United States v. Mejia, Rafael

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 12, 2005 Decided June 2, 2006

No. 02-3067

UNITED STATES OF AMERICA,

APPELLEE

v.

RAFAEL MEJIA, A/K/A JOSE ALVAREZ-RIOS,

A/K/A PATRON,

A/K/A PROFESSOR,

A/K/A GORDO,

A/K/A MEMO,

A/K/A JUAN GUILLERMO GOMEZ-RAMIREZ,

A/K/A JOSE GUILLERMO GOMEZ-RAMIREZ,

APPELLANT

Consolidated with

03-3004

Appeals from the United States District Court

for the District of Columbia

(No. 99cr00389-01)

(No. 99cr00389-02)

H. Heather Shaner, appointed by the court, argued the cause

for appellant Rafael Mejia.

2

Jon S. Pascale, appointed by the court, argued the cause for

appellant Homes Valencia Rios. Joseph Virgilio, appointed by

the court, was on the brief for appellants.

Teresa A. Wallbaum, Attorney, U.S. Department of Justice,

argued the cause for appellee. With her on the brief was Robert

A. Feitel, Attorney.

Before: TATEL and GARLAND, Circuit Judges, and

EDWARDS, Senior Circuit Judge.1

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Following a jury trial, defendants

Rafael Mejia and Homes Valencia Rios were convicted of

conspiring to distribute cocaine with the knowledge and intent

that it would be unlawfully imported into the United States.

Mejia was sentenced to 400 months in prison and Rios to 324

months. The defendants raise a number of jurisdictional,

procedural, evidentiary, and constitutional challenges to their

convictions and sentences. We consider those challenges below.

I

From June through November 1998, Costa Rican law

enforcement officers conducted an investigation of a drug

trafficking organization in Costa Rica. The investigation

involved multiple wiretaps, which captured Colombian nationals

Mejia and Rios discussing large drug transactions with other

members of their drug trafficking organization. Based on

information from these wiretaps, law enforcement officials

intercepted three shipments of drugs in October 1998. On

1

Senior Circuit Judge Edwards was in regular active service at the

time of oral argument.

3

October 3, Costa Rican police seized 200 kilograms of cocaine

from a truck at the border of Nicaragua and Costa Rica. On

October 14, Nicaraguan police seized 130 kilograms of cocaine

from a truck at the border of Nicaragua and Honduras. And on

October 18, Costa Rican police seized 25 kilograms of cocaine

from a truck in Costa Rica.

On November 30, 1999, a federal grand jury in the District

of Columbia named Mejia and Rios in a one-count indictment

that charged them with conspiring to distribute five or more

kilograms of cocaine with the knowledge and intent that such

cocaine would be unlawfully imported into the United States, in

violation of 21 U.S.C. §§ 959(a), 960(a)(3), 960(b)(1)(B)(ii),

and 963.2 The indictment alleged a conspiracy beginning no

later than June 1998 and lasting until at least November 1998,

spanning the countries of Columbia, Panama, Costa Rica,

Guatemala, and Nicaragua. A magistrate judge in the District of

Columbia issued warrants for the arrests of Mejia and Rios, and

copies of the warrants were provided to Panamanian law

enforcement officials.

On February 9, 2000, Panamanian authorities seized Mejia

and Rios in Panama. Hours later, the Panamanians transferred

the two men into the custody of United States Drug Enforcement

Agency (DEA) agents at Tocumen International Airport in

Panama City. DEA Special Agents Michael Chavarria and

Joseph Evans then arrested Mejia and Rios and transported them

2

Section 959(c) further provides: “This section is intended to

reach acts of manufacture or distribution committed outside the

territorial jurisdiction of the United States. Any person who violates

this section shall be tried in the United States district court at the point

of entry where such person enters the United States, or in the United

States District Court for the District of Columbia.” 21 U.S.C. §

959(c).

4

to the United States. En route, the DEA agents advised the men

of the charges against them and read them their Miranda rights

in Spanish.

Upon arrival in Fort Lauderdale, Florida, the DEA agents

processed Mejia and Rios through Customs and Immigration,

again advised them of their rights, and separated them for

questioning. Mejia orally waived his rights and made statements

inculpating himself in the transportation of drugs to the United

States. Rios also waived his rights and signed a written

statement inculpating himself in drug trafficking in Central

America. Following these interviews, the DEA flew Mejia and

Rios to Washington, D.C., where they were incarcerated

pending trial.

On May 25, 2000, while the defendants awaited trial, the

grand jury issued a superseding indictment enlarging the time

period of the alleged conspiracy. Whereas the original

indictment charged a conspiracy spanning six months in 1998,

the superseding indictment stated that the conspiracy began no

later than November 1995 and continued until February 2000.

In all other respects, the superseding indictment was the same as

the original.

