United States v. Mejia, Rafael

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2005 Decided June 2, 2006

No. 02-3067

UNITED STATES OF AMERICA,
APPELLEE

v.

RAFAEL MEJIA, A/K/A JOSE ALVAREZ-RIOS,
A/K/A PATRON,
A/K/A PROFESSOR,
A/K/A GORDO,
A/K/A MEMO,
A/K/A JUAN GUILLERMO GOMEZ-RAMIREZ,
A/K/A JOSE GUILLERMO GOMEZ-RAMIREZ,
APPELLANT

Consolidated with
03-3004

Appeals from the United States District Court
for the District of Columbia
(No. 99cr00389-01)
(No. 99cr00389-02)

H. Heather Shaner, appointed by the court, argued the cause
for appellant Rafael Mejia.
 2

Jon S. Pascale, appointed by the court, argued the cause for
appellant Homes Valencia Rios. Joseph Virgilio, appointed by
the court, was on the brief for appellants.

Teresa A. Wallbaum, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief was Robert
A. Feitel, Attorney.

Before: TATEL and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.1

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Following a jury trial, defendants
Rafael Mejia and Homes Valencia Rios were convicted of
conspiring to distribute cocaine with the knowledge and intent
that it would be unlawfully imported into the United States.
Mejia was sentenced to 400 months in prison and Rios to 324
months. The defendants raise a number of jurisdictional,
procedural, evidentiary, and constitutional challenges to their
convictions and sentences. We consider those challenges below.

I

From June through November 1998, Costa Rican law
enforcement officers conducted an investigation of a drug
trafficking organization in Costa Rica. The investigation
involved multiple wiretaps, which captured Colombian nationals
Mejia and Rios discussing large drug transactions with other
members of their drug trafficking organization. Based on
information from these wiretaps, law enforcement officials
intercepted three shipments of drugs in October 1998. On

1
Senior Circuit Judge Edwards was in regular active service at the
time of oral argument.
 3

October 3, Costa Rican police seized 200 kilograms of cocaine
from a truck at the border of Nicaragua and Costa Rica. On
October 14, Nicaraguan police seized 130 kilograms of cocaine
from a truck at the border of Nicaragua and Honduras. And on
October 18, Costa Rican police seized 25 kilograms of cocaine
from a truck in Costa Rica.

On November 30, 1999, a federal grand jury in the District
of Columbia named Mejia and Rios in a one-count indictment
that charged them with conspiring to distribute five or more
kilograms of cocaine with the knowledge and intent that such
cocaine would be unlawfully imported into the United States, in
violation of 21 U.S.C. §§ 959(a), 960(a)(3), 960(b)(1)(B)(ii),
and 963.2 The indictment alleged a conspiracy beginning no
later than June 1998 and lasting until at least November 1998,
spanning the countries of Columbia, Panama, Costa Rica,
Guatemala, and Nicaragua. A magistrate judge in the District of
Columbia issued warrants for the arrests of Mejia and Rios, and
copies of the warrants were provided to Panamanian law
enforcement officials.

On February 9, 2000, Panamanian authorities seized Mejia
and Rios in Panama. Hours later, the Panamanians transferred
the two men into the custody of United States Drug Enforcement
Agency (DEA) agents at Tocumen International Airport in
Panama City. DEA Special Agents Michael Chavarria and
Joseph Evans then arrested Mejia and Rios and transported them

2
Section 959(c) further provides: “This section is intended to
reach acts of manufacture or distribution committed outside the
territorial jurisdiction of the United States. Any person who violates
this section shall be tried in the United States district court at the point
of entry where such person enters the United States, or in the United
States District Court for the District of Columbia.” 21 U.S.C. §
959(c).
 4

to the United States. En route, the DEA agents advised the men
of the charges against them and read them their Miranda rights
in Spanish.

Upon arrival in Fort Lauderdale, Florida, the DEA agents
processed Mejia and Rios through Customs and Immigration,
again advised them of their rights, and separated them for
questioning. Mejia orally waived his rights and made statements
inculpating himself in the transportation of drugs to the United
States. Rios also waived his rights and signed a written
statement inculpating himself in drug trafficking in Central
America. Following these interviews, the DEA flew Mejia and
Rios to Washington, D.C., where they were incarcerated
pending trial.

On May 25, 2000, while the defendants awaited trial, the
grand jury issued a superseding indictment enlarging the time
period of the alleged conspiracy. Whereas the original
indictment charged a conspiracy spanning six months in 1998,
the superseding indictment stated that the conspiracy began no
later than November 1995 and continued until February 2000.
In all other respects, the superseding indictment was the same as
the original.

During the pretrial period, the government provided
discovery materials to the defense. These materials included
DEA-6 forms summarizing the DEA’s interviews with
cooperating witnesses, which the government produced at least
four months prior to trial. When the forms were originally
provided, the names of the witnesses, as well as other
identifying information, were blacked out. The redacted DEA-6
forms describe multiple drug transactions between 1995 and
2000 involving the cooperating witnesses and appellant Mejia.
After receiving these statements, the defense moved pursuant to
Federal Rule of Evidence 404(b) to prevent the cooperating
 5

witnesses from testifying, arguing that their statements detailed
bad acts by Mejia that were unrelated to the October 1998
seizures and therefore assertedly irrelevant to the conspiracy
outlined by the government. The court denied the motion.
Approximately two weeks before trial, the government turned
over unredacted versions of the DEA-6 forms, thereby revealing
the identities of its cooperating witnesses, Jorge Alexis Gallardo
Funez and Jose Sanchez.

The trial commenced on October 9, 2001. At trial, Funez
testified that he was involved in cocaine trafficking with Mejia,
and that Mejia told him that the drugs were destined for the
United States. Funez related that, in 1996, he assisted Mejia in
transporting 700 kilos of cocaine, 100 of which Mejia intended
to ship to Los Angeles. Sanchez testified that he was also
involved with Mejia’s organization, primarily in overseeing
financial matters. Sanchez stated that, in 1996, at Mejia’s
request, he went to Houston at least three times to assist in
counting and transferring money. Sanchez also testified that, in
1997, Mejia told him that a 1,400 kilogram shipment was going
to “California, to Houston, Texas, and to the towers in New
York.” Trial Tr., vol. XIII-A at 31 (Nov. 1, 2001). Neither
Funez nor Sanchez offered any testimony about Rios.

In addition to the testimony of the cooperating witnesses,
the government played 26 tapes of conversations recorded
during the Costa Rican wiretapping investigation. Eight of those
conversations were between Mejia and other members of the
drug trafficking conspiracy. Nine of the telephone calls were
between Rios and other members of the conspiracy. Several
witnesses identified the defendants’ voices on the tapes.
Inspector Siegfredo Sanchez,3 who led the Costa Rican

3
Because Inspector Sanchez shares the same surname as the
government’s cooperating witness, Jose Sanchez, we will refer to the
 6

investigation, identified Mejia’s voice on eight of the tapes;
DEA Agent Evans identified Mejia on three of the tapes; and
Juan Delgado, a prisoner who met Mejia and Rios during their
pretrial incarceration, identified Mejia on four of the tapes.4
Both Inspector Sanchez and DEA Agent Chavarria identified
Rios’ voice on eight tapes; Delgado identified Rios on seven
tapes.

According to the prosecution, the conversations captured on
the tapes were coded to disguise their subject matter. The
government offered Inspector Sanchez as an expert in
deciphering the coded language used by drug trafficking
organizations, and he testified about the meaning of numerous
conversations. For example, Inspector Sanchez decoded a
conversation involving a 147-kilogram shipment of cocaine. He
testified that, during the conversation, Rios authorized another
member of the conspiracy to keep three kilograms of the 147-
kilogram shipment as payment for his services. According to
Inspector Sanchez, Mejia raised questions about the three-
kilogram discrepancy in this shipment during a subsequent taped
conversation with another associate, Johnny Morales Cooper.

Inspector Sanchez further testified that coded phrases in the
recorded conversations established a nexus with the October
1998 drug seizures. In a conversation on October 2, 1998, two
of the defendants’ co-conspirators made reference to $200,
which Inspector Sanchez testified actually referred to 200

former as “Inspector Sanchez” and to the latter simply as “Sanchez.”
4
Delgado also testified that Mejia told him that he (Mejia) had
transported cocaine in Central America, which others would then take
to the United States.
 7

kilograms of cocaine. The next day, October 3, the Costa Rican
police seized 200 kilograms of cocaine from a truck at the
Nicaraguan-Costa Rican border. In an October 12, 1998
conversation, two of the defendants’ co-conspirators referred to
the number 130. Two days later, on October 14, Costa Rican
police seized 130 kilograms of cocaine at the Nicaraguan-
Honduran border.

