Case: 16-6001 Document: 00117139824 Page: 1 Date Filed: 04/07/2017 Entry ID: 6082576

Docket No. 16-6001

__________________________________

In The United States Court of Appeals

For The First Circuit
_________________________________________________________________

UNITED STATES,

Appellee,

v.

DZHOKHAR A. TSARNAEV,

Defendant Appellant.
__________________________________________________________________

APPELLANT TSARNAEVS MOTION TO DISCLOSE ON APPEAL

GOVERNMENT EX PARTE FILINGS AND PROCEEDINGS IN THE
DISTRICT COURT

Appellant Dzhokhar Tsarnaev, by his counsel, moves this Court to provide

counsel with access to thirteen ex parte government conferences and filings from

the district court proceedings in this capital case. Without reviewing these

materials, counsel for Appellant will not be able to meaningfully represent Mr.

Tsarnaev on appeal.

1. During the course of counsels ongoing efforts to settle the district court

record, we ascertained that there had been twenty-six government ex parte filings

and proceedings in the district court. On none of those occasions was the defense

informed there would be an ex parte proceeding, provided notice of the nature of

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the proceeding or the gist of the evidence presented to the Court ex parte, or given

an opportunity to be heard. The government disclosed the existence of these ex

parte proceedings to counsel for Mr. Tsarnaev only on appeal.

2. Counsel for Appellant sought voluntary disclosure from the government

of these twenty-six ex parte filings and proceedings, or, in the alternative, a log of

the asserted grounds for continuing non-disclosure on appeal. The government has

disclosed thirteen of the filings and proceedings to counsel for Appellant; they

remain under seal. As to four other docket entries, the government disclosed solely

the cover sheets of transcripts or filings without the underlying substance of the

materials, and failed to assert even the grounds for continued non-disclosure of the

substance on appeal. DEs 576, 601, 1667, 1669.1 For the remaining nine ex parte

proceedings and filings the government refused to provide any material to counsel

for Appellant. DEs 147, 637-38, 1151, 1523-25, 1668, 1672.

3. Accordingly, Mr. Tsarnaev filed a motion in the district court for

disclosure of the thirteen undisclosed government ex parte proceedings and filings,

or, in the alternative, for a log of the asserted grounds for continuing non-

disclosure on appeal, to enable meaningful disclosure litigation in the district court.

1
From these cover sheets, we were able to learn that two DEs were ex parte
conferences between the government and the district court, one on November 12,
2013 (DE 1667), and one on July 3, 2014 (DE 1668), and two DES were ex parte
Motions for Protective Orders pursuant to CIPA Section 4 (DEs 576 and 601).
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DE 1719. See C.A. Wright, A.R. Miller, E.H. Cooper & C.T. Struve, 16A Federal

Practice & Procedure, 3949.1, at 57 (2008) (Even as to matters encompassed

within the scope of the pending appeal, the district court may act in aid of the court

of appeals exercise of its jurisdiction.); see also United States v. Perkins, 926

F.2d 1271, 1274 (1st Cir. 1991) (During the pendency of this appeal, on the

prosecutions motion, the district court unsealed a submission from the government

that had previously been presented to it in camera [.]). Appellants motion

specified the defenses grounds for concern that the government had affirmatively

used the still-undisclosed submissions in secret to influence rulings from the

district court on the merits of defense motions. DE 1719.

4. In its opposition, the government did not deny that the ex parte filings

and proceedings pertained to defense motions, nor did the government make any

effort to justify the continuing use of secret information on appeal. DE 1722.

Instead, the government asked the district court to allow it to submit additional

secret information to support non-disclosure of all of these thirteen proceedings.

The district court permitted this, adding to the secret file. DE 1728.

5. Counsel for Appellant submitted a reply in support of the motion for

disclosure, arguing that it would violate due process to allow a death sentence to be

reviewed based on secret evidence regarding which the defense could not

meaningfully litigate disclosure, and urging the district court to allow a true
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adversarial process regarding whether these materials should be disclosed on

appeal. DE 1729.

6. On March 24, 2017, the district court issued a one-line electronic order

denying Appellants motion:

The 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.

DE 1732. The order made no findings regarding why the ex parte materials should

remain undisclosed on appeal. The order also made no reference to counsel for

Appellants alternative request for a log of the grounds for non-disclosure so that

meaningful litigation could occur.

7. DEs 147, 637-38, 1151, 1523-25, 1668, 1672, and the contents of DEs

576, 601, 1667, and 1669 remain undisclosed to counsel for Appellant.

