United States v. Trabelsi ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal Action No. 06-89 (RWR)
)
NIZAR TRABELSI, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION AND ORDER
Defendant Nizar Trabelsi moved to compel the government
to produce correspondence and documents sent between the United
States and Belgium addressing Trabelsi’s extradition. After
full briefing and oral argument, the Court issued on May 8, 2015
a memorandum opinion and order granting Trabelsi’s motion and
directing the government to produce a specific category of
correspondence sent between the United States and Belgium. The
government now moves for reconsideration of the Court’s May 8,
2015 decision, once again claiming that the requested
communications are privileged. The government also requests in
camera ex parte review and a preemptive sealing order covering
any documents produced to Trabelsi. Because a portion of the
responsive discovery may contain material protected by the
opinion work product privilege, and because the government has
sufficiently shown that harm to the United States’ foreign
relations may flow from unfettered production of the requested
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correspondence, the government’s motion for reconsideration will
be denied in part and granted in part.
BACKGROUND
The relevant background can be found in the Court’s
May 8, 2015 Memorandum Opinion and Order, ECF No. 109. Briefly,
Trabelsi was convicted in Belgium of conspiracy, explosives,
firearms, and other offenses and sentenced to ten years
imprisonment. While Trabelsi was serving his sentence in
Belgium, the U.S. government secured an initial indictment and
then a superseding indictment charging Trabelsi with conspiracy,
weapons, and terrorism offenses. After receiving the U.S.
government’s formal request for Trabelsi’s extradition under the
superseding indictment, Belgium issued a decision in
November 2011 granting the request. After he completed his
sentence in Belgium, Trabelsi was extradited to the United
States in October 2013.
In the fall of 2014, Trabelsi filed a motion to dismiss the
superseding indictment, alleging that this prosecution violates
several provisions of the United States’ extradition treaty with
Belgium. Immediately following the initial briefing on
Trabelsi’s motion to dismiss, Trabelsi filed in January of 2015
a motion to compel the government to produce correspondence and
documents related to his extradition sent between the United
States and Belgium. He alleges that Belgium declined to
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extradite him on the initial indictment, and that the government
made misrepresentations to Belgium that induced Belgium to
extradite him on the superseding indictment. The government
opposed, arguing that the requested documents were not relevant
to this case, were not discoverable, and were privileged.
Following full briefing and oral argument, the Court issued on
May 8, 2015 a memorandum opinion and order (“5/8/15 Order”)
granting Trabelsi’s motion and ordering the government to
produce a specific set of correspondence.
The government now moves for reconsideration of the 5/8/15
Order. The government once again asserts that the requested
correspondence is privileged, reiterating several arguments
presented in the government’s opposition to Trabelsi’s motion to
compel and presenting several new claims of privilege. The
government requests alternatively that it be permitted to review
the responsive documents and then produce for in camera ex parte
review any material the governments deems to be producible under
Brady v. Maryland, 373 U.S. 83 (1963). The government also
requests that any documents ultimately produced to Trabelsi be
sealed. Trabelsi opposes the motion in its entirety.
DISCUSSION
“[M]otions for reconsideration may be entertained in
criminal cases and [courts] have adopted the same standard of
review that applies to . . . motions [to alter or amend a
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judgment] filed in civil cases pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure.” United States v. Cabrera,
699 F. Supp. 2d 35, 40 (D.D.C. 2010). “However, in civil cases
‘[t]he standard of review for interlocutory decisions differs
from the standards applied to final judgments under Federal
Rules of Civil Procedure 59(e) and 60(b).’” United States v.
Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (quoting Williams v.
Savage, 569 F. Supp. 2d 99, 108 (D.D.C. 2008)).
“[R]econsideration of an interlocutory decision is available
under the standard ‘as justice requires.’” Judicial Watch v.
Dep't of Army, 466 F. Supp. 2d 112, 123 (D.D.C. 2006) (citations
omitted).
