

remaining government ex parte documents. No information presented to the

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district court ex parte was used affirmatively against Tsarnaev at trial,

sentencing, or any other proceeding. None of the information was

discoverable or helpful to the defense. And, as explained in the attached

sealed summary of the ex parte documents, the need for confidentiality

continues to outweigh Tsarnaevs interest in access to these specific filings and

proceedings.

C. Tsarnaevs request for alternative relief is rendered moot by the

information provided in the sealed attachment.

Finally, Tsarnaevs alternative request for a log of the subject area and

asserted grounds of non-disclosure, Defs Mot. 10, is rendered moot by the

information contained in the sealed summary attached to this response. The

sealed attachment provides a description of the 13 remaining government ex

parte documents and the grounds for non-disclosure. 1 This provides Tsarnaev

1
When responding to Tsarnaevs motion for disclosure in the district
court, the government filed the memorandum describing the documents and
the reasons for non-disclosure ex parte and under seal. See Docs. 1723, 1730.
That memorandum contains certain confidential details that should continue
to remain ex parte. But the district court has authorized the government to
disclose, if it chooses, the date of each [ex parte event], a summary description,
the length of the filing or number of transcript pages, how many exhibits were
included, and the reason why [the government] believe[s] disclosure is not
appropriate. Doc. 1713 at 2-3. See Dkt. Entry 1717 (The parties are further
authorized to disclose to each other by joint agreement the information
described in the second paragraph of section four of the [governments]
motion.). Disclosure of the information in the sealed attachment to the
defense is therefore authorized by the district courts order. Because this
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with more than adequate information to meaningfully litigate the secrecy

issues before this Court. Defs Mot. 5.

Conclusion

Tsarnaevs Motion to Disclose on Appeal Governments Ex Parte Filings

and Proceedings in the District Court should be denied.

Respectfully submitted,

WILLIAM D. WEINREB JOSEPH F. PALMER

Acting United States Attorney
ALOKE S. CHAKRAVARTY
Assistant U.S. Attorney
District of Massachusetts
Attorney, Appellate Unit
National Security Division
s/William A. Glaser
WILLIAM A. GLASER
Attorney, Appellate Section
Criminal Division
U.S. Department of Justice

information remains under seal in the district court, however, the government
has sought leave to file the attachment under seal in this Court.
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CERTIFICATE OF COMPLIANCE

1. This document complies with the type-volume limitation of Fed. R.

App. P. 27(d)(2)(A) because it contains 2,076 words.

2. This document complies with the typeface and type style requirements

of Fed. R. App. P. 27(d)(1)(E), 32(a)(5), and 32(a)(6) because it has been

prepared in a proportionally spaced typeface using Microsoft Word in Calisto

MT 14-point type.

s/ William A. Glaser
WILLIAM A. GLASER
Attorney, Appellate Section
Criminal Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 532-4495

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CERTIFICATE OF SERVICE

I hereby certify that on April 27, 2017, I electronically filed the foregoing

document with the United States Court of Appeals for the First Circuit by

using the CM/ECF system. I certify that Clifford Gardner, Gail K. Johnson,

and David Patton, counsel of record for the Appellant, will be served by the

CM/ECF system.

s/ William A. Glaser
WILLIAM A. GLASER
Attorney, Appellate Section
Criminal Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
(202) 532-4495
William.Glaser@usdoj.gov

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