During the pretrial period, the government provided

discovery materials to the defense. These materials included

DEA-6 forms summarizing the DEA’s interviews with

cooperating witnesses, which the government produced at least

four months prior to trial. When the forms were originally

provided, the names of the witnesses, as well as other

identifying information, were blacked out. The redacted DEA-6

forms describe multiple drug transactions between 1995 and

2000 involving the cooperating witnesses and appellant Mejia.

After receiving these statements, the defense moved pursuant to

Federal Rule of Evidence 404(b) to prevent the cooperating

5

witnesses from testifying, arguing that their statements detailed

bad acts by Mejia that were unrelated to the October 1998

seizures and therefore assertedly irrelevant to the conspiracy

outlined by the government. The court denied the motion.

Approximately two weeks before trial, the government turned

over unredacted versions of the DEA-6 forms, thereby revealing

the identities of its cooperating witnesses, Jorge Alexis Gallardo

Funez and Jose Sanchez.

The trial commenced on October 9, 2001. At trial, Funez

testified that he was involved in cocaine trafficking with Mejia,

and that Mejia told him that the drugs were destined for the

United States. Funez related that, in 1996, he assisted Mejia in

transporting 700 kilos of cocaine, 100 of which Mejia intended

to ship to Los Angeles. Sanchez testified that he was also

involved with Mejia’s organization, primarily in overseeing

financial matters. Sanchez stated that, in 1996, at Mejia’s

request, he went to Houston at least three times to assist in

counting and transferring money. Sanchez also testified that, in

1997, Mejia told him that a 1,400 kilogram shipment was going

to “California, to Houston, Texas, and to the towers in New

York.” Trial Tr., vol. XIII-A at 31 (Nov. 1, 2001). Neither

Funez nor Sanchez offered any testimony about Rios.

In addition to the testimony of the cooperating witnesses,

the government played 26 tapes of conversations recorded

during the Costa Rican wiretapping investigation. Eight of those

conversations were between Mejia and other members of the

drug trafficking conspiracy. Nine of the telephone calls were

between Rios and other members of the conspiracy. Several

witnesses identified the defendants’ voices on the tapes.

Inspector Siegfredo Sanchez,3 who led the Costa Rican

3

Because Inspector Sanchez shares the same surname as the

government’s cooperating witness, Jose Sanchez, we will refer to the

6

investigation, identified Mejia’s voice on eight of the tapes;

DEA Agent Evans identified Mejia on three of the tapes; and

Juan Delgado, a prisoner who met Mejia and Rios during their

pretrial incarceration, identified Mejia on four of the tapes.4

Both Inspector Sanchez and DEA Agent Chavarria identified

Rios’ voice on eight tapes; Delgado identified Rios on seven

tapes.

According to the prosecution, the conversations captured on

the tapes were coded to disguise their subject matter. The

government offered Inspector Sanchez as an expert in

deciphering the coded language used by drug trafficking

organizations, and he testified about the meaning of numerous

conversations. For example, Inspector Sanchez decoded a

conversation involving a 147-kilogram shipment of cocaine. He

testified that, during the conversation, Rios authorized another

member of the conspiracy to keep three kilograms of the 147-

kilogram shipment as payment for his services. According to

Inspector Sanchez, Mejia raised questions about the three-

kilogram discrepancy in this shipment during a subsequent taped

conversation with another associate, Johnny Morales Cooper.

Inspector Sanchez further testified that coded phrases in the

recorded conversations established a nexus with the October

1998 drug seizures. In a conversation on October 2, 1998, two

of the defendants’ co-conspirators made reference to $200,

which Inspector Sanchez testified actually referred to 200

former as “Inspector Sanchez” and to the latter simply as “Sanchez.”

4

Delgado also testified that Mejia told him that he (Mejia) had

transported cocaine in Central America, which others would then take

to the United States.

7

kilograms of cocaine. The next day, October 3, the Costa Rican

police seized 200 kilograms of cocaine from a truck at the

Nicaraguan-Costa Rican border. In an October 12, 1998

conversation, two of the defendants’ co-conspirators referred to

the number 130. Two days later, on October 14, Costa Rican

police seized 130 kilograms of cocaine at the Nicaraguan-

Honduran border.

The government also introduced the testimony of former

DEA Agent Michael Garland, who testified as an expert on

“drug trafficking organizations in Central and South America,

. . . shipment routes in South, Central America and North

America, the methods and means of communication among drug

traffickers in that region, the relative pricing of cocaine in 1998

in Central America, South America, and the United States, and

drug logos associated with the packaging of cocaine.” Trial Tr.,

vol. I-B at 57-58 (Oct. 16, 2001). Garland testified that the

principal market for drugs produced in Central and South

America is the United States, and that the considerations

relevant to determining the destination of Central or South

American cocaine were the amount of cocaine, the markings on

the cocaine, and the method of concealment.