That standard asks whether reconsideration is
warranted under the totality of the circumstances,
including such factors as whether the court has
patently misunderstood a party, has made a decision
outside the adversarial issues presented to the court
by the parties, has made an error not of reasoning,
but of apprehension, or where a controlling or
significant change in the law or facts has occurred
since the submission of the issue to the court.
United States v. McCallum, 885 F. Supp. 2d 105, 115 (D.D.C.
2012), aff'd, 721 F.3d 706 (D.C. Cir. 2013) (internal quotation
marks and citation omitted). “Motions for reconsideration are
committed to the sound discretion of the trial court.” Judicial
Watch, Inc. v. U.S. Dep't of Energy, 319 F. Supp. 2d 32, 34
(D.D.C. 2004) (citing Firestone v. Firestone, 76 F.3d 1205, 1208
(D.C. Cir. 1996)).
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The moving party bears the burden “to show that
reconsideration is appropriate and that harm or injustice would
result if reconsideration were denied.” United States v.
Hemingway, 930 F. Supp. 2d 11, 13 (D.D.C. 2013). However, “a
losing party may not use a . . . motion [for reconsideration] to
raise new issues that could have been raised previously.”
Kattan by Thomas v. District of Columbia, 995 F.2d 274, 276
(D.C. Cir. 1993). “‘[W]here litigants have once battled for the
court’s decision, they should neither be required, nor without
good reason permitted, to battle for it again.’” Hoffman v.
District of Columbia, 681 F. Supp. 2d 86, 90 (D.D.C. 2010)
(quoting Singh v. George Wash. Univ., 383 F. Supp. 2d 99, 101
(D.D.C. 2005)); see also New York v. United States, 880 F. Supp.
37, 38 (D.D.C. 1995) (stating that a motion for reconsideration
is “not simply an opportunity to reargue facts and theories upon
which a court has already ruled”).
In its motion for reconsideration, the government argues
that the communications subject to production under the 5/8/15
Order are protected by several privileges, including the
attorney-client, work product, and deliberative process
privileges. The government requests that, in the event that the
government must produce documents responsive to the 5/8/15
Order, the Court permit the government to produce for in camera
ex parte review only those documents the government deems to be
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Brady material. Finally, in the event that any correspondence
is ultimately produced to Trabelsi, the government requests that
the documents and all information contained in them be subject
to a sealing order.
I. CLAIMS OF PRIVILEGE
Generally, “[t]he common law -- as interpreted by United
States courts in the light of reason and experience -- governs a
claim of privilege[.]” Fed. R. Evid. 501. “Although Rule 501
manifests a congressional desire to provide the courts with the
flexibility to develop rules of privilege on a case-by-case
basis, . . . the Supreme Court has been ‘disinclined to exercise
this authority expansively[.]’” In re Lindsey, 158 F.3d 1263,
1268 (D.C. Cir. 1998) (quoting Univ. of Pa. v. EEOC, 493 U.S.
182, 189 (1990)). “[E]xceptions to the demand for every man's
evidence are not lightly created nor expansively construed, for
they are in derogation of the search for truth.” United States
v. Nixon, 418 U.S. 683, 710 (1974). Additionally, “[i]t is the
manifest duty of the courts to vindicate [constitutional]
guarantees [afforded to criminal defendants], and to accomplish
that it is essential that all relevant and admissible evidence
be produced.” Id. at 711. Further, as the D.C. Circuit has
recognized, “openness in government has always been thought
crucial to ensuring that the people remain in control of their
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government.” In re Lindsey, 158 F.3d at 1274 (internal
quotation omitted).
The government once again argues that the requested
communications are generally “privileged” and were prepared with
the expectation of confidentiality. Govt.’s Mot. for
Reconsideration, ECF No. 112 at 5. The government asserts that
the responsive correspondence “focuses on communications . . .
that . . . are entitled to treaty-based and common law
protections[,]” id. at 3, and should be protected in its
entirety. Additionally, the government asserts that disclosure
of the relevant documents will have a chilling effect on “the
United States’ many essential extradition and mutual assistance
relationships with other countries,” id., and that “the Kingdom
of Belgium has registered its serious concerns,” id. at 4.