The government also introduced the testimony of former
DEA Agent Michael Garland, who testified as an expert on
“drug trafficking organizations in Central and South America,
. . . shipment routes in South, Central America and North
America, the methods and means of communication among drug
traffickers in that region, the relative pricing of cocaine in 1998
in Central America, South America, and the United States, and
drug logos associated with the packaging of cocaine.” Trial Tr.,
vol. I-B at 57-58 (Oct. 16, 2001). Garland testified that the
principal market for drugs produced in Central and South
America is the United States, and that the considerations
relevant to determining the destination of Central or South
American cocaine were the amount of cocaine, the markings on
the cocaine, and the method of concealment.

Finally, DEA Agents Chavarria and Evans testified
regarding the defendants’ post-arrest statements. Chavarria
testified that Rios admitted to participating with other of Mejia’s
co-conspirators in smuggling more than 100 kilograms of
cocaine from Panama into Costa Rica during 1998, but did not
admit knowing that the drugs were destined for the United
States. Evans testified that he asked Mejia about a problem
regarding a drug transaction between Mejia and an individual
known as “El Negro.” Mejia told Evans that the problem
involved a 127-kilogram cocaine shipment that had been seized
in Guatemala in 1999. Mejia said El Negro had held him
accountable for the seized cocaine, and further affirmed that El
 8

Negro “was involved in the organization in moving shipments
of cocaine to the United States.” Trial Tr., vol. IX-A at 57-58
(Oct. 26, 2001). Evans also asked Mejia about the conversation
with Johnny Morales Cooper recorded by the Costa Rican
authorities regarding the 147-kilogram shipment of cocaine.
Mejia explained that there had been a dispute about who had
authorized the sale of three kilograms to finance the shipment.

Following the close of the prosecution’s case, the defense
moved for judgment of acquittal, which the district court denied.
On November 14, 2001, the jury found both defendants guilty.
The court sentenced Mejia to 400 months in prison on July 10,
2002, and sentenced Rios to 324 months on December 4, 2002.

At Mejia’s sentencing, the court found the following drug
quantities attributable to Mejia as relevant conduct for purposes
of the United States Sentencing Guidelines:

First, the 700 kilograms of cocaine that Mr. Mejia and
Mr. Gallardo Funez shipped from Guatemala to
Mexico in 1996[,] of which one hundred kilograms Mr.
Mejia would have shipped on his own to the United
States. Secondly, the 1,400 kilograms Mr. Mejia
received and told Mr. Sanchez was destined for United
States cities, in or about 1997. Third, the 147
kilograms transshipped from Costa Rica . . . in August
1997. . . . Lastly . . . a 127-kilogram cocaine amount
that Mr. Mejia told Special Agent Evans . . . was
destined for the United States but got seized in May of
1999.

Sentencing Hr’g Tr. 46-47 (July 10, 2002). The court noted,
however, that it was going to “specifically disregard the 355
kilograms seized [during the three Costa Rican operations in
October 1998] for these purposes as the government sentencing
 9

memorandum was wholly inadequate in establishing attribution
of these amounts.” Id. at 47. In denying the government’s
subsequent request for reconsideration, the court stated that it
was “unnecessary to deal with the 355, given how it was not
dealt with to [the court’s] satisfaction in the [government’s
sentencing] memo,” and that it would not “make a difference
with respect to the ultimate adjustment of offense level.” Id. at
59.

At Rios’ sentencing, the court found the following drug
quantities attributable to Rios as relevant conduct: the 200-
kilogram cocaine shipment seized on October 3, 1998; the 130-
kilogram shipment seized on October 14, 1998; and the 147-
kilogram shipment that was discussed during the taped
conversations but never seized. The court said that, for purposes
of sentencing, it would make no findings regarding the 25
kilogram shipment seized on October 17, 1998, since the
amount would have “no impact on the guidelines calculation”
and “no impact in [the court’s] selection of a sentence within the
ultimate guidelines range.” Sentencing Hr’g Tr. 10 (Dec. 4,
2002).

Mejia and Rios filed timely appeals that challenge many of
the district court’s pretrial, trial, and post-trial rulings. We
consider those challenges below, as well as an issue regarding
classified information that arose during the course of this appeal.

II

In this Part, we address the defendants’ joint objections to
pretrial rulings regarding jurisdiction, discovery, and a bill of
particulars. We also address Rios’ individual claim that his trial
should have been severed from Mejia’s trial.
 10

A

We begin with the defendants’ jurisdictional attack, which
we review de novo. See United States v. Burke, 425 F.3d 400,
407 (7th Cir. 2005). That attack is two-pronged.

First, the defendants charge that the district court lacked
jurisdiction over their case because DEA agents took them into
custody in Panama and transferred them to the United States
without following the formal requirements of the extradition
treaty between the two countries. This claim is governed by the
Supreme Court’s opinion in United States v. Alvarez-Machain,
504 U.S. 655 (1992), in which the Court considered a similar
argument by a defendant who had been forcibly abducted from
Mexico, flown by private plane to Texas, and then arrested by
DEA agents.5 The Supreme Court set forth the appropriate
analytical framework as follows:

[O]ur first inquiry must be whether the abduction of
respondent from Mexico violated the Extradition
Treaty between the United States and Mexico. If we
conclude that the Treaty does not prohibit respondent’s
abduction, the rule in Ker applies, and the court need
not inquire as to how respondent came before it.

Id. at 662. The “rule in Ker” referred to in the above quotation
comes from Ker v. Illinois, 119 U.S. 436 (1886), was applied in
Frisbie v. Collins, 342 U.S. 519 (1952), and was confirmed in
Alvarez-Machain. Under that rule:

5
The Alvarez-Machain trial court concluded that the agents were
responsible for the defendant’s abduction, although they were not
personally involved in it. See Alvarez-Machain, 504 U.S. at 657.
 11

“[T]he power of a court to try a person for crime is not
impaired by the fact that he had been brought within
the court’s jurisdiction by reason of a ‘forcible
abduction’ . . . . [D]ue process of law is satisfied
when one present in court is convicted of crime after .
. . a fair trial in accordance with constitutional
procedural safeguards. There is nothing in the
Constitution that requires a court to permit a guilty
person rightfully convicted to escape justice because he
was brought to trial against his will.”

Alvarez-Machain, 504 U.S. at 661-62 (quoting Frisbie, 342 U.S.
at 522 (quoting Ker, 119 U.S. at 444)).

In Alvarez-Machain, the Court went on to find that the
extradition treaty “sa[id] nothing about the obligations of the
United States and Mexico to refrain from forcible abductions of
people from the territory of the other nation, or the
consequences under the Treaty if such an abduction occurs.”
Alvarez-Machain, 504 U.S. at 663. Nor could the Court “infer
from th[e] Treaty and its terms that it prohibit[ed] all means of
gaining the presence of an individual outside of its terms.” Id.
at 668-69. Accordingly, the Court concluded that “respondent’s
abduction was not in violation of the Extradition Treaty between
the United States and Mexico[;] the rule of Ker v. Illinois [was]
fully applicable to th[e] case[; and] the fact of respondent’s
forcible abduction [did] not therefore prohibit his trial in a court
in the United States for violations of the criminal laws of the
United States.” Id. at 670.

Mejia and Rios do not cite any provision of the United
States’ extradition treaty with Panama that would warrant a
different result here. Like the U.S.-Mexico treaty, the U.S.-
Panama treaty contains no prohibition against procuring the
presence of an individual outside the terms of the treaty -- let
 12

alone one barring the signatories from informally cooperating
with each other as they did in this case. Compare Treaty
Providing for the Extradition of Criminals, U.S.-Panama, May
25, 1904, 34 Stat. 2851, with Extradition Treaty, U.S.-Mex.,
May 4, 1978, 31 U.S.T. 5059. In the absence of any suggestion
of a ground upon which the U.S.-Mexico and U.S.-Panama
treaties can be distinguished, Alvarez-Machain controls, and the
district court was correct in concluding that it had jurisdiction to
try this case.

