|Ciccolo Attorneys Seek Access to Witnesses' Identities|
|By Stephen Dravis, iBerkshires Staff|
02:16PM / Tuesday, July 11, 2017
SPRINGFIELD, Mass. — A U.S. District Court judge will decide by early September whether to compel the government to disclose classified information to the attorneys for an Adams man accused of terrorism.
Alexander Ciccolo was in court on Tuesday for a hearing before Judge Mark G. Mastroianni on whether the government must reveal the identities of six "confidential human sources" and two "under cover employees" referenced in the government's filings in the 2-year-old case.
The government argued Tuesday that the defense has no "need to know" the classified information and it can be dealt with "in camera" as part of ex parte communications between each side and Mastroianni.
Ciccolo's attorneys, Northampton's David Hoose and Ramzi Kassem of New York City, asked the court on May 22 to make the identities available to the defense so that it can conduct its own investigation, a point that Hoose again made on Tuesday.
"One of the difficulties we have is we have no ability to investigate," Hoose said in a half-hour hearing. "We don't know who these people are."
"The Government has indicated that it intends to call three of the [confidential human sources] at trial of this indictment," the May 22 motion reads. "The Government further contends that it has produced 'screen shots' of all exchanges between the defendant and the CHS's and UCE's, regardless of whether they will testify at trial.
"Despite having gone over all of the discovered social media exchanges with the defendant, the defense team has been unable to definitively match Mr. Ciccolo's recollection of screen names with the Government's description, which, to date, has been limited to CHS 1-6 and UCE 1 or 2."
The ability of the defense to investigate the evidence in advance of the trial is important to preparing an adequate defense.
"What remains in the realm of the unknown is whether there is missing information that might shed light on critical issues relevant not only at trial but during plea negotiations, such as whether Mr. Ciccolo was induced to commit the crime or whether he possessed the requisite intent required for conviction on the terrorism charges," the motion reads.
D. Andrew Sigler, a trial attorney in the Department of Justice's Counterterrorism Section, argued on Tuesday that private, ex parte discussions — which involve one side of a case in private before a judge — are the norm in evaluating confidential evidence covered by the Classified Information Procedures Act.
"I've only worked in national security cases for four years, but I've been a trial attorney for 10 years," Sigler said. "I'm not aware of instances where the defense received copies of the government's CIPA 4 pleadings. It defeats the very purpose of the motion itself."
Kassem said it was the court's decision whether to deal with the issues in ex parte conferences or to "invite an adverserial exposition," where both sides would argue, presumably in camera, before the judge.
Kassem said there have been cases where courts have eschewed the ex parte approach but was unable to cite specific examples on Tuesday morning. He told Mastroianni he would research the issue.
"You can submit," Mastroianni said. "I'd be curious to see what your case law is about cases that deviate from the practice of ex parte [rulings]. It would seem to be counterintuitive to the goal of the CIPA legal framework to do something beyond the ex parte balancing the court is required to do."
On a related matter, Mastroianni discussed with the attorneys whether Hoose should undergo procedures to receive clearance to view classified material. Kassem has received such clearance in other matters; Hoose told Mastroianni that the U.S. Attorney told him early in the case that such clearance would not be necessary.
Mastroianni said the parties can decide whether to get Hoose such clearance, but there would be no need to explore that avenue until he rules on the discovery issue before him.
As for Ciccolo, he appeared more relaxed and animated than he has in previous court appearances, offering a smile and a nod to family members in the gallery and chatting at length with Kassem while awaiting Mastroianni's arrival.
Mastroianni ended the hearing by setting a Sept. 7 date for the next status conference in the case.
Depending on his ruling on the defense's motion to compel, that Sept. 7 date could be a milestone in the case that began with Ciccolo's July 4, 2015, arrest.
"I think what [Assistant U.S. Attorney Deepika] Shukla is correct on is there are no other outstanding issues of discovery," Hoose said. "The motion to compel is the only remaining issue of discovery.
"That said, it's a big issue."
"If the defense is given information, that may open an area of inquiry the defense didn't know existed," Mastroianni said. "I think it's hard for the defense to say we'll be ready [for trial] until the court has ruled."
U.S. v. Ciccolo: Motion to Compel Discovery by iBerkshires.com on Scribd