United States v. Pirouz Sedaghaty

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-30342

Plaintiff-Appellee,

D.C. No.

v. 6:05-cr-60008-

HO-2

PIROUZ SEDAGHATY,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Oregon

Michael R. Hogan, District Judge, Presiding

Argued and Submitted

December 3, 2012—Seattle, Washington

Filed August 23, 2013

Before: Mary M. Schroeder, M. Margaret McKeown,

and Richard C. Tallman, Circuit Judges.

Opinion by Judge McKeown;

Partial Concurrence and Partial Dissent by Judge Tallman

2 UNITED STATES V. SEDAGHATY

SUMMARY*

Criminal Law

The panel affirmed in part and reversed in part a criminal

judgment and remanded for a new trial in a tax fraud case –

that involved significant amounts of classified materials and

in camera, ex parte reviews as well as classified proceedings

– stemming from charges that the defendant falsified a 2000

charitable organization tax return in order to conceal his

support of an independence movement in Chechnya.

The panel was not persuaded by the defendant’s

arguments regarding the classified material, the district

court’s evidentiary decisions, the notion that the government

was one-sided in its effort to obtain evidence abroad, or his

view that the government’s characterization of the evidence

rose to the level of a constitutional violation.

The panel held that the government violated its

obligations pursuant to Brady v. Maryland by withholding

significant impeachment evidence relevant to a central

government witness.

After reviewing the classified record, the panel

determined that the district court erred in approving an

inadequate substitution for classified material that was

relevant and helpful to the defense. The panel held that the

substitution did not satisfy the requirement in the Classified

Information Procedures Act, 18 U.S.C. app. 3 § 6(c)(1), that

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. SEDAGHATY 3

the summary “provide the defendant with substantially the

same ability to make his defense as would disclosure of the

specified classified information.”

The panel also concluded that the search that the

government conducted of the defendant’s computer hard

drives went well beyond the explicit limitations of the

warrant, and remanded to the district court to consider the

appropriate scope of items seized and whether the

exclusionary rule should apply.

Considering the errors both individually as well as

cumulatively in light of the evidence as a whole, the panel

concluded that the errors were prejudicial.

The panel filed concurrently, under appropriate seal, a

classified opinion with respect to the substitution. That

opinion also addresses in more detail the defendant’s claim

regarding foreign bank records.

Concurring in part and dissenting in part, Judge Tallman

wrote that the opinion’s recitation of the facts is

inappropriately written from the perspective of the defense

theory of the case, that the majority unduly constricts the text

of the search warrant and disregards the underlying reason for

the very existence of the exclusionary rule, that the opinion

disregards the district judge’s express factual findings and his

rulings on the potential impact of challenged witness

testimony following an evidentiary hearing, and that the

opinion discounts the extraordinary efforts by the Department

of Justice to abide by its criminal discovery obligations and

the district court’s extensive oversight of those efforts in

dealing with extremely sensitive national security concerns.

4 UNITED STATES V. SEDAGHATY

COUNSEL

Steven T. Wax (argued), Federal Public Defender, Portland,

Oregon; Lawrence Matasar, Lawrence Matasar, P.C.,

Portland, Oregon, for Defendant-Appellant.

Kelly A. Zusman (argued), Christopher Cardani, and Charles

Franklin Gorder, Jr., Assistant United States Attorneys,

Office of the United States Attorney for the District of

Oregon; Virginia Marie Vander Jagt, Counsel, United States

Department of Justice, Washington, D.C., for Plaintiff-

Appellee.

OPINION

McKEOWN, Circuit Judge:

This is a tax fraud case that was transformed into a trial

on terrorism. The case stems from charges that Pirouz

Sedaghaty (known as Pete Seda) falsified a 2000 charitable

organization tax return in order to conceal his support of an

independence movement in Chechnya, a republic in the

Caucasus mountains of southern Russia. Seda founded the

U.S. branch of the Al-Haramain Islamic Foundation, Inc.

(“Al-Haramain”), a Saudi Arabian charity that the U.S.

government suspected of funding terrorist activities and

supporting the Chechen mujahideen (holy warriors engaged

in violent jihad against Russian forces) under the guise of

humanitarian aid.1 Seda’s defense was based on his claim

1

Seda was indicted along with the U.S. chapter of Al-Haramain, which

was later dropped as a defendant, as well as an alleged co-conspirator,

Soliman Al-Buthe, who remains a fugitive abroad.

UNITED STATES V. SEDAGHATY 5

that any discrepancy on the tax return could be traced to his

accountant, as well as on his long history of peaceful

engagement on behalf of Islam and his track record of

charitable work in the United States and abroad.

The appeal illustrates the fine line between the

government’s use of relevant evidence to document motive

for a cover up and its use of inflammatory, unrelated evidence

about Osama Bin-Laden and terrorist activity that prejudices

the jury. This tension was evident both before and during

trial and dominates much of the briefing on appeal.

Similarly, what was charged as a tax fraud case in fact

involved significant amounts of classified materials and

multiple in camera, ex parte reviews as well as classified

proceedings. These classified proceedings figure prominently

in the appeal. To the extent possible, we have written our

opinion without reference to classified materials so as to

allow the maximum transparency in this criminal case. To

supplement this opinion, we are filing concurrently, under

appropriate seal, a classified opinion with respect to the

substitution—a terse summary that the government provided

Seda in place of actual classified documents that are relevant

and helpful to his defense. That opinion also addresses in

more detail Seda’s claim regarding foreign bank records.

We recognize that a system that permits ex parte hearings

and requires the court to pass on the legitimacy of claims

related to classified information places a heavy burden on the

court. We also recognize that defense counsel, who best

know their client’s interests, are placed at a serious

disadvantage in challenging classified proceedings in a

vacuum. Toward that end, we take our duty very seriously

6 UNITED STATES V. SEDAGHATY

and undertake our review of classified information with

special scrutiny.2

Following his conviction for tax violations, Seda

challenges a host of rulings. In particular, he takes aim at the

prosecution’s failure to disclose its interview notes regarding

payments to a key witness, the court’s handling of classified

information under the provisions of the Classified

Information Procedures Act (“CIPA”), 18 U.S.C. app. 3, the

breadth of computer and other documents seized pursuant to

a warrant, and various evidentiary rulings. Seda also claims

that he was deprived of a fair trial by the government’s

refusal to aid him in obtaining evidence from overseas, by its

appeal to religious preferences, and by its use of

inflammatory evidence of guilt by association.

In the main, we are not persuaded by Seda’s arguments

regarding the classified material, the district court’s

evidentiary decisions, the notion that the government was

one-sided in its effort to obtain evidence abroad, or his view

2

Because of the strong public policy in favor of public access to judicial

proceedings, we heard argument on nearly all of the issues on appeal in

open court. On several very limited issues, we held an in camera hearing

with counsel from the government and from the defense together, and then

with the government ex parte. On one issue, we heard from a single

government attorney who was not part of the prosecution team. The

government trial lawyers were walled off from certain classified material

so it would not taint the conduct of the prosecution.

We take note of the careful procedures instituted by the district court

and followed by the government to protect classified information, as well

as defense counsel’s cooperation with these procedures. Our judgment as

to the government’s discovery violations is not a reflection on the trial

court’s good faith efforts to ensure a fair trial while protecting national

security.

UNITED STATES V. SEDAGHATY 7

that the government’s characterization of the evidence rose to

the level of a constitutional violation. Nonetheless, there

were significant errors that merit a new trial.

We conclude that the government violated its obligations

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), by

withholding significant impeachment evidence relevant to a

central government witness. After reviewing the classified

record, we also determine that the court erred in approving an

inadequate substitution for classified material that was

relevant and helpful to the defense. The substitution did not

satisfy CIPA’s requirement that the summary “provide the

defendant with substantially the same ability to make his

defense as would disclosure of the specific classified

information.” 18 U.S.C. app. 3 § 6(c)(1). We reject Seda’s

remaining challenges to the handling of classified information

under CIPA. We also conclude that the search that the

government conducted of Seda’s computer hard drives went

well beyond the explicit limitations of the warrant and

remand to the district court to consider the appropriate scope

of items seized and whether the exclusionary rule should

apply.

We are particularly troubled by the cumulative effect of

these errors, which resulted in admitting evidence illegally

seized while denying Seda both material impeachment

evidence and potentially exculpatory evidence. See United

States v. Wallace, 848 F.2d 1464, 1476 (9th Cir. 1988)

(emphasizing the cumulative effect of three trial errors

improperly admitting impeachment evidence of a defense

witness, erroneously bolstering the testimony of a prosecution

witness, and admitting defendant’s statements that should

have been suppressed). Although each of these issues

potentially merits a remand or a new trial on its own, given

8 UNITED STATES V. SEDAGHATY

these multiple, significant errors, “‘a balkanized, issue-by-

issue harmless error review’ is far less effective than

analyzing the overall effect of all the errors in the context of

the evidence introduced at trial. . . .” United States v.

Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (quoting

Wallace, 848 F.2d at 1476). Considering the errors both

individually as well as cumulatively in light of the evidence

as a whole, we conclude that the errors were prejudicial and

reverse and remand for a new trial. As a consequence, we do

not address Seda’s arguments regarding his sentence.

BACKGROUND

In the 1990s, Al-Haramain was one of Saudi Arabia’s

largest non-governmental organizations, with more than fifty

offices worldwide distributing humanitarian aid and funding

religious education. With close ties to the Saudi government,

it has been described by U.S. government officials as the

“United Way” of Saudi Arabia. Apart from humanitarian aid

and educational materials, however, some Al-Haramain

offices distributed funding and other support to terrorists.

Based on joint submissions by the governments of the United

States and Saudi Arabia, the United Nations implemented

sanctions against Al-Haramain offices in eleven countries

beginning in 2002. By 2004, the Saudi government had

dissolved Al-Haramain altogether. That same year, the

United States designated former Al-Haramain principals Aqil

Al-Aqil and Soliman Al-Buthe and the U.S. chapter of Al-

Haramain as “Specially Designated Global Terrorists” subject

to financial sanctions because of their role in providing

financial support to terrorist groups. Seda came under

investigation by the FBI and the IRS because of his role in the

U.S. chapter of Al-Haramain.

UNITED STATES V. SEDAGHATY 9

Seda moved from his native Iran to Ashland, Oregon, in

the 1970s. After attending Southern Oregon University, he

became a well-known arborist in the city. With the mission

of promoting the understanding of Islam and building bridges

within the community, Seda cofounded the Qur’an

Foundation with his friend David Rodgers, who had grown up

in Ashland. The Qur’an Foundation hosted public lectures

and distributed the Qur’an locally and to prisoners who

requested copies.

While working as a horse trainer in Saudi Arabia,

Rodgers was approached by Al-Haramain officer Al-Buthe,

who suggested that Al-Haramain could supply Qur’ans to the

Ashland effort. In 1997, the two organizations entered into

a partnership to “promote peace through understanding of

Islam” and Al-Buthe and Seda opened Al-Haramain’s only

U.S. branch (“Al-Haramain-U.S.”). Al-Aqil became the U.S.

branch’s president, Al-Buthe its treasurer, and Seda its

secretary. Seda opened a bank account for Al-Haramain-U.S.

at Bank of America and successfully applied for tax-exempt

status.

In late 1999, both Al-Haramain and its U.S. branch

solicited funds for aid to the people of Chechnya. Although

the efforts of Al-Haramain were conducted under the

supervision of the Saudi government and through a separate

entity the government created, the Saudi Joint Relief

Committee, at trial it was disputed whether these efforts were

truly humanitarian in nature or a cover to fund the

mujahideen operating in Chechnya.

In February 2000, an engineer and construction executive

in England, Dr. Mahmoud Talaat El-Fiki, contacted Al-

Haramain saying that he wanted to donate $150,000 for

10 UNITED STATES V. SEDAGHATY

Chechen relief. Al-Haramain instructed El-Fiki that he could

wire the money for “the poor, orphans and refugees” in

Chechnya to its Al-Rajhi Bank account in Riyadh, Saudi

Arabia, or its Bank of America account in Ashland. El-Fiki

transferred $150,000 to the Al-Haramain-U.S. account in

Ashland on February 24, 2000. On March 7, Al-Buthe

traveled from Saudi Arabia to Oregon. Seda and Al-Buthe

went together to a branch of Bank of America in Ashland on

March 10 and met with the branch manager to withdraw

$130,000 in travelers checks. The following day, Seda

withdrew a $21,000 cashier’s check made out to Al-Buthe.

Al-Buthe later returned to Saudi Arabia, cashed the travelers

checks at his bank, and deposited the cashier’s check into his

personal account, where he often commingled personal

money with Al-Haramain funds. The counter check signed

by Seda bore the notation “Soliman” and the actual cashier’s

check deposited by Al-Buthe bore the notation “Donation for

Chichania Refugees.”

At trial, the significance of Al-Buthe’s use of travelers

checks was contested. The government characterized the use

of travelers checks, as opposed to a less-expensive wire

transfer, as highly suspicious and argued that it made the

transfer of funds more difficult to trace. The defense pointed

out that Al-Buthe regularly brought funds in the form of

travelers checks to the United States for Al-Haramain’s

operating expenses and reported those checks to U.S.

Customs, so his use of travelers checks was not unusual, nor

did it correlate with an effort to conceal the movement of

funds.3 The bank manager testified that Seda set up an

3

Between October 1997 and April 2001, Al-Buthe reported to U.S.

Customs his transportation of $777,845 into the United States over nine

different trips, seven of them involving travelers checks. Every time Al-

UNITED STATES V. SEDAGHATY 11

appointment in advance so that he and Al-Buthe could meet

with her in person, and that Al-Buthe came in his traditional

Saudi dress, produced his passport to be copied for the bank’s

records, and personally signed each travelers check in front

of her.

What happened to the money after Al-Buthe cashed the

travelers checks and deposited the cashier’s check was also

disputed. Seda’s attorneys argued that it was given to Al-

Haramain and deposited in Al-Rajhi Bank account number

9889, which was used for humanitarian relief in Chechnya.

The government represented that “[a]n Al-Haramain

employee took most of El-Fiki’s money to a representative of

Abu ‘Umar [a leader of the Chechen mujahideen], to be

smuggled into Chechnya, claiming it was for needy Chechen

families.”

In June 2000, Al-Buthe returned to Ashland, reporting to

U.S. Customs $300,000 in travelers checks from Al-

Haramain for the purchase of a building in Springfield,

Missouri, to serve as a prayer house. Having already made an

initial deposit of $60,000, Al-Haramain-U.S. then paid

$318,291 to complete the purchase of the Springfield

building.

Four days after the September 11, 2001, terrorist attacks,

several FBI agents came to speak with Seda. The

interviewing agent testified that Seda had volunteered

Buthe reported the transportation of currency was when he was arriving

in the United States and was presented with a customs form, like all other

arrivals. Seda’s attorneys maintained that Al-Buthe failed to report the

transfer of El-Fiki’s donation out of the United States because he did not

know that it was required.

12 UNITED STATES V. SEDAGHATY

information about Al-Haramain-U.S.’s purchase of the

Springfield property and told him Al-Haramain-U.S. had paid

between $300,000 and $325,000, reflecting the closing price.

One month later, Tom Wilcox, Al-Haramain-U.S.’s

accountant and a former IRS agent, filed a Form 990 for Al-

Haramain-U.S. for the year 2000, reviewed and signed by

Seda. Filing a Form 990 is an annual reporting requirement

for tax exempt organizations. The Form 990 was inaccurate

in several respects. Line 57a inaccurately represented the

cost of the Missouri building purchase as $461,542 because

the $130,000 withdrawn by Al-Buthe was marked as a

payment for the prayer house. Line 1 underestimated the

donations that Al-Haramain-U.S. had received because it

misdesignated the $21,000 check to Al-Buthe as a returned

donation. Line 22, representing outgoing donations, was also

inaccurate because it failed to record whatever portion of the

$150,000 El-Fiki donation was transferred to Al-Haramain.4

In 2004, the government obtained a warrant to search for

financial records and communications pertaining to the

preparation of the 2000 Form 990 and Al-Buthe’s failure to

report the $150,000 he was carrying when he left the country.

The government searched Seda’s house, which doubled as the

Al-Haramain-U.S. office and prayer hall, and seized nine

computers together with books, videos, and religious

materials. Before trial, Seda challenged the seizures as going

beyond the scope of the warrant; the district court denied his

motion to suppress.