Here, the government does not allege that the court
misunderstood the parties' arguments or considered an
issue not presented by the parties, or that there was
an intervening change in controlling law. At best,
the government appears to be making a second attempt
to cite relevant law and facts in support of an
argument that has already been rejected on the merits.
United States v. Hemingway, 930 F. Supp. 2d 11, 13 (D.D.C.
2013). As was discussed in the 5/8/15 Order, the government
cannot simply say that documents as a whole are “ordinarily
privileged,” Govt.’s Mot. for Reconsideration at 5, and are
exempt from discovery without providing some recognized legal
support for this claim. See 5/8/15 Order at 11-13.
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Expectations of confidentiality, even those shared by a foreign
sovereign, and “anticipation of the nondisclosure of . . .
candid communications,” Govt.’s Mot. for Reconsideration at 4,
are not enough to establish a legally recognizable privilege. 1
Thus, reconsideration of the government’s general privilege and
confidentiality arguments is not warranted.
The government also argues that the requested
correspondence is protected by three legally recognized
privileges, which the government has now uncovered through its
review of documents potentially responsive to the 5/8/15 Order.
The government highlights three “traditional legal privileges”
that purportedly protect the documents from disclosure --
attorney-client privilege, work product privilege, and
deliberative process privilege. Govt.’s Mot. for
Reconsideration at 4, 6-9.
A. Attorney-Client Privilege
The government first argues that the correspondence
responsive to the 5/8/15 Order is protected by attorney-client
privilege. “The attorney-client privilege protects [certain]
confidential communications made between clients and their
1 The government also seems to assert that the requested
communications are protected by Belgian law and should therefore
be exempt from disclosure. See Govt.’s Mot. for Reconsideration
at 5. The government does not, however, explain why a foreign
sovereign’s law should shield the relevant correspondence from
discovery in a U.S. federal court.
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attorneys[.]” In re Lindsey, 158 F.3d at 1267. The purpose of
this privilege “is to encourage full and frank communication
between attorneys and their clients and thereby promote broader
public interests in the observance of law and administration of
justice.” Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). The attorney-client privilege applies to communications
between an attorney acting in her capacity as a professional
legal adviser and the client. See In re Lindsey, 158 F.3d at
1270 (“[O]nly communications that seek ‘legal advice’ from ‘a
professional legal adviser in his capacity as such’ are
protected.” (quoting 8 John Henry Wigmore, Evidence in Trials at
Common Law § 2292, at 554 (McNaughton rev. 1961))). In other
words,
the privilege applies only if the person to whom the
communication was made is “a member of the bar of a
court” who “in connection with th[e] communication is
acting as a lawyer” and the communication was made
“for the purpose of securing primarily either (i) an
opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding.”
Id. (quoting In re Sealed Case, 737 F.2d 94, 98-99 (D.C. Cir.
1984)). The party asserting the attorney-client privilege has
the “burden of proving that the communications are protected.”
Id. Further, when attempting to invoke the attorney-client
privilege, a party must prove each required element of the
privilege and “[a] blanket assertion of the privilege will not
suffice.” Id.
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Disclosure of a client’s communications to third parties
ordinarily “waives the protection of the [attorney-client]
privilege[].” Id. at 1282. However, the “common interest”
doctrine of the attorney-client privilege continues to offer the
protections of the privilege to third-party disclosures in which
the “communications between a lawyer and two or more clients
[were] regarding a matter of common interest.” In re Sealed
Case, 29 F.3d 715, 719 (D.C. Cir. 1994) (citing In re Auclair,
961 F.2d 65, 69 (5th Cir. 1992)). The common interest doctrine
is applicable only after a party has first shown an established
attorney-client relationship, and only where the same attorney
represents both of the clients. See Chesapeake Bay Found., Inc.
v. U.S. Army Corps of Eng’rs, 722 F. Supp. 2d 66, 74 (D.D.C.
