Opinion
No. 01-CR-80778.
February 19, 2004
ORDER REGARDING PUBLIC COMMUNICATIONS BY INTERESTED PARTIES OR LAWYERS
On October 23, 2001, in order to prevent prejudicial pretrial publicity, this Court entered an "Order Concerning Public Communications by Parties or Lawyers," precluding the release of information or opinion about the above-captioned case. That Order was vacated upon conclusion of the trial of this case in May 2003. Defendants, however, have filed a Motion for New Trial and the Court is reviewing information recently submitted to it as it considers this motion. In this context, recent developments have caused the Court to consider whether a similar order regulating public comment is again necessary, as the Court has become concerned with potential prejudice to the parties, in the event of a new trial, as well as public disclosure of the information being made available to the Court by the Government.
More specifically, the Court has under advisement a number of post-trial matters including not only Defendants' Motions for New Trial and Acquittal, but also the sentencing of Defendants Koubriti, Hannan and Elmardoudi, and the plea and sentencing of cooperating Defendant Youssef Hmimmsa. The Court also has ordered the Government to conduct a thorough review of its files and documents related to this case in connection with issues raised in Defendants' New Trial Motion, and pursuant to the Court's order, the Court is receiving and reviewing documents from the Government, much of which constitute sealed or highly classified intelligence material.
Although the Court is cognizant of, and concerned about, the public's right-to-know, its primary concern is justice and fairness to all parties concerned. The Court is aware that information, including some sealed material, related to ongoing investigations which may also relate to issues the Court has under consideration has already been disseminated to the media. The Court is very concerned about two aspects of public disclosure and comment about such information: first, that in the event the Court were to order a new trial, continued public discussion of such information could materially prejudice the rights of parties to this litigation, including not only the Defendants who were convicted by the jury but also Youssef Hmimmsa whose plea the Court has taken under advisement and who could, if the Court were to reject his plea, potentially face trial himself; and second, given the fact that sealed material and other confidential information has already been disclosed to the media, that a real potential exists for the dissemination of classified or additional sealed material and the Court's review could thereby be seriously compromised if the parties and counsel are not restrained.
NOW, THEREFORE, balancing the interests of the public's right to know while protecting the due administration of justice and the fairness of all proceedings in this matter, and in order to prevent prejudice to the parties and potential jury taint, the Court issues the following limited order regulating public communications:
IT IS HEREBY ORDERED that none of the lawyers or parties involved in this matter — including defense counsel and their clients, present or former Assistant United States Attorneys who have knowledge of any aspect of the case as a result of official duties, other United States Attorney's office or Justice Department employees, or any other persons associated with them — shall release, authorize the release of, or comment upon to anyone not covered by this Order, any confidential information, including classified or sealed information, that is not of public record relating to any issues which the Court has under consideration regarding Defendants' Motion for New Trial.
As used in this Order, "of public record" shall mean matters disclosed in a public filing, hearing, or other proceeding in a judicial or administrative forum.
IT IS FURTHER ORDERED that if any person subject to this Order has any question as to whether possible disclosure or comment would violate the terms of this Order, such person should seek the guidance of the Court. The Court will make itself immediately available to respond to any such questions.
SO ORDERED.