4

The defense argued that because the donation merely passed through

Al-Haramain-U.S. on its way from El-Fiki to Al-Haramain in Riyadh,

none of the mistakes are material because the tax code did not require the

“pass-through” to be recorded at all.

UNITED STATES V. SEDAGHATY 13

The grand jury indicted Seda, Al-Buthe, and Al-Haramain

in a three count indictment. Count One alleged a conspiracy

to defraud the United States through the crimes alleged in

counts Two and Three, in violation of 18 U.S.C. § 371.

Count Two alleged filing a false Form 990, in violation of

26 U.S.C. § 7206(1). Count Three charged Al-Buthe with

failing to file a Currency and Monetary Instrument Report

(CMIR) form when he left the United States with $150,000,

in violation of 31 U.S.C. § 5316(a)(1)(A). The charges

against Al-Haramain were eventually dismissed because, by

the time of trial, it was little more than a shell organization.

The central issue at trial was whether the errors on the

Form 990 were willful. The prosecution’s theory was that

Seda wanted to fund the Chechen mujahideen and

intentionally reported false information to his accountant in

an effort to cover up the diversion of El-Fiki’s donation to the

mujahideen. The primary defense theory was that Wilcox

was responsible for these careless mistakes, that Seda had

given the money to Al-Buthe to give to Al-Haramain, and

that Seda was transparent and forthright with Wilcox, the

FBI, and the public about the disposition of Al-Haramain-

U.S.’s funds and his desire to provide humanitarian aid to

refugees in Chechnya.

When the IRS questioned Wilcox in June of 2003 about

the price of the building as reported on the 2000 tax return,

Wilcox said that someone at Al-Haramain-U.S. had prepared

the schedule of purchase costs in Quickbooks and that he had

just based the purchase price in the tax return on that

schedule. At trial, however, Wilcox admitted that he had

actually been the one to code the $130,000 withdrawal of

travelers checks as related to the building purchase and that

he had created the schedule with the erroneous purchase

14 UNITED STATES V. SEDAGHATY

price. He maintained, however, that the schedule was based

on Seda’s instructions as to how to categorize the checks.5

The parties vigorously debated evidence related to the

“money trail.” After introducing evidence demonstrating that

Al-Buthe cashed the travelers checks in Saudi Arabia and

deposited the cashier’s check into his own account, the

government said that it had followed the money trail as far as

it could go and that Al-Buthe’s actions were consistent with

his misappropriation of some funds and diversion of others to

fund the mujahideen. Seda attempted to introduce receipts

documenting his transfer of the donation to Al-Buthe, and Al-

Buthe’s transfer of the donation to Al-Haramain for Chechen

relief, but he was unable to authenticate the records.

To establish willfulness, the government called two

former members of the Ashland prayer house: David

Gartenstein-Ross and Barbara Cabral. Among other subjects,

the government questioned Gartenstein-Ross about the

distribution of Qur’ans to prisoners, donations made to

support Kosovan refugees, and fundraising at the prayer

house for two individuals planning to go to Kosovo to fight

against the Serbs. Cabral, a convert to Islam who abandoned

the religion before trial, described the mosque and prayer

services at the Al-Haramain-U.S. prayer house in Ashland as

well as Seda’s marriage to a Russian-speaking wife.

Providing the only direct evidence of Seda’s alleged desire to

5

The government also introduced emails between Seda and Al-

Haramain’s accountant in Riyadh regarding the budget and expenses of

Al-Haramain-U.S. Those documents include a spreadsheet sent from the

Al-Haramain accountant that records the travelers checks and cashier’s

check from the El-Fiki donation as going to Al-Buthe. The emails also

include desperate pleas from the Al-Haramain accountant to Seda to keep

better records.

UNITED STATES V. SEDAGHATY 15

fund the Chechen mujahideen, Cabral testified that Seda

solicited funds for the mujahideen in Chechnya after Cabral

and others from Oregon joined Seda in a pilgrimage to Mecca

sponsored by Al-Haramain.

In addition to the witnesses from the prayer house, the

government introduced a number of exhibits seized in the

search, including videos related to the Chechen mujahideen,

religious edicts regarding support for the Chechen

mujahideen, plus emails Seda received and websites Seda

visited about Chechnya. The government also introduced an

email from Seda to Al-Buthe titled “What support?” that

reproduced an excerpt of a published interview with Chechen

mujahideen leader Ul-Khattab stating:

I’m sorry to say there is not a single Islamic

charity organization active inside Chechnya at

present. Only the Red Cross is present in

Chechen towns and cities. Therefore, we

advise the Muslims in the Muslim countries to

take a sincere stand with the Mujahideen in

the land of the Caucasus.

The government also relied extensively on the testimony

of its expert, Evan Kohlmann, who drew connections between

Al-Haramain officials and figures such as Ul-Khattab and

Osama Bin-Laden. Kohlmann, who had no direct knowledge

of the facts of the case, testified, among other things, that the

former director of the Saudi Joint Relief Committee through

which Al-Haramain provided relief in Chechnya, had been an

“old friend” of Bin-Laden’s in the 1980s.

At trial, the government frequently referred to a large

(3 foot by 4 foot) chart with photographs of Seda and his co-

16 UNITED STATES V. SEDAGHATY

defendant Al-Buthe, along with a photograph of an Al-

Haramain officer in Riyadh who sent out frequent emails

about Chechnya, a shadowed cutout of a figure representing

Al-Haramain’s accountant in Riyadh, and a photograph of the

armed mujahideen leader Ul-Khattab, whom Seda did not

know and whom Kohlmann had connected to Bin-Laden.

The jury also watched a violent video provided by Kohlmann

of a training camp for the Chechen mujahideen, which was

introduced on the ground that the existence of a still image

from the video on Al-Haramain-U.S.’s computers “tended to

make it more likely that [Seda] intended that the El-Fiki

money end up in the hands of the Chechen mujahideen.”

During trial, the government referenced Bin-Laden on

five different occasions, including at closing, where the

prosecution referred to the director of the Saudi Joint Relief

Committee as Bin-Laden’s “best friend.” The prosecution’s

arguments repeatedly emphasized the concept of jihad,

referring to it thirty-two times over the course of the six-day

trial.

The government highlighted Seda’s religious activities

with Al-Haramain-U.S., including the distribution to

prisoners of an edition of the Qur’an (entitled the “Noble

Qur’an”) supplied by Al-Haramain that contained an

appendix called “A Call to Jihad.” The prosecution stated at

closing:

The Noble Qur’an is the defendant, after he

started working for al-Haramain, sending to

U.S. prisons around this country, in the

thousands, 10 to 15,000 prisoners, violent

people serving time, getting junk like this

UNITED STATES V. SEDAGHATY 17

from al-Haramain saying jihad is an

obligation for Muslims.

After offering this statement, the prosecutor threw or tossed

the Qur’an onto a courtroom table in front of the jurors. The

government did not mention that Seda worked successfully to

have Al-Haramain publish for distribution a new edition of

the Noble Qur’an without the inflammatory appendix that the

government referenced. The defense made no objection at

the time, but now cites the prosecutor’s statement as an

example of the government’s inflammatory rhetoric.

The prosecution also insinuated a connection between

Seda and violent jihad:

It [i.e., sending Qur’ans to U.S. prisoners] was

a huge project sponsored by al-Haramain

Saudi Arabia with their Wahhabi, violent

jihad propaganda. They get a foothold in the

United States. Pete Seda becomes their man.

And out goes this hateful, crazy jihad stuff

into prisons.

Seda’s witnesses testified, among other things, to Al-

Haramain-U.S.’s role as a charity, Seda’s good character, and

his moderate political and religious beliefs. A former

Congregational Church pastor in Ashland related Seda’s

active participation in Ashland’s interfaith and peace

communities over the twenty years she was a pastor and his

role speaking out at a rally against homophobic violence after

the murder of a lesbian couple in Ashland in the 1990s. A

local rabbi testified about how Seda in the late 1980s began

coming to his synagogue to learn about Judaism, how Seda

welcomed students from the synagogue’s Hebrew school to

18 UNITED STATES V. SEDAGHATY

the Ashland prayer house, and how Seda met with the Israeli

Consul General in 2002 in an effort to gather support for a

charitable relief effort that could bring together Israelis and

Palestinians.

The jury convicted Seda of conspiracy to defraud the

United States and filing a false return on behalf of a tax

exempt organization. He was sentenced to thirty-three

months’ imprisonment, three years of supervised release, and

restitution to the Department of the Treasury of $80,980.

After trial but before sentencing, the government

produced reports and notes for twelve previously undisclosed

interviews the FBI conducted with government witness

Barbara Cabral and her husband Richard Cabral. Among

other things, the notes and reports revealed to the defense for

the first time that the FBI had paid Richard Cabral $14,500

over the course of the investigation, that at least one of those

payments was made in the presence of Barbara Cabral, and

that the FBI had made an offer of payment to Barbara Cabral

before trial.

Seda filed two separate motions for a new trial: the first

motion focused on what he characterized as the prosecution’s

appeal to prejudice and the second motion, which

alternatively sought dismissal of the charges, related to the

Brady violation. The district court denied both motions.6

6

The dissent takes issue with our recitation of the background

information. This purported debate over a standard of review is a

distraction. If there were a challenge to the sufficiency of the evidence,

we would review that challenge drawing all inferences in favor of the

prosecution. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United

States v. Alvarez–Valenzuela, 231 F.3d 1198, 1201–02 (9th Cir. 2000).

But the jury’s verdict based on the evidence before it is not at issue. What

UNITED STATES V. SEDAGHATY 19

ANALYSIS

I. THE BRADY CLAIM

As the district court found, “the only direct evidence

about [Seda’s] desire to fund the mujahideen,” came from

Barbara Cabral, a witness who the prosecution showcased as

critical. Despite a defense request, the government withheld

material, significant, and non-cumulative impeachment

evidence about Cabral, including government payments and

interview notes. This Brady violation therefore merits a new

trial.

FBI Special Agents contacted Cabral and her husband

Richard Cabral, members of the Ashland prayer house,

shortly after September 11, 2001. The agents “opened”

Cabral as a cooperating witness in 2004 but closed her file in

2006 after deciding that Richard was more likely to be a trial

witness. The FBI re-opened Cabral as a witness in 2008 after

Richard passed away. The FBI interviewed the Cabrals either

individually or together twenty times between 2003 and 2010,

paid Richard $14,500, and offered Barbara additional

financial assistance with medical bills after Richard’s death.

An FBI Special Agent told Cabral that he would seek

authorization to pay her $7,500. Before trial, the district

court ordered the government to produce exculpatory

materials, materials for impeaching potential witnesses, and

agent notes. The government, however, disclosed reports for

only eight of the twenty interviews and revealed nothing

about payments to either spouse.

is at issue is whether the appropriate evidence was actually before the jury.

We review each of Seda’s claims regarding these procedural errors

according to the appropriate standard.

20 UNITED STATES V. SEDAGHATY

Cabral’s testimony was the only evidence directly linking

Seda to an effort to fund the Chechen mujahideen. Cabral

testified that after a Hajj—a pilgrimage to Mecca—that she

made with Richard, Seda, and others, Seda asked the group to

return to him unused money received from Al-Haramain

Saudi Arabia’s sponsorship of their Hajj. Cabral quoted Seda

as saying the money “would . . . help send blankets and food

and help the mujahideen in Chechnya.”

After trial, but before sentencing, the government

disclosed that it had failed to produce in discovery a

significant amount of evidence relating to Cabral. The

withheld material documented the previously undisclosed

$14,500 in FBI payments to Richard (including a payment for

$5,000 made in Barbara’s presence) and a separate offer of

payment to Barbara Cabral shortly before trial when she was

experiencing financial difficulty.7 The materials additionally

included a number of undisclosed reports, draft reports, and

notes of multiple interviews with both Cabrals as well as

handwritten notes of interviews with Barbara Cabral. The

government acknowledged that one of the case agents, a

member of the prosecution team, knew all of the relevant

details of the suppressed material prior to trial. Seda moved

for a new trial.

The district court made several findings with regard to

Seda’s Brady claims. First, the district court found that the

withheld information was favorable to Seda because it was

7

One FBI summary of a post-trial interview of Cabral reported her

belief that these payments were for the assistance of both Cabrals: “Cabral

has always felt the money Richard received from [the FBI] satisfied any

monetary consideration that might have been due for her and Richard’s

help. . . .”

UNITED STATES V. SEDAGHATY 21

impeachment evidence. Second, the district court found that

the information was in the government’s possession and was

withheld by the government. Accordingly, the district

concluded that the failure to disclose the information was a

discovery violation.

Although the court recognized that “[t]here was some

significance to the terrorist issue [i.e., soliciting funds for the

mujahideen] because the government ostensibly wanted to

establish a reason for the tax fraud,” it nevertheless

determined that Cabral’s testimony was not material to the

conviction because “it did not matter where the money

fraudulently reported on the tax return actually went and

because of other significant evidence regarding willfulness.”

The court opined that “the government made great

significance of the terrorist aspect of the case and presented

a great deal of evidence and argument about the mujahideen

in Chechnya” but felt that this argument “was collateral to the

charges” because Wilcox was the government’s key witness.

Even though the district court denied Seda’s motion for a new

trial, it determined that Cabral’s testimony was material to the

terrorism sentencing enhancement sought by the government

because “this was really the only direct evidence about

defendant’s desire to fund the mujahideen.”8

The Brady standard is familiar: “the suppression by the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad

8

The district court ultimately did not apply the sentencing enhancement,

concluding that “there has been a failure to prove the terrorist

enhancement . . . [a] failure to prove a link between the defendant and the

money being used for terrorist activities.”

22 UNITED STATES V. SEDAGHATY

faith of the prosecution.” Brady, 373 U.S. at 87. The

Supreme Court emphasized that “[s]ociety wins not only

when the guilty are convicted but when criminal trials are

fair; our system of the administration of justice suffers when

any accused is treated unfairly.” Id.

To establish a Brady violation, a defendant must show

that: (1) the evidence at issue is favorable to the accused,

either because it is exculpatory or because it is impeaching;

(2) the evidence was suppressed by the government,

regardless of whether the suppression was willful or

inadvertent; and (3) the evidence is material to the guilt or

innocence of the defendant. See Brady, 373 U.S. at 87; see

also United States v. Jernigan, 429 F.3d 1050, 1053 (9th Cir.

2007) (en banc). Although there is no convincing evidence

of bad faith on the part of the prosecution, the government

concedes, as the district court found, that the withheld

information is favorable to Seda and that it should have been

turned over before trial. Our Brady analysis therefore hinges

on materiality.

We review de novo a district court’s denial of a new trial

motion based on a Brady violation. See United States v.

Pelisamen, 641 F.3d 399, 408 (9th Cir. 2011). Likewise, “the

question of ‘materiality[]’ is a legal matter that we review de

novo.” United States v. Price, 566 F.3d 900, 907 n.6 (9th Cir.

2009); see also United States v. Oruche, 484 F.3d 590,

595-96 (D.C. Cir. 2007) (“[O]nce the existence and content

of undisclosed evidence has been established, the assessment

of the materiality of this evidence under Brady is a question

of law.”). We see no error in the district court’s underlying

factual findings and, in any event, the level of deference

accorded to those findings is not dispositive here.

UNITED STATES V. SEDAGHATY 23

In evaluating materiality, we focus on whether the

withholding of the evidence undermines our trust in the

fairness of the trial and the resulting verdict. The touchstone

is the “reasonable probability” of a different result, that is,

“not whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in

its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles v.

Whitley, 514 U.S. 419, 434 (1995) (citation omitted).

As the Supreme Court has explained, the test of

materiality “is not a sufficiency of evidence test. A defendant

need not demonstrate that after discounting the inculpatory

evidence in light of the undisclosed evidence, there would not

have been enough left to convict.” Id. at 434–35.

“Consistent with ‘our overriding concern with the justice of

the finding of guilt,’ United States v. Agurs, 427 U.S. at 112,

a constitutional error occurs, and the conviction must be

reversed, only if the evidence is material in the sense that its

suppression undermines confidence in the outcome of the

trial.” United States v. Bagley, 473 U.S. 667, 678 (1985).

Materiality is defined “in terms of suppressed evidence

considered collectively, not item by item.” Kyles, 514 U.S.

at 436.