Second, the defendants argue that the district court lacked
jurisdiction over them because the DEA took them into custody
in violation of the Mansfield Amendment, which states: “No
officer or employee of the United States may directly effect an
arrest in any foreign country as part of any foreign police action
with respect to narcotics control efforts, notwithstanding any
other provision of law.” 22 U.S.C. § 2291(c)(1) (emphasis
added). By its terms, the Mansfield Amendment is not
applicable here. At the suppression hearing, DEA agent Evans
testified without contradiction that Panamanian authorities had
arrested the defendants long before the DEA arrived. After
hearing the testimony, the district court found that the
Panamanian authorities conducted the “direct police action
during which the defendants made a transition from liberty to
custody,” and that this direct police action “occurred many hours
before the DEA came on the scene.” Motions Hr’g Tr., vol. II
at 68 (Feb. 6, 2001). Accordingly, the claim that the Mansfield
Amendment was violated fails on its face, and we need not
decide whether a violation of the Amendment would strip the
court of jurisdiction. Cf. United States v. Zabaneh, 837 F.2d
1249, 1261 (5th Cir. 1988) (“Even if the district court had found
that government agents were involved in appellant’s arrest in
Guatemala, Congress has not provided sanctions or penalties by
way of relief for persons arrested in contravention of §
2291(c)(1).”).
 13

B

The defendants next allege that the district court erred in
failing to require the government to provide them with certain
information during the pretrial discovery process. We review
such claims for abuse of discretion and will not reverse unless
the alleged error resulted in prejudice to the defendants’
substantial rights. See United States v. Gale, 314 F.3d 1, 6 (D.C.
Cir. 2003); United States v. McCrory, 930 F.2d 63, 69 (D.C. Cir.
1991).

The defendants contend that the government was required
to disclose both the substance of the cooperating witnesses’
prior statements and their identities prior to trial. We are
perplexed by this claim, and not only because the law is
generally to the contrary. See 18 U.S.C. § 3500(a) (providing
that “no statement” of a government witness “shall be the
subject of discovery[] or inspection until said witness has
testified on direct examination” at trial); United States v. Ruiz,
536 U.S. 622, 629 (2002) (noting that “‘[t]here is no general
constitutional right to discovery in a criminal case’” (quoting
Weatherford v. Busey, 429 U.S. 545, 559 (1977))). We are
particularly perplexed because the government did both produce
the statements and disclose the witnesses’ identities before trial.
The defendants’ brief concedes that they received redacted
witness statements in April 2001 and June 2001. See
Appellants’ Br. 47. Although the record does not show exactly
what the defendants received in April 2001, it does reveal that
the June 2001 disclosures substantially recounted the events and
statements about which the witnesses testified at trial. See
Appellee’s Supp. App. 23-27, 48-49. Moreover, on September
23, 2001 -- two weeks before the trial commenced -- the
government produced unredacted statements that disclosed the
identities of the cooperating witnesses. See id. at 55-56.
 14

The defendants also argue that the court erred in failing to
require the government to produce recordings made of the trial
in Costa Rica of one of their alleged (non-testifying) co-
conspirators, Johnny Morales Cooper. The defendants concede
that neither tapes nor transcripts of the trial were within the
government’s possession, custody, or control, which would have
triggered the government’s disclosure obligations under Rule 16.
See FED. R. CRIM. P. 16(a)(1)(E). Nonetheless, they argue that
the prosecution “clearly had the power to secure the trial tapes
or transcripts” from the Costa Rican government because it “was
authorized by its Mutual Legal Assistance Treaty” with Costa
Rica “to seek such information.” Appellants’ Br. 55. “Given
this authority,” the defendants conclude, “it was an abuse of
discretion for the district court to summarily rule that because
the government did not have the tapes or transcripts in its
‘personal’ possession, it had no obligation to use its best efforts
through the [Treaty] to obtain them.” Appellants’ Br. 55.

We do not agree. The government’s obligation was to
comply with Rule 16, and there is no dispute that it did so.
Having the authority “to seek” tapes or transcripts through a
treaty is not the same thing as having “the power to secure”
them. Id. Moreover, we note that the government provided the
defense with what it did have -- summaries of the Morales
Cooper trial, see Motions Hr’g Tr., vol. I at 52 (Feb. 5, 2001) --
and that defense counsel traveled to Costa Rica to interview
Morales Cooper, thus undermining any claim of prejudice. In
addition, although the defense could have asked the district court
to issue letters rogatory to the Costa Rican court to obtain any
tapes or transcripts that may have existed, it did not do so. See
28 U.S.C. § 1781(b)(2) (authorizing “the transmittal of a letter
rogatory or request directly from a tribunal in the United States
to [a] foreign or international tribunal, officer, or agency”).
“The fact that [the defendants] did not exhaust th[is]
alternative[] only serves to undermine further” their demand for
 15

a new trial. United States v. Sensi, 879 F.2d 888, 899 (D.C. Cir.
1989).

C

The defendants also claim that the district court erred in
refusing to compel the government to provide a bill of
particulars. “A bill of particulars can be used to ensure that the
charges brought against a defendant are stated with enough
precision to allow the defendant to understand the charges, to
prepare a defense, and perhaps also to be protected against
retrial on the same charges.” United States v. Butler, 822 F.2d
1191, 1193 (D.C. Cir. 1987). The determination of whether a
bill of particulars is necessary “rests within the sound discretion
of the trial court” and will not be disturbed absent an abuse of
that discretion. Id. at 1194; see FED. R. CRIM. P. 7(f) (“The court
may direct the government to file a bill of particulars.”
(emphasis added)). To establish an error, the defendants must
“demonstrate surprise or prejudice by the lack of
particularization.” United States v. Pollack, 534 F.2d 964, 970
(D.C. Cir. 1976).

We find no abuse of discretion in the district court’s denial
of the defendants’ motion for a bill of particulars. As the district
court found, the superseding indictment “identifies what the
object of the conspiracy is as is required by [21 U.S.C. § 963,]
. . . provides a time period of the conspiracy, . . . identifies the
statutes that the object of the conspiracy violated[,] . . . has an
identification of the proper mens rea required under Section
963[,] . . . [and] identifies at least five countries where the
conspirators acted.” Motions Hr’g Tr., vol. V at 51 (March 13,
2001). Although the indictment did not allege any overt acts,
the district court correctly found that “the language of Section
963 does not call for any to be set forth in an indictment, nor
do[] any . . . have to have been committed in order for a [§] 963
 16

[violation] to be proven.” Id. at 52; see United States v.
Shabani, 513 U.S. 10, 15 (1994) (holding that the government
need neither allege nor prove the commission of an overt act to
establish a violation of 21 U.S.C. § 846, which is worded
identically to 21 U.S.C. § 963).

The defendants insist that, because the original indictment
charged a conspiracy that took place in 1998, they thought the
trial would concern only the drug seizures that occurred in
October of that year. Thus, they say, they were surprised by
testimony regarding acts that happened between 1996 and 1999.
Specifically, the defendants complain that, because the
indictment “contained no overt acts or any other specific
information,” they were “ambushed at trial by the testimony of
[cooperating witnesses] Gallardo Funez and Jose Sanchez, . . .
who both testified about drug trafficking activities involving
quantities of drugs . . . in places and under circumstances [the
defendants] were not advised of prior to trial.” Appellants’ Br.
79.

We do not understand why the defendants felt surprised, nor
how they could consider themselves ambushed. Although the
initial indictment charged a conspiracy occurring in 1998, the
superseding indictment -- filed more than 16 months before trial
-- expanded the dates to cover the period from 1995 to 2000.
And while the superseding indictment did not itself detail the
drug trafficking activities about which the cooperating witnesses
testified, the DEA-6s recounting those witnesses’ pretrial
statements did. See Butler, 822 F.2d at 1193 (“[I]f the requested
information is available in some other form, then a bill of
particulars is not required.”). As noted above, the DEA-6s were
provided in redacted form at least four months before trial, and
in unredacted form more than two weeks before. This court has
examined those statements in detail. We can only conclude that
if the defendants felt ambushed, it was not because the
 17

government was lying in wait, but because the defendants were
not looking.

D

In a final challenge to the district court’s pretrial rulings,
defendant Rios contends that the court erred in failing to grant
his motion to sever his trial from Mejia’s pursuant to Federal
Rule of Criminal Procedure 14, which provides that the court
“may . . . sever the defendants’ trials” if trying them together
“appears to prejudice a defendant.” FED. R. CRIM. P. 14
(emphasis added). The Supreme Court has stressed that “a
district court should grant a severance under Rule 14 “only if
there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence.”
Zafiro v. United States, 506 U.S. 534, 539 (1993). The
severance determination is left to the “sound discretion” of the
trial court and will not be reversed absent abuse of that
discretion. Id. at 539. The trial judge is “usually in the best
position to evaluate the resulting degree of prejudice, and jury
instructions generally are sufficient to minimize any disparities
in evidence.” United States v. Tarantino, 846 F.2d 1384, 1398
(D.C. Cir. 1988).

