Legal Research AI

United States v. Holy Land Foundation for Relief & Development

Court: Court of Appeals for the Fifth Circuit
Date filed: 2010-10-20
Citations: 624 F.3d 685
Copy Citations
27 Citing Cases

     Case: 09-10875        Document: 00511269387         Page: 1     Date Filed: 10/20/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             October 20, 2010
                                          No. 09-10875
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                     Plaintiff-Appellee

v.

HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, ET AL,

                                                     Defendants

NORTH AMERICAN ISLAMIC TRUST,

                                                     Movant-Appellant


                      Appeal from the United States District Court
                           for the Northern District of Texas


Before GARZA and BENAVIDES, Circuit Judges, and CRONE * , District Judge.
EMILIO M. GARZA, Circuit Judge:
        Third-party movant North American Islamic Trust (“NAIT”) appeals from
the district court’s order holding that NAIT’s Fifth Amendment rights were
violated by its public naming in an attachment to the Government’s criminal
pre-trial brief but denying NAIT’s requested equitable relief, including inter alia
expungement of NAIT’s name and a public declaration by the court that NAIT’s
rights were violated. The district court instead placed the attachment—which



        *
            District Judge of the Eastern District of Texas, sitting by designation.
   Case: 09-10875    Document: 00511269387 Page: 2       Date Filed: 10/20/2010
                                 No. 09-10875

had been available to the public since its initial filing—and any records related
to NAIT’s challenge under seal, including the district court’s order, finding a
Fifth Amendment violation. NAIT argues that the district court erred by sealing
its order, by refusing to expunge NAIT’s name from the attachment to the pre-
trial brief, and by engaging in an irrelevant and erroneous analysis of NAIT’s
connections to the defendants and other entities. The Government does not
contest the holding that NAIT’s Fifth Amendment rights were violated or that
it should have filed the attachment under seal.      The only issue before us,
therefore, is one of remedy.
                                        I
      A federal grand jury indicted the Holy Land Foundation for Relief and
Development (“HLF”) and seven individuals (collectively, the “HLF Defendants”)
on multiple charges stemming from the allegation that the defendants had
engaged in a criminal conspiracy to provide support to Hamas, a designated
foreign terrorist organization. In May of 2007, the Government filed a pre-trial
brief for the purpose of setting forth “an overview of the case, the scope of the
conspiracy, and the different kinds of evidence that the government will seek to
admit at trial and the evidentiary bases for the admission of that evidence.”
Under the heading “Breadth of Conspiracy,” the Government included the
following passage:
      [T]he focal point of this case is the designated terrorist group
      Hamas . . . . Although the indictment in this case charges the seven
      named individual defendants and the Holy Land Foundation for
      Relief and Development, it will be obvious that the defendants were
      not acting alone. As noted in the case summary, the defendants
      were operating in concert with a host of individuals and
      organizations dedicated to sustaining and furthering the Hamas
      movement. Several of the individuals who hold leading roles in the
      operation of Hamas are referenced by name in the indictment. A
      list of unindicted coconspirators is attached to this . . . brief.




                                       2
   Case: 09-10875       Document: 00511269387 Page: 3               Date Filed: 10/20/2010
                                    No. 09-10875

That attachment (“Attachment A”) bore the title “List of Unindicted Co-
conspirators and/or Joint Venturers” and listed the names of 246 individuals and
entities, organized under various headings.               NAIT was included under the
heading “The following are individuals/entities who are and/or were members of
the US Muslim Brotherhood.”               The pre-trial brief described the Muslim
Brotherhood as “an international Islamic fundamentalist movement” and stated
that “Hamas’ founding charter makes clear that Hamas is, in fact, the
Palestinian branch of the Muslim Brotherhood.” The Government explains that
the inclusion of NAIT and other entities was intended to lay the groundwork for
the possible admission of statements pursuant to Rule 801(d)(2)(E) of the
Federal Rules of Evidence, which permits the admission of out-of-court
statements by coconspirators and joint venturers of a party opponent. The
Government concedes that it was an “unfortunate oversight” that Attachment
A was not filed under seal.
       The first trial against the HLF Defendants ended in a mistrial. Before a
second trial commenced, NAIT filed a motion alleging that the inclusion of NAIT
in Attachment A violated its Fifth Amendment rights. NAIT sought four forms
of relief: a public declaration that its rights had been violated; the expungement
of its name from any public document filed or issued by the Government
identifying NAIT as an unindicted coconspirator; an injunction forbidding the
Government from identifying NAIT as an unindicted coconspirator in any
context other than specifically permitted by the district court; and, finally, any
other such relief that the court might deem just and equitable to remedy and
prevent further violations of NAIT’s Fifth Amendment rights.1 The Government
opposed the motion. A second trial was held and a jury convicted HLF and five


       1
         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.