Here, we zero in on whether the suppressed materials

could have provided an effective means of impeachment.

This is not a case where the impeachment evidence would

have been cumulative or marginal. Rather, as to Cabral, the

defense was empty handed at trial precisely because the

government did not disclose a substantial amount of relevant

information. See Gonzalez v. Wong, 667 F.3d 965, 982 (9th

Cir. 2011) (“Where the withheld evidence opens up new

avenues for impeachment, [even if significant impeachment

24 UNITED STATES V. SEDAGHATY

evidence was already introduced] it can be argued that it is

still material.”). Seda consistently denied that he solicited

funds for mujahideen after the Hajj, and before trial, Seda

moved to exclude Cabral’s testimony. Seda’s counsel

highlighted that “those facts [concerning the request for funds

after the Hajj] are contested. We do not believe that that

occurred.” In response, the government argued strenuously

for admission of Cabral’s testimony, which it characterized

as “critical state of mind, and motive, opportunity evidence.”

The district court ultimately admitted the testimony,

concluding that it was evidence of “motive, opportunity,

intent, knowledge, and absence of mistake.”

At trial, Cabral presented as a straightforward citizen

witness; she had no tawdry or unsavory past and no apparent

reason to shade the truth. Of modest means, she worked at

J.C. Penney’s as a master stylist; her visually impaired

husband of thirty-five years had passed away two years

before trial. At times relevant to the case, she attended

services at the Ashland prayer house, but before trial

renounced the Muslim faith. However, because of the

suppression, Seda’s counsel had virtually no material with

which to question her neutrality.

The records of the FBI’s payments provide significant

impeachment evidence that would have shaded the jurors’

perceptions of Cabral’s credibility. Although Cabral testified

about Seda’s motive, Cabral’s motive for testifying was left

untouched. Payments to a government witness are no small

thing. See Singh v. Prunty, 142 F.3d 1157, 1162 (9th Cir.

1998) (reversing conviction because of Brady violation where

key witness received undisclosed “substantial benefits in

exchange for his testimony,” because “disclosure of an

agreement to provide . . . benefits, as well as evidence of the

UNITED STATES V. SEDAGHATY 25

benefits themselves, could have . . . substantially impeached

[the witness’s] credibility”).

Withheld notes also revealed that Cabral told the case

agent that she had been experiencing serious medical issues

that left her with several thousand dollars of out-of-pocket

medical expenses. The agent responded to this by indicating

that the FBI might be able to help her out financially after

trial. Although Cabral later said that she did not recall the

offer, her relatively modest position and unpaid medical bills

would have supported an inference that the FBI payments,

together with the offer of possible future payment, were a

substantial influence on Cabral’s testimony. This inference

is particularly strong because of the uncertain nature of the

promise. See Sivak v. Hardison, 658 F.3d 898, 916 (9th Cir.

2011) (“[W]itnesses have greater incentives to lie if the

potential benefits are ‘not guaranteed through a promise or

binding contract.’”) (quoting Bagley, 473 U.S. at 683);

Bagley v. Lumpkin, 798 F.2d 1297, 1302 (9th Cir. 1986)

(“The more uncertain the agreement, the greater the incentive

to make the testimony pleasing to the promisor.”) (citation

omitted).

The payments and notes also would have provided an

opening for the defense to highlight significant

inconsistencies in the couple’s stories. For instance, Richard

at different times told the case agents that Seda had identified

the intended recipients of the funds collected simply as “the

people of Chechnya” and “Chechen refugees,” without

reference to the mujahideen. The notes also revealed that

Cabral erroneously informed the FBI that Seda traveled to

Saudi Arabia for a Hajj in 2000. Draft interview summaries

revealed additional inconsistencies. For example, one draft

summary of an interview with Richard contained the

26 UNITED STATES V. SEDAGHATY

statement that “[Richard] Cabral did not recall Sedaghaty

discussing the topic of Kosovo or supporting mujahedin

there” while another draft of the summary excluded that same

statement. Another early draft revealed a conflict about the

amount of the supposed payments that were collected at the

end of the Hajj.

Without the suppressed materials, Seda’s counsel was

severely limited on cross examination, unable to explore, let

alone establish, grounds for Cabral’s possible bias. See

United States v. Schoneberg, 396 F.3d 1036, 1042 (9th Cir.

2005) (recognizing that the defense must be given the

opportunity to cross-examine a witness and explore any

motive to falsely testify in order to assist government).

Taken together with the substantive issues described above,

the undisclosed material would have allowed the defense to

paint a picture of, at best, a witness whose shaky recollection

was influenced by her gratitude to the FBI for its financial

assistance; at worst, a witness making up a story to obtain

money for medical bills, with the FBI revising its materials to

match her anticipated testimony. Either story could have had

a substantial impact on the jury.

This conclusion is buttressed by Supreme Court precedent

highlighting the importance of witness credibility: “The

jury’s estimate of the truthfulness and reliability of a given

witness may well be determinative of guilt or innocence, and

it is upon such subtle factors as the possible interest of the

witness in testifying falsely that a defendant’s life or liberty

may depend.” Napue v. Illinois, 360 U.S. 264, 269 (1959).

“[T]he exposure of a witness’ motivation in testifying is a

proper and important function of the constitutionally

protected right of cross-examination.” Davis v. Alaska,

415 U.S. 308, 316–17 (1974) (citation omitted). Where, as

UNITED STATES V. SEDAGHATY 27

here, important additional grounds for impeachment have

been suppressed, we have held that it “would have added an

entirely new dimension to the jury’s assessment of [the

witness]” such that “‘there is a reasonable probability that the

withheld evidence would have altered at least one juror’s

assessment [of the evidence]’” United States v. Kohring,

637 F.3d 895, 905–06 (9th Cir. 2011) (quoting Price,

566 F.3d at 914). Such is the case here.

Although proof of the precise destination of the funds was

not essential to the conviction, proof of willful misreporting

beyond a reasonable doubt was required. The government’s

briefing before the district court confirms that “the main issue

for the jury was whether the defendant acted willfully in 2000

and 2001 to cover up the true nature of the El Fiki transaction

and his [Seda’s] knowledge of the intended use of that money

by Al Haramain to fund the mujahideen in Chechnya.”

Cabral’s testimony provided the only direct evidence that

Seda intended to conceal the transactions and her testimony

was therefore crucial to the question of willfulness. The

government’s other evidence of motive was circumstantial.

We emphasize the district court’s view: “this was really the

only direct evidence about defendant’s desire to fund the

mujahideen.”

“Impeachment evidence is especially likely to be material

when it impugns the testimony of a witness who,” like

Barbara Cabral here, “is critical to the prosecution’s case.”

Silva v. Brown, 416 F.3d 980, 987 (9th Cir. 2005). It is ironic

that when arguing that Cabral should be allowed to testify,

the government deemed her “critical” but, in its appeal brief,

portrayed her as a “minor witness.” The government’s

attempt to minimize her role because her time on the witness

stand was comparatively brief is not persuasive. In fact, the

28 UNITED STATES V. SEDAGHATY

opposite is true: given the limited scope of her testimony, the

only reason to call Barbara Cabral was because her testimony

was critical to the crucial point of wilfullness. See Weiler v.

United States, 323 U.S. 606, 608 (1945) (“The touchstone is

always credibility; the ultimate measure of testimonial worth

is quality and not quantity.”).

Cabral’s importance is confirmed by her starring role in

the government’s closing argument, where the prosecution

referred to her testimony four separate times. Discussing

jihad and questioning Al-Haramain-U.S.’s status as a charity,

the government stated: “Barbara Cabral . . . testified . . . that

the defendant went to her and said, ‘can we get that money

for the mujahideen in Chechnya?’” Addressing the key issue

of willfulness, the prosecution turned again to Cabral’s

testimony: “The willfulness is represented by . . . after the

Hajj with Cabral, direct funding [of mujahideen].” The

defense also saw Cabral’s testimony as sufficiently damaging

to raise in its closing argument. Counsel stated: “Was there

any call for money to mujahideen after the Hajj? I submit

not. I don’t think that that is reliable. Bottom line is it is

contrary to everything else you know about Pete Seda.”

There is also evidence that Cabral’s testimony in fact had

a significant impact on the jury. Cabral was a particularly

sympathetic witness, as a local resident who had converted to

Islam when she joined the prayer house Seda led and then

later left the faith. The government’s other witnesses were

either significantly less sympathetic, had no direct knowledge

of Seda, or were shown by the defense to have possible bias

or ulterior motives. Cabral appeared to be the government’s

only disinterested witness who was actually close to Seda,

and she testified in a terrorism-tinged prosecution about an

effort to help Muslim guerilla combatants. Notably, as

UNITED STATES V. SEDAGHATY 29

Cabral was leaving the witness stand after completing her

testimony, one of the jurors whispered a compliment to her

on her testimony. The juror was excused, but the fact that the

juror complimented Cabral’s testimony underscores her

impact as a witness.

The prosecution’s earlier description of Cabral’s

testimony as “critical” only confirms this conclusion. Kyles,

514 U.S. at 444 (“The likely damage [of suppressed

evidence] is best understood by taking the word of the

prosecutor . . . .”). Viewing the suppressed evidence

holistically in light of the other evidence, the withheld

evidence “undermines confidence in the outcome of the trial.”

Bagley, 473 U.S. at 678. We conclude that Cabral’s

testimony was important enough that a changed perception of

her credibility creates a reasonable probability of a different

verdict. See United States v. Shaffer, 789 F.2d 682, 688-89

(9th Cir. 1986) (noting that where a witness’s testimony “was

critical to . . . conviction, the jury’s assessment of . . .

credibility was crucial to the outcome of the trial.”). In light

of the “importance of allowing a full and fair

cross-examination of government witnesses whose testimony

is important to the outcome of the case,” Seda has established

a Brady violation that merits a new trial. United States v.

Brooke, 4 F.3d 1480, 1489 (9th Cir. 1993).

II. CIPA CLAIMS

Although this is a tax fraud case, the prosecution

discovered that the government possessed some relevant

classified information, which was handled under CIPA

procedures. Those procedures endeavor to harmonize a

defendant’s right to a fair trial with the government’s right to

protect classified information. See United States v. Abu-

30 UNITED STATES V. SEDAGHATY

Jihaad, 630 F.3d 102, 140 (2d Cir. 2010). While the

government must safeguard classified information in the

interest of national security, “courts must not be remiss in

protecting a defendant’s right to a full and meaningful

presentation of his claim to innocence.” United States v.

Fernandez, 913 F.2d 148, 154 (4th Cir. 1990).

The government filed six motions seeking protection for

classified materials, all of which were granted by the district

court. Seda challenges the court’s handling of these classified

matters, including its approval of an unclassified summary,

the use of ex parte proceedings, and the restriction on defense

counsel’s use of classified material that the defense had

placed in safekeeping.

A. CIPA PROVISIONS

Congress enacted CIPA in 1980 “to help ensure that the

intelligence agencies are subject to the rule of law and to help

strengthen the enforcement of laws designed to protect both

national security and civil liberties.” S. Rep. No. 96-823, at

3 (1980), reprinted in 1980 U.S.C.C.A.N. 4294, 4296. CIPA

does not expand or restrict established principles of discovery

and does not have a substantive impact on the admissibility

of probative evidence. United States v. Johnson, 139 F.3d

1359, 1365 (11th Cir. 1998); S. Rep. No. 96-823 at 8,

reprinted in 1980 U.S.C.C.A.N. at 4301–03. Instead, CIPA

“establishes procedures for handling classified information in

criminal cases,” United States v. Aref, 533 F.3d 72, 78 (2d

Cir. 2008), so that district courts may rule “on questions of

admissibility involving classified information before

introduction of the evidence in open court,” United States v.

Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988) (citation

omitted). Two sections of CIPA are relevant here: § 4

UNITED STATES V. SEDAGHATY 31

governs the pretrial discovery of classified information by

defendants, and § 6 sets out procedures to safeguard classified

information, both before and during trial.

CIPA § 4 was intended “to clarify the court’s powers

under Fed. R. Crim. P. 16(d)(1) to deny or restrict discovery

in order to protect national security.”9 Sarkissian, 841 F.2d

at 965; S. Rep. No. 96-823 at 6, reprinted in 1980

U.S.C.C.A.N. at 4299. Section 4 provides that:

[t]he court, upon a sufficient showing, may

authorize the United States to delete specified

items of classified information from

documents to be made available to the

defendant through discovery under the

Federal Rules of Criminal Procedure, to

substitute a summary of the information for

such classified documents, or to substitute a

statement admitting relevant facts that the

classified information would tend to prove.

18 U.S.C. app. 3 § 4.

9

Federal Rule of Criminal Procedure 16(d)(1) provides that:

At any time the court may, for good cause, deny,

restrict, or defer discovery or inspection, or grant other

appropriate relief. The court may permit a party to show

good cause by a written statement that the court will

inspect ex parte. If relief is granted, the court must

preserve the entire text of the party’s statement under

seal.

Fed. R. Crim. P. 16(d)(1).

32 UNITED STATES V. SEDAGHATY

When considering a motion to withhold classified

information from discovery, a district court must first

determine whether, pursuant to the Federal Rules of Criminal

Procedure, statute, or the common law, the information at

issue is discoverable at all. United States v. Rewald, 889 F.2d

836, 847–48 (9th Cir. 1989). If the material at issue is

discoverable, the court must next determine whether the

government has made a formal claim of the state secrets

privilege, “‘lodged by the head of the department which has

actual control over the matter, after actual personal

consideration by that officer.’” United States v. Klimavicius-

Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (quoting United

States v. Reynolds, 345 U.S. 1, 7–8 (1953)). Once a court

concludes that the material is discoverable and that the state

secrets privilege applies, then the court must determine

whether the evidence is “relevant and helpful to the defense

of an accused.” Roviaro v. United States, 353 U.S. 53, 60–61

(1957); United States v. Gurolla, 333 F.3d 944, 951 (9th Cir.

2003). If the information meets the “relevant and helpful”

test, CIPA § 4 empowers the court to determine the terms of

discovery, if any. 18 U.S.C. app. 3 § 4.

CIPA § 6, which applies to both pre-trial and trial

proceedings, guides the procedures for making

“determinations concerning the use, relevance, or

admissibility of classified information. . . .” 18 U.S.C. app.

3 § 6(a). Specifically, CIPA § 6(c)(1) deals with substitutions

and provides that a court may authorize a substitution for

classified material in the form of a statement or summary “if

it finds that the statement or summary will provide the

defendant with substantially the same ability to make his

defense as would disclosure of the specific classified

information.” 18 U.S.C. app. 3 § 6(c)(1). This requirement

arises out of the Constitution’s guarantee that all criminal

UNITED STATES V. SEDAGHATY 33

defendants must have “‘a meaningful opportunity to present

a complete defense.’” Holmes v. South Carolina, 547 U.S.

319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683,

690 (1986)). Indeed, the “need to develop all relevant facts

in the adversary system is both fundamental and

comprehensive.” United States v. Nixon, 418 U.S. 683, 709

(1974).

The substitution need not be of “precise, concrete

equivalence,” and the “fact that insignificant tactical

advantages could accrue to the defendant by the use of the

specified classified information should not preclude the court

from ordering alternative disclosure.” H.R. Rep. No.

96-1436, at 12-13 (1980) (Conf. Rep.), reprinted in 1980

U.S.C.C.A.N. at 4310–11. Nevertheless, the fundamental

purpose of a substitution under CIPA is “to place the

defendant, as nearly as possible, in the position he would be

in if the classified information . . . were available to him.”

United States v. Moussaoui, 382 F.3d 453, 477 (4th Cir.

2004); see also United States v. Rezaq, 134 F.3d 1121, 1143

(D.C. Cir. 1998) (approving substitutions where “[n]o

information was omitted from [them] that might have been

helpful to [the] defense, and the discoverable documents had

no unclassified features that might have been disclosed”).

B. THE SUBSTITUTION

The government acknowledged in advance of trial that it

had classified information that was helpful to Seda’s defense.