The strongest argument Rios made to the district court in
favor of severance was that the government intended to
introduce out-of-court statements by Mejia that inculpated Rios,
thus risking a Confrontation Clause problem since Mejia was
not expected to testify (and did not do so). See Bruton v. United
States, 391 U.S. 123, 137 (1968). Although Rios restated that
argument in his opening brief in this court, he was forced to
concede in reply that the government never introduced those
statements. Appellants’ Reply Br. 29. Hence, he suffered no
prejudice on this account.
 18

Rios’ remaining justification for severance is the claim that
his participation in the alleged conspiracy was de minimis.
Although that characterization greatly understates Rios’ role, it
is certainly true that the bulk of the trial evidence concerned
Mejia rather than him. But while “[s]everance may be required
. . . when the evidence against one defendant is far more
damaging than the evidence against the other defendant,” we
will not find an abuse of discretion if the “jury could reasonably
compartmentalize the evidence introduced against each
individual defendant.” United States v. Halliman, 923 F.2d 873,
884 (D.C. Cir. 1991) (internal quotation marks omitted).

Here, the government introduced “independent and
substantial evidence” against Rios, id. (internal quotation marks
omitted), including his admission that he participated in
smuggling more than 100 kilograms of cocaine from Panama
into Costa Rica during 1998 and that he obtained beepers and
cell phones, rented vehicles, apartments and stash sites, and
coordinated with other members of the charged conspiracy to
facilitate cocaine smuggling activity. Witnesses also identified
Rios’ voice on eight taped conversations from the Costa Rican
wiretapping investigation. Moreover, the district court expressly
cautioned the jury to “give separate consideration and render
separate verdicts with respect to each defendant,” because
“[e]ach defendant is entitled to have his guilt or innocence of the
crime for which he is on trial determined from his own
conduct.” Trial Tr., vol. XIX-A at 23 (Nov. 13, 2001).
Accordingly, we find “insufficient cause to attribute the jury’s
guilty verdict against [Rios] to its failure to segregate the
relevant evidence in this case.” Halliman, 923 F.2d at 885.

III

The defendants’ allegations of error do not end with the
district court’s pretrial rulings. They challenge several of the
 19

court’s trial rulings as well. They jointly dispute the admission
of testimony from the government’s cooperating witnesses, as
well as the testimony of its experts. Mejia individually argues
that the admission of a post-arrest statement made by Rios
violated his Sixth Amendment right to confrontation. Together,
the defendants also raise a general challenge to the sufficiency
of the evidence supporting their convictions.

A

The defendants contend that the district court wrongly
permitted cooperating witnesses Funez and Sanchez to testify
about the “trafficking of huge quantities of cocaine in 1996 and
1997, long before the three seizures of cocaine in October
1998.” Appellants’ Br. 28.6 According to the defendants,
because “the three October 1998 seizures [were] the only events
and only quantities upon which the indictment was based,”
Appellants’ Br. 29-30, the testimony regarding the 1996 and
1997 transactions constituted “[e]vidence of other crimes,”
which, under Federal Rule of Evidence 404(b), “is not
admissible to prove the character of a person in order to show
action in conformity therewith.” FED. R. EVID. 404(b).

This argument simply ignores the superseding indictment
issued in this case. Although the conspiracy charged in the
initial indictment was indeed limited to 1998, that charged in the
superseding indictment covered the period from 1995 through

6
The transaction about which Funez testified took place in 1996,
when he assisted Mejia in transporting 700 kilograms of cocaine, 100
of which Mejia intended to sell in Los Angeles. Trial Tr., vol. XI-B
at 19 (Oct. 30, 2001). The transaction Sanchez discussed occurred in
1997, when Mejia told him that a 1,400 kilogram shipment was going
to California, Texas, and New York. Trial Tr., vol. XIII-A at 31-32
(Nov. 1, 2001). See supra Part I.
 20

2000. See J.A. 5 (superseding indictment); Trial Tr., vol. XIV-A
at 139 (Nov. 2, 2001) (statement by the district court) (“[I]t has
been very clear that [the] indictment was one which charged a
conspiracy from . . . 1995 through 2000.”). Therefore, the 1996
and 1997 transactions about which the witnesses testified did not
constitute “other crimes” evidence, but rather evidence of this
crime -- the crime with which the defendants were charged.
And in “cases where the incident offered is a part of the
conspiracy alleged in the indictment, the evidence is admissible
under Rule 404(b) because it is not an ‘other’ crime.” United
States v. Badru, 97 F.3d 1471, 1475 (D.C. Cir. 1996) (internal
quotations and citation omitted).7

B

The defendants next raise challenges to the admission of
testimony from two of the government’s experts: Inspector
Siegfredo Sanchez, who led the Costa Rican investigation, and
Michael Garland, a former DEA agent who was not involved in
the instant investigation. We review the district court’s
admission of expert testimony for abuse of discretion. See
United States v. Salamanca, 990 F.2d 629, 637 (D.C. Cir. 1993);
United States v. Boney, 977 F.2d 624, 628 (D.C. Cir. 1992).

7
The defendants suggest that the district court initially ruled that
the 1996 and 1997 transactions were “‘outside the charged
conspiracy,’” Appellants’ Reply Br. 10 (quoting Trial Tr., vol. XI-A
at 129 (Oct. 30, 2001)), but then erred in permitting Funez and
Sanchez to testify about them. This mischaracterizes the court’s
ruling. The district court recognized that “the charged conspiracy” ran
“from [19]95 to 2000.” Trial Tr., vol. XI-A at 129 (Oct. 30, 2001).
The proffered testimony that the court said would be “outside” the
charged conspiracy related to earlier years, see id.; see also id. at 135,
and is not at issue on this appeal.
 21

1. Inspector Sanchez testified as an expert regarding
“coded phrases with respect to the drug trade,” Trial Tr., vol. III-
B at 18 (Oct. 18, 2001), and employed that expertise to explain
the meaning of the defendants’ wiretapped conversations. The
defendants raise two principal objections to the admission of
Inspector Sanchez’s testimony.

First, the defendants challenge Inspector Sanchez’s
expertise under Federal Rule of Evidence 702. They argue that
he was not properly qualified as an expert in coded words and
phrases because “the court qualified him as an expert based
solely on his testimony that he had investigated drug trafficking
and ‘analyzed’ drug trafficking for a long time.” Appellants’ Br.
74. The defendants’ description of the basis of Inspector
Sanchez’s proficiency is correct: his expertise was established
through testimony that he had learned the “lexicon” used by
drug traffickers “over the many years of listening to an infinite
number of conversations.” Trial Tr., vol. II-B at 44 (Oct. 18,
2001); see id. at 49 (testimony that Inspector Sanchez had
listened to and analyzed “many thousands” of coded words and
phrases during drug trafficking investigations). But the
Advisory Committee’s notes to Federal Rule of Evidence 702
specifically contemplate that this kind of experience can qualify
a witness as an expert on coded phrases used in drug trafficking:

[W]hen a law enforcement agent testifies regarding the
use of code words in a drug transaction, the principle
used by the agent is that participants in such
transactions regularly use code words to conceal the
nature of their activities. The method used by the agent
is the application of extensive experience to analyze the
meaning of the conversations. So long as the principles
and methods are reliable and applied reliably to the
facts of the case, this type of testimony should be
admitted.
 22

FED. R. EVID. 702 advisory committee’s note (emphasis added).
More generally, there is a well-established practice of law
enforcement officers testifying, on the basis of their experience,
as experts in the modus operandi of drug trafficking
organizations. See United States v. Doe, 903 F.2d 16, 19 & 19
n.21 (D.C. Cir. 1990) (citing cases). The court’s admission of
Inspector Sanchez’s testimony was in accordance with these
precedents and did not constitute an abuse of discretion.

