Opinion
S(7) 98 Cr. 1023 (LBS)
January 8, 2001
MARY JO WHITE, United States Attorney for the Southern District of New York, New York, New York, PAUL W. BUTLER, PATRICK J. FITZGERALD, KENNETH M. KARAS, MICHAEL J. GARCIA Assistant United States Attorneys.
SAM A. SCHMIDT, JOSHUA L. DRATEL, KRISTIAN K. LARSEN, New York, New York, for defendant El-Hage.
FREDERICK H. COHN, LAURA GASIOROWSKI, DAVID PRESTON BAUGH, New York, New York, for defendant Al-'Owhali.
JEREMY SCHNEIDER, DAVID STERN, DAVID RUHNKE, New York, New York, for defendant Khamis Mohamed.
ANTHONY L. RICCO, EDWARD D. WILFORD, CARL J. HERMAN, SANDRA A. BABCOCK, New York, New York, for defendant Odeh.
Be Filed Under Seal
MEMORANDUM AND ORDER
This classified Memorandum and Order is being filed under seal and will remain under seal until January 18, 2001 unless the Court is advised in writing on or before that date that some portion or all of the Memorandum and Order should remain under seal. The Government is hereby directed to institute proceedings to declassify this Memorandum and Order.
Presently before the Court is Defendant El-Hage's motion to declare the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3 (1980), unconstitutional as applied in this case. Defendants Mamdouh Mahmud Salim and Mohammed Sadeek Odeh join this motion. (Dratel Decl. ¶ 3.) For the reasons set forth below, this motion is denied.
The El-Hage Motion also seeks additional discovery and the Court is uncertain at this time which, if any, of the requests have been consensually resolved or are moot. Counsel for El-Hage is to advise the Court of any discovery requests relating to CIPA which he still wishes to pursue.
ANALYSIS
The Defendant asserts that CIPA is unconstitutional because its application in this case infringes his Sixth and Fifth Amendment rights. More specifically, as a Sixth Amendment matter, he claims that he is being deprived of: (1) the effective assistance of his counsel; (2) the right to confront witnesses; (3) the opportunity to be present at critical proceedings; and (4) the ability to assist in the preparation and presentation of his defense. Under the Fifth Amendment, he argues that he is being denied the following rights: (1) to testify in his own behalf, (2) to present a defense; and (3) to remain silent These allegations will be evaluated in turn.
I. Background
CIPA was enacted by Congress in 1980 to address the issues which accompany criminal prosecutions involving national security secrets. In particular, the Act was a response to the problem of"graymail" which arose in prosecuting espionage and criminal leak cases. S.Rep. No. 96-823, 96th Cong., 2d Sess. (1980). A defendant is said to "graymail" the government when he threatens to disclose classified information during a trial and the government is forced to choose between tolerating such disclosure or dismissing the prosecution altogether. See United States v. Pappas, 94 F.3d 795 (2d Cir. 1996) (discussing "graymail" and CIPA's legislative history); United States v. Poindexter, 725 F. Supp. 13, 31 (D.D.C. 1989) (same). In CIPA, Congress established procedures whereby a trial court evaluates before trial the admissibility of the classified information which is at issue.
CIPA mandates that a defendant who "reasonably expects to disclose" classified information must notify the government and the court in advance of trial and must provide a "brief description" of the information. 18 U.S.C. app. 3 § 5. If the defendant fails to provide this notice, the court can preclude the disclosure of the classified information. Id. In addition, CIPA provides that, upon the request of the United States, the court "shall conduct" a hearing (usually in camera) before the start of the trial to "make all determinations concerning the use, relevance, or admissibility of classified information." 18 U.S.C. app. 3 § 6(a). Section 6(c) provides that the United States shall be given the opportunity, before the court authorizes the release of classified information, to propose the substitution of either a summary of the classified information or a stipulation of the facts sought to be proved by the defendant. If the court denies the government s proposed substitutions, the Attorney General may submit a formal objection to disclosure of the information, at which time the court will forbid the defendant to disclose the information and impose appropriate sanctions on the government (including, in some cases, dismissal of the indictment or selected counts thereof). 18 U.S.C. app. 3 § 6(e). Finally, Section 6(f) provides that if it determines that classified information may be revealed at trial, the court shall "unless the interests of fairness do not so require" order the government to disclose any classified information that it intends to use to rebut the defendant's proffer.