2010).
Here, the government argues -- citing In re Lindsey -- that
the relevant communications, “which [were] made pursuant to the
terms of a formal agreement obligating the countries to assist
one another with extraditions, are protected under the common
interest doctrine of the attorney-client privilege.” Govt.’s
Mot. for Reconsideration at 6. The government asserts that
“many communications between extradition partners . . . provide
the requesting country with advice concerning the legal
requirements of the requested country” and are therefore
“properly shielded by the common interest doctrine.” Id. The
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government also cites to the Declaration of Kenneth J. Harris
(“Harris Declaration”), Ex. 1, Govt.’s Mot. for Reconsideration,
which includes general descriptions of the extradition
relationship between the United States and Belgium and the types
of assistance rendered by their respective authorities.
Beyond blanket assertions of attorney-client privilege and
general descriptions of inter-governmental assistance, see,
e.g., Harris Declaration at 4-5 (discussing how attorneys
working for the U.S. Department of Justice’s Office of
International Affairs (“OIA”) both give advice to and receive
guidance from attorneys for foreign governments), the government
does not squarely address which actors serve as the “attorneys”
and which entities serve as the “clients” in this case. At
best, it appears that the government is arguing that U.S. and
Belgian officials provided legal advice and assistance to one
another regarding Trabelsi’s extradition, rendering U.S. and
Belgian officials as both the “attorneys” and the “clients.” 2
No authority cited by the government establishes that this
privilege contemplates this type of mutual governmental
assistance as an attorney-client relationship. The United
2 In other words, an OIA attorney may at any given time
during the extradition process be “representing” the United
States, the Kingdom of Belgium, and Belgian officials, while
both the OIA attorney and the United States are simultaneously
“represented by” those same Belgian officials.
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States and Belgium are, in the government’s words, “extradition
partners” -- their attorneys often “solicit and receive advice”
from one another as they work together to effectuate an
extradition. See Harris Declaration at 4. The government fails
to cite to any case recognizing the existence of an attorney-
client relationship in this type of circumstance. The
government also fails to cite any case supporting the
proposition that the mere fact that the governmental actors
sending and receiving this information are attorneys is
sufficient to establish an attorney-client relationship.
Additionally, although communications between an attorney and a
qualifying U.S. governmental client may in some cases be covered
by attorney-client privilege, see, e.g., In re Lindsey, 158 F.3d
at 1269-70, the government points to no case that extends this
privilege to communications between an attorney working for the
U.S. government and a foreign official.
In the absence of any case law or other legal authority
recognizing this type of inter-governmental assistance
relationship as one between an attorney and a client, and in
light of the general rule that privileges “are not lightly
created nor expansively construed,” United States v. Nixon, 418
U.S. at 710, the Court declines to expand the existing scope of
the attorney-client privilege. Because the government has
failed to demonstrate a qualifying attorney-client relationship,
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the government is not entitled to withhold any of the responsive
correspondence under the cloak of the attorney-client privilege.
B. Work Product Privilege
The government also argues that the relevant correspondence
is protected by the work product privilege. Though the work
product privilege is most frequently invoked in the civil
context, the attorney work-product doctrine applies to criminal
as well as civil litigation. See United States v. Clemens, 793
F. Supp. 2d 236, 244 (D.D.C. 2011) (citing United States v.
Nobles, 422 U.S. 225, 236 (1975)). The work product privilege
“promotes the adversary process by insulating an attorney’s
litigation preparation from discovery.” United States v.
Deloitte LLP, 610 F.3d 129, 139-40 (D.C. Cir. 2010). However,
“not ‘all written materials obtained or prepared by an
adversary’s counsel with an eye toward litigation are
necessarily free from discovery in all cases.’” Clemens, 793 F.