The government proposed, and the court authorized, the

following unclassified summary of classified material

responsive to Seda’s discovery requests:

34 UNITED STATES V. SEDAGHATY

The U.S. Government obtained information

that Sami ‘Abd Al ‘Aziz Al-Sanad worked

during 2000 and 2001 for the Al-Haramain

organization and was responsible for

providing currency supplied by Al-Haramain,

including the currency obtained by

codefendant Soliman Al-Buthe from Al-

Haramain USA, to a representative of

Muhammad Al-Sayf, aka Abu Umar, to be

smuggled into Chechnya. Al-Sanad has

claimed that the monies he provided to Al-

Sayf’s representative were destined for needy

Chechen families.

Seda objected to the substitution and asked either for “an

uneditorialized summary” or for the production of the

underlying material. After careful review of the materials at

issue, we conclude that the substitution’s language unfairly

colored presentation of the information and, even more

problematic, that the substitution omitted facts helpful to

Seda’s defense. Further detail and analysis of the substitution

is contained in the classified opinion with respect to the

substitution. The substitution is statutorily inadequate

because it does not provide Seda with “substantially the same

ability to make his defense as would disclosure of the specific

classified information.” 18 U.S.C. app. 3 § 6(c)(1).

The brief summary contains both inculpatory and

exculpatory information. On the one hand, it supports the

government’s theory that the El-Fiki donation went to fund

the mujahideen in Chechnya because it indicates that Al-

Sanad gave the money to a representative of Al-Sayf, who the

government established at trial was a religious leader

associated with the Chechen mujahideen at the time. On the

UNITED STATES V. SEDAGHATY 35

other hand, it supports Seda’s claim that, as far as he knew,

the donation was to be used to fund humanitarian relief.

The wording of the summary bolsters the inculpatory

section while discrediting the exculpatory section. For

example, the first sentence presents Al-Sanad’s transfer of the

El-Fiki donation to Al-Sayf’s representative as a fact about

which the government has “obtained information.” The

second sentence, by contrast, embeds skepticism into Al-

Sanad’s exculpatory statement about the destination and use

of the funds, dismissing it as something Al-Sanad “has

claimed.” This is but one example of the neutrality

deficiencies in the statement. It is no surprise that Seda

ultimately chose not to use the substitution at trial.

Because the underlying documents are classified, we are

constrained in our comments about the summary. But it is a

fundamental principle underlying CIPA that the summary

should be evenhanded, worded in a neutral fashion and not

tilted or shaded to the government’s advantage. See S. Rep.

No. 96-823 at 9 (1980), reprinted in 1980 U.S.C.C.A.N. at

4302-03 (stating that the “judge should ensure that a

substitution . . . is crafted so that the Government obtains no

unfair advantage in the trial”).

In isolation, the characterization of the evidence may not

be a sufficient basis to reject the substitution. More

troubling, however, is the exclusion from the summary of

further information that is helpful to Seda’s defense. The

classified nature of the material highlights the awkward

nature of our review: Seda is forced to argue for the relevance

of the material without actually knowing what the classified

record contains, while we know what it contains but are

unable to describe it on the public record. See United States

36 UNITED STATES V. SEDAGHATY

v. Amawi, 695 F.3d 457, 471 (6th Cir. 2012) (without the

benefit of “the adversarial process, we must place ourselves

in the shoes of defense counsel, the very ones that cannot see

the classified record, and act with a view to their interests”)

(citation omitted).10 We can say, however, that the summary

excludes exculpatory information and fails to provide crucial

context for certain information that it does convey.

Although there is no indication of bad faith, the

government appears to have looked with tunnel vision at

limited issues that it believed were relevant. Even granting

the district court wide latitude in its evidentiary decision-

making, as we must, we conclude that the summary is

inadequate not only because of its slanted wording but more

fundamentally because it is incomplete. United States v.

Clegg (“Clegg I”), 740 F.2d 16, 18 (9th Cir. 1984)

(upholding rejection of a substitution where the classified

documents “are relevant to the development of a possible

defense” and the “government’s proposed summaries of the

materials are inadequate”). It would be illogical to conclude

that a substitution that excludes non-cumulative exculpatory

information could “provide the defendant with substantially

the same ability to make his defense as would disclosure of

the specific classified information” as required by CIPA § 6.

18 U.S.C. app. 3 § 6(c)(1); see also Moussaoui, 382 F.3d at

478–79 (rejecting proposed substitutions that failed to include

exculpatory information); Fernandez, 913 F.2d at 158

(upholding rejection of proposed substitutions because the

“substitutions would have required the jury to judge [the

defendant’s] role . . . , and thus the truth of his statements

about it, in a contextual vacuum”).

10

The defense did file an ex parte submission outlining its theory of the

defense to aid the court in its review of the classified material.

UNITED STATES V. SEDAGHATY 37

The dissent attempts to minimize the importance of the

substitution by taking the position that the evidence would be

inadmissible hearsay and that Seda waived his objection to

the substitution. The dissent overlooks the most important

fact about the substitution’s admissibility—the government

agreed to stipulate to its admission at trial. The government

did not argue that the substitution was hearsay or otherwise

inadmissible. Rather, recognizing that it was in a difficult

position with respect to the possession of exculpatory

information and Seda’s right to a fair trial, the government

made the calculated move to agree to stipulate to the

admission of the substitution as a trial exhibit. Not

surprisingly, in the face of a slanted and unhelpful summary,

Seda’s counsel ultimately withdrew the substitution as a

stipulated exhibit just before trial. But defense counsel ought

not be put in a Catch-22 situation whereby it has to accept the

government’s deficient summary or none at all.

The dissent also manufactures an argument not presented

by the government—that Seda waived his objections to the

substitution.11 On August 20, 2010, Seda filed objections to

the summary substitution and moved for “an uneditorialized

summary.” Without being able to access any of the

underlying documents, Seda objected that the summary

omitted relevant and helpful information about the individual

to whom Al-Sanad transferred the funds. He also objected to

the fact that the summary included language that questioned

Al-Sanad’s veracity and argued that the defense should be

entitled to offer the exculpatory statements actually provided

by Al-Sanad. Alternatively, Seda moved for access to more

complete unclassified versions of the underlying materials on

11

The government simply replied to Seda’s objections on the merits.

38 UNITED STATES V. SEDAGHATY

which the summary was presumably based. Seda never

withdrew or waived this objection.

At a hearing the week before trial, the defense reiterated

its objections to the summary substitution. The government

replied that it would stipulate to the admission of the

summary, but would not revise or alter it, saying, “we think

it’s either all or nothing.” In response, the court said only,

“Okay,” and moved on to another topic. Later in that same

hearing, as the judge was making final rulings on the exhibits,

the government reiterated its position with regard to the

summary and stated that the only decision was whether the

defense wanted to accept the summary in its current form or

not. The defense responded, “At this time, Your Honor, we

would not be offering it. We’ve pointed out what we believe

needs to be done.” (emphasis added). The defense withdrew

the exhibit in that form, at that time, but explicitly referenced

and reiterated its objection. Seda did not withdraw or waive

his objection to the court’s approval of the government’s

summary substitution. Nor could Seda’s counsel have been

expected to offer an intelligent substitution or alternative

language, since he did not have access to the underlying

classified documents. Having been unsuccessful at

challenging the substitution before trial, Seda’s recourse is in

this appeal.

We are fully cognizant of the delicate task entrusted to the

district court in matters involving classified information. To

that end, CIPA lays out a defined process for substitutions

such that, when classified information is relevant and helpful

to his defense, the defendant should be placed, “as nearly as

possible, in the position he would be in if the classified

information were available to him.” Moussaoui, 382 F.3d at

477; see also, 18 U.S.C. app. 3 § 6(c)(1). In the end, the

UNITED STATES V. SEDAGHATY 39

inadequate substitution interfered with Seda’s ability to

present a complete defense. Although the government argues

that substitution was sufficient, it does not make any

argument that the facts omitted are harmless. See United

States v. Boulware, 384 F.3d 794, 898 (9th Cir. 2004).

C. OTHER CIPA CLAIMS

Seda raises four other claims related to CIPA: the ex parte

nature of many of the CIPA proceedings; the potential

withholding of additional classified information that is

relevant and helpful to the defense; the exclusion of a

classified document in his counsel’s possession; and the

claim that classified evidence reveals the search warrant was

prompted by prior illegal surveillance.

1. Ex Parte Proceedings

Seda’s broadside challenge to the in camera and ex parte

proceedings is a battle already lost in the federal courts.12

Long ago we underscored that “[e]x parte hearings are

generally disfavored,” but held that “[i]n a case involving

classified documents, however, ex parte, in camera hearings

in which government counsel participates to the exclusion of

defense counsel are part of the process that the district court

may use in order to decide the relevancy of the information.”

Klimavicius-Viloria, 144 F.3d at 1261.

12

Seda moved to strike the classified, ex parte appellate briefs and

excerpts of record filed by the government or, in the alternative, to request

access for his security-cleared counsel and expert to the documents. We

denied the motion for the same reasons discussed below with regard to the

requirements of CIPA. We reviewed the classified briefs and excerpts of

record from both parties.

40 UNITED STATES V. SEDAGHATY

Seda especially protests three occasions during trial in

which the court held closed hearings with cleared counsel for

both parties and then excused defense counsel and met ex

parte with the prosecutors.13 These brief ex parte hearings,

which directly followed the hearings with defense counsel,

were held at the court’s request to clarify issues related to the

court’s prior CIPA rulings. CIPA does not limit the court’s

discretion to hold an ex parte conference if it is required by

some overriding necessity such as the necessity to protect

sensitive information related to national security, as it was

here. See United States v. Thompson, 827 F.2d 1254, 1258

(9th Cir. 1987) (recognizing that “situations where the court

acts with the benefit of only one side’s presentation are

uneasy compromises with some overriding necessity, such as

the need to act quickly or to keep sensitive information from

the opposing party”).

Apart from his general objections to the ex parte

proceedings, Seda claims that he should have received more

fulsome notice of the subject of the filings and that his

security-cleared counsel should have had access to the

classified documents in discovery. The government filed six

notices informing Seda that it had filed in camera, ex parte

submissions to the court. All of these notices apprised Seda

that the submissions were filed pursuant to CIPA § 4, thus

notifying him that the government requested authorization

from the court to withhold items from discovery that were not

relevant and helpful to Seda’s defense.

13

For whatever reason, the docket sheet does not reflect these closed

hearings. The hearings should have been docketed but the failure to do so

is harmless in light of defense counsel’s knowledge of the hearings and

the fact that the transcripts are available for appellate review.

UNITED STATES V. SEDAGHATY 41

Seda is of the view that the failure of the notices to

describe in unclassified terms the nature of what had been

provided to the court makes the filings inadequate. Both

Federal Rule of Criminal Procedure 16(d)(1) and § 4 of

CIPA, however, explicitly provide for ex parte filings and do

not require that detailed notice of the content of the filing be

provided. Fed. R. Crim. P. 16(d)(1) (“The court may permit

a party to show good cause by a written statement that the

court will inspect ex parte.”); 18 U.S.C. app. 3 § 4 (“The

court may permit the United States to make a request for such

authorization in the form of a written statement to be

inspected by the court alone.”). The notices complied with

CIPA and were constitutionally adequate—Seda has no due

process right to receive a description of materials in the

government’s possession that are not discoverable.14 See

United States v. Mejia, 448 F.3d 436, 458 (D.C. Cir. 2006)

(noting that, in the context of CIPA, as in other discovery in

criminal cases, the defendant is “‘not entitled to access to any

of the evidence reviewed by the court . . . to assist in his

argument’ that it should be disclosed”) (citation omitted).

Similarly, the simple fact that defense counsel held security

clearances does not mean that the attorneys were entitled to

access the government’s classified filings. See United States

v. El-Mezain, 664 F.3d 467, 568 (5th Cir. 2011) (approving,

in the context of the Foreign Intelligence Surveillance Act,

denial of discovery to cleared defense counsel because of the

government’s substantial interest in maintaining secrecy).

14

For the limited material that was discoverable, CIPA § 4 allows the

government to either turn over the original material or create an adequate

substitution. 18 U.S.C. app. 3 § 4. An adequate substitution obviates the

need for counsel to access the underlying classified material itself

(although the government may share it with security-cleared defense

counsel to craft an appropriate substitution if the nature and classification

of the material permits and the government so chooses).

42 UNITED STATES V. SEDAGHATY

In sum, the ex parte proceedings were authorized by

CIPA, Federal Rule of Criminal Procedure 16(d)(1), and the

compelling justification and overriding necessity required by

common law. The proceedings did not violate Seda’s rights.

Our careful review of the classified record confirms that all

of the classified filings and transcripts of all of the hearings,

including the classified ex parte hearings, have been

preserved and made available to us on appeal. The district

judge, now retired, was meticulous in his review of the

classified material.

2. Relevant and Helpful Information

The district court did not improperly withhold relevant

and helpful information from discovery under CIPA § 4 or

Federal Rule of Criminal Procedure 16(d)(1). See Gurolla,

333 F.3d at 951. We have reviewed the government’s

classified submissions in their entirety. The bulk of the

information the government sought to withhold was not

discoverable. Apart from the classified material underlying

the inadequate substitution discussed above, those few items

that were discoverable were not relevant and helpful to the

defense. The defense provided an analysis by Colonel Lang,

former head of Human Intelligence for the Department of

Defense. Although we credit Colonel Lang’s experience and

expertise, his speculation concerning the documents (to which

he did not have access) is just that.

3. Classified Material in Seda’s Possession

Before trial, Seda’s counsel came into possession of a

classified document. Counsel took appropriate steps to

safeguard access and negotiated an agreement to turn the

material over to a Classified Information Security Officer for

UNITED STATES V. SEDAGHATY 43

placement in a secure facility in Washington, D.C. After the

district court issued what Seda terms a “gag order”—

prohibiting counsel from referencing or disclosing the

document—Seda sought reconsideration of that order six

times. Seda’s counsel also gave notice under CIPA § 5 of its

intent to use the classified information at trial. The district

court reviewed the material in camera, determined that the

material was not relevant to the charges, and denied

reconsideration of the protective order.15 Upon reviewing the

document and the district court’s in camera determinations

with a fresh eye, we affirm the district court’s determination

and conclude that there was no violation of CIPA §§ 5–6.

See Rewald, 889 F.2d at 847–48 (“[W]e decline [the

defendant’s] invitation to undertake an all-encompassing

analysis of this issue, and simply confine our review to the

relevancy and admissibility of the classified materials. . . .”).

The district court’s limited protective order did not violate

Seda’s right to counsel or his right to present a defense. See

Moussaoui, 591 F.3d at 289 (“The right to communicate with

counsel at any point in the proceedings is not absolute.”).

The order was justified by compelling national security

concerns and the restrictions were limited to a single

document that was not relevant to the charges. See Morgan

v. Bennett, 204 F.3d 360, 367 (2d Cir. 2000) (“[T]he court

should not, absent an important need to protect a

15

Seda also raises a concern that government attorneys or agents

participated in the district court’s review of the material that was placed

in the secure facility. The records and representations of the Classified

Information Security Officers entrusted with the material reflect that no

one has accessed the documents except the court and the Classified

Information Security Officer on one occasion, and the defense counsel

together with the Classified Information Security Officer, on another

occasion.

44 UNITED STATES V. SEDAGHATY

countervailing interest, restrict the defendant’s ability to

consult with his attorney, but . . . when such a need is present

and is difficult to fulfill in other ways, a carefully tailored,

limited restriction on the defendant’s right to consult counsel

is permissible.”).

4. Fruits of Unlawful Surveillance

Seda speculates that the classified materials contain

evidence of prior unlawful surveillance that led to the search

warrant application. The record does not support a claim of

taint. See Murray v. United States, 487 U.S. 533, 542 (1988).

The affidavit attached to the warrant detailed the

investigation that established probable cause for the search.

The investigative interviews, grand jury subpoenas, and other

lawful investigative techniques that made up that

investigation were the legitimate basis for the decision to seek

the warrant.

III. SEIZURE BEYOND THE SEARCH WARRANT

Government agents searched Seda’s home in 2004

pursuant to a valid search warrant authorizing the seizure of

a limited set of documents: financial records and

communications related to the preparation of the 2000 tax

return. The government emerged from the search, however,

with much more: news articles, records of visits to various

websites about Chechnya, photographs of Chechen war

scenes, and other documents that were introduced at trial as

evidence of Seda’s desire to fund the Chechen mujahideen.

The Fourth Amendment famously protects the “right of

the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures. . . .” U.S.

