State v. Abushaqra ( 2016 )

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STATE OF CONNECTICUT v. HAIDAR
MUSTAFA ABUSHAQRA
(AC 152069)
DiPentima, C. J., and Lavine and Mullins, Js.*
Argued July 23, 2015—officially released April 5, 2016
(Petition for Review from Superior Court, judicial
district of Hartford, geographical area number twelve,
Baldini, J.)
Michael J. Dyer, with whom, on the brief, was Ryan
P. Barry, for the petitioner (Capital Bail Bonds, LLC).
Christopher Malany, supervisory assistant state’s
attorney, for the respondent (state).
Benjamin C. Mizer, principal deputy assistant attor-
ney general, Deirdre M. Daly, United States attorney,
and Mark B. Stern, Charles W. Scarborough, and John
B. Hughes, filed a brief for the United States of America
as amicus curiae.
Opinion
PER CURIAM. In this petition for review, brought
pursuant to Practice Book § 77-1 and General Statutes
§ 51-164x (c), we are called upon to determine whether
the trial court improperly (1) prohibited the petitioner,
Capital Bail Bonds, LLC, from disseminating, disclosing,
or otherwise using a report of the National Crime Infor-
mation Center (NCIC report) and a Federal Bureau of
Investigation (FBI) rap sheet in bond forfeiture pro-
ceedings, and (2) ordered the petitioner to lodge all
copies of said documents with the court under seal.
The petitioner claims that the court lacked the authority
to enter such an order. We disagree and conclude that
the court had the inherent authority both to prohibit the
dissemination, disclosure, and use of these documents,
and to order the petitioner to lodge them with the court
under seal.
The following facts and procedural history are rele-
vant to our analysis. The defendant, Haidar Mustafa
Abushaqra, was arrested on June 28, 2011, and charged
with two counts of larceny in the first degree. He was
released on separate surety bonds that were executed
by the petitioner. On February 1, 2012, the defendant
failed to appear in court as ordered, and the court,
Taylor, J., ordered the bonds forfeited and raised the
bail in each pending case to $1 million.
On September 3, 2014, the petitioner filed a motion
to release its obligations under the bonds. In support
of those requests, the petitioner also filed a motion to
file a record under seal, requesting that the memoran-
dum of law appended to the motion to release, as well
as certain other documents, be filed under seal with
the court pursuant to Practice Book § 11-20A.1 In its
memorandum of law in support of its motion to file
record under seal, the petitioner represented to the
court that ‘‘[t]here are certain statements and docu-
ments [referenced] within said motion that are highly
privileged and it is undersigned counsel’s belief that if
they were released to the public, their release could
jeopardize the health, safety and/or reputation of cer-
tain parties involved.’’ The respondent state filed a writ-
ten objection on September 22, 2014. The state was
unaware of the content of both the petitioner’s memo-
randum of law and the documents themselves at that
time because it was not served with copies.
The parties appeared for argument before the court,
Baldini, J., on September 22, 2014. At that hearing, the
petitioner’s counsel elaborated on the nature of the
documents it sought to be sealed: ‘‘First, there is a
document that I’ve attached . . . that is generated by
the FBI and that contains information that is relevant
and material to the case at hand. And for confidentiality
purposes I would like to refer to that document as
document number one. And secondly there is a docu-
ment generated by the chief state’s attorney’s office
under the [division] of criminal justice addressed to
myself indicating that the FBI—in fact, a division of
the FBI dealing with internal or international relations
considers that document number one as a national secu-
rity sensitive document and is not to be disclosed out-
side of law enforcement. The FBI also told the chief
[state’s attorney’s] office that document number one is
also law enforcement sensitive and is to be used for
internal purposes only.’’
The petitioner’s counsel repeatedly stated during this
hearing that these documents are ‘‘national security
sensitive’’ and ‘‘not to be distributed—disseminated out-
side of law enforcement.’’ The court inquired how the
petitioner came into possession of these materials. The
petitioner’s counsel represented that ‘‘they were inad-
vertently given to me.’’ The state objected to the peti-
tioner’s motions, arguing that the petitioner had failed
both to demonstrate that it was entitled to have its
obligations released and that it was entitled to have the
documents sealed. The state also contended that it was
‘‘arguing this motion at a significant disadvantage’’
because, at that time, it had not seen any of the docu-
ments. At the conclusion of the hearing, the court con-
tinued the matter until October 20, 2014, to afford itself
an opportunity to conduct an in camera review of the
content of these documents.