Finally, DEA Agents Chavarria and Evans testified

regarding the defendants’ post-arrest statements. Chavarria

testified that Rios admitted to participating with other of Mejia’s

co-conspirators in smuggling more than 100 kilograms of

cocaine from Panama into Costa Rica during 1998, but did not

admit knowing that the drugs were destined for the United

States. Evans testified that he asked Mejia about a problem

regarding a drug transaction between Mejia and an individual

known as “El Negro.” Mejia told Evans that the problem

involved a 127-kilogram cocaine shipment that had been seized

in Guatemala in 1999. Mejia said El Negro had held him

accountable for the seized cocaine, and further affirmed that El

8

Negro “was involved in the organization in moving shipments

of cocaine to the United States.” Trial Tr., vol. IX-A at 57-58

(Oct. 26, 2001). Evans also asked Mejia about the conversation

with Johnny Morales Cooper recorded by the Costa Rican

authorities regarding the 147-kilogram shipment of cocaine.

Mejia explained that there had been a dispute about who had

authorized the sale of three kilograms to finance the shipment.

Following the close of the prosecution’s case, the defense

moved for judgment of acquittal, which the district court denied.

On November 14, 2001, the jury found both defendants guilty.

The court sentenced Mejia to 400 months in prison on July 10,

2002, and sentenced Rios to 324 months on December 4, 2002.

At Mejia’s sentencing, the court found the following drug

quantities attributable to Mejia as relevant conduct for purposes

of the United States Sentencing Guidelines:

First, the 700 kilograms of cocaine that Mr. Mejia and

Mr. Gallardo Funez shipped from Guatemala to

Mexico in 1996[,] of which one hundred kilograms Mr.

Mejia would have shipped on his own to the United

States. Secondly, the 1,400 kilograms Mr. Mejia

received and told Mr. Sanchez was destined for United

States cities, in or about 1997. Third, the 147

kilograms transshipped from Costa Rica . . . in August

1997. . . . Lastly . . . a 127-kilogram cocaine amount

that Mr. Mejia told Special Agent Evans . . . was

destined for the United States but got seized in May of

1999.

Sentencing Hr’g Tr. 46-47 (July 10, 2002). The court noted,

however, that it was going to “specifically disregard the 355

kilograms seized [during the three Costa Rican operations in

October 1998] for these purposes as the government sentencing

9

memorandum was wholly inadequate in establishing attribution

of these amounts.” Id. at 47. In denying the government’s

subsequent request for reconsideration, the court stated that it

was “unnecessary to deal with the 355, given how it was not

dealt with to [the court’s] satisfaction in the [government’s

sentencing] memo,” and that it would not “make a difference

with respect to the ultimate adjustment of offense level.” Id. at

59.

At Rios’ sentencing, the court found the following drug

quantities attributable to Rios as relevant conduct: the 200-

kilogram cocaine shipment seized on October 3, 1998; the 130-

kilogram shipment seized on October 14, 1998; and the 147-

kilogram shipment that was discussed during the taped

conversations but never seized. The court said that, for purposes

of sentencing, it would make no findings regarding the 25

kilogram shipment seized on October 17, 1998, since the

amount would have “no impact on the guidelines calculation”

and “no impact in [the court’s] selection of a sentence within the

ultimate guidelines range.” Sentencing Hr’g Tr. 10 (Dec. 4,

2002).

Mejia and Rios filed timely appeals that challenge many of

the district court’s pretrial, trial, and post-trial rulings. We

consider those challenges below, as well as an issue regarding

classified information that arose during the course of this appeal.

II

In this Part, we address the defendants’ joint objections to

pretrial rulings regarding jurisdiction, discovery, and a bill of

particulars. We also address Rios’ individual claim that his trial

should have been severed from Mejia’s trial.

10

A

We begin with the defendants’ jurisdictional attack, which

we review de novo. See United States v. Burke, 425 F.3d 400,

407 (7th Cir. 2005). That attack is two-pronged.

First, the defendants charge that the district court lacked

jurisdiction over their case because DEA agents took them into

custody in Panama and transferred them to the United States

without following the formal requirements of the extradition

treaty between the two countries. This claim is governed by the

Supreme Court’s opinion in United States v. Alvarez-Machain,

504 U.S. 655 (1992), in which the Court considered a similar

argument by a defendant who had been forcibly abducted from

Mexico, flown by private plane to Texas, and then arrested by

DEA agents.5 The Supreme Court set forth the appropriate

analytical framework as follows:

[O]ur first inquiry must be whether the abduction of

respondent from Mexico violated the Extradition

Treaty between the United States and Mexico. If we

conclude that the Treaty does not prohibit respondent’s

abduction, the rule in Ker applies, and the court need

not inquire as to how respondent came before it.

Id. at 662. The “rule in Ker” referred to in the above quotation

comes from Ker v. Illinois, 119 U.S. 436 (1886), was applied in

Frisbie v. Collins, 342 U.S. 519 (1952), and was confirmed in

Alvarez-Machain. Under that rule:

5

The Alvarez-Machain trial court concluded that the agents were

responsible for the defendant’s abduction, although they were not

personally involved in it. See Alvarez-Machain, 504 U.S. at 657.

