USA v. North American Islamic Trust

Filing

PUBLISHED OPINION FILED. [09-10875 Affirmed in Part, Reversed in Part and Remanded.] Judge: EMG , Judge: FPB , Judge: MAC. Mandate pull date is 11/10/2010 [09-10875]

USA v. North American Islamic Trust

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10875 October 20, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. H O L Y LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, ET AL, D e fe n d a n t s N O R T H AMERICAN ISLAMIC TRUST, M o v a n t-A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas

B e fo r e GARZA and BENAVIDES, Circuit Judges, and CRONE * , District Judge. E M I L I O M. GARZA, Circuit Judge: T h ir d -p a r t y movant North American Islamic Trust ("NAIT") appeals from t h e district court's order holding that NAIT's Fifth Amendment rights were v io la t e d by its public naming in an attachment to the Government's criminal p re-t r ia l brief but denying NAIT's requested equitable relief, including inter alia e x p u n g e m e n t of NAIT's name and a public declaration by the court that NAIT's r ig h t s were violated. The district court instead placed the attachment--which

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District Judge of the Eastern District of Texas, sitting by designation.

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h a d been available to the public since its initial filing--and any records related t o NAIT's challenge under seal, including the district court's order, finding a F ifth Amendment violation. NAIT argues that the district court erred by sealing it s order, by refusing to expunge NAIT's name from the attachment to the pret r ia l brief, and by engaging in an irrelevant and erroneous analysis of NAIT's c o n n e c t io n s to the defendants and other entities. The Government does not c o n t e s t the holding that NAIT's Fifth Amendment rights were violated or that i t should have filed the attachment under seal. t h e r e fo r e , is one of remedy. I A federal grand jury indicted the Holy Land Foundation for Relief and D e v e lo p m e n t ("HLF") and seven individuals (collectively, the "HLF Defendants") o n multiple charges stemming from the allegation that the defendants had e n g a g e d in a criminal conspiracy to provide support to Hamas, a designated fo r e ig n terrorist organization. In May of 2007, the Government filed a pre-trial b r ie f for the purpose of setting forth "an overview of the case, the scope of the c o n s p ir a c y , and the different kinds of evidence that the government will seek to a d m i t at trial and the evidentiary bases for the admission of that evidence." Under the heading "Breadth of Conspiracy," the Government included the fo llo w in g passage: [T ]h e focal point of this case is the designated terrorist group H a m a s . . . . Although the indictment in this case charges the seven n a m e d individual defendants and the Holy Land Foundation for R e lie f and Development, it will be obvious that the defendants were n o t acting alone. As noted in the case summary, the defendants w e r e operating in concert with a host of individuals and o r g a n iz a tio n s dedicated to sustaining and furthering the Hamas m o v e m e n t . Several of the individuals who hold leading roles in the o p e r a tio n of Hamas are referenced by name in the indictment. A lis t of unindicted coconspirators is attached to this . . . brief. The only issue before us,

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T h a t attachment ("Attachment A") bore the title "List of Unindicted Cocon s p ir a t o r s and/or Joint Venturers" and listed the names of 246 individuals and e n tit ie s , organized under various headings. NAIT was included under the

h e a d in g "The following are individuals/entities who are and/or were members of t h e US Muslim Brotherhood." The pre-trial brief described the Muslim

B r o t h e r h o o d as "an international Islamic fundamentalist movement" and stated t h a t "Hamas' founding charter makes clear that Hamas is, in fact, the P a le s tin ia n branch of the Muslim Brotherhood." The Government explains that t h e inclusion of NAIT and other entities was intended to lay the groundwork for t h e possible admission of statements pursuant to Rule 801(d)(2)(E) of the F e d e r a l Rules of Evidence, which permits the admission of out-of-court s t a t e m e n t s by coconspirators and joint venturers of a party opponent. The G o v e r n m e n t concedes that it was an "unfortunate oversight" that Attachment A was not filed under seal. T h e first trial against the HLF Defendants ended in a mistrial. Before a s e c o n d trial commenced, NAIT filed a motion alleging that the inclusion of NAIT in Attachment A violated its Fifth Amendment rights. NAIT sought four forms o f relief: a public declaration that its rights had been violated; the expungement o f its name from any public document filed or issued by the Government id e n tify in g NAIT as an unindicted coconspirator; an injunction forbidding the G o v e r n m e n t from identifying NAIT as an unindicted coconspirator in any c o n t e x t other than specifically permitted by the district court; and, finally, any o t h e r such relief that the court might deem just and equitable to remedy and p r e v e n t further violations of NAIT's Fifth Amendment rights.1 The Government o p p o s e d the motion. A second trial was held and a jury convicted HLF and five