The Court, in a Protective Order dated July 29, 1999 established at ¶ 5 that "[n]o defendant . . . shall have access to any classified information involved in this case unless that person shall first have: (a) received the necessary security clearance . . ." The Court adopted the Protective Order because of the serious risk that unauthorized disclosure of classified information would jeopardize the ongoing Government investigation into the activities of alleged associates of the Defendants. United States v. Bin Laden, 58 F. Supp.2d 113, 121-22 (S.D.N.Y. 1999). The practical result of that order is that defense counsel have been cleared to review a category of classified documents that they may not share with their clients. (None of the defendants in the case have security clearance.)
The Government provides a long list of the cases which have uniformly upheld the constitutionality of CIPA's procedural framework. (Resp. at 7-8.) However, the Defendant aptly highlights (El-Hage Mot. at 2), and the Government concedes (Resp. at 9-10) that the situation presented here is different from the usual CIPA case. The legislative history of the Act suggests that CIPA was primarily drafted to manage the disclosure of classified information in cases where the defendant was previously in possession of classified information. S.Rep. No. 96-823, 96th Cong., 2d Sess. (1980). Not surprisingly, given this history, the majority of cases employing CIPA procedures have involved those circumstances. See e.g.,Poindexter, 725 F. Supp. 13; United States v. Lee, 90 F. Supp.2d 1324 (D.N.M. 2000); United States v. North, 708 F. Supp. 389 (D.D.C. 1988);United States v. Collins, 720 F.2d 1195 (11th Cir. 1983). But see United States v. Rezag, 156 F.R.D. 514, 525 (D.D.C. 1994), vacated in part on other grounds United States v. Rezag, 899 F. Supp. 697 (D.D.C. 1995) (upholding a CIPA-based protective order which withheld classified information from defendant because he was an alleged terrorist and was accused of committing deliberate political crimes against the United States).
The Government claims that this difference — the fact that the Defendants have had "no prior access to the classified information" — necessitates that the Court continue to prohibit the disclosure of the classified information to the Defendants. (Resp. at 13.) In addition to its concern that the Defendants "present an ongoing threat to national security," the Government asserts that disclosure to the Defendants of classified information could have a deleterious effect on cooperative law enforcement and intelligence relationships with foreign governments. (Resp. at 12-13.) The Government argues that these concerns justify withholding information that poses a threat to national security from the Defendants.
II. The Defendant's Sixth Amendment Claims
A. The Right to Counsel
The Defendant claims that the nondisclosure provisions of the Protective Order prevent him from consulting with his attorneys to assist in identifying evidence which is relevant, exculpatory or which may serve to impeach a government witness. (El-Hage Mot. at 8.) The Defendant's attorneys explain that because of "the length of the alleged conspiracies, their geographical scope, the language barriers, the myriad names (some very similar) and aliases, and the cultural and ethnic diversity involved," they are severely handicapped by not being able to consult with their client. (Id. at 11.) It is the Defendant's view that the restrictions effect an unconstitutional deprivation of counsel because he cannot consult with his attorney about a "substantial amount of discovery." (Id. at 7.)
The Government claims that because of its "continuing effort to declassify" discovery materials, "the classified discovery in this case is no longer overwhelmingly voluminous." (Resp. at 2.)
The Supreme Court has established that restrictions on communication between a defendant and his attorney should only be imposed in limited circumstances and should be no more restrictive than necessary to protect the countervailing interests at stake. Geders v. United States, 425 U.S. 80, 89-91 (1976) (holding that defendant was unconstitutionally denied the effective assistance of counsel when he was ordered by the trial judge not to confer with counsel about anything during 17 hour recess between defendant's direct and cross-examination). Cf. Perry v. Leeke, 488 U.S. 272, 284-85 (1989) (explaining that in situation similar to Geders but where the recess was only for 15 minutes, judge did not violate defendant's rights by forbidding him to confer with counsel)
The Second Circuit has applied these precedents to circumstances similar to those presented in this case. See Morgan v. Bennett, 204 F.3d 360, 367 (2d Cir. 2000) (characterizing Geders and Perry as supporting the view that when there is an important need to protect a countervailing interest "a carefully tailored, limited restriction on the defendant's right to consult counsel is permissible") In Morgan, the defendant and persons associated with him had allegedly threatened a witness and the court ordered the defendant's attorney not to apprise his client of the fact that the witness would be testifying the following day. Id. at 363. The Morgan court justified this "gag order" by relying on analogous safety-based limitations which had been approved in other cases. Id. at 367 (citing to Roviaro v. United States, 353 U.S. 53, 59-62 (1957) (allowing an informant's identity to be withheld from the defendant); Smith v. Illinois, 390 U.S. 129, 131 (1968) (permitting the government to withhold witnesses' addresses), United States v. Thai, 29 F.3d 785, 800-01 (2d Cir. 1994) (allowing jury to be anonymous)).Morgan should not be read too broadly, however. The Second Circuit specifically noted that the "gag order" did not "seem likely" to impair the defense counsel's preparation and highlighted that it did not appear that other restrictions would have been sufficient. Id. at 368.