11

“[T]he power of a court to try a person for crime is not

impaired by the fact that he had been brought within

the court’s jurisdiction by reason of a ‘forcible

abduction’ . . . . [D]ue process of law is satisfied

when one present in court is convicted of crime after .

. . a fair trial in accordance with constitutional

procedural safeguards. There is nothing in the

Constitution that requires a court to permit a guilty

person rightfully convicted to escape justice because he

was brought to trial against his will.”

Alvarez-Machain, 504 U.S. at 661-62 (quoting Frisbie, 342 U.S.

at 522 (quoting Ker, 119 U.S. at 444)).

In Alvarez-Machain, the Court went on to find that the

extradition treaty “sa[id] nothing about the obligations of the

United States and Mexico to refrain from forcible abductions of

people from the territory of the other nation, or the

consequences under the Treaty if such an abduction occurs.”

Alvarez-Machain, 504 U.S. at 663. Nor could the Court “infer

from th[e] Treaty and its terms that it prohibit[ed] all means of

gaining the presence of an individual outside of its terms.” Id.

at 668-69. Accordingly, the Court concluded that “respondent’s

abduction was not in violation of the Extradition Treaty between

the United States and Mexico[;] the rule of Ker v. Illinois [was]

fully applicable to th[e] case[; and] the fact of respondent’s

forcible abduction [did] not therefore prohibit his trial in a court

in the United States for violations of the criminal laws of the

United States.” Id. at 670.

Mejia and Rios do not cite any provision of the United

States’ extradition treaty with Panama that would warrant a

different result here. Like the U.S.-Mexico treaty, the U.S.-

Panama treaty contains no prohibition against procuring the

presence of an individual outside the terms of the treaty -- let

12

alone one barring the signatories from informally cooperating

with each other as they did in this case. Compare Treaty

Providing for the Extradition of Criminals, U.S.-Panama, May

25, 1904, 34 Stat. 2851, with Extradition Treaty, U.S.-Mex.,

May 4, 1978, 31 U.S.T. 5059. In the absence of any suggestion

of a ground upon which the U.S.-Mexico and U.S.-Panama

treaties can be distinguished, Alvarez-Machain controls, and the

district court was correct in concluding that it had jurisdiction to

try this case.

Second, the defendants argue that the district court lacked

jurisdiction over them because the DEA took them into custody

in violation of the Mansfield Amendment, which states: “No

officer or employee of the United States may directly effect an

arrest in any foreign country as part of any foreign police action

with respect to narcotics control efforts, notwithstanding any

other provision of law.” 22 U.S.C. § 2291(c)(1) (emphasis

added). By its terms, the Mansfield Amendment is not

applicable here. At the suppression hearing, DEA agent Evans

testified without contradiction that Panamanian authorities had

arrested the defendants long before the DEA arrived. After

hearing the testimony, the district court found that the

Panamanian authorities conducted the “direct police action

during which the defendants made a transition from liberty to

custody,” and that this direct police action “occurred many hours

before the DEA came on the scene.” Motions Hr’g Tr., vol. II

at 68 (Feb. 6, 2001). Accordingly, the claim that the Mansfield

Amendment was violated fails on its face, and we need not

decide whether a violation of the Amendment would strip the

court of jurisdiction. Cf. United States v. Zabaneh, 837 F.2d

1249, 1261 (5th Cir. 1988) (“Even if the district court had found

that government agents were involved in appellant’s arrest in

Guatemala, Congress has not provided sanctions or penalties by

way of relief for persons arrested in contravention of §

2291(c)(1).”).

13

B

The defendants next allege that the district court erred in

failing to require the government to provide them with certain

information during the pretrial discovery process. We review

such claims for abuse of discretion and will not reverse unless

the alleged error resulted in prejudice to the defendants’

substantial rights. See United States v. Gale, 314 F.3d 1, 6 (D.C.

Cir. 2003); United States v. McCrory, 930 F.2d 63, 69 (D.C. Cir.

1991).

The defendants contend that the government was required

to disclose both the substance of the cooperating witnesses’

prior statements and their identities prior to trial. We are

perplexed by this claim, and not only because the law is

generally to the contrary. See 18 U.S.C. § 3500(a) (providing

that “no statement” of a government witness “shall be the

subject of discovery[] or inspection until said witness has

testified on direct examination” at trial); United States v. Ruiz,

536 U.S. 622, 629 (2002) (noting that “‘[t]here is no general

constitutional right to discovery in a criminal case’” (quoting

Weatherford v. Busey, 429 U.S. 545, 559 (1977))). We are

particularly perplexed because the government did both produce

the statements and disclose the witnesses’ identities before trial.