UNITED STATES V. SEDAGHATY 45

Const. amend. IV. To effectuate this right, it provides that

“no Warrants shall issue, but upon probable cause, supported

by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.” Id.

The question we consider de novo is whether the search was

unreasonable because agents relied on the affidavit in support

of the warrant to expand the authorized scope of items

detailed in the warrant itself. See United States v. Hurd,

499 F.3d 963, 965 (9th Cir. 2007) (considering whether a

search is within the scope of a warrant is a question of law

reviewed de novo).

The search warrant incorporated two attachments (A and

B) and an affidavit supporting probable cause for the search.

See United States v. SDI Future Health, Inc., 568 F.3d 684,

699–701 (9th Cir. 2009) (“A warrant expressly incorporates

an affidavit when it uses ‘suitable words of reference.’”)

(quoting United States v. Towne, 997 F.2d 537, 545 (9th

Cir.1993)). The affidavit described Al-Haramain-U.S. and its

structure, detailed facts about the El-Fiki donation, Al-

Haramain-U.S.’s purchase of the Ashland and Springfield

prayer houses, and inconsistencies on the 2000 tax return.

The affidavit also included background information from

news articles about the conflict in Chechnya, investigations

into connections between several Al-Haramain branches and

the funding of terrorism, and statements of Al-Haramain’s

former director about funding for the Chechen mujahideen.

Attachment A described the location of Seda’s home (also

Al-Haramain-U.S. headquarters). Attachment B listed five

46 UNITED STATES V. SEDAGHATY

individuals and five entities associated with the violations and

it detailed the items to be seized:16

Evidence Relating to the Tax Violation

Evidence concerning the subscription to a

false Form 990 Tax Return, in violation of

Title 26, United States Code, Section 7206(1),

as described in the attached affidavit, for the

year 2000, limited to the following:

Records and communications, including

electronic records and communications

involving the individuals or entities above,

pertaining to the preparation of an IRS Form

990 for the year 2000;

Records relating to bank accounts, bank

transactions, bank records, safe deposit

records, asset purchases or sales, other

financial transactions, and donor and donee

lists, involving the year 2000 which relate to

the individuals or entities above; and

16

The five individuals listed were: Pirouz Sedaghaty, Soliman Al-Buthe,

Aqeel Al-Aqeel, Mansour Al-Kadi, Mahmoud Talaat El-Fiki. The five

entities listed were: Al Haramain; Al Haramain Foundation; Al Haramain

Islamic Foundation, Inc.; Al Haramain Headquarters aka Al Haramain

Riyadh.

UNITED STATES V. SEDAGHATY 47

Records relating to credit card accounts,

records, and transactions involving the year

2000, which relate to the individuals or

entities above.

(emphasis added)17

The warrant contained similar language for the currency

reporting (CMIR) violation, expressly limiting the evidence

seizure to “records of financial transactions and

communications” between October 1997 and February 2003

pertaining to the same named individuals and entities.

Neither Attachment A nor B referenced Chechnya or the

mujahideen.

Attachment B also permitted the government to review

computer equipment to determine whether it would be

practical to search or copy it on site and, if not, allowed the

government to remove the computers in order to “extract and

seize any data that falls within the list of items to be seized”

described above. Attachment B required the government to

return any data outside of that list within sixty days.

Agents removed nine computers from the house, and

computer forensic experts used an evolving list of search

terms to comb through the computers for useful materials. In

addition to financial records and communications describing

the preparation of the tax return, the agents seized hundreds

of other items, including internal Al-Haramain-U.S.

organizational documents, news articles, records of internet

17

The dissent selectively quotes from the warrant to support its broad

reading. In fact, the plain language of the warrant explicitly limits the

items to be seized more narrowly.

48 UNITED STATES V. SEDAGHATY

access to various websites about Chechnya, webpages sent to

Al-Haramain-U.S. by various listservs, photographs of

Chechen war scenes, and articles about Seda’s civic life.

Seda moved to stop the searches of electronic media and to

suppress the evidence that was beyond the scope of the

warrant.18

The district court denied Seda’s motion, reasoning that

the “crimes charged require proof of intent and thus records

beyond simple financial records were appropriately seized,

such as evidence of support of the efforts of the Chechnyan

mujahideen.” The district court cited SDI Future Health,

568 F.3d at 699, for the proposition that an affidavit

incorporated in the warrant is “potentially curative of any

defects.”

Without doubt, the warrant references the affidavit, but

the question is to what effect. The plain meaning of the text

provides the answer: the warrant seeks “evidence concerning

the” tax and currency reporting violations “described in the

attached affidavit.” The affidavit describes in separate

sections both the willful filing of a false return and the CMIR

violations, along with the requirements for each and evidence

supporting probable cause for the search. Adopting the

commonsense reading that the affidavit was incorporated for

the specific purpose of describing the offenses and

establishing probable cause does not require a hyper-technical

parsing of the language.

18

Seda consistently argued that the seizure was unlawful because it

exceeded the scope of the warrant. At oral argument, Seda’s counsel

argued that the seizure exceeded the warrant’s scope even if the affidavit

was incorporated into the warrant.

UNITED STATES V. SEDAGHATY 49

The plain text of the warrant likewise clearly delineates

what is to be seized. Under the heading “ITEMS TO BE

SEIZED,” Attachment B states that “[e]vidence concerning

the” tax violation is “limited to the following,” and then

discusses tax documents, financial records, and associated

communications “pertaining to the preparation of an IRS

Form 990 for the year 2000.” “Evidence concerning the”

CMIR charge is similarly limited to records of financial

transactions and associated communications between the

listed individuals from 1997 to 2003. The only reference in

the affidavit to the evidence sought is the concluding request

for authorization to search “for the evidence listed in

Attachment B and to seize the same.” Therefore, there is no

reason to read the affidavit as defining the scope of the items

to be seized. Instead, that list is contained in Attachment B

to the warrant.19

Even if the affidavit is understood to describe evidence

“relevant” to the violations, that does not authorize the far

flung scope of the agents’ search. Relevance, of course, is

not the standard; the language of the warrant controls. United

States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982) (“As a

19

The affidavit, in fact, is consistent with a limited authorization

focusing on financial records and communications pertaining to the 2000

tax return and the CMIR: in describing documents likely to be found at

Al-Haramain-U.S.’s Ashland office in order to establish probable cause

for the search, it lists “financial records” such as “correspondence,

receipts, negotiated instruments, contracts, bank statements and other

records,” plus documentation concerning “income, expenses, asset

purchases, communications with tax preparers and other officers.” The

affidavit specifically references an interest in “transaction details from the

organization’s Quickbooks program for the 1999 and 2000 years.” The

magistrate judge could not have known from the affidavit that the agents

instead intended to seize records of Seda’s internet browsing of religious

websites or his correspondence with friends and co-workers.

50 UNITED STATES V. SEDAGHATY

general rule, in searches made pursuant to warrants only the

specifically enumerated items may be seized.”) (citation

omitted). The warrant was expressly limited in scope and did

not include items such as the records of visits to websites

about Chechnya, the communications unrelated to the

preparation of the tax return with individuals never named or

referenced in the affidavit, or the general background

information about the Chechen mujahideen that were seized.

The dissent suggests that all of this evidence is necessary to

establish the required mens rea. But it is not authorized by

the warrant. Upon failing to find evidence of willfulness in

the records pertaining to the preparation of the tax return that

were authorized to be seized, the government should not be

able to comb through Seda’s computers plucking out new

forms of evidence that the investigating agents have decided

may be useful, at least not without obtaining a new warrant.

See United States v. Heldt, 668 F.2d 1238, 1266 (D.C. Cir.

1981) (“[T]he particularity requirement of the fourth

amendment prevents the seizure of one thing under a warrant

describing another. As to what is to be taken, nothing is left

to the discretion of the officer executing the warrant.”)

(internal quotation marks and citation omitted). In light of

the specific limitations of the warrant, it is difficult to

embrace the government’s justification that the search terms

“bore a logical connection to the affidavit” and that all of the

materials seized “were relevant given the nature of the

charges.”

To adopt the government’s approach would permit a

kitchen sink probable cause affidavit to overrule the express

scope limitations of the warrant itself. The issue here is not

whether the warrant incorporated the affidavit. That is not in

doubt—instead the issue is the scope of the reference. May

a broad ranging probable cause affidavit serve to expand the

UNITED STATES V. SEDAGHATY 51

express limitations imposed by a magistrate in issuing the

warrant itself? We believe the answer is no. The affidavit as

a whole cannot trump a limited warrant.

Our cases have not dealt with this situation directly.

Rather, we have considered cases in which an affidavit could

cure a defective warrant. That circumstance has arisen when

there is a clerical error or when the warrant is overbroad but

could be cured by a particularized affidavit. Towne, 997 F.2d

at 544 (affirming the “well-settled principle that a warrant’s

overbreadth can be cured by an accompanying affidavit that

more particularly describes the items to be seized”) (citation

omitted); United States v. Bowler, 561 F.2d 1323, 1326 (9th

Cir. 1977) (holding that the presence of the correct address in

the sworn affidavit could correct a typographical error in the

warrant). Here, however, there is no error in the warrant for

the affidavit to cure. The error is with the seizure, which

exceeded the warrant’s scope. See United States v. Angelos,

433 F.3d 738, 746 (10th Cir. 2006) (noting that “it is apparent

that the problem lies in the execution, and not the

constitutionality, of the search warrant”). We have never

held that an affidavit could expand the scope of a legitimate

warrant beyond its express limitations nor do we do so here.

Our approach resonates with the D.C. Circuit’s treatment

of a warrant in United States v. Kaye, 432 F.2d 647, 649

(1970): “It is the description in the search warrant, not the

language of the affidavit, which determines the place to be

searched.” The same principle—that it is the warrant and not

the affidavit that controls—applies equally to the items to be

seized. The court in Kaye explicitly rejected the argument

that “the scope of the search warrant was determined or

broadened by the . . . supporting affidavit.” Id.; see also

Angelos, 433 F.3d at 746 (concluding that a search congruent

52 UNITED STATES V. SEDAGHATY

with the affidavit but beyond the explicit terms of the warrant

exceeded the warrant’s scope).

This approach is also supported by the Third Circuit’s

decision in Doe v. Groody, 361 F.3d 232, 240 (3d Cir. 2004).

Although the affidavit in Groody was not incorporated into

the warrant, the court reasoned more generally that while an

affidavit can be used to cure an otherwise overbroad warrant

by narrowing its scope, an affidavit cannot be relied upon to

authorize a search beyond the scope of a judicially authorized

warrant. Id. at 241. (“Bluntly, it is one thing if officers use

less than the authority erroneously granted by a judge [by

relying on an affidavit to narrow the warrant]. It is quite

another if officers go beyond the authority granted by the

judge.”) (emphasis added). Indeed, “the warrant provides the

license to search, not the affidavit.” Id.

The supervising agent here may well have believed that

the affidavit took precedence over the warrant, but the

subjective state of mind of the officer executing the warrant

is not material to our initial inquiry. United States v. Ewain,

88 F.3d 689, 694 (9th Cir. 1996) (“A policeman’s pure heart

does not entitle him to exceed the scope of a search

warrant . . . .”). Any other conclusion would elevate the

author of the incorporated probable cause affidavit over the

judge issuing the warrant. Cf. Johnson v. United States,

333 U.S. 10, 13–14 (1948) (noting that the Fourth

Amendment requires that any inferences from the evidence be

“drawn by a neutral and detached magistrate instead of being

judged by the officer engaged in the often competitive

enterprise of ferreting out crime”).

The district court determined that the “fact that a further

warrant was requested when information possibly relating to

UNITED STATES V. SEDAGHATY 53

a separate crime was discovered belies the allegations that the

search was a general fishing expedition.” That may be. But

the fact that the government sought a separate warrant for

some materials outside the scope of the warrant does not

somehow countenance the seizure of other materials outside

its scope. Cf. United States v. Crozier, 777 F.2d 1376, 1381

(9th Cir. 1985) (“A search must be limited to the terms of the

warrant.”). To the extent the agents wanted to seize relevant

information beyond the scope of the warrant, they should

have sought a further warrant.

The Supreme Court has emphasized that “there are grave

dangers inherent in executing a warrant authorizing a search

and seizure of a person’s papers” as opposed to physical

objects, and that given the danger of coming across papers

that are not authorized to be seized, “responsible officials,

including judicial officials, must take care to assure that

[searches] are conducted in a manner that minimizes

unwarranted intrusions upon privacy.” Andresen v.

Maryland, 427 U.S. 463, 482 n.11 (1976). The search

warrant here was properly issued and clearly stated the

locations to be searched and the items that could be seized.

The government agents responsible did not minimize

intrusions on privacy, however, but instead seized papers and

records beyond those the warrant authorized. See United

States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978)

(concluding that although the warrant was sufficiently

particular, the executing “agents did not confine their search

in good faith to the objects of the warrant, and that while

purporting to execute it, they substantially exceeded any

reasonable interpretation of its provisions” ). Unlike cases

where the magistrate judge erred in filling out the warrant but

the government reasonably relied on the judge’s approval,

here the magistrate judge properly authorized the warrant but

54 UNITED STATES V. SEDAGHATY

the agents did not follow it. See Hurd, 499 F.3d at 969

(holding that officers reasonably relied on the warrant, though

judge inadvertently failed to initial the appropriate line);

United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002)

(determining that magistrate’s error in post-dating one line of

the warrant did not require suppression of the evidence

seized).

The government’s seizure of items beyond the terms of

the warrant violated the Fourth Amendment. In the absence

of “flagrant disregard for the terms of the warrant,” a district

court need not “suppress all of the evidence, including

evidence that was not tainted by the violation.” United States

v. Chen, 979 F.2d 714, 717 (9th Cir. 1992) (internal quotation

marks omitted). “Th[e] extraordinary remedy [of suppressing

evidence seized within the scope of the warrant] should be

used only when the violations of the warrant’s requirements

are so extreme that the search is essentially transformed into

an impermissible general search.” Id.

Because the record does not reflect a flagrant general

search, we reject Seda’s contention that the violation requires

suppression of all of the evidence seized. However, the

exclusionary rule generally bars admission of the evidence

seized that was beyond the scope of the warrant. See United

States v. Payton, 573 F.3d 859, 864 (9th Cir. 2009) (reversing

conviction where “search of [defendant’s] computer without

explicit authorization in the warrant exceeded the scope of

that warrant”). The illegal seizure of this evidence was not

without consequence, as much of the illegally seized evidence

was admitted to bolster the government’s theory that Seda

sympathized with and sought to aid the mujahideen. Cf.

Tamura, 694 F.2d at 597 (declining to order a new trial

where, despite unlawful seizure of items outside the scope of

UNITED STATES V. SEDAGHATY 55

the warrant, “[a]ll of the documents introduced at trial were

seized and retained lawfully because described in and

therefore taken pursuant to the valid search warrant”).

The district court erroneously concluded that the items

seized were within the scope of the warrant, and thus did not

consider the applicability of the exclusionary rule. Nor did

the parties brief this issue on appeal. For this reason, we part

company with the dissent and conclude that it is not

appropriate for us to make the initial determination of good

faith on appeal. On remand, the district court should

determine in the first instance which specific items seized can

be understood to be “records or communications pertaining

to the preparation of an IRS Form 990 for the year 2000” or

otherwise authorized by Attachment B and whether the

seizure of items beyond that scope implicates the principles

of United States v. Leon, 468 U.S. 897 (1984), and Herring

v. United States, 555 U.S. 135, 140–48 (2009).

IV. OTHER CLAIMS

A. EVIDENTIARY ISSUES

1. Receipts

In 2004, Seda turned over a number of records to the

government, including four receipts. Seda claimed that two

of those receipts recorded his transfer of the El-Fiki donation

to Al-Buthe (termed AHIF-2 and AHIF-3) and the other two

receipts recorded Al-Buthe’s transfer of the donation to Al-

Haramain in Riyadh (rejected defense exhibits 704 and 705).

Seda was unable to authenticate any of these four exhibits.

56 UNITED STATES V. SEDAGHATY

The district court properly excluded exhibits 704 and 705

because they were unauthenticated. Fed. R. Evid. 901; Orr

v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir.