In a similar case decided just prior to Morgan, the Second Circuit held that a district court's order (during trial) to the defendant's attorney not to reveal to the defendant that he (the defendant) was the subject of a jury-tampering and perjury investigation was not an unconstitutional infringement of the defendant's right to counsel. United States v. Padilla, 203 F.3d 156, 158 (2d Cir. 2000). As in Morgan, the Padilla court highlighted that the restrictions imposed by the district court were "drawn as narrowly as possible" and "did not implicate counsel's representation regarding the crimes charged." Id. at 160.
In other circuits, similar restrictions have been upheld. See United States v. Herrero, 893 F.2d 1512 (7th Cir. 1990) (finding no infringement of the defendant's right to effective assistance of counsel where the court ordered that defense counsel not reveal the name of the confidential informant to the defendant); United States v. Truong Dinh Hung, 667 F.2d 1105, 1107 (4th Cir. 1981) (finding no denial of the Sixth Amendment right to counsel where defense counsel (but not defendants) were permitted to examine documents to assist the court in making Jencks Act determinations); United States v. Pelton, 578 F.2d 701 (8th Cir. 1978) (upholding district court's ruling withholding from the defendant tape recordings of her voice in order to protect the identity of cooperating witnesses); United States v. Anderson, 509 F.2d 724, 730 (9th Cir. 1974) (permitting access to in camera hearing to defense counsel but not to defendant); United States v. Singh, 922 F.2d 1169, 1172-73 (5th Cir. 1991) (same).
It is clear that, usually, a defendant is permitted to review items which have been produced in discovery. See Truong, 667 F.2d at 1108. The Court must weigh the interest of the Government in non-disclosure against this presumption. See Morgan, 204 F.3d at 365 ("[T]he court may not properly restrict the attorney's ability to advise the defendant unless the defendant's right to receive such advice is outweighed by some other important interest."). In other contexts, courts have given similar government interests significant weight in the balancing process. See United States v. Smith, 780 F.2d 1102, 1108 (4th Cir. 1985) (explaining that the government has a "substantial interest in protecting sensitive sources and methods of gathering information"); Rezag, 156 F.R.D. at 525 (finding that "the need to protect sensitive information clearly outweighs defendant's need to know all of that information personally when his knowledge of it will not contribute to his effective defense").Cf. United State v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) (holding that government's interest in protecting details about means of intercepting communications outweighed defendant's right to disclosure).
Although the El-Hage's attorneys claim that their task in discerning the relevance and materiality of the classified information is made more difficult by their inability to confer with the Defendant, few harms are specifically identified by defense counsel. El-Hage's counsel raise specific concerns about the contents of the [redacted] and three facsimiles allegedly sent by the Defendant. (El-Hage Mot. at 9.) The latter have now been declassified. (Resp. at 4.) With respect to the former, the Defendant acknowledges that the Government has indicated that it does not plan to use the [redacted] at trial and does not seem to suggest any intention to use the evidence as part of the defense case. (Id. at 9 n. 3.) If this situation changes, the Court will revisit the question of the need for disclosure of the list to the Defendant. In addition, counsel assert that the defendants "may very well" be in a better position to designate classified material to use in cross-examining [redacted] (if he is to be a government witness). (El-Hage Mot. at 10.) There is no further explanation of why the Defendant might be have a better understanding of the classified information. The harm to the defendant by that characterization is speculative at best.