At the October 20, 2014 hearing, the court issued an
interim order prohibiting any disclosure, dissemina-
tion, or use of the documents by the petitioner’s coun-
sel, including to the petitioner, but it did not order the
documents to be lodged with the court at that time.
The court afforded the petitioner additional time to
conduct research concerning the court’s authority to
issue such an order and to prepare an objection to the
court’s interim order. The parties returned on March
11, 2015, at which time the petitioner and the state were
heard, and the matter was taken under advisement.
On July 13, 2015, the court issued a memorandum of
decision addressing the petitioner’s motion to seal and
its objection to the court’s interim order. The court
identified the documents the petitioner sought to have
sealed as the defendant’s FBI rap sheet and an NCIC
report concerning the defendant.2 The court also identi-
fied a number of reasons why a sealing order was appro-
priate, found that these reasons overrode the public’s
interest in viewing the documents, and found that there
were no reasonable alternatives to a sealing order. The
court ordered the petitioner to place all copies of the
defendant’s FBI rap sheet and NCIC report in a sealed
envelope and to lodge said envelope with the court.
The court further ordered that ‘‘[t]he parties are pre-
cluded from disseminating, publishing or otherwise dis-
closing the contents of this [o]rder and the court’s
memorandum of decision . . . for seventy-two (72)
hours from the date of this [o]rder. . . . Should any
appeal be taken of this [o]rder within the seventy-two
(72) hour period as provided by the Practice Book, such
appeal shall operate as a further stay of the [o]rders
set forth . . . above.’’ The petitioner subsequently filed
the present petition for review on July 16, 2015,
requesting that this court ‘‘reverse the trial court’s order
precluding [it] from disseminating, publishing or other-
wise disclosing the contents of the [documents] and
remand the case to the trial court for further pro-
ceedings.’’
The parties appeared for oral argument before this
court on July 23, 2015. On July 24, 2015, this court, sua
sponte, ordered the parties to file briefs addressing the
trial court’s authority to preclude use of and reference
to the defendant’s FBI rap sheet and NCIC report, as
well as the court’s authority to require the petitioner
to place all copies of these documents in the possession
of the court. Subsequently, on September 16, 2015, this
court invited the United States Attorney for the District
of Connecticut to file a brief on behalf of the United
States of America as amicus curiae. The amicus brief
was filed on December 16, 2015.
This petition presents an unusual circumstance. The
petitioner initially sought, by way of its September 3,
2014 motion to file record under seal, a sealing order
of, among other things, the defendant’s FBI rap sheet
and NCIC report. The court ultimately ordered these
documents to be sealed. In other words, the petitioner
appears at first blush to have received the relief it
requested. Nevertheless, it now claims that the court
lacked the authority to order a blanket prohibition on
any use and dissemination of these documents. The
petitioner further claims that the court exceeded its
authority when it ordered that these documents be
turned over to the court. The petitioner argues that
the Superior Court, as a constitutional court of general
jurisdiction, may only act pursuant to explicit constitu-
tional, statutory, or common-law authority. It contends
that no such authority supports the court’s orders in
the present case. The state objects, arguing that use of
the defendant’s FBI rap sheet and NCIC report is strictly
limited by federal law, namely, 28 U.S.C. § 5343 and 42
U.S.C. § 14616,4 and that the court, in recognition of
these limitations, properly precluded the parties from
using them. The state also argues that the court properly
utilized its broad inherent authority to restrict the use
of sensitive evidence. We agree with the state.
We begin with the standard of review. The only claim
advanced by the petitioner is that the trial court com-
pletely lacked the authority to issue the order that it
issued, not that it improperly exercised its authority.
‘‘Whether the trial court had the power to issue [an]
order, as distinct from the question of whether the trial
court properly exercised that power, is a question
involving the scope of the trial court’s inherent powers
and, as such, is a question of law. See, e.g., Millbrook
Owners Assn., Inc. v. Hamilton Standard, 257 Conn.
1, 14, 776 A.2d 1115 (2001) . . . . Accordingly, our
review is plenary.’’ AvalonBay Communities, Inc. v.
Planning & Zoning Commission, 260 Conn. 232, 239–
40, 796 A.2d 1164 (2002).