The defendants’ brief concedes that they received redacted

witness statements in April 2001 and June 2001. See

Appellants’ Br. 47. Although the record does not show exactly

what the defendants received in April 2001, it does reveal that

the June 2001 disclosures substantially recounted the events and

statements about which the witnesses testified at trial. See

Appellee’s Supp. App. 23-27, 48-49. Moreover, on September

23, 2001 -- two weeks before the trial commenced -- the

government produced unredacted statements that disclosed the

identities of the cooperating witnesses. See id. at 55-56.

14

The defendants also argue that the court erred in failing to

require the government to produce recordings made of the trial

in Costa Rica of one of their alleged (non-testifying) co-

conspirators, Johnny Morales Cooper. The defendants concede

that neither tapes nor transcripts of the trial were within the

government’s possession, custody, or control, which would have

triggered the government’s disclosure obligations under Rule 16.

See FED. R. CRIM. P. 16(a)(1)(E). Nonetheless, they argue that

the prosecution “clearly had the power to secure the trial tapes

or transcripts” from the Costa Rican government because it “was

authorized by its Mutual Legal Assistance Treaty” with Costa

Rica “to seek such information.” Appellants’ Br. 55. “Given

this authority,” the defendants conclude, “it was an abuse of

discretion for the district court to summarily rule that because

the government did not have the tapes or transcripts in its

‘personal’ possession, it had no obligation to use its best efforts

through the [Treaty] to obtain them.” Appellants’ Br. 55.

We do not agree. The government’s obligation was to

comply with Rule 16, and there is no dispute that it did so.

Having the authority “to seek” tapes or transcripts through a

treaty is not the same thing as having “the power to secure”

them. Id. Moreover, we note that the government provided the

defense with what it did have -- summaries of the Morales

Cooper trial, see Motions Hr’g Tr., vol. I at 52 (Feb. 5, 2001) --

and that defense counsel traveled to Costa Rica to interview

Morales Cooper, thus undermining any claim of prejudice. In

addition, although the defense could have asked the district court

to issue letters rogatory to the Costa Rican court to obtain any

tapes or transcripts that may have existed, it did not do so. See

28 U.S.C. § 1781(b)(2) (authorizing “the transmittal of a letter

rogatory or request directly from a tribunal in the United States

to [a] foreign or international tribunal, officer, or agency”).

“The fact that [the defendants] did not exhaust th[is]

alternative[] only serves to undermine further” their demand for

15

a new trial. United States v. Sensi, 879 F.2d 888, 899 (D.C. Cir.

1989).

C

The defendants also claim that the district court erred in

refusing to compel the government to provide a bill of

particulars. “A bill of particulars can be used to ensure that the

charges brought against a defendant are stated with enough

precision to allow the defendant to understand the charges, to

prepare a defense, and perhaps also to be protected against

retrial on the same charges.” United States v. Butler, 822 F.2d

1191, 1193 (D.C. Cir. 1987). The determination of whether a

bill of particulars is necessary “rests within the sound discretion

of the trial court” and will not be disturbed absent an abuse of

that discretion. Id. at 1194; see FED. R. CRIM. P. 7(f) (“The court

may direct the government to file a bill of particulars.”

(emphasis added)). To establish an error, the defendants must

“demonstrate surprise or prejudice by the lack of

particularization.” United States v. Pollack, 534 F.2d 964, 970

(D.C. Cir. 1976).

We find no abuse of discretion in the district court’s denial

of the defendants’ motion for a bill of particulars. As the district

court found, the superseding indictment “identifies what the

object of the conspiracy is as is required by [21 U.S.C. § 963,]

. . . provides a time period of the conspiracy, . . . identifies the

statutes that the object of the conspiracy violated[,] . . . has an

identification of the proper mens rea required under Section

963[,] . . . [and] identifies at least five countries where the

conspirators acted.” Motions Hr’g Tr., vol. V at 51 (March 13,

2001). Although the indictment did not allege any overt acts,

the district court correctly found that “the language of Section

963 does not call for any to be set forth in an indictment, nor

do[] any . . . have to have been committed in order for a [§] 963

16

[violation] to be proven.” Id. at 52; see United States v.

Shabani, 513 U.S. 10, 15 (1994) (holding that the government

need neither allege nor prove the commission of an overt act to

establish a violation of 21 U.S.C. § 846, which is worded

identically to 21 U.S.C. § 963).

The defendants insist that, because the original indictment

charged a conspiracy that took place in 1998, they thought the

trial would concern only the drug seizures that occurred in

October of that year. Thus, they say, they were surprised by

testimony regarding acts that happened between 1996 and 1999.

Specifically, the defendants complain that, because the

indictment “contained no overt acts or any other specific

information,” they were “ambushed at trial by the testimony of

[cooperating witnesses] Gallardo Funez and Jose Sanchez, . . .

who both testified about drug trafficking activities involving

quantities of drugs . . . in places and under circumstances [the

defendants] were not advised of prior to trial.” Appellants’ Br.

79.

We do not understand why the defendants felt surprised, nor

how they could consider themselves ambushed. Although the

initial indictment charged a conspiracy occurring in 1998, the

superseding indictment -- filed more than 16 months before trial

-- expanded the dates to cover the period from 1995 to 2000.

