Case 1:08-cr-20612-PAS

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-20612-CR-SEITZ Magistrate Judge John J. OSuliivan UNITED STATES OF AMERICA vs. HASSAN SAIED KESHARI, Defendant. ________________________________/ GOVERNMENTS RESPONSE TO KESHARIS MOTION TO VACATE EX PARTE ORDER AND COMPEL PRODUCTION OF UN-REDACTED SEARCH WARRANTS AND AFFIDAVITS The United States, by and through the undersigned, files this response to Hassan Kesharis Motion (DE 69) seeking to vacate this Courts August 11, 2008 ex parte order and to compel production of un-redacted search warrants and affidavits. Kesharis motion should be denied. First, this Courts order properly allowed the government to redact certain specific information for a limited period of time to protect a compelling public interest. Second, the government does not intend to permanently withhold this information from Keshari and, in fact, expects to be in a position to turn over largely un-redacted documents within the next thirty days. Procedural History On July 3, 2008, based in part on evidence obtained from three sealed search warrants issued in April and May of 2008, a federal grand jury in the Southern District of Florida returned an indictment charging Hassan Saied Keshari and Traian Bujduveneau with conspiracy to export: (1) aircraft parts to the Islamic Republic of Iran, in violation of the US Iran Trade Embargo; and (2) defense articles from the United States, in violation of the Arms Export Control Act, along with other substantive offenses (DE 25). The defendants were arraigned on July 15, 2008 (DE 31-32). Mindful of its ongoing discovery obligations under Rule 16, the government submitted to the Court a sealed Ex Parte Motion for a Protective Order requesting permission to produce redacted

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copies of the affidavits in support of those search warrants. In support of its request, the government noted that it was necessary to redact the search warrant affidavits to avoid disclosure of highly sensitive national security information relating to ongoing criminal investigations in this district and elsewhere. Immediate disclosure of the redacted information would seriously undermine the integrity of the ongoing criminal investigation. However, the governments motion did not seek to permanently withhold or seal the information in the search warrant affidavits. In fact, the government stated that the need to redact certain portions of the search warrant affidavits would expire in the next couple of months. On August 11, 2008, this Court entered an ex parte order allowing the government to redact certain information described in the governments motion and contained in the search warrant affidavits (DE 63). The district court also restricted defense counsel from disseminating the information contained in the redacted search warrant affidavits to individuals other than their clients (id.). On August 25, 2008, Keshari filed the motion at issue here seeking to vacate this Courts ex parte order and to compel production of un-redacted versions of the search warrant applications (DE 69). In support of his motion, Keshari argued that he cannot effectively evaluate or challenge the legality of the searches because the basis for probable cause is undisclosed. (Id. 6). Argument This Court did not abuse its discretion or otherwise err by allowing the government to produce redacted copies of the search warrant affidavits until a short-term compelling need to protect an ongoing investigation passes. First, no matter how he casts his argument, Keshari does not have an absolute right of access to judicial documents. See Nixon, 435 U.S. at 597; see also United States v. Ochoa -Vasquez, 428 F.3d 1015 (11th Cir. 2005); Search of Office Suites for World and Islam Studies Enterprise, 925 F. Supp. 738, 740 (M.D. Fla. 1996); United States v. Noriega, 752 2

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F. Supp. 1037, 1040 (S.D. Fla. 1999); United States v. Kooistra, 796 F,2d 1390 (11th Cir. 1986). In deciding whether to allow inspection of judicial records, the district court is left to its sound discretion[,] a discretion to be exercised in light of the relevant facts and circumstances. Nixon, 435 U.S. at 599; see also United States v. Gomez, 323 F.3d 1305, 1307 (11th Cir. 2003) (noting that district courts have substantial supervisory powers over their records and files). In Newman v. Graddick, 696 F.2d 796, 803 (11th Cir. 1983), the Eleventh Circuit held that the district courts resolution of this balancing task [between the historic presumption of access to judicial records and competing interests] is reviewable for abuse of discretion. In Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 434 (5th Cir. 1981) (Unit A), the predecessor to this Court determined that the right of access is merely one of the interests that may bow before good reasons to deny the requested access. Second, it is well-settled that a district court has discretion to deny a motion to unseal to preserve higher values. See Press Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1980). Higher values, sometimes known as compelling interests, may include, among other things, protecting a continuing law enforcement investigation and withholding the identity of confidential informants. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 (1980) (ongoing investigation); Rovario v. United States, 353 U.S. 53, 59 (1957); Nixon, 435 U.S. at 598 (third-party privacy interests). Even the cases cited by Keshari acknowledge this much. In this case, this Court has allowed the government to produce redacted versions of search warrant affidavits for good cause after considering the governments detailed representation that immediate disclosure of un-redacted versions of the search warrant affidavits would jeopardize the integrity of ongoing investigations related to national security matters (DE 69). Keshari has not made a showing that this Courts ruling must be disturbed at this time.

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The government is aware of its obligations to unseal material once the need for sealing has passed, and, with this in mind, the government acknowledges that, under the specific facts of this case, Keshari is entitled to review the un-redacted affidavits for purposes of evaluating the legality of the searches. The Government can represent to this Court that it will be able to produce largely un-redacted versions of the search warrant affidavits at issue within the next thirty days. Thus, should it become necessary, the United States would agree to a further extension of time which would allow Keshari to delay filing his suppression motion until after he reviews the un-redacted affidavits. Accordingly, the United States respectfully requests that this Court deny Kesharis motion for immediate access to the redacted materials. To the extent that this Court denies Kesharis motion, it should do so based on the governments representation, made in the ex parte motion, that it expects to produce largely un-redacted search warrant affidavits within thirty days of the date of this response. Respectfully submitted, R. Alexander Acosta United States Attorney

By:

S/ Melissa Damian Melissa Damian Emily M. Smachetti Assistant United States Attorneys 99 NE 4th Street Miami, Florida 33132 Telephone: (305) 961-9018 Facsimile: (305) 536-4675

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CERTIFICATE OF SERVICE I hereby certify that on September 9, 2008, I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to David O. Markus, counsel for Defendant Hassan Saied Keshari. S / M e l i s s a D a m i a n Melissa Damian Assistant United States Attorney