Supp. 2d at 244 (quoting Hickman v. Taylor, 329 U.S. 495, 511
(1947)). Instead, “attorney work-product is discoverable if the
party seeking discovery can make a sufficient showing of
necessity.” Id. (internal quotation omitted). Qualifying work
product “is protected from discovery unless ‘the one who would
invade that privacy’ carries the burden of ‘establish[ing]
adequate reasons to justify production through a subpoena or
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court order.’” Deloitte LLP, 610 F.3d at 135 (quoting
Hickman, 329 U.S. at 512).
There are two types of work product that may be subject to
discovery -- “fact” and “opinion.” “Where relevant and non-
privileged facts remain hidden in an attorney's file and where
production of those facts is essential to the preparation of
one's case, discovery may properly be had.” Hickman, 329 U.S.
at 511. “A party can discover fact work product upon showing a
substantial need for the materials and an undue hardship in
acquiring the information any other way.” Dir., Office of
Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304, 1307
(D.C. Cir. 1997). As was discussed in the 5/8/15 Order,
Trabelsi has demonstrated a substantial need for the requested
correspondence, as it may expose the government duplicity he
claims in support of his motion to dismiss the indictment.
Trabelsi has also shown it is impossible to obtain the requested
correspondence in another manner. Thus, the work product
privilege may not shield any fact work product contained within
the requested correspondence.
Opinion work product, though, enjoys greater protection.
As the D.C. Circuit has recognized in the civil context,
“opinion work product[] ‘is virtually undiscoverable.’”
Deloitte LLP, 610 F.3d at 135 (quoting Dir., Office of Thrift
Supervision v. Vinson & Elkins, LLP, 124 F.3d at 1307).
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“Discovery of ‘opinion’ work product is therefore permissible
only where a party has made ‘a far stronger showing of necessity
and unavailability by other means’ than would otherwise be
sufficient for discovery of ‘fact’ work product.” Clemens, 793
F. Supp. 2d at 244 (quoting Upjohn, 499 U.S. at 402).
Trabelsi has made a strong showing of both necessity and
unavailability of the requested correspondence --
“correspondence . . . sent between the United States and Belgium
. . . addressing the charges in the initial and superseding
indictments and whether the Extradition Treaty between the
United States and Belgium may or may not permit extradition.”
5/8/15 Order at 13-14. “Trabelsi has sufficiently demonstrated
that there is a reasonable probability that production of the
requested materials could alter the outcome of the instant
criminal prosecution; that is, correspondence reflecting that
Belgium granted extradition based on misrepresentations of the
charged offenses could support Trabelsi’s motion to dismiss the
indictment.” Id. at 10. Opinion work product may, in many
cases, be protected. However, if the work product at issue
demonstrates potential violations of an extradition treaty in a
way that might warrant dismissal of the superseding indictment,
the privilege must give way. The government cannot shield what
would otherwise be Brady material behind claims of opinion work
product privilege. Accordingly, the government may prepare a
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privilege log, along with both redacted and unredacted copies of
the relevant correspondence, to submit to the Court for in
camera review. 3
C. Deliberative Process Privilege
The government also asserts that the requested
correspondence is protected from discovery by the deliberative
process privilege. “Since the beginnings of our nation,
executive officials have claimed a variety of privileges to
resist disclosure of information the confidentiality of which
they felt was crucial to fulfillment of the unique role and
responsibilities of the executive branch of our government.” In
re Sealed Case, 121 F.3d 729, 736 (D.C. Cir. 1997). 4 The
deliberative process privilege “allows the government to
withhold documents and other materials that would reveal
advisory opinions, recommendations[,] and deliberations
comprising part of a process by which governmental decisions and
policies are formulated.” Id. at 737 (internal quotation
3 The D.C. Circuit has recognized that in camera review may
be used “to determine whether [a document] is entirely work
product.” Deloitte LLP, 610 F.3d at 139.