8. This is a highly unusual circumstance. The scant case law on the topic

makes clear that materials submitted ex parte by the government in the course of a

criminal prosecution may remain undisclosed on appeal only in the most

extraordinary of circumstances and with a heavy burden of justification by the

government: [I]n special circumstances, judges in criminal cases do receive

submissions from prosecutors whose contents are not made known to the defense;

and in extraordinarily rare cases even the existence of the submission may be

undisclosed. But our traditions make both of these courses presumptively

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doubtful, and the burden of justification is upon the government. United States v.

Claudio, 44 F.3d 10, 14 (1st Cir. 1995) (citing United States v. Innamorati, 996

F.2d 456, 487 (1st Cir. 1993)). Here, the government has offered no justification

(at least, none that we know of) and the District Court made no findings. Rather,

the district court, in effect, referred this matter to this Court for decision, by stating

that the materials are available for this Courts review.

9. Appellant now asks this Court to disclose the ex parte submissions and

proceedings to counsel for Appellant, or in the alternative, to order the government

to provide a log setting forth the purported grounds for continuing non-disclosure

on appeal so that counsel for Appellant may meaningfully litigate the secrecy

issues before this Court.

10. At this initial stage of the appeal, Appellant is not seeking to litigate the

question of whether, in the first instance, the government should have been

allowed to proceed ex parte on twenty-six occasions before the district court.

Rather, we seek the disclosure of the thirteen remaining proceedings so that

counsel may adequately address that and other issues in the merits briefing to fully

protect Mr. Tsarnaevs rights under the Fifth, Sixth, and Eighth Amendments.

Without disclosure of the substance of the ex parte proceedings, counsel for

Appellant will not know on what information the district court based its

substantive rulings, and thus will not be able to challenge those rulings fully in the
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merits briefing. Moreover, counsel for Appellant will be unable to meaningfully

raise the issue of whether these proceedings should have occurred ex parte without

knowing what they concerned, how the government sought to justify non-

disclosure, and what findings, if any, the district court made to justify excluding

both the public and the Defendant and his counsel.

11. Three circumstances particular to this case compel disclosure on appeal.

First, it appears that at least some of the government ex parte materials were

submitted in opposition to contested defense motions with no notice to the

defense.2 As this Court has previously stated: [t]hat the government can never

affirmatively use information in court and withhold it from the defense may

overstate the matter, but not by much. Claudio, 44 F.3d at 14; see also United

2
For example: Mr. Tsarnaev
filed a motion to compel discovery, DE 112,
which the government opposed, DE 129. The district court held a hearing on the
motion on November 12, 2013, and then, on November 27, 2013, issued an Order
denying the motion. DE 151. On appeal the government has now revealed a cover
sheet indicating that immediately following the November 12, 2013, public hearing
on the motion, the district court and the government had conducted a secret
conference. DE 1667. Then, on the same day, the government sought ex parte,
DE 145, and the district court issued ex parte, DE 146, an Order permitting the
government to file a sealed, ex parte report regarding classified information, DE
147, which pertained to the pending defense discovery motion about which the
adversarial hearing had just been held. It was only after receipt of this secret
information, on no notice to the Defendant, who was given no opportunity to
respond, that the Court issued its public Order. The Order makes no reference to
either the secret conference or submissions.
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States v. Minsky, 963 F.2d 870, 874 (6th Cir. 1992) (reversing conviction based on

district court having held an ex parte conference with the government to consider

whether certain investigative documents should be disclosed in response to a

defense motion, because such ex parte conduct undermines confidence in the

impartiality of the court and had violated the defendants right to a fair trial as

well as the Sixth Amendment). Second, review of the ex parte materials the

government has now voluntarily disclosed provides good reason to question

whether there was an adequate basis for the District Court to exclude both the

public and the Defendant.3 Third, this is a capital case. There is no precedent for

allowing secret information in a case under the Federal Death Penalty Act.

Keeping this information secret from counsel for the Appellant while the

government and the Court possess it would thrust this Court into the role of learned

counsel on appeal, and require it to pass on the fairness of death sentences without

the benefit of full argument by appellate counsel. Because Mr. Tsarnaev has been

sentenced to death, appellate counsel owe an extra duty of care to present all

arguably meritorious issues under the standards applicable to high quality

capital defense representation. ABA Capital Counsel Guidelines, Guideline

3
See, e.g., DE 1671 (sealed transcript of an ex parte proceeding that
occurred on February 26, 2015). It is hard to fathom how this proceeding could
meet the standards for closing the courtroom from the public under Waller v.
Georgia, 467 U.S. 39, 48 (1984), let alone for excluding the Defendant.
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10.15.1(c); see also id., Commentary (Winnowing issues in a capital appeal can

have fatal consequences. Issues abandoned by counsel in one case, pursued by

different counsel in another case and ultimately successful, cannot necessarily be

reclaimed later. When a client will be killed if the case is lost, counsel should not

let any possible ground for relief go unexplored or unexploited.).