Second, the defendants complain that the district court
abused its discretion in permitting Inspector Sanchez to testify
“far beyond his purported expertise.” Appellants’ Br. 75. But
while our review of the inspector’s testimony discloses that on
occasion he did stray beyond the interpretation of coded phrases,
it also reveals that defense counsel rarely made
contemporaneous objections. On most occasions upon which
the defense did raise such objections, the district court properly
sustained them; when the court overruled an objection, any error
was harmless in light of Agent Garland’s properly admitted
testimony on the same point. See supra p. 7; infra pp. 23-24.
Moreover, at the close of the testimony, the court entertained a
motion to strike Inspector Sanchez’s testimony --
notwithstanding the motion’s untimeliness -- and did in fact
strike eight lines of testimony. We find no reversible error in
the manner in which the district court supervised the admission
of Inspector Sanchez’s testimony.8

8
The defendants also complain that the government failed to
provide them in advance with a “written summary” of Inspector
Sanchez’s expert “opinions [and] the bases for these opinions,” as
required by Rule 16. FED. R. CRIM. P. 16(a)(1)(G). Because they did
not object to Inspector Sanchez’s testimony on this ground until after
he had already testified, our review is limited to plain error. See
United States v. Olano, 507 U.S. 725, 732 (1993). And because the
defendants have not demonstrated “how or why the verdict would
 23

2. The defense also objects to the admission of testimony
by the government’s other expert -- former DEA Agent Garland
-- who testified regarding the modus operandi of drug trafficking
organizations in Central and South America. The defendants
assert that Garland contravened Federal Rule of Evidence
704(b), which bars an expert witness from stating an opinion “as
to whether the defendant did or did not have the mental state or
condition constituting an element of the crime charged.” FED.
R. EVID. 704(b) (emphasis added). Agent Garland, however,
never offered an opinion regarding the mental state of the
defendants.

The single testimonial exchange to which defendants object
unfolded as follows:

Q: Do the drug trafficking organizations know the
ultimate destination of the goods that they traffic even
if it’s only part of the way?

A: They don’t know the ultimate destination per city,
per street, per warehouse, but they know it’s going to
the United States.

Trial Tr., vol. I-B at 133 (Oct. 16, 2001). In context, it is plain
that Garland was testifying about drug organizations in general,
and not the defendants’ organization in particular. To remove
any doubt on that score, the district court immediately
interjected: “Just to be clear, Mr. Garland, you don’t testify here
today with any personal knowledge about any intent on the part
of either of the gentlemen seated at this table here in connection

have been different” if they had received a Rule 16(a)(1)(G)
disclosure, they have failed to establish the prejudice required for
reversal. United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th
Cir. 1997).
 24

with any facts in this case, is that correct?” Id. at 134. Garland
answered in the affirmative. Id. That intervention was
sufficient to ensure that admission of the testimony was not
erroneous.9

C

Appellant Mejia individually charges that the district court’s
admission of a post-arrest statement by Rios, tending to show
that Rios feared Mejia, violated Mejia’s Sixth Amendment right
to confrontation. At trial, DEA Agent Chavarria testified that,
in the course of questioning Rios in Fort Lauderdale, he asked
whether Rios knew Mejia. According to Agent Chavarria:

[W]hen I first asked [Rios] if he knew [Mejia], he
looked to me and then he looked down, and then he
specifically said, “What can you guarantee in terms of
my family’s safety in Colombia?” And, of course, I
told him we couldn’t guarantee him anything. And
then he immediately responded that he didn’t know
[Mejia].

9
See United States v. Smart, 98 F.3d 1379, 1388 (D.C. Cir. 1996)
(declaring that expert “testimony should not be excluded under Rule
704(b) as long as it is made clear, either by the court expressly or in
the nature of the examination, that the opinion is based on the expert’s
knowledge of common criminal practices, and not on some special
knowledge of the defendant’s mental processes” (internal quotation
marks omitted)); United States v. Williams, 980 F.2d 1463, 1466 (D.C.
Cir. 1992) (holding that a potential error in an expert’s testimony
regarding the “intentions of the person who possessed those bags” was
cured by the expert’s affirmative response to the court’s interjected
question: “You aren’t referring and you have no knowledge, I take it,
about this particular case?”).
 25

Trial Tr., vol. X-B at 20 (Oct. 29, 2001). Mejia contends that
the recitation of this statement by Rios was barred by Bruton v.
United States, which held that the admission of a non-testifying
co-defendant’s statement, expressly implicating a defendant,
violated the latter’s rights under the Confrontation Clause of the
Sixth Amendment. Bruton, 391 U.S. at 137.

Mejia did not object to the admission of Rios’ statement in
the district court, and our review is therefore limited to plain
error. See United States v. Olano, 507 U.S. 725, 732 (1993)
(holding that an appellate court may not reverse on the basis of
an unobjected-to error unless it is “plain,” “affect[s] substantial
rights,” and “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings” (internal quotation marks and
citation omitted)); FED. R. CRIM. P. 52(b). Even assuming that
the admission of the statement was error, it did not rise to the
level of plain error. The prejudicial impact of the statement was
indirect: what inference the jury might have drawn regarding
Mejia’s guilt from an inference of Rios’ fear is speculative at
best.10 Any such prejudice was mitigated by a cautionary
instruction that the district court gave to the jury.11 Moreover,

10
Cf. Bruton, 391 U.S. at 135 (reversing conviction where the co-
defendant’s statement, which expressly implicated the defendant as a
participant in the crime, was “powerfully incriminating”); see
generally Gray v. Maryland, 523 U.S. 185, 195-96 (1998); Richardson
v. Marsh, 481 U.S. 200, 208 (1987).
11
The court instructed the jury: “One defendant’s statement made
at a time after his arrest constitutes evidence only against the
defendant making it. It is not evidence against the other defendant.
You must not consider it in any way in determining the guilt or
innocence of the other defendant.” Trial Tr., vol. XIX-A at 23 (Nov.
13, 2001); see United States v. Johnson, 767 F.2d 1259, 1274 (8th Cir.
1985) (holding that the court’s “limiting instruction eliminated the
chance of plain error” after a police officer testified concerning the
 26

it was vastly outweighed by the overwhelming evidence of
Mejia’s guilt.12

D

Finally, the defendants challenge the sufficiency of the trial
evidence proving that they conspired to distribute cocaine with
the intent or knowledge that it would be unlawfully imported
into the United States. See 21 U.S.C. §§ 959(a), 963. Our
review of the government’s proof is limited: We must accept
the jury’s guilty verdicts if we conclude that “‘any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” United States v. Arrington, 309
F.3d 40, 48 (D.C. Cir. 2002) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). In making this determination, “the
prosecution’s evidence is to be viewed in the light most
favorable to the government, drawing no distinction between
direct and circumstantial evidence, and giving full play to the
right of the jury to determine credibility, weigh the evidence and
draw justifiable inferences of fact.” United States v. Dykes, 406
F.3d 717, 721 (D.C. Cir. 2005) (internal quotations and citation
omitted).

out-of-court statements of an absent defendant that implicated a co-
defendant).
12
See United States v. Richards, 241 F.3d 335, 337 (3d Cir. 2001)
(finding that, although the admission of a non-testifying co-
defendant’s out-of-court statement incriminating the defendant was
Bruton error, it did not amount to plain error because of overwhelming
independent evidence of the defendant’s guilt); United States v.
Brazel, 102 F.3d 1120, 1141 (11th Cir. 1997) (same where there was
“abundant properly admitted evidence linking” the defendant to the
crime, and the improperly admitted statement “added little if anything
more to the government’s case”).
 27

In its order denying the defendants’ motion for a judgment
of acquittal, the district court found that the evidence was “more
than sufficient to establish that both defendants were involved
in a criminal conspiracy.” United States v. Mejia, No. 99-389,
Mem. Op. & Order at 10 (D.D.C. May 14, 2002). We agree. As
detailed by the district court and recounted in Part I above,
evidence of the conspiracy included the tape-recorded
conversations in which the defendants discussed, in code,
numerous drug transactions. Inspector Sanchez decoded those
conversations and linked them to seizures of cocaine. Multiple
witnesses identified the voices of both defendants on those
tapes. Moreover, Mejia made oral statements and Rios provided
a written statement to the DEA, confessing their involvement in
an international drug transportation network.

