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United States v. Hamzeh

United States District Court, E.D. Wisconsin

June 8, 2018

SAMY HAMZEH, Defendant.



         The defendant is scheduled to go to trial on August 20, 2018, on charges of knowingly receiving and possessing unregistered machineguns. On January 3, 2018, he filed a motion asking the court to issue an order requiring the government to disclose certain materials under Brady v. Maryland, 383 U.S. 73 (1963) and Federal Rule of Criminal Procedure 16. Dkt. No. 82. At a January 31, 2018 hearing before Magistrate Judge William E. Duffin, the parties narrowed the scope of the defendant's request to five categories of materials. Dkt. No. 101. About a month later, on March 8, 2018, Judge Duffin granted the motion in part and denied without prejudice the remaining discovery requests. Dkt. No. 107. On April 6, 2018, the government filed a statement explaining how it would comply with Judge Duffin's order as well as the requirements of the Classified Information Procedures Act (CIPA). Dkt. No. 112. The defendant filed an “appeal” from that portion of Judge Duffin's order that denied requests for certain materials. Dkt. No. 113.

         Because the defendant has not demonstrated that Judge Duffin committed clear error, the court will overrule the defendant's objections.

         I. Background

         On February 9, 2016, the grand jury returned an indictment, charging the defendant with three counts of possessing unregistered firearms (two machineguns and a silencer). Dkt. No. 6. During the first week of January 2018-with an impending trial date of February 12, 2018-the defendant filed two motions: (1) the current motion for release of Brady materials, dkt. no. 82, and (2) a motion to dismiss Count Two of the indictment, dkt. no. 85. Around the same time, the parties moved to adjourn the jury trial. Dkt. No. 87. At a hearing on January 10, 2018, this court referred the two new discovery/pretrial motions to Judge Duffin, and granted the motion to adjourn the trial. Dkt. No. 90. As indicated above, the trial is scheduled to begin August 20, 2018.

         Judge Duffin heard argument on the defendant's motion for Brady materials. Dkt. No. 101. Post-hearing, the government (dkt. no. 104) and the defendant (dkt. no. 105) provided supplemental briefs.

         A. Judge Duffin's March 8, 2018 Order (Dkt. No. 107)

         Judge Duffin's order noted that, of the original items requested in the defendant's motion, only five remained unresolved after the January 31, 2018 hearing. Dkt. No. 107 at 5. Specifically, the five “categories” of materials that remained were:

(1) “FBI policy manuals, guidance, memoranda, training manuals, or other documents concerning terrorist investigations and/or the use of confidential sources;”
(2) “Agents' rough notes;”
(3) “Receipts and other paperwork documenting payments to confidential sources;”
(4) “Specification of cases in which confidential sources provided assistance to the government;” and
(5) “Unredacted reports.”

Id. at 3. Judge Duffin observed that the defendant's supplemental reply brief had made several additional requests that did not fall into any of those categories. Id. The supplemental reply brief asked the court to order the government “to indicate whether there were unpreserved text messages.” Id. It asked the court to order the government “to identify efforts to link [the defendant] with terrorists.” Id. And it asked the court to require the government “to provide all reports, memoranda, etc. concerning information about machine guns, the Masons, any plan to attack the Masons, or that falsely portray the Masons in league with ISIS and enemies of Islam.” Id. at 3-4.

         Judge Duffin granted part of the defendant's motion. Specifically, under categories three and four, Judge Duffin ordered the government to turn over “all underlying documentation regarding payments given to informants as part of their work in this case and the amount of compensation which CHS-2 has received assisting the government as a source of information during the time period from March 28, 2011 to October 6, 2011.” Id. at 15. He also granted one of the defendant's “additional requests, ” and ordered the government to “provide a response as to whether an inquiry has been made into non-preserved text messages.” Id. Judge Duffin denied without prejudice all the defendant's other discovery requests, and referred the case back to this court for trial.

         B. Parties' Responses to Judge Duffin's Order

         1. Government's Response to Judge Duffin's Order

         The government's response notified the court that “[i]n order to comply with the Court's order and complete provision of any related discovery, the government intends to file a classified ex parte, in camera, and under seal motion pursuant to Section 4 of the Classified Information Procedures Act (CIPA).” Dkt. No. 112 at 1. In a footnote, the government explained that technically, it objected to Judge Duffin directing it to “release all underlying documentation regarding payments given to informants, ” but stated that it “[sought] to comply pursuant to CIPA.” Id. The government stated that it was going to file a classified, ex parte, in camera motion, under seal, under Section 4 of CIPA, and referred the court to an October 26, 2016 filing for information on CIPA itself. Id. at 1. The government also stated that it would be available to answer any questions about the ex parte motion process “in an ex parte hearing prior to filing its motion.” Id.

         The defendant filed a document responding to the government's pleading, calling it a response to the government's “appeal” of Judge Duffin's order. Dkt. No. 119. In this pleading, the defendant construed the government's response as a “suggest[ion] that the Court impose some unknown limitation on the production of the material under CIPA.” Id. at 1. The defendant objected to any such limitation, arguing that the government “must provide information concerning what benefits the informants have received from the government because it's probative of bias, ” and asserting that ...

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