NAIT's motion was filed in conjunction with the Islamic Society of North America ("ISNA"), which is not a party to this appeal. Another entity, the Council on American Islamic Relations ("CAIR") moved the district court for leave to file an amicus brief requesting that its name and all other unindicted coconspirators be stricken from Attachment A. CAIR's motion was addressed in the order addressing NAIT's motion, but CAIR is not a party to this appeal.

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in d iv id u a ls defendants.2 After the second trial and more than two years after t h e filing of the Government's pre-trial brief, the district court issued a sealed o p in io n and order addressing NAIT's motion. The court held that NAIT's motion w a s properly filed and its Fifth Amendment rights had been violated by its p u b lic naming in Attachment A. The court held that the Government did not a r g u e or establish any legitimate government interest that warranted publicly id e n tify in g NAIT and 245 other individuals and entities as unindicted c o c o n s p ir a t o r s or joint venturers, and that the Government had less injurious m e a n s than those employed, such as anonymously designating the unindicted c o c o n s p ir a t o r s as "other persons," asking the court to file the document under s e a l, or disclosing the information to the defendants pursuant to a protective o r d e r . The court declined to expunge the mention of NAIT; rather, it ordered the s e a lin g of Attachment A and "all pleadings, records, documents, orders, and o t h e r papers concerning . . . NAIT's Motion . . . including this Order." II N A I T argues that the district court erred by including its findings only in a sealed order, rather than issuing a publicly available order memorializing the h o ld in g that NAIT's Fifth Amendment rights were violated. It argues that, by s e a lin g the order, the district court deprived NAIT of an effective remedy for the v io la t io n of its rights. Because the order is sealed, NAIT complains, it cannot i n f o r m others that its public naming in the indictment was wrongful, and, t h e r e fo r e , the injuries it bore as a result of its public naming in the proceedings p e r s is t in the form of continued damage to its reputation. Moreover, NAIT a r g u e s , the decision to seal the order violates the common law right to public a c c e s s to judicial records. Although the Government argues that the district c o u r t acted within its discretion in sealing the order, it has nevertheless stated

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The two other individual defendants were not tried at that time.

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t h a t it is not ultimately opposed to the unsealing of the district court's opinion a n d order in its entirety.3 A district court has supervisory authority over its records, and we review t h e court's decision to seal a judicial record for abuse of discretion. See SEC v. V a n Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). A court may deny access t o records if the records become a vehicle for improper purposes. See Nixon v. W a r n e r Commc'ns, Inc., 435 U.S. 589, 597-98 (1978) (listing various types of im p r o p e r purposes that favor denying the public access to judicial records). Nevertheless, a court must use caution in exercising its discretion to place r e c o r d s under seal. See Fed. Sav. & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399 (5 t h Cir. 1987) ("The district court's discretion to seal the record of judicial p r o c e e d in g s is to be exercised charily . . . ." (citing Publicker Indus., Inc. v. C o h e n , 733 F.2d 1059 (3d Cir. 1984)). Its decision must be made in light of the " s t r o n g presumption that all trial proceedings should be subject to scrutiny by t h e public." United States v. Ladd, 218 F.3d 701, 704 (7th Cir. 2000). T h e Government argues that, although NAIT does have standing to p r o t e c t its own reputational interests, it does not have standing to assert the p u b lic 's right of access because it is not "a third party whose sole interest in lit ig a t io n is access to the documents." United States v. Hickey, 185 F.3d 1064, 1 0 6 6 (9th Cir. 1999). We disagree, however, with any suggestion that the