The district court likewise concluded -- and again we agree
-- that there was sufficient evidence for the jury to find that the
“intent of the defendants and the object of the conspiracy was to
import cocaine into the United States.” Id. at 12. Evidence of
the defendants’ intent and knowledge was both circumstantial
and direct. See United States v. Chun-Yin, 958 F.2d 440, 443
(D.C. Cir. 1992) (holding that proof that the defendant knew
drugs were to be imported into the United States “may take the
form of circumstantial as well as direct evidence”). Former
DEA Agent Garland provided expert testimony noting that the
drugs were seized on the principal land route for cocaine from
Panama to the United States and were hidden in ways that
suggested the cocaine was headed for the United States. In
addition, cooperating witnesses Funez and Sanchez testified
about trafficking drugs to the United States with Mejia in 1996
and 1997, and both testified that Mejia told them the drugs were
destined for the United States. Indeed, Mejia himself confessed
to being a part of an organization involved in shipping cocaine
to the United States.
 28

Notwithstanding the district court’s denial of his motion for
judgment of acquittal, Mejia separately insists that the court’s
refusal, at sentencing, to attribute to him a total of 355 kilograms
of cocaine seized from three shipments during 1998 “was
tantamount to a reconsideration and reversal of the court’s
previous denial of his motion.” Appellants’ Br. 16. Given that
the court went on to attribute 2,374 other kilograms to Mejia and
to sentence him to 400 months in prison, Sentencing Hr’g Tr.
46-47 (July 10, 2002), Mejia’s insistence that the court “had a
change of heart about the case,” Apellants’ Br. 16, rings hollow.
Rather, as the court explained, it found it “unnecessary to deal
with the 355, given how it was not dealt with to [the court’s]
satisfaction in the [government’s sentencing] memo” and given
that it would not “make a difference with respect to the ultimate
adjustment of offense level.” Sentencing Hr’g Tr. 59 (July 10,
2002).

At bottom, Mejia’s argument is just another variant on the
defendants’ theme that the indictment only charged them with
transactions relating to the October 1998 seizures. But saying
that -- even repeatedly -- does not make it so. The superseding
indictment charged the defendants with a conspiracy that ran
from 1995 to 2000, and the evidence was more than sufficient
to warrant their convictions whether or not the cocaine seized in
1998 was included in the sentencing calculations.

IV

We next consider two post-trial issues, each of which
necessitates a limited remand under the case law of this Circuit.

A

Almost a year after the jury’s verdict was entered,
defendant Rios moved for a new trial based on a claim that his
 29

attorney had provided ineffective assistance of counsel. See
Strickland v. Washington, 466 U.S. 668, 691-92 (1984). The
district court denied the claim as untimely under Federal Rule of
Criminal Procedure 33, and Rios, represented by new counsel,
renews that claim here.

In United States v. Rashad, 331 F.3d 908 (D.C. Cir. 2003),
we held that, when a defendant asserts an ineffective assistance
claim for the first time on appeal, our “‘general practice is to
remand the claim for an evidentiary hearing’ unless ‘the trial
record alone conclusively shows’ that the defendant either is or
is not entitled to relief.” Rashad, 331 F.3d at 909-10 (quoting
United States v. Fennell, 53 F.3d 1296, 1303-04 (D.C. Cir.
1995)). Although Rios first asserted his ineffective assistance
claim in the district court, the court did not hold an evidentiary
hearing because the assertion was untimely. As a consequence,
we are in the same position as if the claim had first been raised
on appeal: the record does not conclusively show whether or
not the defendant is entitled to relief. Accordingly, we must
remand this claim to the district court for an evidentiary hearing.

B

We must also remand the defendants’ sentencing claims.
Almost three years after the district court sentenced the
defendants in this case, the Supreme Court issued its decision in
United States v. Booker, 543 U.S. 220 (2005). Booker held that
the enhancement of a defendant’s sentence pursuant to a
mandatory Sentencing Guidelines regime, based on facts not
submitted to the jury, violates the Sixth Amendment. See
Booker, 543 U.S. at 244. There is no dispute that the sentences
of defendants Mejia and Rios contain Booker errors. These
include mandatory enhancements based on attributable drug
amounts and on the role of each defendant in the offense. See
 30

U.S. SENTENCING GUIDELINES MANUAL §§ 2D1.1(c)(1), 3B1.1
(2001).

At his sentencing, Mejia raised a Sixth Amendment
objection based upon Apprendi v. New Jersey, 530 U.S. 466
(2000) -- the progenitor of the Court’s decision in Booker.
Accordingly, unless the errors in his sentencing were harmless,
see FED. R. CRIM. P. 52(a), Mejia’s sentence must be vacated
and his case remanded to the district court for resentencing. See
United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005).
To establish harmlessness, the government must demonstrate
“beyond a reasonable doubt that the error complained of did not
contribute to the [sentence] obtained.” Chapman v. California,
386 U.S. 18, 24 (1967). The government concedes that it cannot
satisfy that standard, and that we must remand Mejia’s case for
resentencing consistent with Booker. See Appellee’s Br. 52.

Rios, by contrast, did not raise a Sixth Amendment
objection to his sentencing in the district court. His appeal is
therefore governed by the plain error standard, see FED. R CRIM.
P. 52(b), and by this circuit’s application of that standard to
Booker errors in United States v. Coles, 403 F.3d 764 (D.C. Cir.
2005), and United States v. Gomez, 431 F.3d 818 (D.C. Cir.
2005). Coles and Gomez set forth the following paradigm: “[I]n
a Booker plain-error case: (1) if the record establishes a
reasonable likelihood that the sentence would have been lower
[had the district court known to apply the law as subsequently
announced in Booker], we remand for full resentencing; (2) if
the record makes us confident that the sentence would not have
been lower, we affirm; and (3) if neither of the above, we grant
a limited remand.” Gomez, 431 F.3d at 824.

This case falls into the “neither of the above” category, id.,
because “the record simply is not sufficient for an appellate
court to determine prejudice with any confidence.” Coles, 403
 31

F.3d at 769. At sentencing, the district court said nothing from
which we can deduce what course it would have taken in the
absence of a mandatory Guidelines regime. See id. at 769-70.
Given the limitations of the record, we follow Coles and Gomez
and grant a limited remand of Rios’ claim: “While retaining
jurisdiction over the case, we remand the record to the District
Court . . . to determine whether it would have imposed a
different sentence materially more favorable to the defendant
had it been fully aware of the post-Booker sentencing regime.”
Coles, 403 F.3d at 770.

V

Finally, we address an issue regarding classified
information that was not addressed in the parties’ initial briefs.

A

On October 4, 2001, five days before the defendants’ trial
was scheduled to begin, the Drug Intelligence Unit (DIU) of the
Justice Department’s Narcotic and Dangerous Drug Section
filed an ex parte, in camera motion under seal with the district
court. Pursuant to the Classified Information Procedures Act
(CIPA), 18 U.S.C. App. III, § 4, and Federal Rule of Criminal
Procedure 16(d)(1), the DIU sought review and protection from
disclosure of certain classified information13 related to the
defendants and arguably subject to discovery under the Federal
Rules. The DIU’s motion represented that none of the
investigators or attorneys involved in the prosecution (or

13
CIPA defines “classified information” as “any information or
material that has been determined by the United States Government
pursuant to an Executive order, statute, or regulation, to require
protection against unauthorized disclosure for reasons of national
security.” 18 U.S.C. App. III, § 1.
 32

defense) of the case knew of the existence or content of the
classified material, nor had they been made aware of the filing
of the motion by the DIU. After examining the material ex parte
and in camera, the district court determined that it was not
subject to discovery under Brady v. Maryland, 373 U.S. 83
(1963), and issued a sealed protective order. In the event that
either defendant was convicted, the order required the DIU to
provide notice of the protective order to the court of appeals,
which it subsequently did by letter.

On August 5, 2005, the DIU filed a motion under seal with
this court requesting permission to transfer the district court’s
protective order and the underlying materials for our in camera
review. The DIU advised that both the prosecution and the
defense remained unaware of the ex parte proceedings below.
In response, we issued orders directing the government to show
cause why the fact of its filings in this and the district court --
not the content of the materials the filings sought to protect --
should remain sealed. The DIU responded by contending that
disclosure would not be useful to the defendants, and by quoting
our statement in United States v. Yunis that “[t]hings that did not
make sense to the District Judge would make all too much sense
to a foreign counter-intelligence specialist who could learn much
about this nation’s intelligence-gathering capabilities from what
these documents revealed about sources and methods.” United
States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) (Yunis I).