                                               3
   Case: 09-10875       Document: 00511269387 Page: 4            Date Filed: 10/20/2010
                                    No. 09-10875

individuals defendants.2 After the second trial and more than two years after
the filing of the Government’s pre-trial brief, the district court issued a sealed
opinion and order addressing NAIT’s motion. The court held that NAIT’s motion
was properly filed and its Fifth Amendment rights had been violated by its
public naming in Attachment A. The court held that the Government did not
argue or establish any legitimate government interest that warranted publicly
identifying NAIT and 245 other individuals and entities as unindicted
coconspirators or joint venturers, and that the Government had less injurious
means than those employed, such as anonymously designating the unindicted
coconspirators as “other persons,” asking the court to file the document under
seal, or disclosing the information to the defendants pursuant to a protective
order. The court declined to expunge the mention of NAIT; rather, it ordered the
sealing of Attachment A and “all pleadings, records, documents, orders, and
other papers concerning . . . NAIT’s Motion . . . including this Order.”
                                             II
      NAIT argues that the district court erred by including its findings only in
a sealed order, rather than issuing a publicly available order memorializing the
holding that NAIT’s Fifth Amendment rights were violated. It argues that, by
sealing the order, the district court deprived NAIT of an effective remedy for the
violation of its rights. Because the order is sealed, NAIT complains, it cannot
inform others that its public naming in the indictment was wrongful, and,
therefore, the injuries it bore as a result of its public naming in the proceedings
persist in the form of continued damage to its reputation. Moreover, NAIT
argues, the decision to seal the order violates the common law right to public
access to judicial records. Although the Government argues that the district
court acted within its discretion in sealing the order, it has nevertheless stated




      2
          The two other individual defendants were not tried at that time.

                                             4
   Case: 09-10875       Document: 00511269387 Page: 5             Date Filed: 10/20/2010
                                    No. 09-10875

that it is not ultimately opposed to the unsealing of the district court’s opinion
and order in its entirety.3
       A district court has supervisory authority over its records, and we review
the court’s decision to seal a judicial record for abuse of discretion. See SEC v.
Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993). A court may deny access
to records if the records become a vehicle for improper purposes. See Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597-98 (1978) (listing various types of
improper purposes that favor denying the public access to judicial records).
Nevertheless, a court must use caution in exercising its discretion to place
records under seal. See Fed. Sav. & Loan Ins. Corp. v. Blain, 808 F.2d 395, 399
(5th Cir. 1987) (“The district court’s discretion to seal the record of judicial
proceedings is to be exercised charily . . . .” (citing Publicker Indus., Inc. v.
Cohen, 733 F.2d 1059 (3d Cir. 1984)). Its decision must be made in light of the
“strong presumption that all trial proceedings should be subject to scrutiny by
the public.” United States v. Ladd, 218 F.3d 701, 704 (7th Cir. 2000).
      The Government argues that, although NAIT does have standing to
protect its own reputational interests, it does not have standing to assert the
public’s right of access because it is not “a third party whose sole interest in
litigation is access to the documents.” United States v. Hickey, 185 F.3d 1064,
1066 (9th Cir. 1999).        We disagree, however, with any suggestion that the
public’s right of access to judicial records is relevant only when asserted by a
third party, such as a journalist, with no direct stake in the proceedings. The
principle of public access to judicial records furthers not only the interests of the
outside public, but also the integrity of the judicial system itself. See Van
Waeyenberghe, 990 F.2d at 849-50 (contrasting public’s right to information
about judicial proceedings to right to access to judicial records). The right to
public access “serves to promote trustworthiness of the judicial process, to curb