The petitioner claims that, in the absence of explicit
authorization, the court was powerless both to order a
blanket prohibition on dissemination, disclosure, and
use of the documents, and to lodge all copies of the
documents with the court under seal. We disagree. The
trial court’s authority is not limited by the rules of
practice.5 ‘‘The power of a court to manage its own
affairs so as to achieve an orderly and expeditious dis-
position of cases exists independently of the power
recognized by rule or statute.’’ (Emphasis added.) Talit
v. Northwest Airlines, Inc., 58 Conn. App. 102, 107, 752
A.2d 1131 (2000). The appellate courts of this state
consistently have recognized that the trial court has
broad inherent authority to manage judicial proceed-
ings in a variety of circumstances. See State v. Jones,
314 Conn. 410, 420, 102 A.3d 694 (2014) (‘‘The case
management authority is an inherent power necessarily
vested in trial courts to manage their own affairs in
order to achieve the expeditious disposition of cases.
. . . The ability of trial judges to manage cases is essen-
tial to judicial economy and justice. . . . This authority
extends to determining the means by which the jury
examines submitted exhibits.’’ [Citation omitted; inter-
nal quotation marks omitted.]); ACMAT Corp. v.
Greater New York Mutual Ins. Co., 282 Conn. 576, 591
n.13, 923 A.2d 697 (2007) (‘‘a trial court in this state
has the inherent authority to impose sanctions against
an attorney and his client for a course of claimed dila-
tory, bad faith and harassing litigation conduct, even
in the absence of a specific rule or order of the court
that is claimed to have been violated’’ [internal quota-
tion marks omitted]); Maris v. McGrath, 269 Conn. 834,
844, 850 A.2d 133 (2004) (‘‘the court has the inherent
authority to assess attorney’s fees when the losing party
has acted in bad faith, vexatiously, wantonly or for
oppressive reasons’’ [internal quotation marks omit-
ted]); Fattibene v. Kealey, 18 Conn. App. 344, 359–60,
558 A.2d 677 (1989) (in absence of rule of practice on
point, trial court may rely on its inherent authority to
manage proceedings). ‘‘Simply stated, [t]he inherent
powers of . . . courts are those which are necessary
to the exercise of all others.’’ (Internal quotation marks
omitted.) Srager v. Koenig, 42 Conn. App. 617, 620, 681
A.2d 323, certs. denied, 239 Conn. 935, 936, 684 A.2d
709 (1996).
After reviewing the record, briefs, and the court’s
memorandum of decision, we conclude that the court’s
inherent authority is broad enough to allow it to pre-
clude use of the defendant’s FBI rap sheet and NCIC
report, and to order these documents to be placed in
the custody of the court. This case presents unique
circumstances involving, by the petitioner’s own state-
ments, highly sensitive documents that are intended
only for use by law enforcement professionals. See
Commissioner of Public Safety v. Freedom of Informa-
tion Commission, 144 Conn. App. 821, 828, 76 A.3d 185
(2013) (‘‘28 U.S.C. § 534 makes clear that . . . NCIC
information is not to be disseminated outside the receiv-
ing department or related agencies’’). These documents,
the petitioner acknowledges, were inadvertently dis-
closed and neither the state nor the federal government6
intended to disseminate them to anyone outside of law
enforcement. We conclude that the court had the inher-
ent authority to enter appropriate orders to halt any
further unintended dissemination of these highly sensi-
tive documents. We therefore deny the petitioner’s
request for relief.
The petition for review is granted but the relief
requested is denied.
* This petition originally was heard before a panel of this court consisting
of Chief Judge DiPentima, Judge Lavine, and Judge Keller. Thereafter, Judge
Keller disqualified herself and was replaced by Judge Mullins. Judge Mullins
has read the record and briefs and listened to the recording of oral argument
prior to participating in this decision.
1
Practice Book § 11-20A provides in relevant part: ‘‘(a) Except as other-
wise provided by law, there shall be a presumption that documents filed
with the court shall be available to the public.
‘‘(b) Except as provided in this section, and except as otherwise provided
by law, including Section 13-5, the judicial authority shall not order that
any files, affidavits, documents, or other materials on file with the court or
filed in connection with a court proceeding be sealed or their disclosure
limited.