2002) (“[a]uthentication is a condition precedent to

admissibility”) (internal quotation marks and citation

omitted). At trial, the government introduced the other

receipts—AHIF-2 and AHIF-3—through multiple witnesses,

not for their substance, but so it could argue the receipts were

fabricated. The district court’s admission of these exhibits

“not for their truth” but to corroborate the fabrication theory,

was not an abuse of discretion nor did it deprive Seda of a fair

trial. The hearsay rule does not apply to evidence offered “to

establish a foundation for later showing, through other

admissible evidence, that it was false.” See United States v.

Knigge, 832 F.2d 1100, 1108 (9th Cir. 1988) (quoting

Anderson v. United States, 417 U.S. 211, 220 (1974)).

Contrary to Seda’s assertion, the limited admission of these

receipts did not preclude him from arguing his theory to the

jury.

2. Distortion of the Fact-Finding Process

Seda claims that he suffered from an uneven playing field

because the government used its resources to obtain foreign

evidence that was inculpatory but failed to assist him in

obtaining exculpatory evidence, specifically bank records

from Saudi Arabia and depositions from Egypt. The net

result was, according to Seda, a distortion of the evidence.

Seda analogizes his case to United States v. Westerdahl,

945 F.2d 1083, 1086 (9th Cir. 1991), in which we held that

even though a defendant may not compel the government to

offer use immunity to a witness, intentional distortion of the

fact-finding process by denying immunity may constitute

prosecutorial misconduct. See also United States v. Straub,

UNITED STATES V. SEDAGHATY 57

538 F.3d 1147, 1160 (9th Cir. 2008) (“Even where the

government has not denied a defense witness immunity for

the very purpose of distorting the fact-finding process, the

government may have stacked the deck against the defendant

in a way that has severely distorted the fact-finding process

at trial.”). Not only does the record not support the argument,

Seda also misunderstands the role of the court vis-a-vis the

discovery he seeks.

This case involved substantial evidence from abroad,

which presented obstacles for both parties. Nevertheless,

both parties conducted investigations overseas and were able

to obtain some evidence from foreign countries. For

example, Seda sent an investigator to Egypt and Saudi Arabia

to interview witnesses, including Seda’s codefendant Al-

Buthe. Seda located a potential witness in China, and the

court granted Seda’s motion to allow testimony by

videoconference. The government sent agents to observe an

interview by Egyptian authorities with El-Fiki. The

government also sought records pursuant to international

treaties and through its powers to subpoena documents from

financial institutions. See 31 U.S.C. § 5318. Some of these

efforts were successful, while others were not. Although both

sides faced obstacles in obtaining evidence from abroad, there

was no “stacked deck.”

To assist in obtaining evidence from Egypt, Seda asked

the court to order the government to use a Mutual Legal

Assistance Treaty (“MLAT”) between the United States and

Egypt on his behalf. The express terms of the MLAT

preclude Seda’s reliance on it as a source of discovery:

“[T]he provisions of this Treaty shall not give rise to a right

on the part of any private person to obtain . . . any

evidence. . . .” Treaty Between the Government of the United

58 UNITED STATES V. SEDAGHATY

States of America and the Arab Republic of Egypt on Mutual

Legal Assistance in Criminal Matters, U.S.-Egypt, art. 1(4),

May 3, 1998, T.I.A.S. No. 12948; see also Medellin v. Texas,

552 U.S. 491, 506 n.3 (2008) (describing the “background

presumption . . . that ‘[i]nternational agreements, even those

directly benefiting private persons, generally do not create

private rights or provide for a private cause of action in

domestic courts’” (quoting Restatement (Third) of Foreign

Relations Law of the United States § 907, Comment a, p. 395

(1986))).

Not only does Seda’s claim fail under the express terms

of the treaty, the district court had no authority to order the

Executive Branch to invoke the treaty process to obtain

evidence abroad for a private citizen. See United States v.

Rosen, 240 F.R.D. 204, 213–14 (E.D. Va. 2007) (explaining

that “the right to compulsory process extends only as far as a

court’s own process powers, and cannot be stretched to

include compelling the invocation of treaty process powers

available only to the Executive Branch”). Seda’s Westerdahl

analogy, which relates to immunity in the domestic context,

does not extend to the world of international treaties. Our

review of the complete record also reveals that the

government’s discovery conduct did not distort the fact-

finding process.

Seda’s Westerdahl analogy also fails with regard to the

letters rogatory. The government’s position on Seda’s

motions for letters rogatory could hardly skew the discovery

process because the decision to issue a letter rogatory rests

squarely within the discretion of the court, not the

government. See United States v. Staples, 256 F.2d 290, 292

(9th Cir. 1958). Upon Seda’s request, the district court issued

a letter rogatory asking the government of Saudi Arabia to

UNITED STATES V. SEDAGHATY 59

assist in obtaining a deposition from Al-Sanad or facilitating

his voluntary testimony at trial. The court received no

response. The court declined to issue letters rogatory to

Egypt with respect to El-Fiki, his son, and his employee

because the potential testimony was not material. See United

States v. Liner, 435 F.3d 920, 924 (8th Cir. 2006) (explaining

that in a criminal case, “the moving party must show the

witness’s unavailability and the materiality of the witness’s

testimony”). El-Fiki and the associated witnesses in Egypt

did not know Seda, did not communicate with Seda, and had

no knowledge of either Seda’s intent with regard to the tax

return or the ultimate disposition of the donation. The court

did not abuse its discretion in concluding that El-Fiki’s intent

regarding use of the money was not probative of Seda’s own

state of mind and thus was neither material nor necessary to

ensure a fair trial.

B. APPEALS TO FEAR

Seda argues that the government appealed to religious

prejudices and guilt by association and thus deprived him of

a fair trial, especially in light of the exclusion of some of his

rebuttal evidence. See United States v. Waters, 627 F.3d 345,

354–56 (9th Cir. 2010). Because this case is being sent back

for a new trial, we need not reach this issue. It suffices to say

that the charge here relates to a false tax return filed on behalf

of a tax-exempt organization, and does not allege material

support to terrorism. We are confident that the district court

will recognize the fine line separating necessary and

probative evidence of willful falsity from evidence that would

cast Seda in the role of a terrorist based on appeals to fear and

guilt by association and thereby unduly prejudice the

proceedings. United States v. Elfgeeh, 515 F.3d 100, 127 (2d

Cir. 2008) (recognizing that “evidence linking a defendant to

60 UNITED STATES V. SEDAGHATY

terrorism in a trial in which he is not charged with terrorism

is likely to cause undue prejudice”).

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED FOR A NEW TRIAL.

TALLMAN, Circuit Judge, concurring in part and dissenting

in part:

This is a tax fraud case arising from a false declaration on

a charitable organization’s tax return claiming a donation was

used to purchase a mosque in Missouri when it was actually

sent to terrorists in Chechnya. The conviction and sentence

imposed on Pirouz Sedaghaty, also known as Pete Seda,

should be affirmed. To the extent my colleagues wish to

reverse the district court’s rulings and remand this case for a

new trial, I respectfully dissent.1

Overall, the majority’s opinion fails to take into account

the exemplary manner in which a seasoned trial judge

handled this case to ensure that the defendant received a fair

trial, despite its substantive and logistical challenges. There

are several critical flaws in the majority’s analysis. First, and

in contravention of the deference we owe the jury’s verdict,

the opinion’s recitation of the facts is inappropriately written

from the perspective of the defense theory of the case.

Second, the majority unduly constricts the text of the search

1

Readers of this opinion should be cautioned that to completely

understand my analysis requires the necessary security clearance to review

the classified portion of this dissent, contemporaneously filed under seal

in the custody of the Classified Information Security Officer.

UNITED STATES V. SEDAGHATY 61

warrant and disregards the underlying reason for the very

existence of the exclusionary rule in declaring the search

unlawful. Third, the opinion disregards District Judge

Michael Hogan’s express factual findings and his rulings on

the potential impact of challenged witness testimony

following an evidentiary hearing. And, fourth, the opinion

discounts the extraordinary efforts by the Department of

Justice to abide by its criminal discovery obligations and the

district court’s extensive oversight of those efforts in dealing

with the extremely sensitive national security concerns that

underpin the investigation and prosecution of this case.

I

Contrary to the approach taken by the majority in its

factual recitation, in a case involving a criminal conviction,

“all reasonable inferences are to be drawn in favor of the

government, and any conflicts in the evidence are to be

resolved in favor of the jury’s verdict.” United States v.

Alvarez-Valenzuela, 231 F.3d 1198, 1201–02 (9th Cir. 2000).

Furthermore, “[t]he evidence is to be considered in the light

most favorable to the government to determine whether any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Id. at 1201. The

jury convicted Seda after an eight-day trial and the majority

opinion has failed to faithfully apply this legal principle of

deference to the jury’s resolution of contested facts on

appellate review. The rule respecting the jury’s fact-finding

is not confined to sufficiency of the evidence challenges as

posited by the majority. United States v. Kim, 25 F.3d 1426,

62 UNITED STATES V. SEDAGHATY

1432 (9th Cir. 1994) (“[O]n appeal we review the factual

record in the light most favorable to the verdict.”).2

A prime example of the majority’s slant in favor of the

defense is its dismissive discussion of the government’s key

evidence of Seda’s willfulness in structuring the funds

transfer to hide its intended purpose.3 The defendants’

decision to structure the transaction in the form of traveler’s

checks to move the money from Oregon to Chechnya makes

no sense if their intentions were benign and there was nothing

to conceal. Once the Al-Haramain Islamic Foundation, Inc.

branch office based in Ashland, Oregon (Al-Haramain-US)

received the $150,000 deposit wired from London by the

Egyptian donor, Dr. Mahmoud Talaat Hasan El-Fiki,

defendants could have easily and quickly wire-transferred the

funds to Al-Haramain Islamic Foundation, Inc.’s main office

in Saudi Arabia (Al-Haramain) through international

correspondent banks at a cost of about $15.

2

The majority implies that our court must only view the facts in the light

most favorable to the jury verdict when the defendant has challenged the

sufficiency of the evidence. This is not only wrong, see SEC v. Jasper,

678 F.3d 1116, 1120 (9th Cir. 2012) (stating that “[w]e relate the facts

here in the way most favorable to the jury verdict” even though

sufficiency of the evidence was not raised on appeal), but it defies logic.

When a jury reaches a verdict on any issue, we must respect the facts the

jury necessarily found to reach that verdict. That prerogative is even

stronger when, as here, the defendant acknowledged that the evidence

supports the verdict by opting not to challenge the evidence’s sufficiency.

3

The charge that Seda was ultimately convicted of, filing a fraudulent

tax return under 26 U.S.C. § 7206, requires that a violator “willfully makes

and subscribes any return, statement or other document . . . not believe[d]

to be true and correct as to every matter.” (emphasis added).

UNITED STATES V. SEDAGHATY 63

Instead, the defendants spent $1,300 in service charges to

divide $130,000 into $1,000-denomination American Express

traveler’s checks that are extremely difficult to trace once

cashed. To further obscure their plan they withdrew another

$21,000 as a cashier’s check made payable to co-defendant,

Soliman Al-Buthe, personally. Evidence showed he later

deposited it in his personal bank account in Riyadh, Saudi

Arabia. A reasonable jury could have concluded on this

evidence that this was Al-Buthe’s “cut” for serving as the

courier.

Al-Haramain advertised more than a dozen bank accounts

to collect donations, maintained a global presence in at least

50 countries, and operated with an annual budget of $30–$80

million for its charitable work. One would expect an

organization of this size to keep automated banking records

tracking its donations. Yet, when pressed during the

investigation for documentation of the $150,000 transaction,

Al-Haramain could only present through legal counsel two

purported “receipts” with hand-written differing amounts for

the same transaction. The government convincingly argued

these documents were phony, and the district court properly

admitted them only for the limited purpose of impeachment.

The jury very well could have believed from the evidence

presented that the transaction was structured in this manner

so that the traveler’s checks could be easily converted into

untraceable cash in the Middle East with Al-Buthe taking his

$21,000 for personal or nefarious use.

In addition to this evidence, the jury heard evidence of

other related suspicious behavior by Seda and his

confederates. Most significantly, there was the deceitful

manner in which Seda hid the actual use of the $150,000

“donation” from his Oregon accountant, Tom Wilcox, by

64 UNITED STATES V. SEDAGHATY

falsely claiming it was kept in the United States and included

in the $462,000 price of the Springfield, Missouri, mosque

purchased to expand Al-Haramain-US operations. Then there

is the fact that Al-Buthe properly declared the transport of

negotiable instruments on nine other occasions, totaling

$777,845, over a two-and-a-half-year period prior to the

events in question. He filed a Currency and Monetary

Instrument Report each time he traveled, but significantly did

not do so when he carried the $151,000 in negotiable

instruments from Oregon to Saudi Arabia.

The jury obviously thought the entire handling of the

money reeked of criminal intent, as evidenced by its verdict.

The complexity of the structured transactions was powerful

evidence of Seda’s willfulness to hide the true use of the

money from the Internal Revenue Service (IRS) when he

subscribed the false non-profit tax return. Despite this

laundry list of nefarious behavior, the majority fails to

recognize the cumulative effect of this important evidence,

which ultimately resulted in the jury’s verdict.

Aside from the financial disparities, there was other

evidence introduced at trial to show Seda’s intent to lie on the

tax form and hide the real purpose to which the funds were

put. An incriminating email was found during the search of

Seda’s residence in which Seda was communicating directly

with Al-Haramain in Saudi Arabia following receipt of a

battlefield report on activities in Chechnya. On January 22,

2000, just a month before the El-Fiki donation, the defendant

copied into an email to co-defendant Al-Buthe a portion of a

statement by Chechen commander of the Islamic Army of the

Caucasus, Ibn Ul-Khattab, complaining that Islamic charities

were not providing support to the mujahideen. The email

contained the subject line “What Support?” Only a month

UNITED STATES V. SEDAGHATY 65

later Seda received the $150,000 from El-Fiki with a notation

of “Use Zakat in order to participate in your noble support to

our muslim Brothers in Chechnia.”4

The jury also heard testimony from government expert

witness Evan Kohlmann, who described the role of Al-

Haramain in the Chechen conflict and its funding of terrorist

activity under the guise of charitable donations. The

“normal” process he described was that a “foreign national,

in other words, a non[-]Chechen national, would travel with

a suitcase of between [$]100 and $500,000, would bring it to

a country nearby to Chechnya,” and “[f]rom there the money

would be couriered across the border into the Caucasus in

Chechnya and be distributed to help support the mujahideen

in the field.” The Al-Haramain website also included an

original copy of a fatwa5 by Sheikh Abdallah Bin Jibrin, a

senior influential cleric. It called for Muslims to “[s]upply

[the mujahideen] with weapons and material support which

they would utilize to struggle and fight those who fight

them.” Muslims were obligated to “[s]upport [the

Mujahideen] financially as they [we]re in dire need for food

and clothing.”

It is not hard to see why the jury found that Seda willfully

failed to disclose to the IRS the true activities of his

4

Zakat is one of the pillars of Islam and is the giving of obligatory alms

or charity, similar to a tithe. “Zakat means to provide charity to suffering

Muslims,” which some interpret to include “distribut[ion] to Muslim

fighters who are fighting a larger opponent,” like the Chechen mujahideen

at war with the Russian army.

5

A fatwa issued by a cleric “is the equivalent of a ruling on a particular

issue regarding Islam or Muslims, and it is incumbent upon anyone who

follows the person issuing the fatwa to follow the advice given.”

66 UNITED STATES V. SEDAGHATY

§ 501(c)(3) charitable organization when he signed the

informational Form 990 tax return. The defendants’ activities

and the circumstantial evidence surrounding them mirrored

the modus operandi employed by those who smuggled money

to Chechnya, as called upon by the fatwa announced publicly

on Al-Haramain’s own website. Coupled with incriminating

computer evidence recovered by forensic examiners from his

deleted hard drives, the jury could reasonably infer that Seda

was well aware of the intended recipient’s use for any

donations from Al-Haramain-US.

II

The incriminating evidence seized from Seda’s Ashland

prayer house properly fell within the scope of the search

warrant. On behalf of the defense, the majority opinion

manufactures its argument to limit the scope of the search.

We agree that Seda’s steadfast argument advanced in his

briefs—that the affidavit was not incorporated—is untenable.

However, the majority’s newly created argument invalidating

the search is also flawed. First, it refuses to acknowledge that

when properly read as a whole the warrant’s language

allowed for the collection of the records seized. And, second,

even if the agents exceeded the intended scope of the search

warrant, the exclusionary rule should not bar the use of the

collected evidence based on the good faith exception.