      3
          Neither party has challenged the district court’s decision to seal Attachment A.

                                              5
   Case: 09-10875    Document: 00511269387 Page: 6        Date Filed: 10/20/2010
                                 No. 09-10875

judicial abuses, and to provide the public with a more complete understanding
of 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
judicial system] cannot long be maintained where important judicial decisions
are made behind closed doors and then announced in conclusive terms to the
public, 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
Cir. 2008) (quoting United States v. Cianfrani, 573 F.2d 835, 851 (3d Cir. 1978))
(alteration omitted).    The public’s right to access, therefore, is relevant
regardless of who opposes keeping a record under seal. In Van Waeyenberghe,
for example, the SEC appealed a district court order sealing a portion of its
record in settled litigation between the SEC and an individual against whom the
SEC had filed an injunctive action. We reversed the sealing order on the ground
that the district court had failed to weigh the public’s common law right of access
to the records. 990 F.2d at 850. We did not treat it as material that the SEC
was 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
order holding that NAIT’s rights were violated. Both NAIT and the Government
suggest that the district court may have been trying to shield NAIT from further
reputational harm related to its public naming in this case. Regardless of the
intention behind the district court’s decision, however, its effect was to leave
NAIT hamstrung in its ability to mitigate the damage done by its public
identification 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
took note. The district court’s order and opinion included the important context
that NAIT’s public naming had been held to be in violation of its Fifth
Amendment rights. NAIT’s interests, therefore, would have been better served
by leaving the order unsealed. The Government has no countervailing interest
in sealing the order and in fact does not object to unsealing it.

                                         6
   Case: 09-10875    Document: 00511269387 Page: 7        Date Filed: 10/20/2010
                                 No. 09-10875

      Because the power to seal court records must be used sparingly in light of
the public’s right to access, because NAIT’s interest in mitigating its
reputational injuries favored disclosure, and because there is no countervailing
Government interest in nondisclosure, the district court’s decision to seal its
opinion and order finding that NAIT’s rights were violated constituted an abuse
of its discretion.
                                        III
      NAIT argues that the district court erred in declining to expunge its name
from inclusion in Attachment A. It argues that expungement from the brief is
the only means to guard conclusively against further wrongful reputational
injury. The Government argues that the district court acted within its discretion
in concluding that expungement was not warranted.           We review a district
court’s decision not to expunge a name from a judicial document for abuse of
discretion. See United States v. Int’l Harvester Co., 720 F.2d 418, 419 (5th Cir.
1983).
      We have considered claims by third parties who were identified as
coconspirators in public court records before, and have left little doubt that
expungement is sometimes an appropriate remedy. See In re Smith, 656 F.2d
1101, 1107 (5th Cir. 1981) (ordering district court to “permanently obliterate and
strike . . . any and all identifying reference to or name of” petitioner in certain
judicial records); United States v. Briggs, 514 F.2d 794, 808 (5th Cir. 1975)
(remanding with directions to expunge any mention of appellants from
indictment). Nevertheless, a district court has broad discretion to consider the
circumstances of each case, and a decision not to expunge will not necessarily be
an abuse of that discretion. Int’l Harvester, 720 F.2d at 420. In reviewing a
decision not to expunge, our inquiry is not whether naming the unindicted party
was “wise policy,” id., but merely whether the conclusion that expungement was
unnecessary was within the range of the district court’s discretion. In deciding
whether to expunge the name of a third party, the district court may consider,

                                        7
   Case: 09-10875    Document: 00511269387 Page: 8        Date Filed: 10/20/2010
                                 No. 09-10875

inter alia, the degree to which the inclusion of the name is merely repetition of
allegations raised by the Government and subjected to judicial scrutiny in other
proceedings. For that reason, we concluded in International Harvester that it
was not an abuse of discretion to decline to expunge the naming of an alleged
coconspirator where the coconspirator himself was accused of essentially the
same wrongdoing in a separate indictment, leveled directly at him. 720 F.2d at
420. NAIT, unlike the accused coconspirator in International Harvester, has not
been 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
formal criminal proceedings.     As the district court observed, however, the
proceedings at trial did include some context for NAIT’s inclusion, in the form
of evidence tending to support some past ties between NAIT and the HLF.
      Also important to the remedy inquiry—though we have never said so
explicitly—is the particular context in which an accusation was made. Our
jurisprudence has never recognized a general right not to be implicated as a
possible coconspirator in another’s criminal case. Rather, we have always paid
attention to both the source and the method of the accusation. In Briggs, this
Court examined the claims of three individuals who had been publicly identified
as unindicted coconspirators in a grand jury indictment. Our analysis focused
not only on the harm done to the accused individuals, but also the powers and
responsibilities of the grand jury itself. We noted that there was no authority
for the proposition that a federal grand jury was “empowered to accuse a named
private person of crime by means of an indictment which does not make him a
defendant.” Id. at 801. In evaluating our authority to order expungement, we
noted the unique status of the grand jury as an institution that “has been
variously viewed as an arm of the court, as an instrumentality of the people, and
as an adjunct of the judiciary but with the power to act, within certain bounds,
independently of the traditional branches of government.” Id. at 806.