And while the superseding indictment did not itself detail the

drug trafficking activities about which the cooperating witnesses

testified, the DEA-6s recounting those witnesses’ pretrial

statements did. See Butler, 822 F.2d at 1193 (“[I]f the requested

information is available in some other form, then a bill of

particulars is not required.”). As noted above, the DEA-6s were

provided in redacted form at least four months before trial, and

in unredacted form more than two weeks before. This court has

examined those statements in detail. We can only conclude that

if the defendants felt ambushed, it was not because the

17

government was lying in wait, but because the defendants were

not looking.

D

In a final challenge to the district court’s pretrial rulings,

defendant Rios contends that the court erred in failing to grant

his motion to sever his trial from Mejia’s pursuant to Federal

Rule of Criminal Procedure 14, which provides that the court

“may . . . sever the defendants’ trials” if trying them together

“appears to prejudice a defendant.” FED. R. CRIM. P. 14

(emphasis added). The Supreme Court has stressed that “a

district court should grant a severance under Rule 14 “only if

there is a serious risk that a joint trial would compromise a

specific trial right of one of the defendants, or prevent the jury

from making a reliable judgment about guilt or innocence.”

Zafiro v. United States, 506 U.S. 534, 539 (1993). The

severance determination is left to the “sound discretion” of the

trial court and will not be reversed absent abuse of that

discretion. Id. at 539. The trial judge is “usually in the best

position to evaluate the resulting degree of prejudice, and jury

instructions generally are sufficient to minimize any disparities

in evidence.” United States v. Tarantino, 846 F.2d 1384, 1398

(D.C. Cir. 1988).

The strongest argument Rios made to the district court in

favor of severance was that the government intended to

introduce out-of-court statements by Mejia that inculpated Rios,

thus risking a Confrontation Clause problem since Mejia was

not expected to testify (and did not do so). See Bruton v. United

States, 391 U.S. 123, 137 (1968). Although Rios restated that

argument in his opening brief in this court, he was forced to

concede in reply that the government never introduced those

statements. Appellants’ Reply Br. 29. Hence, he suffered no

prejudice on this account.

18

Rios’ remaining justification for severance is the claim that

his participation in the alleged conspiracy was de minimis.

Although that characterization greatly understates Rios’ role, it

is certainly true that the bulk of the trial evidence concerned

Mejia rather than him. But while “[s]everance may be required

. . . when the evidence against one defendant is far more

damaging than the evidence against the other defendant,” we

will not find an abuse of discretion if the “jury could reasonably

compartmentalize the evidence introduced against each

individual defendant.” United States v. Halliman, 923 F.2d 873,

884 (D.C. Cir. 1991) (internal quotation marks omitted).

Here, the government introduced “independent and

substantial evidence” against Rios, id. (internal quotation marks

omitted), including his admission that he participated in

smuggling more than 100 kilograms of cocaine from Panama

into Costa Rica during 1998 and that he obtained beepers and

cell phones, rented vehicles, apartments and stash sites, and

coordinated with other members of the charged conspiracy to

facilitate cocaine smuggling activity. Witnesses also identified

Rios’ voice on eight taped conversations from the Costa Rican

wiretapping investigation. Moreover, the district court expressly

cautioned the jury to “give separate consideration and render

separate verdicts with respect to each defendant,” because

“[e]ach defendant is entitled to have his guilt or innocence of the

crime for which he is on trial determined from his own

conduct.” Trial Tr., vol. XIX-A at 23 (Nov. 13, 2001).

Accordingly, we find “insufficient cause to attribute the jury’s

guilty verdict against [Rios] to its failure to segregate the

relevant evidence in this case.” Halliman, 923 F.2d at 885.

III

The defendants’ allegations of error do not end with the

district court’s pretrial rulings. They challenge several of the

19

court’s trial rulings as well. They jointly dispute the admission

of testimony from the government’s cooperating witnesses, as

well as the testimony of its experts. Mejia individually argues

that the admission of a post-arrest statement made by Rios

violated his Sixth Amendment right to confrontation. Together,

the defendants also raise a general challenge to the sufficiency

of the evidence supporting their convictions.

A

The defendants contend that the district court wrongly

permitted cooperating witnesses Funez and Sanchez to testify

about the “trafficking of huge quantities of cocaine in 1996 and

1997, long before the three seizures of cocaine in October

1998.” Appellants’ Br. 28.6 According to the defendants,

because “the three October 1998 seizures [were] the only events

and only quantities upon which the indictment was based,”

Appellants’ Br. 29-30, the testimony regarding the 1996 and

1997 transactions constituted “[e]vidence of other crimes,”

which, under Federal Rule of Evidence 404(b), “is not

admissible to prove the character of a person in order to show

action in conformity therewith.” FED. R. EVID. 404(b).