The quotation from our opinion in Yunis I referred to
disclosure of the underlying classified documents in that case
and was expressly based on “what th[o]se documents revealed.”
Id. It did not refer to mere notice of the government’s efforts to
protect those documents -- a fact that was on the public record
in Yunis I. See id. at 619-20. Although there may be situations
in which the fact that the government has sought a protective
order could itself create a risk of harm, see United States v.
 33

Innamorati, 996 F.2d 456, 488 (1st Cir. 1993), the DIU made no
such showing in this case. To the contrary, and despite our
issuance of a second order giving it a second opportunity to
show cause, the DIU offered no reason at all why disclosing the
fact of its filings here could cause injury.

On September 6, 2005, after concluding that the DIU had
failed to justify keeping the fact of its filings secret and that the
views of the defense regarding the legal issues at stake would be
useful to the court, we issued an order notifying the parties that
the ex parte filings had taken place. In so doing, we followed
the lead of the First Circuit in United States v. Innamorati. See
id. at 487. The order did not disclose anything about the
materials that were reviewed by the district court and subject to
its protective order. Because counsel for both sides had been
unaware of the filings when their initial appellate briefs were
submitted, we directed them to submit supplemental briefs
addressing “whether, to what extent, and under what
circumstances CIPA § 4 and Federal Rule of Criminal Procedure
16(d)(1) authorize the non-disclosure of information otherwise
arguably subject to discovery under Rule 16.” United States v.
Mejia, No. 02-3067, Order at 2 (D.C. Cir. Sept. 6, 2005). We
now proceed to consider those issues with the benefit of that
briefing.

B

Rule 16 of the Federal Rules of Criminal Procedure, entitled
“Discovery and Inspection,” sets forth categories of
“[i]nformation [s]ubject to [d]isclosure” by the government in
a criminal case. FED. R. CRIM. P. 16(a)(1). The district court
granted the DIU’s motion for a protective order against the
production of certain classified documents that the DIU
characterized as arguably subject to discovery under Rule 16.
 34

In support, the court cited CIPA § 4, entitled “Discovery of
classified information by defendants,” which provides in part:

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 . . . . The court may
permit the United States to make a request for such
authorization in the form of a written statement to be
inspected by the court alone.

18 U.S.C. App. III, § 4.14 The district court also relied on
Federal Rule of Criminal Procedure 16(d)(1), entitled
“Protective and Modifying Orders,” which provides:

At any time the court may, for good cause, deny,
restrict, or defer discovery or inspection . . . . The
court may permit a party to show good cause by a
written statement that the court will inspect ex parte.

FED. R. CRIM. P. 16(d)(1).

The defendants argue that CIPA is a procedural statute that
does not itself create a privilege against discovery of classified
information. We agree. Indeed, we said as much in Yunis I.
See 867 F.2d at 621 (declaring that CIPA § 4 “creates no new

14
Section 4 further provides that, “[i]f the court enters an order
granting relief following such an ex parte showing, the entire text of
the statement of the United States shall be sealed and preserved in the
records of the court to be made available to the appellate court in the
event of an appeal.” 18 U.S.C. App. III, § 4. It was pursuant to this
provision that the district court ordered the DIU to advise this court of
the ex parte proceedings. See also FED. R. CRIM. P. 16(d)(1).
 35

rights of or limits on discovery of a specific area of classified
information”).15 CIPA § 4 was, however, intended to “clarify”
a court’s existing “powers under Federal Rule of Criminal
Procedure 16(d)(1)” to protect classified information. SEN. REP.
NO. 96-823, at 6 (1980).16 In Yunis I, we recognized that,
“[w]hile CIPA creates no new rule of evidence regarding
admissibility, the procedures it mandates protect a government
privilege in classified information.” 867 F.2d at 623.

To give content to the classified information privilege,
Yunis I adopted the test that the Supreme Court had applied to
the “informant’s privilege” in Roviaro v. United States, 353 U.S.
53 (1957). Yunis I, 867 F.2d at 622. Under that test, the
reviewing court must first find that the information “crosse[s]
the low hurdle of relevance,” id. at 623, a hurdle that we assume
for the sake of argument has been surmounted here. Second, the
court must determine whether “the assertion of privilege by the
government is at least a colorable one.” Id. As in Yunis I, “our

15
See also H.R. REP. NO. 96-1436, at 12 (1980) (Conf. Rep.)
(stating that “nothing in [CIPA] is intended to change the existing
standards for determining relevance and admissibility”); H.R. REP.
NO. 96-831, pt. 1, at 27 (1980) (stating that CIPA § 4 “is not intended
to affect the discovery rights of a defendant”).
16
See SEN. REP. NO. 96-823, at 6 (“This clarification [was]
necessary because some judges ha[d] been reluctant to use their
authority under [Rule 16] although the advisory comments of the
Advisory Committee on Rules state[d] that ‘among the considerations
[to be] taken into account by the court’ in deciding on whether to
permit discovery to be ‘denied, restricted or deferred’ would be ‘the
protection of information vital to the national security.’” (quoting FED.
R. CRIM. P. 16 advisory committee’s note)); United States v.
Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988) (“Congress intended
section 4 to clarify the court’s powers under Fed. R. Crim. P. 16(d)(1)
to deny or restrict discovery in order to protect national security.”).
 36

ex parte in camera review of the classified information in this
case convinces us that the claim of the government to privilege
is a great deal more than merely colorable.” Id. (italicization
omitted). Third, and most significant, Yunis I held “that
classified information is not discoverable on a mere showing of
theoretical relevance . . . [;] the threshold for discovery in this
context further requires that [the information be] . . . at least
‘helpful to the defense of [the] accused.’” Id. (quoting Roviaro,
353 U.S. at 60-61) (emphasis added); see United States v. Yunis,
924 F.2d 1086, 1095 (D.C. Cir. 1991) (Yunis II).17

As in Yunis I, we have carefully examined the classified
information at issue and conclude that it “falls far short” of the
“helpful or beneficial character” necessary to meet the threshold
showing for overcoming the privilege. 867 F.2d at 624.18 We

17
Other circuits have adopted a similar test. See United States v.
Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (holding
that, “[i]n order to determine whether the government must disclose
classified information, the court must determine whether the
information is ‘relevant and helpful to the defense’” (quoting Yunis I,
867 F.2d at 623)); United States v. Varca, 896 F.2d 900, 905 (5th Cir.
1990) (noting that, in CIPA cases, “the government is not required to
provide criminal defendants with information that is neither
exculpatory nor, in some way, helpful to the defense” (citing Yunis I,
867 F.2d at 617)); United States v. Smith, 780 F.2d 1102, 1107 (4th
Cir. 1985) (applying Roviaro test to the assertion of privilege in a
CIPA case).
18
Because the classified information does not reach the threshold
of being helpful to the defense, we need not decide whether the district
court should have considered the protective options short of full
disclosure that are set forth in CIPA § 4, namely, permitting the
government “to substitute a summary of the information for such
classified documents, or to substitute a statement admitting relevant
facts that the classified information would tend to prove.” 18 U.S.C.
 37

have made that determination on the basis of a de novo review,
notwithstanding that in the ordinary case we would review a
district court’s issuance of a protective order only for abuse of
discretion. See id. at 622; United States v. Rezaq, 134 F.3d
1121, 1142-43 (D.C. Cir. 1998). We have conducted our review
de novo because the district court did not determine whether the
classified material would be helpful to the defendants under the
Yunis I standard, but rather stated only that it was not subject to
disclosure under Brady v. Maryland. Brady and its progeny
hold that due process requires the disclosure of information that
is “favorable to the accused, either because it is exculpatory, or
because it is impeaching” of a government witness. Strickler v.
Greene, 527 U.S. 263, 281-82 (1999); see In re Sealed Case No.
99-3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir.
1999).19 While Brady information is plainly subsumed within

App. III, § 4; see also FED. R. CRIM P. 16(d)(1) (authorizing a court,
for good cause, to “deny, restrict, or defer discovery,” or to “grant
other appropriate relief”). As in Yunis I, we also need not consider
whether, if the information were helpful, it could nonetheless be
withheld if “the government’s need to keep the information secret”
outweighed the “defendant’s interest in disclosure.” 867 F.2d at 625;
see also Yunis II, 924 F.2d at 1095 (noting that, although other circuits
have “endorsed a balancing approach” when the threshold showings
have been made, this court has not had the occasion to do so). In
particular, we need not decide whether a defendant’s interest in
information that is helpful, but that does not rise to the level that is
subject to disclosure under Brady v. Maryland, can overcome the
government’s interest in protecting properly classified information.
Cf. United States v. Galston, 357 F.3d 77, 84 (D.C. Cir. 2004)
(discussing whether Roviaro requires disclosure of an informant’s
identity that is merely “relevant or helpful,” but that is not “essential
to the defense” (internal quotation marks and citations omitted)).
19
See also Strickler, 527 U.S. at 280 (stating that the government
must disclose “evidence favorable to an accused . . . where the
 38

the larger category of information that is “at least helpful” to the
defendant, information can be helpful without being “favorable”
in the Brady sense -- a point to which we alluded in Yunis I.20
See also Kyles v. Whitley, 514 U.S. 419, 436-37 (1995) (“[T]he
Constitution is not violated every time the government fails or
chooses not to disclose evidence that might prove helpful to the
defense.”). Accordingly, in the absence of a district court
finding as to whether the withheld material meets the standard
articulated in Yunis I, we have examined the documents de novo
and on that basis conclude that they are not helpful to the
defense.

