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United States v. Asgari

United States Court of Appeals, Sixth Circuit

October 4, 2019

United States of America, Plaintiff-Appellant,
Sirous Asgari, Defendant-Appellee.

          Appeal 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.

          Steven 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.



         In this 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 reverse.

         An 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.

         Asgari 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).

         Asgari claims that we lack jurisdiction to hear this interlocutory appeal. The Classified Information Procedures Act says otherwise. Id.

         The Act 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.

         United 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.

         The 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.

         Asgari 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.

         Confirming 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 ...

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