‘‘(c) Upon written motion of any party, or upon its own motion, the judicial
authority may order that files, affidavits, documents, or other materials on
file or lodged with the court or in connection with a court proceeding be
sealed or their disclosure limited only if the judicial authority concludes
that such order is necessary to preserve an interest which is determined to
override the public’s interest in viewing such materials. The judicial authority
shall first consider reasonable alternatives to any such order and any such
order shall be no broader than necessary to protect such overriding interest.
An agreement of the parties to seal or limit the disclosure of documents
on file with the court or filed in connection with a court proceeding shall
not constitute a sufficient basis for the issuance of such an order. . . .’’
2
The court noted that ‘‘the NCIC is an electronic clearinghouse of crime
data that can be accessed by law enforcement agencies nationwide. The
NCIC helps criminal justice professionals apprehend fugitives, locate missing
persons, recover stolen property, and identify terrorists. It also assists law
enforcement officers in performing their official duties more safely and
provides them with information necessary to aid in protecting the gen-
eral public.
‘‘The NCIC operates under a shared management agreement between the
FBI and federal, state, local, and tribal criminal justice users. The NCIC
database information is accessible in accordance with the National Crime
Prevention and Privacy Compact . . . as set forth in 28 U.S.C. § 534 and
42 U.S.C. § 14616.’’
3
‘‘28 U.S.C. § 534 makes clear that . . . NCIC information is not to be
disseminated outside the receiving department or related agencies . . . .’’
Commissioner of Public Safety v. Freedom of Information Commission,
144 Conn. App. 821, 828, 76 A.3d 185 (2013). ‘‘The principal use of the
information is to assist in the detection and prosecution of offenders; it is
also used by courts and corrections officials in connection with sentencing
and parole decisions. As a matter of executive policy, the Department [of
Justice] has generally treated rap sheets as confidential and, with certain
exceptions, has restricted their use to governmental purposes.’’ (Internal
quotation marks omitted.) Id., 829, quoting United States Dept. of Justice
v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 752, 109 S.
Ct. 1468, 103 L. Ed. 2d 774 (1989).
Section 534 (f) (1) of title 28 of the United States Code sets forth a narrow
exception to the general rule that NCIC information is not to be disseminated
outside of receiving departments or related agencies: ‘‘Information from
national crime information databases consisting of identification records,
criminal history records, protection orders, and wanted person records may
be disseminated to civil and criminal courts for use in domestic violence
or stalking cases. Nothing in this subsection shall be construed to permit
access to such records for any other purpose.’’ (Emphasis added.) As this
court previously has observed, ‘‘[s]ubsection (f) (1) [of § 534] clearly demon-
strates that access to NCIC records for any purpose not contained within
the compact is not permitted.’’ Commissioner of Public Safety v. Freedom
of Information Commission, supra, 144 Conn. App. 828; see footnotes 2
and 4 of this opinion.
4
42 U.S.C. § 14616 sets forth the National Crime Prevention and Privacy
Compact, which establishes the information sharing framework between
various law enforcement agencies. Connecticut has adopted this compact.
See General Statutes § 29-164f (‘‘[t]he National Crime Prevention and Privacy
Compact is hereby entered into and enacted into law with any and all of
the states and the federal government legally joining therein’’). Section 14616
of title 42 of the United States Code limits the use of NCIC reports and FBI
rap sheets. For instance, 42 U.S.C. § 14616, art. IV (c), concerning authorized
record disclosures, provides in relevant part: ‘‘Any record obtained under
this Compact may be used only for the official purposes for which the record
was requested. . . .’’ It also requires members of the compact to establish
rules, procedures, and standards to ‘‘ensure that records obtained under
this Compact are used only by authorized officials for authorized purposes
. . . .’’ 42 U.S.C. § 14616, art. IV (c) (1); see also General Statutes § 29-164f,
art. IV (c); Commissioner of Public Safety v. Freedom of Information
Commission, 144 Conn. App. 821, 827, 76 A.3d 185 (2013).
5
We note that although the court’s order was grounded on the sealing
provisions of Practice Book § 11-20A, we affirm on the ground that the court
possesses the inherent authority to fashion orders necessary to manage
judicial proceedings.
6
In its amicus brief to this court, the United States took the position that
the trial court had the authority to issue the order that it issued, and expressly
requested this court to order the return of the defendant’s FBI rap sheet
and NCIC report. The only issue before this court, however, is whether the
trial court had the authority to preclude use of these documents and order
them to be lodged with the court. Thus, if the United States wishes to
retrieve these documents, it must do so in the Superior Court.