Judge: prosecutors mischaracterized record in secret briefs

Rory Eastburg | Secret Courts | Feature | November 4, 2008

A federal judge presiding over the prosecution of Thomas Kontogiannis, a friend of former Congressman Randall "Duke" Cunningham, released a previously-secret brief last week in which he criticized government prosecutors for “mischaracteriz[ing] substantial, relevant portions of the record” in their filings before an appellate court.

The brief was unsealed over vigorous government objections.

U.S. District Judge Larry Burns filed the brief more than a year ago in the U.S. Court of Appeals in San Francisco (9th Cir.) It remained sealed until October, when the court of appeals granted a motion by Copley Press Inc., publisher of The San Diego Union-Tribune, to publicly release the document.

A window into a secret case

The release of the district court brief came on the heels of a Ninth Circuit decision in March that unsealed many other documents related to the largely secret case. Since 2007, Copley, the Reporters Committee and more than a dozen other news organizations have fought for access to hearings and documents related to the prosecution of Kontogiannis. The New York financier was charged with bribing former California Rep. Randy “Duke” Cunningham, and was cooperating with federal prosecutors in the continuing investigation.

Judge Burns initially agreed to temporarily seal the entire case. When Burns later ordered some of the transcripts and documents related to Kontogiannis’ guilty plea agreement unsealed, the government challenged the order with a sealed petition for a writ of mandamus in the Ninth Circuit.

Judge Burns also filed a brief defending his ruling.  

In a unanimous opinion issued on March 4, Chief Judge Alex Kozinski unsealed those documents in which the court found no “compelling interest” in secrecy. In the wake of that order, Copley also asked the Ninth Circuit panel to unseal the brief that Burns filed. The Reporters Committee and seven news organizations – The Associated Press, the McClatchy Company, NBC Universal, Inc., The New York Times Company, Tribune Company, U.S. News and World Report, L.P., and The Washington Post – filed an amicus letter in support of Copley’s request.   The government opposed the release of Burns’ brief, claiming that the document contained sensitive national security information.

On Oct. 20, however, the court of appeals rejected this claim, instructing Burns to release the brief after making any redactions he deemed appropriate.

“Mischaracteriz[ing]… the record”

When Burns released his brief on Oct. 28, without any redactions, it turned out not to contain the type of sensitive details that the government claimed. Rather, the 15-page brief was an indictment of the government’s behavior before the appellate court.  

In the introduction to the brief, Burns said he was compelled to take the unusual step of filing his own brief because the government’s petition “omits and mischaracterizes substantial, relevant portions of the record in this case and merits amplification.”  

The government’s petition is still secret, so it is unclear precisely what prosecutors told the appellate court. But Burns’s brief suggests that the government claimed it never expected the records in the case to become public. Burns wrote that “the statement of facts in the government’s Writ is incomplete and creates the misleading impression the government was ‘caught off guard’ by the court’s order unsealing the transcripts and had not acquiesced to unsealing.”

Burns’s unsealed brief, over the course of eight pages, then cites excerpts of the district court transcripts making clear that he told prosecutors most transcripts and records would ultimately be unsealed. Burns also cited numerous instances in which prosecutors agreed that the information would need to be made public, and agreed to speak in generalities in order to avoid disclosing sensitive information.

The unsealed brief also provides insight on the tension between federal prosecutors in San Diego, where the prosecution was taking place, and New York, where Kontogiannis was apparently cooperating with prosecutors. For example, Burns related one instance in which a prosecutor in San Diego filed a motion asking the court to keep records secret pursuant to the Classified Information Procedures Act.

"At the time he presented the pleading, [the local prosecutor] informed [Burns] he didn’t personally believe [the CIPA statute] applied, but that he had been instructed to file the brief anyway,” the court said.

A lesson on the need for openness

Press advocates say the contents of the district court brief – and the government’s attempts to keep it under wraps by claiming a risk to national security – underscore the need for openness in the judicial proceedings.

The import of the brief is clear, said Guylyn Cummins, a partner at Sheppard Mullin Richter & Hampton LLP, who represents Copley in the case: “You have a sitting district court judge saying to the government that you’re not being honest with the appellate court."