A

The search warrant described the “ITEMS TO BE

SEIZED” as all “[r]ecords and communications” to include

all “[e]vidence concerning the subscription to a false Form

990 Tax Return, in violation of 26 U.S.C. § 7206(1), as

described in the attached affidavit, for the year 2000.”

UNITED STATES V. SEDAGHATY 67

(emphasis added). Records and communications were

defined as “electronic records and communications involving

the individuals or entities” associated with the violations.

The subjects of the search warrant included the two

defendants, two other known Al-Haramain officials, the

donor of the money ultimately delivered to the Chechen

mujahideen, as well as five related Al-Haramain entities.

Furthermore, the search warrant defined a careful procedure

to search computers for all “records stored or modified in any

form.” If during the search the law enforcement computer

personnel determined it was not practical to complete the

search of the computers on-site, then the computers could be

“seized and transported to an appropriate law enforcement

[forensic] laboratory for review.”

The difference in the way the majority approaches the

search warrant inquiry reflects a fundamental difference in

our views of how searching agents are guided by the court’s

authorization of items to be seized in light of the more

detailed statements in the incorporated (and physically

present) affidavit of facts establishing probable cause for its

issuance. The majority focuses upon the words “limited to

the following” while ignoring the 33 pages of detail outlining

the multi-year joint FBI/IRS/ICE investigation “as described

in the attached affidavit” incorporated by reference.

“The complexity of an illegal scheme may not be used as

a shield to avoid detection when the State has demonstrated

probable cause to believe that a crime has been committed

and probable cause to believe that evidence of this crime is in

the suspect’s possession.” Andreson v. Maryland, 427 U.S.

463, 480 n.10 (1976). A search warrant may include a class

of generic items or goods to be searched, as it did here, “if

there are objective, articulated standards for the executing

68 UNITED STATES V. SEDAGHATY

officers to distinguish between property legally possessed and

that which is not.” United States v. Hilyard, 677 F.2d 1336,

1340 (9th Cir. 1982). “The standards may be contained in the

search warrant or . . . in the accompanying affidavit” if

properly incorporated. Id.

Seda does not challenge the sufficiency of the showing of

probable cause to support issuance of the warrant. And once

armed with the court’s authority to search the Ashland

premises utilized by the subjects of the investigation, agents

were certainly entitled to seize items of obvious evidentiary

significance to that investigation as detailed in the

accompanying statement of probable cause. In short, there is

no requirement in law that limits items to be seized solely to

those expressly listed in the search warrant. The overarching

Fourth Amendment principle is, as set forth in this dissent,

one of “reasonableness” under the totality of the

circumstances. See United States v. Villamonte-Marquez,

462 U.S. 579, 588 (1983).

1

To determine whether the seized items fell within the

scope of the search warrant, it is important to consider the

mens rea the government is required to prove beyond a

reasonable doubt in this type of case. The statutory language

of 26 U.S.C. § 7206 requires that a person willfully completes

and signs a tax return that the person “does not believe to be

true and correct as to every matter.” In order to establish the

mens rea that Seda “willfully” filed a false tax return, the

government needed to explain the context in which he

directed his accountant to prepare the 2000 tax return for his

organization. The government knew when requesting the

search warrant that gathering evidence to show why Seda

UNITED STATES V. SEDAGHATY 69

wanted to hide the true use of the donation was an important

element of their case. Why else would Seda and his

confederates have structured their transactions in such

deceitful ways?

To that end, the search warrant incorporated by reference

and the magistrate reviewed an affidavit with background

materials describing the probable cause related to the El-Fiki

payment to Al-Haramain in support of the armed conflict in

Chechnya. The affidavit includes more than five pages of

sworn testimony by the case agent6 specifically attesting to

the connections between Seda, Al-Haramain, the Chechen

conflict, donations, and mujahideen military forces. The

materials collected by the government were relevant to these

topics and helped establish the necessary mens rea for

conviction. Although the majority argues that no “hyper-

technical parsing of the language” of the search warrant

affidavit is required, to interpret it as my colleagues suggest

renders a large portion of the affidavit superfluous.

As suspected and later confirmed by the excessive

quantity of materials found in his possession, Seda had an

obsessive interest in Chechnya and the armed forces involved

in the conflict. The seized materials supported the

government’s contention that Seda’s zealous interest rose to

a level that compelled him to send money to aid the struggle,

which then drove him to falsify the non-profit tax return to

cover up his support. The majority’s benevolent

characterization of the evidence as “Seda’s internet browsing

of religious web sites” or “correspondence with friends and

co-workers,” overlooks the fact that these web sites and

6

The IRS case agent in charge of the Seda investigation was IRS Special

Agent Colleen Anderson.

70 UNITED STATES V. SEDAGHATY

listserv emails encouraged a call to arms and corroborated the

description of Al-Haramain and its terrorist activities in the

affidavit. Judge Hogan’s factual determinations regarding the

express terms of the search warrant and incorporated affidavit

were not clearly erroneous. United States v. Giberson,

527 F.3d 882, 886 (9th Cir. 2008) (“We review . . . the

district court’s underlying factual findings for clear error.”).

The majority’s concern regarding the scope of the search

is unfounded, and even my colleagues agree that the warrant

actually incorporated the case agent’s sworn affidavit. We

have held that:

[t]he warrant requirement is a means of

preventing arbitrary and unreasonable

invasions of privacy; the search warrant itself

is the tangible evidence that precautions have

been taken to ensure that no such invasion has

occurred. When the officer who requests

authorization for the search, the magistrate

who grants such authorization, and the

officers who execute the search expressly rely

upon a given set of papers containing a given

series of words, they identify that set of

papers and that series of words as the proof

that proper precautions were taken to prevent

an unreasonably invasive search.

United States v. Towne, 997 F.2d 537, 548 (9th Cir. 1993).

It is a “well-settled principle that a warrant’s overbreadth

can be cured by an accompanying affidavit that more

particularly describes the items to be seized.” Id. at 544

(citing United States v. Luk, 859 F.2d 667, 676 (9th Cir.

UNITED STATES V. SEDAGHATY 71

1988)). An affidavit is “part of a warrant, and therefore

potentially curative of any defects, . . . if (1) the warrant

expressly incorporated the affidavit by reference and (2) the

affidavit either is attached physically to the warrant or at least

accompanies the warrant while agents execute the search.”

United States v. SDI Future Health Inc., 568 F.3d 684, 699

(9th Cir. 2009). “When we say that a warrant may be so

facially deficient that it precludes reasonable reliance, what

we mean is that ‘[o]fficers poised to conduct a search should

be able to ascertain that such a warrant fails to offer

sufficiently detailed instruction and instead leaves them

guessing as to their task.’” Towne, 997 F.2d at 549 (quoting

Ortiz v. Van Auken, 887 F.2d 1366, 1370 (9th Cir.1989)).

The majority mischaracterizes the warrant as

underinclusive and then determines that an affidavit cannot be

read to broaden the scope of the warrant. However, if these

documents are correctly read, this argument fails. The

warrant in this case is not underinclusive. It broadly allows

for the collection of all evidence related to the preparation of

a false tax return. It is the affidavit that then zeros in on the

evidence the investigation had already uncovered related to

Al-Haramain and its connections to funding the mujahideen’s

activities in Chechnya. The affidavit appropriately narrowed

the search to these activities, the underlying reason why Seda

falsified the Al-Haramain-US’s tax return. Just as described

in Luk, supra, the appropriately incorporated affidavit

“cured” any potential overbreadth of the warrant, and the

majority’s argument collapses.

2

The government went to great pains to comply with the

limitations of the warrant. Before giving his independent

72 UNITED STATES V. SEDAGHATY

approval, United States Magistrate Judge John Cooney read

the search warrant, supporting attachments, and the case

agent’s sworn affidavit, incorporated by reference. Prior to

conducting the search, the prosecution and the case agent

developed a search procedure to be followed with a

designated seizing officer and computer-search protocol. The

case agent briefed the nearly 20 agents on site and gave each

agent a copy of the search warrant to read.7 All of the search

warrant documents were available on site for further

reference during the search. Seda’s personal attorney also

7

Because the case agent was both the affiant and led the execution of

the search warrant, any concerns regarding the seizures should be

foreclosed. As noted by the Tenth Circuit:

[i]t would be anomalous to permit an officer’s

knowledge of the terms of the affidavit to cure a lack of

particularity on the face of a warrant but not permit the

officer’s knowledge to clarify the practical meaning of

a term in a facially valid warrant. Because an affidavit

can be used to demonstrate that a warrant is not

constitutionally invalid for lack of particularity when

the same officer produces the affidavit and executes the

warrant, an affidavit also may be used to clarify with

‘practical accuracy’ the meaning of a disputed term in

a warrant when the same person is both affiant and

executing officer.

United States v. Ortega-Jimenez, 232 F.3d 1325, 1329 (10th Cir. 2000);

see also Massachusetts v. Sheppard, 468 U.S. 981, 989 n.6 (1984) (“the

officer who [wrote the affidavit and] directed the search, knew what items

were listed in the affidavit presented to the judge, and he had good reason

to believe the warrant authorized the seizure of those items.”); United

States v. Durk, 149 F.3d 464, 466 (6th Cir. 1998) (recognizing that where

the same officer applies for and executes the warrant, a mistaken search

is unlikely); United States v. Beaumont, 972 F.2d 553, 562 (5th Cir. 1992)

(relying on the executing officer as the affiant for support in upholding

particularity of the warrant).

UNITED STATES V. SEDAGHATY 73

reviewed the search warrant and affidavit when he was

summoned to the property by Seda’s son. The case agent

consulted throughout the search with the prosecutor for legal

guidance regarding the seizure of particular items. Some

documents were seized only after Seda’s son talked with

Seda’s attorney on site and gave voluntary consent.

The majority’s concerns regarding a “kitchen sink”

affidavit and the possible dangers of coming across papers

not authorized by the search are misguided. My colleagues

barely acknowledge the extensive forensic reconstruction

required to salvage any usable evidence from the deleted hard

drives. The investigation then employed an independent taint

team, unrelated to this investigation, to sift through the

electronic materials gained from the search and distinguish

between those that were within the scope of the search, and

those that were not. The case agent developed specific search

terms in conjunction with forensic examiners to cull the

relevant data and focus on the individuals and items listed in

the affidavit of probable cause. When the computer search

revealed evidence of an unrelated crime, agents immediately

sought and obtained a second search warrant.

3

Additionally, the district court conducted an evidentiary

hearing on this issue, and Judge Hogan specifically found that

the search was reasonable and that agents faithfully followed

the issuing magistrate judge’s directions in conducting the

computer searches, employing appropriate protocols. The

district judge concluded that “the warrant, including the

affidavit incorporated into the warrant, was reasonably

specific as to the items sought and the government followed

appropriate protocols to separate intermingled materials.”

74 UNITED STATES V. SEDAGHATY

And, “[t]he crimes charged require proof of intent and thus

records beyond simple financial records were appropriately

seized, such as evidence of support of the efforts of the

Chechnyan [Chechen] mujahideen.” Furthermore, Judge

Hogan determined that “[g]iven the nature of the data and the

fact that it had been deleted, the actions taken by the

government were reasonable and permitted by the warrant as

approved by Magistrate Cooney.” We must defer to factual

findings unless they are clearly erroneous. Giberson,

527 F.3d at 886.

4

The seized inculpatory evidence did not exceed the scope

of the search warrant. The majority’s reliance on Doe v.

Groody, 361 F.3d 232 (3d Cir. 2004), is misplaced and easily

distinguishable when the search warrant is considered in

conjunction with the incorporated affidavit. Based on

Groody, the majority states that “an affidavit cannot be relied

upon to authorize a search beyond the scope of a judicially

authorized warrant.” See id. at 241.

However, the search in Groody exceeded the scope

because the warrant failed to incorporate the affidavit. Id. at

236, 239–41. This detail, disregarded by the majority, drove

the Third Circuit’s entire analysis. It is simple logic that

when an affidavit is not incorporated then law enforcement is

precluded from relying upon it and to do so would exceed the

scope of the warrant. As noted in that decision, “[w]ere we

to adopt the officers’ approach to warrant interpretation, and

allow an unincorporated affidavit to expand the authorization

of the warrant, we would come dangerously close to

displacing the critical role of the independent magistrate.” Id.

at 241.

UNITED STATES V. SEDAGHATY 75

But here, the majority agrees that the affidavit was

incorporated, and it was available during the search to guide

the agents executing the warrant. This undermines any

application of the Groody decision to this case. The critical

role of the neutral and detached magistrate was not displaced.

Because the scope of the search was permitted under the

warrant and was reasonable on the facts of the case, there was

no Fourth Amendment violation. See Michigan v. Fisher,

558 U.S. 45, 47 (2009) (“[T]he ultimate touchstone of the

Fourth Amendment . . . is ‘reasonableness.’”).

The majority’s reliance on United States v. Kay, 432 F.2d

647 (D.C. Cir. 1970), and United States v. Angelos, 433 F.3d

738, 746 (10th Cir. 2006), also misses the mark. In both of

the cases the issue on appeal was whether law enforcement

searched a permissible location, such as Kay’s upstairs

apartment which had a “separate and distinct” entrance and

a different street address than the one listed on the warrant.

Kay, 432 F.2d at 649. The express language of the warrant in

Kay only included the location of the search as 3618 14th

Street, whereas the apartment’s actual address was 3618 ½

14th Street. Id. at 648–49. The affidavit included a reference

to the “entire premises” of “a two story brick building” at

“3618 14th Street.” Id. at 649. On appeal, the court held that

based on the facts of that case, “the description in the search

warrant, not the language of the affidavit . . . determin[ed] the

place to be searched.” Id. In Angelos, the Tenth Circuit held

the officers exceeded the scope of the warrant where the

listed search location on the face of the warrant was a safe

and a car, but officers additionally searched the entire home

based on two references to the “residence/premises” made in

the affidavit. 433 F.3d at 745–46.

76 UNITED STATES V. SEDAGHATY

First, these cases are not applicable because this case is

not about an incorrect search location. Here, the agents

dutifully searched the appropriate premises and received

consent to extend the search to trailers not included in the

description of places to be searched in Attachment “A.” It is

telling that these are the best cases the majority can find to

make their argument. There are no cases on point denying

that an affidavit can be used to clarify and narrow the warrant

when it comes to determining which evidence may be seized.

And, second, as previously discussed, the majority’s

argument that the affidavit in this case expanded the scope of

the warrant is a mischaracterization. The affidavit

appropriately limited the warrant to the focused evidence

described therein. Furthermore, although the majority

attempts to analogize searching an incorrect location to

seizing items outside the scope, that gloss ignores the

inherent difference between these two elements of the Fourth

Amendment. A particularized location is a requisite element

for a reasonable search. Regardless of the items seized, law

enforcement must first be at the right location. Location is a

finite concept, whereas the search warrant’s description of all

“[e]vidence concerning the subscription to a false Form 990

Tax Return, in violation of 26 U.S.C. § 7206” requires factual

context, the role of the affidavit. The analysis from these

cases is not an apples to apples comparison, and it cannot be

extended to cover the search here. At bottom, the evidence

was appropriately seized because, just as Judge Hogan found,

the warrant combined with the affidavit authorized the

collection of evidence indicative of Seda’s willful intent to

falsify the Al-Haramain-US tax return.

UNITED STATES V. SEDAGHATY 77

B

But, even if the majority is correct in finding that the

search exceeded the scope of the warrant, under the good

faith exception recognized by the Supreme Court in Leon and

Herring, suppression would not serve the purpose of

deterrence. See United States v. Leon, 468 U.S. 897 (1984);

Herring v. United States, 555 U.S. 135 (2009). “Suppression

of evidence . . . has always been our last resort, not our first

impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006).

The Supreme Court has rejected reflexive application of the

exclusionary rule. Id. “[T]he exclusionary rule serves to

deter deliberate, reckless, or grossly negligent conduct, or in

some circumstances recurring or systemic negligence.”

Herring, 555 U.S. at 144. There is no evidence of any such

misconduct here. “Whether the exclusionary sanction is

appropriately imposed in a particular case . . . is ‘an issue

separate from the question whether the Fourth Amendment

rights of the party seeking to invoke the rule were violated by

police conduct.’” Leon, 468 U.S. at 906 (quoting Illinois v.