                                        8
   Case: 09-10875      Document: 00511269387 Page: 9             Date Filed: 10/20/2010
                                   No. 09-10875

       In In re Smith, we extended Briggs beyond the limited context of grand
jury 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
third party were violated by his naming as the recipient of bribes in factual
resumes presented by the Government during two guilty plea hearings. Id. The
expansion of Briggs was justified, we concluded, because we could “think of no
reason to distinguish between an official defamation originating from a federal
grand jury or an Assistant United States Attorney.”4 Id. at 1106. We ordered
that the mention of the third party be expunged and “that all pleadings, records,
documents, orders and other papers concerning” the motion to strike and seal be
sealed themselves. Id. at 1107.
       In contrast, the Seventh Circuit reversed a district court’s order sealing
the identities of unindicted coconspirators whose statements were admitted
pursuant to Rule 801(d)(2)(E). Ladd, 218 F.3d at 706. The court distinguished
the case from United States v. Smith, in which the Third Circuit upheld the
sealing of the identities of parties named in a bill of particulars. 776 F.2d 1104,
115 (3d Cir. 1985). Unlike the alleged coconspirators in United States v. Smith,
the Seventh Circuit observed, the coconspirators in Ladd had been subject to a
judicial determination confirming their connection to the defendant’s activities:


       For coconspirator statements to be admitted pursuant to Rule
       801(d)(2)(E), the Government must prove by a preponderance of the
       evidence that a conspiracy existed, that both the declarant and the
       defendant were members of the conspiracy, and that the statements
       were made in the course and in furtherance of the conspiracy. The
       district court, in admitting the statements, found that those


       4
           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.

                                             9
  Case: 09-10875    Document: 00511269387 Page: 10         Date Filed: 10/20/2010
                                 No. 09-10875

      requirements had been met. The status of coconspirator was,
      therefore, grounded in an evidentiary basis far more solid than the
      assertion of the United States Attorney.


Ladd, 218 F.3d at 704-05 (citations and footnote omitted). The court concluded
that “[b]ecause the hearsay statements of the unindicted coconspirators were
admitted into evidence, the public interest in disclosure outweighs the privacy
interests of the coconspirators.” Id. at 706.
       Just as the context of a party’s naming as a possible coconspirator is
relevant to whether the naming was wrongful and whether it should be sealed,
context is relevant to whether the naming of a party should be expunged. The
allegations against NAIT were not raised in an indictment or in a factual resume
offered during a plea proceeding, but rather in a Government brief in a fully
contested 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
involving NAIT was ever made.        It should be clear, therefore, that NAIT’s
inclusion in the brief was simply an untested allegation of the Government,
made in anticipation of a possible evidentiary dispute that never came to pass.
The allegation did not improperly enjoy the imprimatur of grand jury approval,
nor was it erroneously conceded, implicitly or explicitly, as part of any plea. The
allegation was offered in furtherance of a legitimate purpose—albeit a purpose
that could have been equally well-served by filing Attachment A under seal. See
United States v. Anderson, 55 F. Supp. 2d 1163, 1169 (D. Kan. 1999) (“The
government clearly had a substantial interest in identifying these coconspirators
for 801(d)(2)(E) purposes.”). It is clear that the Government’s procedural error,
therefore, was its failure to file Attachment A under seal, not its decision to try
to characterize the scope of the charged conspiracy or to lay the groundwork for
relying on Rule 801(d)(2)(E). In light thereof, the district court did not abuse its
discretion in declining to expunge the mention of NAIT in the newly sealed
attachment.