p u b lic 's right of access to judicial records is relevant only when asserted by a t h ir d party, such as a journalist, with no direct stake in the proceedings. The p r in c ip le of public access to judicial records furthers not only the interests of the o u ts id e public, but also the integrity of the judicial system itself. See Van W a e y e n b e r g h e , 990 F.2d at 849-50 (contrasting public's right to information a b o u t judicial proceedings to right to access to judicial records). The right to p u b lic access "serves to promote trustworthiness of the judicial process, to curb

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Neither party has challenged the district court's decision to seal Attachment A.

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ju d ic ia l abuses, and to provide the public with a more complete understanding o f the judicial system, including a better perception of its fairness." Littlejohn v . BIC Corp., 851 F.2d 673, 682 (3d Cir. 1988). "Public confidence [in our

ju d ic ia l system] cannot long be maintained where important judicial decisions a r e made behind closed doors and then announced in conclusive terms to the p u b lic , with the record supporting the court's decision sealed from public view." In re High Sulfur Content Gasoline Prods. Liab. Litig., 517 F.3d 220, 230 (5th C ir . 2008) (quoting United States v. Cianfrani, 573 F.2d 835, 851 (3d Cir. 1978)) (a lt e r a t io n omitted). The public's right to access, therefore, is relevant

r e g a r d le s s of who opposes keeping a record under seal. In Van Waeyenberghe, fo r example, the SEC appealed a district court order sealing a portion of its r e c o r d in settled litigation between the SEC and an individual against whom the S E C had filed an injunctive action. We reversed the sealing order on the ground t h a t the district court had failed to weigh the public's common law right of access t o the records. 990 F.2d at 850. We did not treat it as material that the SEC w a s defending the public's right to access, as opposed to a third party. Here, the district court did not explain why it chose to seal its opinion and o r d e r holding that NAIT's rights were violated. Both NAIT and the Government s u g g e s t that the district court may have been trying to shield NAIT from further r e p u t a tio n a l harm related to its public naming in this case. Regardless of the i n t e n tio n behind the district court's decision, however, its effect was to leave N A I T hamstrung in its ability to mitigate the damage done by its public id e n tific a t io n as a possible coconspirator in the activities of the HLF Defendants. NAIT was publicly identified in Attachment A for over two years, and the public t o o k note. The district court's order and opinion included the important context t h a t NAIT's public naming had been held to be in violation of its Fifth A m e n d m e n t rights. NAIT's interests, therefore, would have been better served b y leaving the order unsealed. The Government has no countervailing interest in sealing the order and in fact does not object to unsealing it. 6

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B e c a u s e the power to seal court records must be used sparingly in light of t h e public's right to access, because NAIT's interest in mitigating its r e p u t a tio n a l injuries favored disclosure, and because there is no countervailing G o v e r n m e n t interest in nondisclosure, the district court's decision to seal its o p in io n and order finding that NAIT's rights were violated constituted an abuse o f its discretion. III N A I T argues that the district court erred in declining to expunge its name fr o m inclusion in Attachment A. It argues that expungement from the brief is t h e only means to guard conclusively against further wrongful reputational in ju r y . The Government argues that the district court acted within its discretion in concluding that expungement was not warranted. We review a district

c o u r t's decision not to expunge a name from a judicial document for abuse of d is c r e t io n . See United States v. Int'l Harvester Co., 720 F.2d 418, 419 (5th Cir. 1 9 8 3 ). We have considered claims by third parties who were identified as c o c o n s p ir a t o r s in public court records before, and have left little doubt that e x p u n g e m e n t is sometimes an appropriate remedy. See In re Smith, 656 F.2d 1 1 0 1 , 1107 (5th Cir. 1981) (ordering district court to "permanently obliterate and s t r ik e . . . any and all identifying reference to or name of" petitioner in certain ju d ic ia l records); United States v. Briggs, 514 F.2d 794, 808 (5th Cir. 1975) (r e m a n d in g with directions to expunge any mention of appellants from in d ic t m e n t). Nevertheless, a district court has broad discretion to consider the c ir c u m s t a n c e s of each case, and a decision not to expunge will not necessarily be a n abuse of that discretion. Int'l Harvester, 720 F.2d at 420. In reviewing a d e c is io n not to expunge, our inquiry is not whether naming the unindicted party w a s "wise policy," id., but merely whether the conclusion that expungement was u n n e c e s s a r y was within the range of the district court's discretion. In deciding w h e t h e r to expunge the name of a third party, the district court may consider, 7