Gates, 462 U.S. 213, 223 (1983)). “[T]he exclusionary rule

has never been applied except where its deterrence benefits

outweigh its substantial social costs.” Hudson, 547 U.S. at

594 (internal quotation marks omitted).

Here, the balance weighs strongly in favor of not applying

the exclusionary rule. “[W]hen law enforcement officers

have acted in objective good faith or their transgressions have

been minor, the magnitude of the benefit conferred on such

guilty defendants offends basic concepts of the criminal

justice system.” Leon, 468 U.S. at 908. The government

went to great lengths to conduct a reasonable search. The

search warrant incorporated a lengthy affidavit for the

magistrate’s review. There was an established on-site search

78 UNITED STATES V. SEDAGHATY

procedure and computer search protocol with defined search

terms. The case agent consulted with the prosecutor

throughout the execution of the warrant to make sure the

search was appropriately conducted. The exclusion of

evidence in this case would not serve to deter misconduct in

the future where every indication was that law enforcement

agents complied with the scope of the search warrant. Agents

acted in good faith under Leon and Herring, and accordingly,

exclusion is not warranted.

III

Judge Hogan conducted a full evidentiary hearing to

consider the proposed impeachment evidence regarding

Barbara Cabral discovered after trial. We should defer to the

district court’s factual findings, which were not clearly

erroneous, in upholding his legal determination that the

undisclosed evidence was not material under Brady v.

Maryland, 373 U.S. 83 (1963). The majority applies

complete de novo review to the three-step inquiry and fails to

give the appropriate level of deference we owe the trial court.

Unlike here, for its standard of review, the majority relies

upon a case that did not involve an evidentiary hearing

regarding the Brady violation. United States v. Pelisamen,

641 F.3d 399 (9th Cir. 2011); see also United States v.

Howell, 231 F.3d 615 (9th Cir. 2000).

This procedural difference is telling. As we noted in

United States v. Price, “[w]hile it is clear that the legal

questions at issue in a Brady claim are reviewed de novo, this

circuit has not yet ‘had the opportunity to consider what, if

any deference should be afforded to a district court’s factual

findings . . . .’” 566 F.3d 900, 907 n.6 (9th Cir. 2009) (citing

United States v. Jernigan, 492 F.3d 1050, 1062 (9th Cir.

UNITED STATES V. SEDAGHATY 79

2007) (en banc) (Bea, J. dissenting)). In Price, we avoided

this open question because the judge ruled on the motion for

a new trial from the bench. Id. However, in this case Judge

Hogan denied Seda’s motion for a new trial in a written order

with express factual findings after taking testimony in both

written and oral form and holding an in camera hearing.

These facts cannot be ignored on appellate review.

We should follow the First, Second, Third, Fifth, Seventh,

Eighth, Tenth and Eleventh Circuits and the United States

Court of Appeals for the District of Columbia, all of whom

have recognized this difference in procedural posture and

given the requisite deference to the trial court’s factual

findings on appeal. Jernigan, 492 F.3d at 1062, 1062–64

(Bea, J., dissenting) (citing and discussing each case). This

is because although legal issues are analyzed de novo, “a

Brady determination is inevitably a contextual inquiry,

involving questions of both law and fact.” United States v.

Sipe, 388 F.3d 471, 479 (5th Cir. 2004). Our sister circuits

apply appellate deference to a district court’s factual findings

bearing on Brady materiality, and recognize that the trial

judge—who listened to the witnesses, heard their testimony,

and watched as they gave it—is in a far superior position to

assess materiality than we are on a cold record. United States

v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995).

The Brady analysis depends on “nested” factual

determinations which strongly influence the legal

determination. See United States v. Sanchez, 917 F.2d 607,

618 (1st Cir. 1990); United States v. Thornton, 1 F.3d 149,

158 (3d Cir. 1993). The correct standard of review must be

applied to each step of the analysis. In this case Judge Hogan

necessarily had to analyze: (1) the impact of the undisclosed

impeachment evidence specifically on Cabral’s overall

80 UNITED STATES V. SEDAGHATY

testimony; (2) the impact, if any, of that determination on all

the other evidence presented in the case (28 out of 1,800

pages of trial testimony); and (3) whether it was significant

enough to undermine our confidence in the outcome of the

jury’s verdict. Thus, while question three is a legal question

subject to de novo review, questions one and two are

inherently factual determinations that require our deference

unless they are clearly erroneous. To rule otherwise would

amount to appellate fact-finding. Jernigan, 492 F.3d at 1059

(Bea, J., dissenting).

Accordingly, after conducting an in camera proceeding to

review the contested evidence and taking evidence from

various witnesses, including Barbara Cabral, Judge Hogan

properly determined that the withheld information did not

violate the standard of United States v. Bagley, 473 U.S. 667,

682 (1985). “Evidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been

different.” Id.

Brady requires the disclosure of evidence only if it is

“both favorable to the accused and ‘material either to guilt or

to punishment.’” Id. at 674 (quoting Brady, 373 U.S. at 87).

A prosecutor only violates a “constitutional duty of

disclosure” where the “omission is of sufficient significance

to result in the denial of the defendant’s right to a fair trial.”

United States v. Agurs, 437 U.S. 97, 108 (1976). While the

government admits it erred by not turning over possible

impeachment evidence related to the testimony of Barbara

Cabral, when the district court’s factual findings are

considered, within the context of the eight-day trial as a

whole, Judge Hogan correctly determined that the withheld

UNITED STATES V. SEDAGHATY 81

information did not rise to a level that deprived Seda of a fair

trial.

On March 17, 2010, well before commencement of trial

on August 30, 2010, the United States disclosed Barbara

Cabral as a witness who would “testify a[b]out observations

made while attending functions at the Al-Haramain Islamic

Foundation, Inc. in Ashland, Oregon.” The most damaging

testimony she offered was that at the conclusion of the Hajj

in the Spring of 1999, while she, Seda, and others were in

Saudi Arabia traveling on money provided by Al-Haramain,

Seda collected $200 from each group members’ remaining

funds for blankets and food for Chechen freedom fighters.

The evidence was only circumstantially relevant since El-Fiki

did not make his $150,000 “donation” until nearly a year

later. The disputed tax return for Al-Haramain-US, which

misstated how those funds were actually used, was not filed

until October 2001, more than 18 months after the Hajj.

The defense claims that the government’s failure to

disclose information regarding Barbara Cabral warrants a

new trial under Brady and Bagley. But the district court held

an evidentiary hearing on this issue and entered findings of

fact adverse to the defense position:

Indeed, of the 1800 page transcript generated

from the trial, Barbara Cabral’s testimony

takes up only 28 of those pages. She was

aggressively cross-examined. There was some

significance to the terrorist issue because the

government ostensibly wanted to establish a

reason for the tax fraud. But Cabral’s

testimony was immaterial to the jury’s

convictions on the charges presented because

82 UNITED STATES V. SEDAGHATY

it did not matter where the money

fraudulently reported on the tax return

actually went and because of other significant

evidence regarding willfulness. The

government’s case centered on the accountant,

Thomas Wilcox’s testimony.

The government’s focus on the issues

surrounding the mujahideen has a greater

relation to any enhancement during the

sentencing phase. The materiality of Cabral’s

testimony to that question is a little more clear

given that this was really the only direct

evidence about defendant’s desire to fund the

mujahideen.

Ultimately, Judge Hogan chose not to impose the sentencing

enhancement for terrorism to which Cabral’s testimony was

relevant. U.S.S.G. § 3A1.4(a).

Also, relevant to willfulness, there was other significant,

independent evidence supporting the jury’s finding. Daveed

Gartenstein-Ross, a former employee of Al-Haramain-US,

independently testified that Seda talked about gathering

money for mujahideen forces in Kosovo. There was ample

evidence in the record from emails and other items seized

from Seda’s computers at the Ashland prayer house that

showed his intent to covertly support the mujahideen in

Chechnya, including visits to multiple Jihadi web sites, a pro-

Chechen mujahideen listserv, and battlefield photographs of

the mujahideen. The government obtained still photos from

Seda’s home taken from a mujahideen fundraising video

showing a training camp, as well as other seized items, with

the consent of defendant’s son, whose counsel was present

UNITED STATES V. SEDAGHATY 83

during the search. The jury heard background expert

testimony about the Chechen conflict and the relationship

between Al-Haramain, the Saudi Joint Relief Committee, and

support for the mujahideen.

Most damning, the jury was certainly entitled to infer

from the deletion of the computer hard drives that Seda acted

with criminal intent. Experienced prosecutors, criminal

defense lawyers, and judges know that juries give heightened

weight to a suspect’s efforts to destroy or secrete

incriminating evidence. Seda had ample notice since 2001

that he was under investigation prior to execution of the

search warrant in February 2004. When agents seized his

computers three years into the investigation, they discovered

that the hard drives had been deleted. It was only through

forensic computer examination that the government was able

to laboriously restore the incriminating information and piece

together the inculpatory evidence in this case.

Given the quantity of alternative, independent evidence,

and when considered cumulatively, it is unlikely that the

failure to disclose the payments to Cabral’s husband, Richard,

and the interview notes, which arguably might have

impeached her testimony, materially prejudiced the defense.

As Judge Hogan, who presided over the trial, so found.

The majority opinion’s reference to discrepancies in the

interview notes of Richard Cabral are irrelevant. Because he

passed away during the investigation of this case and was

therefore unavailable during trial for cross-examination, any

relevant statements he made during the investigation would

have been inadmissible under Federal Rule of Evidence 802

as hearsay within hearsay, not subject to an exception.

84 UNITED STATES V. SEDAGHATY

The district court’s factual findings are not clearly

erroneous, and the majority errs in failing to give appropriate

deference. Judge Hogan correctly determined that the error

was not so substantially injurious as to warrant a new trial

because the result would have been no different. See Bagley,

473 U.S. at 682. The jury could easily have reached the same

conclusion without even considering Barbara Cabral’s

testimony and accordingly its exclusion did not serve to

undermine confidence in the outcome of the trial.

IV8

Contrary to the majority’s ruling, the unclassified

summary complied with the requirements of the Classified

Information Procedures Act (CIPA). 18 U.S.C. app. 3, § 4.

The law permits the creation of an unclassified summary

report or substitution of a statement admitting relevant facts

helpful to the defense in lieu of disclosing state secrets. Id.

The government has the burden under Federal Rule of

Criminal Procedure 16 to disclose evidence “both favorable

to the accused and material either to guilt or to punishment.”

Bagley, 473 U.S. at 674 (citing Brady, 373 U.S. at 87). CIPA

authorizes the government to submit an ex parte motion to the

district court to reveal that it is in possession of relevant

documents and to conduct in camera proceedings ex parte

where classified information responsive to this obligation

exists. 18 U.S.C. app. 3, § 6.

8

The analysis in the unclassified dissent is constrained to a discussion

of only unclassified evidence. A more complete analysis of the

substitution is included in the classified dissent under the protection of the

Classified Information Security Officer.

UNITED STATES V. SEDAGHATY 85

This left the government and the court in the awkward

position of having to sift through classified documents from

the intelligence community to try to determine if any

contained exculpatory information helpful to Seda’s defense.

United States v. Amawi, 695 F.3d 457, 471 (6th Cir. 2012)

(“Rather than neutrally deciding disputes with an open record

based on the adversarial process, [the court] must place

[itself] in the shoes of the defense counsel, the very ones who

cannot see the classified record, and act with a view to their

interests.”); see also United States v. Mejia, 448 F.3d 436,

458 (D.C. Cir. 2006) (noting the difficult predicament of “the

defendants and their counsel, who are in the best position to

know whether information would be helpful to their defense,

[but] are disadvantaged by not being permitted to see the

information and . . . assist the court in its assessment of the

information’s helpfulness”). The court must determine

whether there is exculpatory material and whether an

unclassified summary or statement of admitted facts can be

crafted to effectively substitute for production of the

documents themselves, which cannot be disclosed for reasons

of national security. 18 U.S.C. app. 3 § 4.

The unclassified summary report given to Seda 18 months

before trial complied with the requirements of CIPA as

defined in § 6(c)(1). “The district court must accept [the

substitution] if it will provide the defendant with substantially

the same ability to make his defense as would disclosure of

the specific classified information.” United States v.

Moussaoui, 382 F.3d 453, 477 (4th Cir. 2004) (internal

quotation marks omitted). There was no abuse of discretion

here because the court provided the defense with all the

necessary details from the withheld documents to follow any

potential investigative leads.

86 UNITED STATES V. SEDAGHATY

The underlying documents themselves were inadmissible

under Federal Rule of Evidence 802 as hearsay within

hearsay, not subject to an exception. The court issued letters

rogatory submitted by the defense asking the Kingdom of

Saudi Arabia for access to Sami Al-Sanad, the subject of the

summary document substitution, while he was in its custody.

The defense had already interviewed Soliman Al-Buthe, the

other individual named in the summary, on multiple

occasions, while ironically the prosecution was refused

official access to interview any Saudi citizens.

The defense objected to the introduction of the

government’s summary, but it offers no explanation for not

proposing a stipulation in slightly revised form so as to get

before the jury Al-Sanad’s claim that the money was to be

used for legitimate humanitarian purposes in Chechnya. The

defense initially marked the summary as Defense Exhibit

730, but then just ten days before trial raised its first concern

regarding its contents. In a hearing seven days later, Judge

Hogan stated, “I want to look at that again.” Defense counsel

reiterated his concern regarding the summary, but in the same

hearing and prior to Judge Hogan ruling on the objection,

defense counsel withdrew the exhibit. At trial, the defense

team did not renew the objection to the unclassified summary.

An issue is preserved for appeal “where the substance of

an objection has been thoroughly explored and the trial

court’s ruling was explicit and definitive.” United States v.

Palmer, 3 F.3d 300, 304 (9th Cir.1993). Although “there is

no requirement that a party engage in a futile and formalistic

ritual to preserve the issue for appeal,” that is not this case.

United States v. Varela-Rivera, 279 F.3d 1174, 1177–78 (9th

Cir. 2002).

UNITED STATES V. SEDAGHATY 87

The summary had been provided to the defense with

sufficient time to litigate over its contents. The defense team

never offered an alternative version to the trial court for

consideration as a possible compromise.9 The defense team

did not afford Judge Hogan an opportunity to make an

“explicit and definitive” ruling on its objection prior to

withdrawing the exhibit. Nor did the defense team reiterate

its objection at trial to preserve the issue on appeal.

By failing to offer an acceptable alternative, failing to

seek an “explicit and definitive” ruling on the objection,

failing to object to the summary’s language at trial, and

choosing to withdraw the exhibit prior to trial, Seda waived

any challenge to this claim. Deference is owed to defense

counsel’s trial strategy, and we cannot speculate now after the

jury has spoken as to why defense counsel chose not to

pursue their objection further, nor offer the exhibit at trial.

We should not countenance this tactical maneuver on appeal

where Seda waived any objection by failing to preserve it at

trial.

Judge Hogan went to extraordinary lengths to conduct

multiple in camera proceedings and appropriately review

related classified information in an effort to meet the

commands of CIPA. There was no abuse of discretion in the

court’s authorization of the substituted summary, but because

of the waiver, we should not even reach this issue.

9

The majority argues that defense counsel was not in the position to

offer alternative language. However, ten days before trial, defense

counsel could certainly have brought the court’s attention to the specific

words which it considered “editorialized” and recommended less

pejorative alternatives.

88 UNITED STATES V. SEDAGHATY

V

A capable district court judge had a daunting task in

overseeing this complex case, and the record shows he fairly

balanced the competing interests at stake. The search did not

exceed the scope of the properly authorized warrant and its

incorporated affidavit. The procedures employed in its

creation and execution were measured and appropriate. The

district court’s factual findings were not clearly erroneous,

and the determination that the potential impeachment

evidence regarding Barbara Cabral did not warrant a new trial

was correct. The unclassified summary appropriately

complied with the requirements of CIPA and balanced the

need to protect national security with Seda’s right to present

a defense. Under these difficult circumstances, Seda got a

“fair trial,” even though it might not have been a “perfect

one.” Ross v. Oklahoma, 487 U.S. 81, 91 (1988). For these

reasons, I would affirm the conviction and the trial court’s

rulings.