                                        10
  Case: 09-10875      Document: 00511269387 Page: 11       Date Filed: 10/20/2010
                                   No. 09-10875

                                        IV
      NAIT argues that the district court’s order and opinion contained an
erroneous and irrelevant analysis of its ties to the HLF Defendants, and,
therefore, 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
brush of guilt by association that the Government used in its pre-trial brief, and
we, therefore, should vacate that portion of the order.
      As we discuss more fully above, judicial records are subject to a general
presumption that they will be available to the public. The benefits of this
policy—to both the public and the courts—are legion. Sometimes, however, the
result is the inclusion of statements and information that may be embarrassing,
irrelevant, or prone to mischaracterization.       Nevertheless, our role, when
considering an appeal from a district court, is to review that court’s decision, see
28 U.S.C. §§ 1291-1292 (establishing jurisdiction for appeals from final and
interlocutory decisions), not to edit it.
      We, however, note that some of the information included in the order,
although relevant to a Rule 801(d)(2)(E) inquiry, had one occurred, is irrelevant
to the question of whether NAIT’s Fifth Amendment rights were violated.
Those rights were violated regardless of whether NAIT was in some manner, and
at some point, associated with the HLF Defendants. Moreover, the district
court’s statement that there was “ample evidence to establish the association[]
of . . . NAIT with HLF, the Islamic Association of Palestine (“IAP”), and Hamas”
went outside the bounds of both what was required to resolve the Fifth
Amendment question and what would have been required to resolve a Rule
801(d)(2)(E) issue.    Had a Rule 801(d)(2)(E) issue actually arisen, the court
would have engaged in a bounded inquiry into NAIT’s involvement in a specific
joint venture with a defendant, in the context of determining the admissibility
of specific statements. Because no such Rule 801(d)(2)(E) issue arose during the
trial, there was no judicial determination that evaluated NAIT’s connection to

                                            11
  Case: 09-10875      Document: 00511269387 Page: 12           Date Filed: 10/20/2010
                                   No. 09-10875

the case pursuant to a clear, circumscribed legal standard. Cf. Ladd, 218 F.3d
at 705 (discussing disclosure of identity of unindicted coconspirator in context
of elements of Rule 801(d)(2)(E) admission).             Unlike a finding of Rule
801(d)(2)(E) “joint venturer” status, a broadly worded conclusion regarding a
party’s “association” with various other entities is not grounded in any legal rule
that would give that conclusion substance and boundaries. As such, the district
court’s statements regarding NAIT’s “association” with the HLF Defendants and
other parties went beyond what was relevant to the any hypothetical evidentiary
issue and may have obfuscated the underlying Fifth Amendment issue.
      We note, as well, that the district court’s findings do not amount to a
ruling that NAIT took part in a criminal conspiracy to support Hamas. In fact,
the Government has gone so far as to argue that it never, in the course of this
litigation, 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,
669 F.2d 1169, 1174 n.4 (7th Cir. 1981). One can qualify as a “joint venturer” for
the purposes of Rule 801(d)(2)(E) merely by engaging in a joint plan—distinct
from 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
accurately characterized as a joint venturer, that characterization does not carry
an inherently criminal connotation.
      We do not go so far as to “vacate” the analysis of the opinion and order,
because our review is of its holding, not every step of its reasoning or its choice
of words. Rather, we simply note that the district court included discussion of


      5
        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.

                                           12
  Case: 09-10875    Document: 00511269387 Page: 13         Date Filed: 10/20/2010
                                 No. 09-10875

issues that were not relevant to the disposition of the motion, which is obviously
not a criminal adjudication. Any other conclusion on this record, beyond this
narrow determination, would be legally premature.
                                         V
      NAIT seeks two additional forms of relief. First, it asks that we “publicly
affirm” the district court’s conclusion that its rights were violated. Second, it
asks that we order that the district court make a public declaration that NAIT’s
rights were violated. As to the first request, we cannot affirm or reverse the
district court’s holding that NAIT’s rights were violated, because the
Government has not appealed it. The district court’s ruling on that issue is the
final determination thereof. As to the second request, it would be unnecessary
to require the district court to make a public declaration of its earlier Fifth
Amendment conclusion, because that conclusion will itself be public when the
district court’s opinion and order is unsealed.
                                         VI
      For the foregoing reasons, we REVERSE the district court’s order only
insofar as it requires that the opinion and order be sealed. All other requests for
relief are DENIED. The case is REMANDED to the district court to unseal its
order in accordance with this opinion.




                                         13