4 Although the deliberative process privilege occasionally
arises in criminal cases, it is most commonly invoked in civil
FOIA cases. See Nancy Hollander & Barbara E. Bergman,
Everytrial Criminal Defense Resource Book § 27:9 (Thomson
Reuters) (2013). “Because the deliberative process privilege
often arises in the FOIA context, courts deciding deliberative
process issues in non-FOIA contexts regularly rely on FOIA cases
for their analyses.” Id.
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omitted). The purpose of this privilege is to “‘prevent injury
to the quality of agency decisions’ by allowing government
officials freedom to debate alternative approaches in private.”
Id. (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151
(1975)). Given the privilege’s purpose of promoting and
“protect[ing] creative debate and candid consideration of
alternatives within an agency,” the deliberative process
privilege protects “inter- and intra-agency communications” from
disclosure. Jordan v. U.S. Dep’t of Justice, 591 F.2d 753, 772
(D.C. Cir. 1978) (emphasis added).
The deliberative process privilege is not absolute; rather,
it is “relative to the need demonstrated for the information.”
Northrop Corp. v. McDonnel Douglas Corp., 751 F.2d 395, 404
(D.C. Cir. 1984). “The deliberative process privilege is a
qualified privilege and can be overcome by a sufficient showing
of need. This need determination is to be made flexibly on a
case-by-case, ad hoc basis.” In re Sealed Case, 121 F.3d at
737. This privilege also “does not shield documents that simply
state or explain a decision the government has already made or
protect material that is purely factual, unless the material is
so inextricably intertwined with the deliberative sections of
documents that its disclosure would inevitably reveal the
government's deliberations.” Id. Further, “the deliberative
process privilege does not protect documents in their entirety;
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if the government can segregate and disclose non-privileged
. . . information with a document, it must.” Loving v. Dep’t of
Defense, 550 F.3d 32, 38 (D.C. Cir. 2008) (citing Army Times
Publ’g Co. v. Dep’t of Air Force, 998 F.2d 1067, 1071 (D.C. Cir.
1993)).
The government argues that the requested correspondence
sent between the United States and Belgium “reflect[s] the
deliberative process of government officials” and is therefore
insulated from discovery. Govt.’s Mot. for Reconsideration at
7-8. The government again cites Federal Rule of Criminal
Procedure 16(a)(2) as support for its argument. See Govt.’s
Mot. for Reconsideration at 6. However, the 5/8/15 Order
explicitly rejected the assertion that the relevant
communications are “internal government documents” captured by
this rule. See 5/8/15 Order at 12 n.1. The Court has already
ruled that the requested correspondence is not the type of
intra- or inter-agency communication that is protected by the
deliberative process privilege, see id. at 12, and the Court
will not offer the government yet another chance to argue that
point. Even if these were the types of communications protected
by the deliberative process privilege, the privilege “can be
overcome by a sufficient showing of need.” In re Sealed Case,
121 F.3d at 737. As is particularly relevant here, “where there
is reason to believe the documents sought may shed light on
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government misconduct, ‘the privilege is routinely denied,’ on
the grounds that shielding internal government deliberations in
this context does not serve ‘the public's interest in honest,
effective government.’” Id. at 738 (quoting Texaco Puerto Rico,
Inc. v. Dep’t of Consumer Affairs, 60 F.3d 867, 885 (1st Cir.
1995)).
Thus, the government cannot withhold correspondence
responsive to the 5/8/15 Order under the deliberative process
privilege or Federal Rule of Criminal Procedure 16(a)(2).
II. REQUEST FOR IN CAMERA EX PARTE REVIEW
The government requests that, if it is in fact required to
produce any portion of the requested correspondence, the
government be permitted to submit documents to the Court for in
camera ex parte review.