This argument simply ignores the superseding indictment

issued in this case. Although the conspiracy charged in the

initial indictment was indeed limited to 1998, that charged in the

superseding indictment covered the period from 1995 through

6

The transaction about which Funez testified took place in 1996,

when he assisted Mejia in transporting 700 kilograms of cocaine, 100

of which Mejia intended to sell in Los Angeles. Trial Tr., vol. XI-B

at 19 (Oct. 30, 2001). The transaction Sanchez discussed occurred in

1997, when Mejia told him that a 1,400 kilogram shipment was going

to California, Texas, and New York. Trial Tr., vol. XIII-A at 31-32

(Nov. 1, 2001). See supra Part I.

20

2000. See J.A. 5 (superseding indictment); Trial Tr., vol. XIV-A

at 139 (Nov. 2, 2001) (statement by the district court) (“[I]t has

been very clear that [the] indictment was one which charged a

conspiracy from . . . 1995 through 2000.”). Therefore, the 1996

and 1997 transactions about which the witnesses testified did not

constitute “other crimes” evidence, but rather evidence of this

crime -- the crime with which the defendants were charged.

And in “cases where the incident offered is a part of the

conspiracy alleged in the indictment, the evidence is admissible

under Rule 404(b) because it is not an ‘other’ crime.” United

States v. Badru, 97 F.3d 1471, 1475 (D.C. Cir. 1996) (internal

quotations and citation omitted).7

B

The defendants next raise challenges to the admission of

testimony from two of the government’s experts: Inspector

Siegfredo Sanchez, who led the Costa Rican investigation, and

Michael Garland, a former DEA agent who was not involved in

the instant investigation. We review the district court’s

admission of expert testimony for abuse of discretion. See

United States v. Salamanca, 990 F.2d 629, 637 (D.C. Cir. 1993);

United States v. Boney, 977 F.2d 624, 628 (D.C. Cir. 1992).

7

The defendants suggest that the district court initially ruled that

the 1996 and 1997 transactions were “‘outside the charged

conspiracy,’” Appellants’ Reply Br. 10 (quoting Trial Tr., vol. XI-A

at 129 (Oct. 30, 2001)), but then erred in permitting Funez and

Sanchez to testify about them. This mischaracterizes the court’s

ruling. The district court recognized that “the charged conspiracy” ran

“from [19]95 to 2000.” Trial Tr., vol. XI-A at 129 (Oct. 30, 2001).

The proffered testimony that the court said would be “outside” the

charged conspiracy related to earlier years, see id.; see also id. at 135,

and is not at issue on this appeal.

21

1. Inspector Sanchez testified as an expert regarding

“coded phrases with respect to the drug trade,” Trial Tr., vol. III-

B at 18 (Oct. 18, 2001), and employed that expertise to explain

the meaning of the defendants’ wiretapped conversations. The

defendants raise two principal objections to the admission of

Inspector Sanchez’s testimony.

First, the defendants challenge Inspector Sanchez’s

expertise under Federal Rule of Evidence 702. They argue that

he was not properly qualified as an expert in coded words and

phrases because “the court qualified him as an expert based

solely on his testimony that he had investigated drug trafficking

and ‘analyzed’ drug trafficking for a long time.” Appellants’ Br.

74. The defendants’ description of the basis of Inspector

Sanchez’s proficiency is correct: his expertise was established

through testimony that he had learned the “lexicon” used by

drug traffickers “over the many years of listening to an infinite

number of conversations.” Trial Tr., vol. II-B at 44 (Oct. 18,

2001); see id. at 49 (testimony that Inspector Sanchez had

listened to and analyzed “many thousands” of coded words and

phrases during drug trafficking investigations). But the

Advisory Committee’s notes to Federal Rule of Evidence 702

specifically contemplate that this kind of experience can qualify

a witness as an expert on coded phrases used in drug trafficking:

[W]hen a law enforcement agent testifies regarding the

use of code words in a drug transaction, the principle

used by the agent is that participants in such

transactions regularly use code words to conceal the

nature of their activities. The method used by the agent

is the application of extensive experience to analyze the

meaning of the conversations. So long as the principles

and methods are reliable and applied reliably to the

facts of the case, this type of testimony should be

admitted.

22

FED. R. EVID. 702 advisory committee’s note (emphasis added).

More generally, there is a well-established practice of law

enforcement officers testifying, on the basis of their experience,

as experts in the modus operandi of drug trafficking

organizations. See United States v. Doe, 903 F.2d 16, 19 & 19

n.21 (D.C. Cir. 1990) (citing cases). The court’s admission of

Inspector Sanchez’s testimony was in accordance with these

precedents and did not constitute an abuse of discretion.

Second, the defendants complain that the district court

abused its discretion in permitting Inspector Sanchez to testify

“far beyond his purported expertise.” Appellants’ Br. 75. But

while our review of the inspector’s testimony discloses that on

occasion he did stray beyond the interpretation of coded phrases,

it also reveals that defense counsel rarely made

contemporaneous objections. On most occasions upon which

the defense did raise such objections, the district court properly

sustained them; when the court overruled an objection, any error

was harmless in light of Agent Garland’s properly admitted

testimony on the same point. See supra p. 7; infra pp. 23-24.

