from the United States District Court for the Northern
District of Ohio at Cleveland. No. 1:16-cr-00124-1-James S.
Gwin, District Judge.
L. Lane, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., Om M. Kakani, Daniel J. Riedl, Matthew B. Kall, UNITED
STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellant.
Stephen C. Newman, Catherine J. Adinaro, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellee.
Before: BATCHELDER, SUTTON, and DONALD, Circuit Judges.
SUTTON, CIRCUIT JUDGE.
case, federal prosecutors asked the district court for
permission to withhold classified information from defense
counsel for Sirous Asgari, an Iranian scientist charged with
theft of trade secrets. The court initially granted the
government's request because the information was not
relevant to the charges. But after Asgari moved for
reconsideration on the ground his defense counsel had a
top-level security clearance, the court changed its mind and
ordered the information's disclosure to counsel. Because
the court's first answer was the right answer, we
Iranian scientist who worked for a time at Case Western,
Asgari faces criminal charges for stealing trade secrets and
committing visa and wire fraud. A month before his trial
date, he learned that the government intended to withhold
classified information from discovery. Consistent with the
Classified Information Procedures Act of 1980, 18 U.S.C.
app.3 § 1 et. seq, the district court reviewed the
information and concluded that none of it would help Asgari.
It thus allowed the government to withhold the information.
moved for reconsideration, asserting that his counsel held a
top secret/sensitive compartmented information security
clearance. With this fact in hand, the district court thought
it could balance the government's and Asgari's
interests in a more refined way. It ordered the government to
disclose to defense counsel the material it had previously
declared irrelevant. The government filed a notice of appeal
and an emergency motion for a stay. We granted the stay and
now consider the appeal (as required by statute) on an
expedited basis. 18 U.S.C. app.3 § 7(b).
claims that we lack jurisdiction to hear this interlocutory
appeal. The Classified Information Procedures Act says
sets forth a series of rules for preserving the
confidentiality of classified information, for allowing
discrete use of classified information, and for reviewing
district court orders disclosing such information. One rule
permits the government to seek an interlocutory appeal of a
district court order "authorizing the disclosure of
classified information." Id. § 7(a). No
one disputes that the information at issue is
"classified." Only the meaning of
"disclosure" is at stake. The Act does not define
the term, but "disclose" conventionally means
"to bring into view by uncovering, to expose, to make
known, to reveal to knowledge, to free from secrecy or
ignorance, or make known." Black's Law Dictionary
417 (5th ed. 1979); see Webster's Third New
International Dictionary 645 (1981). An order that makes
classified information known to someone without access to it
counts as a disclosure.
States v. Smith supports this interpretation. 899 F.2d
564 (6th Cir. 1990). At issue was a district court's
order that permitted judicial staff and a law clerk to review
classified information. The government challenged the
disclosure in an interlocutory appeal. Because the district
court's order "is said to have the effect of
permitting the disclosure of classified information to
putatively unauthorized persons," we reasoned,
"appellate jurisdiction" existed "under §
7(a)." Id. at 566-67. It made no difference in
the case that the disclosure was to a law clerk or judicial
staff, as opposed to the public in general.
same was true in United States v. Clegg. 740 F.2d
16, 18 (9th Cir. 1984). There, too, the court permitted
interlocutory review of a disclosure order. In that case, as
in this one, the order released classified information to the
defendant's counsel, as opposed to the public in general.
It is "clear," the Ninth Circuit reasoned,
"that [the Act] is as concerned with controlling
disclosures to the defendant as it is with controlling
disclosures to the public." Id.
counters that the "common law [of] privilege"
permits the sharing of this information with defense counsel.
Mot. to Dismiss at 8. For that reason, he claims, the
court's order would not lead to a cognizable
"disclosure" and thus no jurisdiction exists for
our review of the permissibility of the order under the Act.
Id. Resort to common law background principles,
however, comes into play when construing ambiguous terms.
See Cmty. for Creative Non-Violence v. Reid, 490
U.S. 730, 739-40 (1989). This part of the Act speaks with
admirable clarity. Before the court issued its order, defense
counsel for Asgari did not have access to this classified
information. That indeed was the point of the order. After
the order, defense counsel would have had access to these
national security secrets. All in all, that counts as an
order authorizing the disclosure of classified information.
the point are the cases invoked by Asgari. Two of the cases
do not mention the Act, and none of them purports to
establish a universal meaning of disclosure. Roviaro v.
United States, 353 U.S. 53, 60 (1957); United ...