“At any time [a] court may, for good cause, deny, restrict,
or defer discovery or inspection, or grant other appropriate
relief.” Fed. R. Crim. P. 16(d)(1). The Supreme Court has
recognized that in camera review for Brady material can “serve
[a defendant]’s interest without destroying the [government]’s
need to protect the confidentiality of those involved[.]”
Pennsylvania v. Ritchie, 480 U.S. 39, 61 (1987). The use of in
camera ex parte review for Brady material has also been
employed, in certain circumstances, by other circuits. See,
e.g., United States v. Mehanna, 735 F.3d 32, 65-66 (1st Cir.
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2013), cert. denied, 135 S. Ct. 49 (2014) (affirming the
district court’s denial of a defendant’s motion to compel issued
after the district court reviewed, for potential Brady material,
the government’s in camera submission). Similarly, the D.C.
Circuit has itself employed in camera ex parte review in the
criminal context. See, e.g., United States v. Yunis, 867 F.2d
617, 624 (D.C. Cir. 1989) (discussing the Circuit’s in camera ex
parte review of classified information).
Here, the government argues that in camera ex parte review
“would more effectively balance between the concerns arising
from the confidentiality of the requested documents and the
concerns alleged by the defense for access to those materials.”
Govt.’s Mot. for Reconsideration at 13. The government asserts
that substantial damage to the United States’ relationship with
Belgium, as well as to the United States’ foreign relations with
other extradition partners, might flow from traditional
production of the requested correspondence. The government also
notes Belgium’s explicit objection to production of the
requested correspondence and concerns regarding access to
correspondence sent with an expectation of confidentiality.
Although the United States’ and Belgium’s concerns alone do not
constitute sufficient grounds for withholding the relevant
correspondence, they certainly weigh in favor of in camera ex
parte review. In light of the potential harm to the United
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States’ foreign relations with Belgium and other nations posed
by unfettered disclosure, as well as the need to balance the
government’s expressed interests with Trabelsi’s interest in
obtaining the requested correspondence, in camera ex parte
review is appropriate in this case.
The government further requests that it be permitted to
review the responsive correspondence for Brady material and then
produce to the Court for in camera ex parte review only those
materials the government deems necessary. The government
asserts that the Court’s 5/8/15 Order “departs from the ordinary
course of criminal discovery,” Govt.’s Mot. for Reconsideration
at 11, and argues that the government should be entrusted with
the responsibility of determining whether any portion of the
requested correspondence qualifies as Brady material.
The government’s continued resistance to producing the
requested correspondence raises concerns regarding full
compliance with the 5/8/15 Order. The government has thus far
refused to acknowledge that correspondence containing
misrepresentations regarding Trabelsi’s extradition and
prosecution under the superseding indictment may constitute
Brady material. Indeed, in its reply to Trabelsi’s opposition
to the instant motion, the government continues to argue that
the correspondence subject to the 5/8/15 Order “cannot
constitute exculpatory material under Brady[.]” Govt.’s Reply
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to Def.’s Opp’n to Govt.’s Mot. for Reconsideration, ECF No. 114
at 13. If there is any merit to the argument that tricking
Belgium into believing the superseding indictment states an
extraditable offense should support dismissing the charges, then
correspondence proving the trickery would surely qualify as
“evidence favorable to [the] accused” under Brady, 373 U.S. at
87. Given the government’s continuing assertion that the
requested correspondence is not Brady material, the government
will not be permitted to limit its production to only those
materials that it deems could be Brady.
In light of the potential harm that might flow from open
production of the correspondence between the United States and
Belgium, and in part to ensure that the government does not
attempt to further shield the relevant correspondence, the Court
will permit the government to submit all correspondence
responsive to the 5/8/15 Order for in camera ex parte review.
III. REQUEST FOR SEALING ORDER
The government further requests that any documents
ultimately produced to Trabelsi -- as well as any information
contained within the documents -- be subject to a sealing order.