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in te r alia, the degree to which the inclusion of the name is merely repetition of a lle g a t io n s raised by the Government and subjected to judicial scrutiny in other p r o c e e d in g s . For that reason, we concluded in International Harvester that it w a s not an abuse of discretion to decline to expunge the naming of an alleged c o c o n s p ir a t o r where the coconspirator himself was accused of essentially the s a m e wrongdoing in a separate indictment, leveled directly at him. 720 F.2d at 4 2 0 . NAIT, unlike the accused coconspirator in International Harvester, has not b e e n indicted for any activities that could have formed the basis for its inclusion in Attachment A. As such, it has not had the opportunity to vindicate itself in fo r m a l criminal proceedings. As the district court observed, however, the

p r o c e e d in g s at trial did include some context for NAIT's inclusion, in the form o f evidence tending to support some past ties between NAIT and the HLF. A ls o important to the remedy inquiry--though we have never said so e x p lic it ly -- is the particular context in which an accusation was made. Our j u r i s p r u d e n c e has never recognized a general right not to be implicated as a p o s s ib le coconspirator in another's criminal case. Rather, we have always paid a t t e n tio n to both the source and the method of the accusation. In Briggs, this C o u r t examined the claims of three individuals who had been publicly identified a s unindicted coconspirators in a grand jury indictment. Our analysis focused n o t only on the harm done to the accused individuals, but also the powers and r e s p o n s ib ilit ie s of the grand jury itself. We noted that there was no authority fo r the proposition that a federal grand jury was "empowered to accuse a named p r iv a t e person of crime by means of an indictment which does not make him a d e fe n d a n t ." Id. at 801. In evaluating our authority to order expungement, we n o te d the unique status of the grand jury as an institution that "has been v a r io u s ly viewed as an arm of the court, as an instrumentality of the people, and a s an adjunct of the judiciary but with the power to act, within certain bounds, in d e p e n d e n t ly of the traditional branches of government." Id. at 806.

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I n In re Smith, we extended Briggs beyond the limited context of grand ju r y indictments to encompass at least some statements made by prosecutors. 656 F.2d at 1106-07. We held that the Fifth Amendment rights of an unindicted t h ir d party were violated by his naming as the recipient of bribes in factual r e s u m e s presented by the Government during two guilty plea hearings. Id. The e x p a n s io n of Briggs was justified, we concluded, because we could "think of no r e a s o n to distinguish between an official defamation originating from a federal g r a n d jury or an Assistant United States Attorney."4 Id. at 1106. We ordered t h a t the mention of the third party be expunged and "that all pleadings, records, d o c u m e n t s , orders and other papers concerning" the motion to strike and seal be s e a le d themselves. Id. at 1107. I n contrast, the Seventh Circuit reversed a district court's order sealing t h e identities of unindicted coconspirators whose statements were admitted p u r s u a n t to Rule 801(d)(2)(E). Ladd, 218 F.3d at 706. The court distinguished t h e case from United States v. Smith, in which the Third Circuit upheld the s e a lin g of the identities of parties named in a bill of particulars. 776 F.2d 1104, 1 1 5 (3d Cir. 1985). Unlike the alleged coconspirators in United States v. Smith, t h e Seventh Circuit observed, the coconspirators in Ladd had been subject to a ju d ic ia l determination confirming their connection to the defendant's activities: For coconspirator statements to be admitted pursuant to Rule 8 0 1 (d )(2 )(E ), the Government must prove by a preponderance of the e v id e n c e that a conspiracy existed, that both the declarant and the d e fe n d a n t were members of the conspiracy, and that the statements w e r e made in the course and in furtherance of the conspiracy. The d is t r ic t court, in admitting the statements, found that those