12. Even when the most extraordinary of circumstances exist during trial to

justify ex parte submissions by the government, on appeal, when the threat has

abated sufficiently, notice to the defendant or the unsealing of the ex parte

proceedings is required. Innamorati, 996 F.2d at 487-88. In Innamorati, even as

to a single undisclosed ex parte proceeding that had occurred after the verdict and

sentencing in the district court, the defense received notice on appeal that the

governments ex parte proceeding concerned a Brady issue. Id. Innamorati cited

with approval the procedure employed in Perkins, 926 F.2d at 1274: during the

pendency of the appeal, the district court unsealed the governments ex parte

submission and apprised the defendant of the information contained therein,

presumably after the threat to the investigation had ceased. Innamorati, 996

F.2d at 487.

13. Here, as to each ex parte filing or proceeding, counsel for Appellant

seeks either full disclosure or explanation by the government of its asserted

justification for continuing non-disclosure in this capital appeal. Even if, as to

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some of the materials, full public disclosure is not at this stage appropriate, counsel

from the Federal Defenders of New York is highly experienced in handling

classified and other sensitive materials pursuant to protective orders. 4 Given the

availability of other means of protection for the governments interests in

maintaining the confidentiality of, for example, classified information or an

ongoing investigation, those interests cannot override Appellants right to

disclosure of the information to his counsel, particularly when multiple death

sentences are under review.5

4
Counsel from Federal Defenders of New York have Top Secret security
clearance.
5
If, as it appears, some of the ex parte materials contain classified
information, that fact does not resolve the question of whether such material should
now be disclosed to counsel on appeal either in full, or in redacted form, or in a
summary form, so that counsel may properly raise any issues for appeal. Indeed,
CIPA Section 4 on its face contemplates the use of alternative means to
accommodate a defendants due process and confrontation rights: The court,
upon a sufficient showing, may authorize the United States to delete specified
items of classified information from documents to be made available to the
defendant through discovery under the Federal Rules of Criminal Procedure, to
substitute a summary of the information for such classified documents, or to
substitute a statement admitting relevant facts that the classified information may
tend to prove. 18 U.S.C.A. App. III 4. See, e.g., United States v. LaRouche
Campaign, 695 F. Supp. 1282, 1285 (D. Mass. 1988) (approving governments
proposed admission of facts that classified documents would tend to prove and
noting that CIPA discovery provisions aimed at protecting classified information
in a way that does not impair the rights of defendants in a criminal trial).
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Conclusion

For all these reasons, it is respectfully requested that this Court grant

disclosure under seal to counsel for Appellant of the thirteen as-yet undisclosed

government ex parte proceedings (DEs 147, 637-38, 1151, 1523-25, 1668, 1672,

and the contents of DEs 576, 601, 1667, and 1669), or, in the alternative, order the

government to provide a log of the subject area and asserted grounds for non-

disclosure on appeal of each undisclosed ex parte filing or proceeding, so that

meaningful disclosure litigation may occur prior to merits briefing in this capital

appeal.

Respectfully submitted,

DZHOKHAR TSARNAEV
by his attorneys:

/s/ David Patton

David Patton, Esq.
Court of Appeals # 1173507
Federal Defenders of New York, Inc.
52 Duane Street, 10th Floor
New York, NY 10007
(212) 417-8700
DAVID_PATTON@FD.ORG
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Gail K. Johnson, Esq.

Court of Appeals # 1173144
Johnson & Klein, PLLC
1470 Walnut Street, Suite 101
Boulder, CO 80302
(303) 444-1885
GJOHNSON@JOHNSONKLEIN.COM

Clifford Gardner, Esq.

Court of Appeals # 1178109
Law Offices of Cliff Gardner
1448 San Pablo Avenue
Berkeley, CA 94702
(510) 524-1093
CASETRIS@AOL.COM
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Certificate of Service

I certify that the attached Appellant Tsarnaevs Motion to Disclose on Appeal

Government Ex Parte Filings and Proceedings in the District Court was filed
electronically through the ECF system for the U.S. Court of Appeals for the First
Circuit, which will send electronic notice to counsel of record for all parties on this
the 7th day of April 2017, including the following:

Elizabeth D. Collery, Esq.

U.S. Department of Justice, Crim. Div., App. Sec.
950 Pennsylvania Ave. NW, Suite 1264
Washington, DC 20530
liza.collery@usdoj.gov

/s/ David Patton

David Patton, Esq.
Court of Appeals # 1173507
Federal Defenders of New York, Inc.
52 Duane Street, 10th Floor
New York, NY 10007
(212) 417-8700
DAVID_PATTON@FD.ORG