“‘[T]he decision as to access (to judicial records) is one best
left to the sound discretion of the trial court, a discretion to
be exercised in light of the relevant facts and circumstances of
the particular case.’” United States v. Hubbard, 650 F.2d 293,
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316-17 (D.C. Cir. 1980) (quoting Nixon v. Warner Commc’ns, Inc.,
435 U.S. 589, 599 (1977)). In Hubbard, the D.C. Circuit
expressed a number of factors that courts should consider to
determine whether a document should be sealed.
The Hubbard factors include: (1) the need for public
access to the documents at issue; (2) the extent of
previous public access to the documents; (3) the fact
that someone has objected to disclosure, and the
identity of that person; (4) the strength of any
property and privacy interests asserted; (5) the
possibility of prejudice to those opposing disclosure;
and (6) the purposes for which the documents were
introduced during the judicial proceedings.
In re Application of United States of Am. for an Order of
Nondisclosure Pursuant to 18 U.S.C. § 2705(B) for Grand Jury
Subpoena # GJ2014031422765, 41 F. Supp. 3d 1, 7 n.4 (D.D.C.
2014) (citing Hubbard, 650 F.2d at 317-22).
The discovery process is not normally a public one, and
there has been no previous public access to the requested
correspondence. Here, the materials at issue are not sought to
prove Trabelsi’s guilt or innocence, but rather to bolster
Trabelsi’s arguments that the superseding indictment and the
instant prosecution violate the United States’ extradition
treaty with Belgium. Further, both the United States and
Belgium object to public disclosure of this inter-governmental
correspondence, which was prepared with an expectation that all
communications would remain confidential. The government
asserts that public disclosure of the relevant documents will
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have a detrimental impact on the United States’ relationship
with Belgium, and that public disclosure may jeopardize the
United States’ cooperative extradition relationships with other
foreign sovereigns.
In light of all the circumstances, including the
government’s representations regarding the potential harm to the
relationship between the United States and its foreign allies,
as well as the Kingdom of Belgium’s objection to public
disclosure of its extradition-related communications with the
United States, the government’s request will be granted. If the
Court ultimately directs the government to produce to Trabelsi
any documents, the production will be subject to the conditions
outlined in the order below.
CONCLUSION AND ORDER
The government’s repeated general claims of privilege do
not merit reconsideration, and several of the government’s
specific privilege claims fail. However, the government has
sufficiently established that the requested correspondence may
contain privileged opinion work product. Additionally, the
government has established a compelling interest in protecting
the requested correspondence from open and public disclosure at
this stage. Thus, it is hereby
ORDERED that the government’s motion [112] for
reconsideration be, and hereby is, DENIED IN PART AND GRANTED IN
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PART. The government shall produce to the Court by no later
than September 11, 2015 at 5:00 p.m. for in camera ex parte
review all correspondence responsive to the Court’s May 8, 2015
Order. The government may submit, if appropriate, a privilege
log consistent with this opinion along with both redacted and
unredacted copies of the allegedly privileged materials. The
Court will then determine which correspondence, if any, should
be produced to Trabelsi. It is further
ORDERED that if, following in camera ex parte review, the
Court directs the government to produce to Trabelsi any
correspondence, the produced correspondence will be subject to
the following conditions: 1) Any filings by any filer that
either attach the produced correspondence or discuss the
information contained within the produced correspondence must be
filed under seal. 2) Any discussions or arguments before the
Court regarding the contents of the produced correspondence must
be conducted in a sealed proceeding. 3) Any of the produced
correspondence designated by the government as “Protected
Material” will also be subject to the restrictions included in
the Protective Order, ECF No. 18. It is further
ORDERED that the parties appear on Tuesday, September 29,
2015 at 10:00 a.m. in Courtroom 9 for a hearing on Trabelsi’s
motion [70] to dismiss.
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SIGNED this 3rd day of September, 2015.
/s/
RICHARD W. ROBERTS
Chief Judge