Although In re Smith is the law of this circuit, we note that its expansion of the narrow holding of Briggs has left the law in this area somewhat unsettled, with no clear boundaries regarding when prosecutors are permitted to refer publicly to unindicted alleged coconspirators by name and when they may not. Because the Government has not appealed the ruling that NAIT's Fifth Amendment rights were violated, we do not have the occasion to clarify that issue here.

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r e q u ir e m e n t s had been met. The status of coconspirator was, t h e r e fo r e , grounded in an evidentiary basis far more solid than the a s s e r t io n of the United States Attorney. L a d d , 218 F.3d at 704-05 (citations and footnote omitted). The court concluded t h a t "[b]ecause the hearsay statements of the unindicted coconspirators were a d m it t e d into evidence, the public interest in disclosure outweighs the privacy in t e r e s t s of the coconspirators." Id. at 706. Just as the context of a party's naming as a possible coconspirator is r e le v a n t to whether the naming was wrongful and whether it should be sealed, c o n t e x t is relevant to whether the naming of a party should be expunged. The a lle g a t io n s against NAIT were not raised in an indictment or in a factual resume o ffe r e d during a plea proceeding, but rather in a Government brief in a fully c o n t e s t e d case. Although NAIT appears to have been mentioned in anticipation of a possible Rule 801(d)(2)(E) dispute, no actual Rule 801(d)(2)(E) determination in v o l v in g NAIT was ever made. It should be clear, therefore, that NAIT's

in c lu s io n in the brief was simply an untested allegation of the Government, m a d e in anticipation of a possible evidentiary dispute that never came to pass. The allegation did not improperly enjoy the imprimatur of grand jury approval, n o r was it erroneously conceded, implicitly or explicitly, as part of any plea. The a lle g a t io n was offered in furtherance of a legitimate purpose--albeit a purpose t h a t could have been equally well-served by filing Attachment A under seal. See U n ite d States v. Anderson, 55 F. Supp. 2d 1163, 1169 (D. Kan. 1999) ("The g ov ern m e n t clearly had a substantial interest in identifying these coconspirators fo r 801(d)(2)(E) purposes."). It is clear that the Government's procedural error, t h e r e fo r e , was its failure to file Attachment A under seal, not its decision to try t o characterize the scope of the charged conspiracy or to lay the groundwork for r e ly in g on Rule 801(d)(2)(E). In light thereof, the district court did not abuse its d is c r e t io n in declining to expunge the mention of NAIT in the newly sealed a tta ch m en t. 10

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NAIT argues that the district court's order and opinion contained an e r r o n e o u s and irrelevant analysis of its ties to the HLF Defendants, and, t h e r e fo r e , simply unsealing the full opinion and order is not a sufficient remedy. The district court's analysis, NAIT argues, essentially tars it with the same b r u s h of guilt by association that the Government used in its pre-trial brief, and w e , therefore, should vacate that portion of the order. A s we discuss more fully above, judicial records are subject to a general p r e s u m p t io n that they will be available to the public. The benefits of this p o lic y -- t o both the public and the courts--are legion. Sometimes, however, the r e s u lt is the inclusion of statements and information that may be embarrassing, ir r e le v a n t , or prone to mischaracterization. Nevertheless, our role, when

c o n s id e r in g an appeal from a district court, is to review that court's decision, see 2 8 U.S.C. §§ 1291-1292 (establishing jurisdiction for appeals from final and in t e r lo c u t o r y decisions), not to edit it. We, however, note that some of the information included in the order, a lt h o u g h relevant to a Rule 801(d)(2)(E) inquiry, had one occurred, is irrelevant t o the question of whether NAIT's Fifth Amendment rights were violated. Those rights were violated regardless of whether NAIT was in some manner, and a t some point, associated with the HLF Defendants. Moreover, the district c o u r t's statement that there was "ample evidence to establish the association[] o f . . . NAIT with HLF, the Islamic Association of Palestine ("IAP"), and Hamas" w e n t outside the bounds of both what was required to resolve the Fifth A m e n d m e n t question and what would have been required to resolve a Rule 8 0 1 (d )(2 )(E ) issue. Had a Rule 801(d)(2)(E) issue actually arisen, the court

