The Laundry Man by Kenneth Rijock ( Penguin/Random House UK)

Saturday, September 10, 2022

IS COUNSEL FOR ALEX SAAB MORAN SEEKING TO CREATE REVERSIBLE ERROR ON CLASSIFIED INFORMATION DISCLOSURE?


I have to admit that the recent filing of defense counsel in US vs. Alex Saab Moran,  the complex Miami Federal money laundering cased involving the alleged international laundryman for Venezuela's president and others, has me puzzled. I cannot quite figure out the goal of the Response, which deal with the Classified Information Procedures Act, covering the use of classified information at the Moran trial.

Defense counsel has filed a scholarly nine-page memorandum of law, with profuse citations, detailing many aspects of the CIPA, and the government's obligations thereunder. Buried in the document is this passage:


... CIPA “does not itself create a privilege against discovery of classified information.” In that case, the District Court had concluded certain classified material was not discoverable under CIPA as “it was not subject to discovery under Brady v. Maryland.” Id. at 454. The court of appeals considered the merits of this conclusion de novo and disagreed based upon its earlier ruling in United States v. Yunis, 867 F.2d 617, 621 (D.C. Cir. 1989), where the court had given “content to the classified information privilege” by adopting the test applied by the Supreme Court in Roviaro v. United States, 353 U.S. 53, 60-61 (1957)—the material must be “at least helpful to the defense of [the] accused.” Mejia, 448 F.3d at 455 (internal quotation marks omitted).As the Mejia court went on to explain, “[w]hile Brady information is subsumed within the larger category of information that is ‘at least helpful’ to the defendant, information can be helpful without being ‘favorable’ in the Brady sense.” Id. at 456-457. See also United States v. Aref, 533 F.3d 72, 80 (2d Cir. 2008) (“[t]o be helpful or material to the defense, evidence need not rise to the level that would trigger the Government’s obligation under Brady v. Maryland [citation omitted] to disclose exculpatory information.”). Response at 7.

Is this an effort to point out that classified information that falls short of being "favorable" to the defense, which would be required to be disclosed under Brady vs. Maryland,  must still be disclosed if it is "helpful?" and is it a ploy to create reversible error, or even grounds to set aside a guilty verdict ? We cannot say, but counsel has gone to great efforts to document this in the record. Given the fact that the Government most likely has an excellent case, it may be setting up grounds for an appeal. There may also be issues we are not aware of, regarding unindicted co-conspirators whose role might be exposed in the classified information.

In any event, should the case go to trial, expect the unexpected. Of course, there is always the recurring rumor regarding Saab's continued cooperation with US law enforcement, which we know began when he was a fugitive from justice, seeking to make a deal for an ultimate reduced sentence. Some sources assert that he renewed the arrangement when he was extradited to Miami. Is his entire defense a cover for the rendering of covert Substantial Assistance? We cannot say, but the case is certainly not boring for legal observers.  



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