Obviously, the Court encourages the Government to continue to prioritize the declassification (through redaction and editing, if necessary) of classified discovery As appropriate, during a Section 6 hearing (assuming that one is to be scheduled), the Court will, in determining the relevance and materiality of classified information, bear in mind that defense counsel have not been able to consult with the Defendant to the extent they would have preferred. At the end of the analysis, however, given the Government's compelling interest in restricting the flow of classified information and in light of the weight of precedent endorsing similar restrictions, the Court rejects the Defendant's claim of an unconstitutional deprivation of counsel. While the Defendant suggests that disclosure might enable him to assist counsel in making decisions about his representation, this hypothetical benefit is insufficient to warrant a finding that the application of CIPA in this case is unconstitutional.
The Court has, on numerous occasions, indicated its availability for a Section 6 hearing. The parties have yet to schedule such a hearing.
B. The Right to Confront Witnesses and Evidence
El-Hage asserts that the Sixth Amendment not only gives him the right to cross-examine witnesses who testify against him, but also that it affords him "the opportunity for effective cross-examination." (El-Hage Mot. at 13 (citing to Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986).) He argues that the prohibition on disclosure of classified information means that his ability to confront the evidence against him will be impermissibly undercut. In particular, El-Hage's attorneys explain that, at the Section 5 designation stage, the relevance of certain classified material "will likely elude counsel," but that the Defendant might be in a superior position to recognize the potential value of classified information. (El-Hage Mot. at 14.) For the reasons outlined in the previous section, the Court finds that defense counsel merely speculate about the harms that may be suffered by the Defendant. The suggestion that the Defendant might" contribute to the predominantly legal process of designating relevant evidence is not sufficient to warrant a finding that CIPA is being applied to deprive the Defendant of his constitutional right to confront witnesses. See infra Section II.C. (discussing defendant's right to be present at pretrial hearings concerning the resolution of legal questions).
The Defendant also asserts that Sections 5(a) and 6 impermissibly require that the Defendant "preview" his cross-examination to the Government. (El-Hage Mot. at 15.) According to El-Hage, such a preview would "most certainly result in "significant diminution' of the effectiveness of that cross-examination." (Id. (citing to Poindexter, 698 F. Supp. at 320-21).) The Defendant notes that the Government is subjected to no such disclosure requirement.
The Government correctly notes that "each court considering these arguments in the CIPA context has rejected them." (Resp. at 18-19.) See Lee, 90 F. Supp.2d at 1328 (upholding the constitutionality of CIPA and explaining that "the Confrontation Clause does not guarantee the right to undiminished surprise with respect to cross-examination of prosecutorial witnesses"); Poindexter, 725 F. Supp at 34-35 (same); United States v. Ivy, 1993 WL 316215, *7 (E.D.Pa.) ("CIPA does not . . . deprive Ivy of the opportunity to confront and question the government's witnesses at trial."). These cases emphasize that CIPA does not require that a defendant reveal his or her trial strategy, but only mandates that the defendant identify whatever classified information he plans to use. See Lee 90 F. Supp.2d at 1328; Ivy, 1993 WL 316215, *8; United States v. Wilson, 571 F. Supp. 1422, 1427 (S.D.N.Y. 1983) (explaining that the statute requires only a "`brief description of the classified information'" to be used).
In addition, despite the Defendant's assertion to the contrary, numerous courts have held that CIPA's burdens are not one-sided See United States v. Collins, 720 F.2d 1195, 1197 (11th Cir. 1983) (reviewing government's disclosure obligations under CIPA); Poindexter, 725 F. Supp. at 32 (rejecting claim that CIPA's burdens are one-sided); Iyy, 1993 WL 316215 at *5 (characterizing CIPA's burdens as "carefully balanced" between the government and the defendant). Thus, the Court rejects the Defendant's attempt to analogize his burdens under CIPA to the situation presented in Wardius v. Oregon, 412 U.S. 470 (1973).