The defendants insist that CIPA contemplates that judicial
determinations regarding the disclosure of classified information
will be made with the participation of defendants and their
counsel, and will not be made ex parte. But while CIPA §§ 5
and 6 establish procedures for participation by defendants in
certain in camera hearings, those sections apply to the disclosure
of classified information in trial or pretrial proceedings. 18
U.S.C. App. III, §§ 5(a), 6(a); see SEN. REP. NO. 96-823, at 7-8.
CIPA § 4, by contrast, is the section that governs the

evidence is material either to guilt or to punishment” (quoting Brady,
373 U.S. at 87), and explaining that “evidence is material ‘if there is
a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different’”
(quoting United States v. Bagley, 473 U.S. 667, 682 (1985))).
20
In Yunis I, we noted Roviaro’s statement that the informant’s
privilege must give way where the evidence is “‘essential to a fair
determination of a cause.’” Yunis I, 867 F.2d at 622 n.9 (quoting
Roviaro, 353 U.S. at 60-61). We thought it “apparent that evidence
‘essential to a fair determination of a cause’ creates a different
situation than” information that is “merely helpful,” and that “[i]n the
case of such ‘essential’ evidence, due process . . . might afford the
defendant further relief.” Id.
 39

“[d]iscovery of classified information by defendants.” 18
U.S.C. App. III, § 4 (emphasis added). And that section
provides that “[t]he court may permit the United States to make
a request [for a protective] order in the form of a written
statement to be inspected by the court alone.” Id. (emphasis
added); see SEN. REP. NO. 96-823, at 6; H.R. REP. NO. 96-1436,
at 10 (1980) (Conf. Rep.).

As the House Report explains, “since the government is
seeking to withhold classified information from the defendant,
an adversary hearing with defense knowledge would defeat the
very purpose of the discovery rules.” H.R. REP. NO. 96-831, pt.
1, at 27 n.22 (1980). Similarly, Rule 16(d)(1) authorizes the
court to permit a party to make its case for a protective order “by
a written statement that the court will inspect ex parte.” And the
Advisory Committee’s notes to Rule 16 offer an explanation
similar to that in the House Report:

In some cases it would defeat the purpose of the
protective order if the government were required to
make its showing in open court. The problem arises in
its most extreme form where matters of national
security are involved. Hence a procedure is set out
where . . . the court may permit the government to
make its showing, in whole or in part, in a written
statement to be inspected by the court in camera.

FED. R. CRIM. P. 16 advisory committee’s note.21

21
See Sarkissian, 841 F.2d at 965-66 (holding that CIPA § 4
allows the court to assess a claim of privilege through an ex parte, in
camera submission); Innamorati, 996 F.2d at 487 (noting that both
CIPA and Rule 16(d)(1) authorize the court to deny discovery based
on an ex parte showing by the government); see also United States v.
Gurolla, 333 F.3d 944, 951 (9th Cir. 2003).
 40

We recognize, as we did in Yunis I, that the defendants and
their counsel, who are in the best position to know whether
information would be helpful to their defense, are disadvantaged
by not being permitted to see the information -- and thus to
assist the court in its assessment of the information’s
helpfulness. See 867 F.2d at 624. For that reason, we have
applied the “at least helpful” test in a fashion that gives the
defendants the benefit of the doubt. See generally Rezaq, 134
F.3d at 1142-43; Innamorati, 996 F.2d at 488. We note,
however, that while the defendants’ predicament is difficult, it
is not without close analogies. When a court (rather than the
prosecutor alone, as is ordinarily the case) reviews evidence in
camera to determine whether it constitutes a witness statement
subject to disclosure under the Jencks Act, 18 U.S.C. § 3500(b),
or exculpatory material subject to disclosure under Brady, the
defendant is likewise “not entitled to access to any of the
evidence reviewed by the court . . . to assist in his argument”
that it should be disclosed. United States v. Carson, 2002 WL
31246900, at *1 (D.C. Cir. Oct. 2, 2002).22

Finding no support for the defendants’ claim of the right to
participation or access in CIPA or the Federal Rules, we turn to
their constitutional arguments. The defendants contend that
their Sixth Amendment right to confront witnesses was
“eviscerated by . . . [the] denial of [their] participation in the
decision as to whether . . . the material could be disclosed, and
[by] the denial of an opportunity to review the materials.”
Appellants’ Supp. Br. 7. That contention, however, is

22
See United States v. North Am. Reporting, Inc., 761 F.2d 735,
740 (D.C. Cir. 1985) (stating that it would “‘defeat th[e] design [of the
Jencks Act] to hold that the defense may see statements in order to
argue whether it should be allowed to see them” (quoting Palermo v.
United States, 360 U.S. 343, 354 (1959))); see also Pennsylvania v.
Ritchie, 480 U.S. 39, 59 (1987) (regarding exculpatory information).
 41

foreclosed by the Supreme Court’s decision in Pennsylvania v.
Ritchie, which held that “the right to confrontation is a trial
right, designed to prevent improper restrictions on the types of
questions that defense counsel may ask during cross-
examination,” and does not create a right to pretrial discovery.
480 U.S. 39, 52 (1987). Although Ritchie does not foreclose the
defendants’ further argument that the Fifth Amendment’s Due
Process Clause guarantees their access to certain categories of
evidence in the possession of the government, see id. at 57, that
right is limited to material within the compass of Brady and its
progeny. See United States v. Valenzuela-Bernal, 458 U.S. 858,
867-69 (1982); Weatherford, 429 U.S. at 545-46. And as noted
above, our determination that the withheld information is not
even helpful to the defendants necessarily means that the district
court correctly found that it is not encompassed by Brady.

Finally, the defendants contend that the district court erred
by not even giving them notice that the government had made an
ex parte filing or that the court had issued a protective order.
The statute is silent as to whether such notice is required. See 18
U.S.C. App. III, § 4; see also FED. R. CRIM. P. 16(d)(1).23 But
even if the court did err in failing to provide notice, any such
error was harmless. As we have indicated above, notice would
not have afforded the defendants the opportunity to participate
in the district court’s in camera inspection. And while notice
could have given them the opportunity to brief the legal issues
regarding CIPA and Rule 16, the order that this court issued --
coupled with de novo review -- made up for any deficit in that

23
Compare Gurolla, 333 F.3d at 951 n.7 (stating that the defense
must “be notified that the district court has made a ruling protecting
classified material from disclosure”), with Sarkissian, 841 F.2d at 965
(holding that the “clear language of [CIPA] and its legislative history
foreclose” the contention that “the government must file a public
claim of privilege before making an ex parte in camera submission”).
 42

regard. More fundamentally, because the underlying classified
material is unhelpful to the defendants, they did not suffer from
its unavailability; and because that material was never shown to
the jury, “there is no question here of convictions based upon
secret evidence furnished to the factfinder but withheld from the
defendants.” Innamorati, 996 F.2d at 488.

In sum, we conclude that there is nothing about the
government’s or the district court’s treatment of classified
information that would justify granting the defendants’ request
to vacate their convictions.

VI

We affirm defendant Mejia’s conviction in all respects and
remand his case for resentencing in light of United States v.
Booker, 543 U.S. 220 (2005). While otherwise rejecting
defendant Rios’ challenges, we remand the record in his case to
the district court for the limited purpose of: (1) determining
“whether it would have imposed a different sentence materially
more favorable to the defendant had it been fully aware of the
post-Booker sentencing regime,” Coles, 403 F.3d at 770; and (2)
conducting further proceedings to consider the merits of Rios’
ineffective assistance of counsel claim in accordance with
United States v. Rashad, 331 F.3d 908 (D.C. Cir. 2003).

So ordered.