w o u ld have engaged in a bounded inquiry into NAIT's involvement in a specific jo in t venture with a defendant, in the context of determining the admissibility o f specific statements. Because no such Rule 801(d)(2)(E) issue arose during the t r ia l, there was no judicial determination that evaluated NAIT's connection to 11

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t h e case pursuant to a clear, circumscribed legal standard. Cf. Ladd, 218 F.3d a t 705 (discussing disclosure of identity of unindicted coconspirator in context o f elements of Rule 801(d)(2)(E) admission). Unlike a finding of Rule

8 0 1 (d )(2 )(E ) "joint venturer" status, a broadly worded conclusion regarding a p a r ty 's "association" with various other entities is not grounded in any legal rule t h a t would give that conclusion substance and boundaries. As such, the district c o u r t's statements regarding NAIT's "association" with the HLF Defendants and o t h e r parties went beyond what was relevant to the any hypothetical evidentiary is s u e and may have obfuscated the underlying Fifth Amendment issue. We note, as well, that the district court's findings do not amount to a r u lin g that NAIT took part in a criminal conspiracy to support Hamas. In fact, t h e Government has gone so far as to argue that it never, in the course of this lit ig a t io n , labeled NAIT a criminal coconspirator.5 The Government argues that it only asserted that NAIT was at least a "joint venturer" with the defendants. See United States v. Layton, 855 F.2d 1388, 1399 (9th Cir. 1988); United States v . Saimiento-Rozo, 676 F.2d 146, 149-50 (5th Cir. 1982); United States v. Regilio, 6 6 9 F.2d 1169, 1174 n.4 (7th Cir. 1981). One can qualify as a "joint venturer" for t h e purposes of Rule 801(d)(2)(E) merely by engaging in a joint plan--distinct fr o m the criminal conspiracy charged--that was non-criminal in nature. Saimiento-Rozo, 676 F.2d at 149-50. Therefore, even if NAIT could have been a c c u r a t e ly characterized as a joint venturer, that characterization does not carry a n inherently criminal connotation. We do not go so far as to "vacate" the analysis of the opinion and order, b e c a u s e our review is of its holding, not every step of its reasoning or its choice o f words. Rather, we simply note that the district court included discussion of

This argument stems from the tension between the characterization of Attachment A in the brief--which implied that it was a list of coconspirators--and the heading of Attachment A, which stated that it included joint venturers as well. Because the issue of whether NAIT's Fifth Amendment rights were violated was not contested, we need not reexamine that tension here.

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is s u e s that were not relevant to the disposition of the motion, which is obviously n o t a criminal adjudication. Any other conclusion on this record, beyond this n a r r o w determination, would be legally premature. V N A I T seeks two additional forms of relief. First, it asks that we "publicly a f f i r m " the district court's conclusion that its rights were violated. Second, it a s k s that we order that the district court make a public declaration that NAIT's r ig h t s were violated. As to the first request, we cannot affirm or reverse the d is t r ic t court's holding that NAIT's rights were violated, because the G o v e r n m e n t has not appealed it. The district court's ruling on that issue is the fin a l determination thereof. As to the second request, it would be unnecessary t o require the district court to make a public declaration of its earlier Fifth A m e n d m e n t conclusion, because that conclusion will itself be public when the d is t r ic t court's opinion and order is unsealed. VI F o r the foregoing reasons, we REVERSE the district court's order only in s o fa r as it requires that the opinion and order be sealed. All other requests for r e lie f are DENIED. The case is REMANDED to the district court to unseal its o r d e r in accordance with this opinion.

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