The Defendant requests that the Court permit him to submit his "rationale for the projected use of designated classified material" to the Court ex parte as was done in Poindexter. (Reply at 14.) See United States v. Poindexter, 698 F. Supp. 316, 320 (D.D.C. 1988) (permitting an ex parte submission in order to prevent the defendant from having to disclose his trial strategy to the government). The Government argues that an ex parte submission by the defendants in this case would be inappropriate because it would "clearly frustrate CIPA's purpose in identifying for the Government the national security `cost' of going forward with particular charges against particular defendants." (Response at 20 n. 8.) The Court does not accept this proposition. The Government will be provided with the Section 5 notice which shall, in providing the "brief description" required by the statute, meet the standard for specificity set forth in United States v. Collins, 720 F.2d 1195, 1999 (11th Cir. 1983)). The Court will then permit the Defendant to submit his explanation of the proposed use of the information ex parte. See Poindexter, 698 F. Supp. at 320 (explaining that the framers of CIPA "expected the trial judge "to fashion creative and fair solutions' for classified information problems").
The Government suggests that the highly unusual circumstances underlying the Poindexter decision make it a poor analog to the instant case. (Resp. at 20 n. 8.) While the situation in Poindexter was significantly different, the general principles articulated by the court are applicable. See Poindexter, 698 F. Supp. at 320 ("[I]n any case involving classified information the defendant should not stand in a worse position because of such information than he would have if there were no such statutory procedures.").
C. Right to be Present at Critical Proceedings
The Defendant asserts that he has a Sixth Amendment right to be present at a CIPA Section 6 hearing (and during the Section 5 designation process) because these are critical proceedings or critical stages of the trial. (El-Hage Mot. at 17-18.) See Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934) ("[I]n a prosecution for a felony the defendant has the privilege . . . to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge."). The test established by the Supreme Court for determining whether the defendant's absence from a pretrial proceeding is violative of the Sixth Amendment, in particular the Confrontation Clause, is whether the defendant's exclusion "interferes with his opportunity for effective cross-examination." Kentucky v. Stincer, 482 U.S. 730, 740 (1987) (upholding the defendant's exclusion from a competency hearing (that his attorney attended)). See also Padilla, 203 F.3d at 160 (finding that defendant's exclusion from a pretrial proceeding was constitutional);United States v. Bell, 464 F.2d 667, 670 (2d Cir. 1972) (excluding the defendant during an airline ticket agent's description of the "air hijacker profile"). In all three cases, the courts emphasized that the subject matter of the pretrial proceedings was not directly related to the subject matter of the trial. See Stincer, 482 U.S. at 741; Padilla, 203 F.3d at 160 Bell, 464 F.2d at 671. Relying on these cases, the Defendant argues that he should not be excluded from a Section 6 hearing (or from the Section 5 designation process) because he could contribute to his counsel's understanding of the materials being reviewed. (El-Hage Mot. at 17-18.)
Because the parties have yet to request a Section 6 hearing, this issue may be moot.
According to the Government, the Section 6 hearing, which will determine the relevance and admissibility of certain classified information, will address questions of law and not questions of fact and, therefore, does not require the Defendant's presence. (Resp. at 21 (citing Fed.R.Crim.P. 43(c)(3) ("A defendant need not be present . . . when the proceeding involves only a conference or hearing upon a question of law."))) The Ninth Circuit has ruled that the questions resolved during a CIPA hearing regarding the protection of classified information are questions of law which may be resolved outside the presence of the defendant. United States v. Klimavicius-Viloria, 144 F.3d 1249, 1261-62 (9th Cir. 1998). See also United States v. Cardoen, 898 F. Supp. 1563, 1571-72 (S.D. Fl. 1994) (holding that court rulings at a Section 6 hearing are not "factual questions that are relevant to the determination of guilt or innocence"). Cf. United States v. Singh, 922 F.2d 1169, 1172-73 (5th Cir. 1991) (finding that in camera hearing to ascertain whether to disclose the identity of a confidential informant involved resolution of the legal question of the materiality of her testimony and concluding that exclusion of defendant from the hearing (which his attorney was permitted to attend) did not qualify as a breach of the Confrontation Clause) The Court adopts these precedents and holds that the Defendant's exclusion from the hearing, should one be held, is not unconstitutional.
D. The Right to Assist in the Preparation and Presentation of his Defense
Based on the above outlined arguments and in reliance on Faretta v. California, 422 U.S. 806, 819 (1975), El-Hage argues that he has a personal right to make his defense. According to the Defendant, he is being "deprived of his right to assist in the preparation and presentation of his defense if he is barred from participating in the Section 5 designation process, as well as from being present at and participating in subsequent CIPA proceedings." (El-Hage Mot. at 20.)
The Defendant is correct that Faretta speaks, at length, about the right "to make one's own defense personally." 422 U.S. at 819 ("It is the accused, not counsel, who must be informed of the nature and cause of the accusation,' who must be "confronted with the witnesses against him,' and who must be accorded "compulsory process for obtaining witnesses in his favor.'"). These characterizations, however, are offered by the Supreme Court in the context of a defendant who sought to represent himself See id. Faretta's protection of the right of the accused to represent himself does not extend to the holding that the Defendant suggests. The Faretta Court specifically acknowledges that the protections afforded the defendant are different when he or she has acquiesced to an attorney's representation. Id. at 820-21. Because the Court has already established that the limited restrictions on communication between the Defendant and his attorney are justified, this assertion is rejected.
III. The Defendant's Fifth Amendment Claims
A. The Right to Testify
The defendant claims that he will "effectively" be denied his Fifth Amendment right to testify in this case because his attorneys will be unable to prepare him adequately for both his direct testimony and the Government's cross examination. (El-Hage Mot. at 21.) While it is clear that El-Hage has the right to testify, see Rock v. Arkansas, 483 U.S. 44, 49 (1987), it is also true that this right ""may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" Id. at 55 (quoting from Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). In addition, given the fact that the Defendant's attorneys have seen the classified information at issue, it is not clear why El-Hage will actually suffer any such detriment.
B. The Right to Present a Defense
The Defendant claims that, as applied in this case, CIPA will impermissibly infringe upon his due process right to present a defense. (El-Hage Mot. at 22.) See California v. Trombetta, 467 U.S. 479, 485 (1984) ("To safeguard [the right to present a defense], the Court has developed "what might loosely be called the area of constitutionally guaranteed access to evidence.'"). El-Hage's attorneys claim that their investigations are limited both by the prohibition on communication with their client and by the prohibition on communication with others outside the case. (Id. at 22-23.) For the reasons outlined in previous sections of this analysis, the Court is not persuaded that the limited restriction on El-Hage's communications with his counsel will have a detrimental impact on the Defendant's right to present a defense.
The Defendant again asserts that this is a burden that CIPA unfairly imposes only on the defense. As outlined above, the Court does not view the burdens imposed by CIPA as one-sided. See supra Section II.B.
C. The Right to Remain Silent
Finally, the Defendant alleges that CIPA's pretrial notice requirements violate his Fifth Amendment right to remain silent. (El-Hage Mot. at 25.) The Defendant relies on Brooks v. Tennessee, 406 U.S. 605 (1972), for the proposition that the requirement that the Defendant "provide extensive pretrial disclosure to the government in order to preserve his right to testify" is unconstitutional. In Brooks, the Supreme Court held that a Tennessee statute which required the defendant to testify at the outset of the defense case or not at all violated the defendant's constitutional right to remain silent. Id. at 610-11.
Previous courts have considered and rejected the attempt to applyBrooks in the CIPA context. See Poindexter, 725 F. Supp. at 32 (rejecting defendant's argument that Section 5 of CIPA violated his right to remain silent because the statute merely requires that the defendant provide a "general disclosure as to what classified information the defense expects to use at the trial"); Lee, 90 F. Supp.2d at 1327 (same). Cf. United States v. Wilson, 750 F.2d 7, 9-10 (2d Cir. 1984) (finding "no constitutional infirmity" in CIPA's pretrial notification requirements and emphasizing that a defendant is only required to notify the court and the prosecutor of classified information that ""he reasonably expects to disclose'") Some courts, in resolving this question, have equated CIPA's requirements with other required pretrial disclosures such as the intention to offer an alibi defense, an insanity defense, a public authority defense or certain medical tests or tangible objects. See Poindexter, 725 F. Supp. at 33 (citing to Fed.R.Crim.Pro. 12.1, 12.2, 12.3 and 16); Lee, 90 F. Supp.2d at 1327 (same). These other pretrial requirements have been upheld as constitutional by the Supreme Court. See e.g. Williams v. Florida, 399 U.S. 78 (1970); Taylor v. Illinois, 484 U.S. 400 (1988). Given these precedents, the Court does not accept the defendant's argument that the application of CIPA's notice provisions violates his right to remain silent.
CONCLUSION
For the foregoing reasons, the Defendant's motion to declare CIPA unconstitutional as applied to him is denied.
SO ORDERED.