Moreover, at the close of the testimony, the court entertained a

motion to strike Inspector Sanchez’s testimony --

notwithstanding the motion’s untimeliness -- and did in fact

strike eight lines of testimony. We find no reversible error in

the manner in which the district court supervised the admission

of Inspector Sanchez’s testimony.8

8

The defendants also complain that the government failed to

provide them in advance with a “written summary” of Inspector

Sanchez’s expert “opinions [and] the bases for these opinions,” as

required by Rule 16. FED. R. CRIM. P. 16(a)(1)(G). Because they did

not object to Inspector Sanchez’s testimony on this ground until after

he had already testified, our review is limited to plain error. See

United States v. Olano, 507 U.S. 725, 732 (1993). And because the

defendants have not demonstrated “how or why the verdict would

23

2. The defense also objects to the admission of testimony

by the government’s other expert -- former DEA Agent Garland

-- who testified regarding the modus operandi of drug trafficking

organizations in Central and South America. The defendants

assert that Garland contravened Federal Rule of Evidence

704(b), which bars an expert witness from stating an opinion “as

to whether the defendant did or did not have the mental state or

condition constituting an element of the crime charged.” FED.

R. EVID. 704(b) (emphasis added). Agent Garland, however,

never offered an opinion regarding the mental state of the

defendants.

The single testimonial exchange to which defendants object

unfolded as follows:

Q: Do the drug trafficking organizations know the

ultimate destination of the goods that they traffic even

if it’s only part of the way?

A: They don’t know the ultimate destination per city,

per street, per warehouse, but they know it’s going to

the United States.

Trial Tr., vol. I-B at 133 (Oct. 16, 2001). In context, it is plain

that Garland was testifying about drug organizations in general,

and not the defendants’ organization in particular. To remove

any doubt on that score, the district court immediately

interjected: “Just to be clear, Mr. Garland, you don’t testify here

today with any personal knowledge about any intent on the part

of either of the gentlemen seated at this table here in connection

have been different” if they had received a Rule 16(a)(1)(G)

disclosure, they have failed to establish the prejudice required for

reversal. United States v. Figueroa-Lopez, 125 F.3d 1241, 1247 (9th

Cir. 1997).

24

with any facts in this case, is that correct?” Id. at 134. Garland

answered in the affirmative. Id. That intervention was

sufficient to ensure that admission of the testimony was not

erroneous.9

C

Appellant Mejia individually charges that the district court’s

admission of a post-arrest statement by Rios, tending to show

that Rios feared Mejia, violated Mejia’s Sixth Amendment right

to confrontation. At trial, DEA Agent Chavarria testified that,

in the course of questioning Rios in Fort Lauderdale, he asked

whether Rios knew Mejia. According to Agent Chavarria:

[W]hen I first asked [Rios] if he knew [Mejia], he

looked to me and then he looked down, and then he

specifically said, “What can you guarantee in terms of

my family’s safety in Colombia?” And, of course, I

told him we couldn’t guarantee him anything. And

then he immediately responded that he didn’t know

[Mejia].

9

See United States v. Smart, 98 F.3d 1379, 1388 (D.C. Cir. 1996)

(declaring that expert “testimony should not be excluded under Rule

704(b) as long as it is made clear, either by the court expressly or in

the nature of the examination, that the opinion is based on the expert’s

knowledge of common criminal practices, and not on some special

knowledge of the defendant’s mental processes” (internal quotation

marks omitted)); United States v. Williams, 980 F.2d 1463, 1466 (D.C.

Cir. 1992) (holding that a potential error in an expert’s testimony

regarding the “intentions of the person who possessed those bags” was

cured by the expert’s affirmative response to the court’s interjected

question: “You aren’t referring and you have no knowledge, I take it,

about this particular case?”).

25

Trial Tr., vol. X-B at 20 (Oct. 29, 2001). Mejia contends that

the recitation of this statement by Rios was barred by Bruton v.

United States, which held that the admission of a non-testifying

co-defendant’s statement, expressly implicating a defendant,

violated the latter’s rights under the Confrontation Clause of the

Sixth Amendment. Bruton, 391 U.S. at 137.

Mejia did not object to the admission of Rios’ statement in

the district court, and our review is therefore limited to plain

error. See United States v. Olano, 507 U.S. 725, 732 (1993)

(holding that an appellate court may not reverse on the basis of

an unobjected-to error unless it is “plain,” “affect[s] substantial

rights,” and “seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings” (internal quotation marks and

citation omitted)); FED. R. CRIM. P. 52(b). Even assuming that

the admission of the statement was error, it did not rise to the

level of plain error. The prejudicial impact of the statement was

indirect: what inference the jury might have drawn regarding

Mejia’s guilt from an inference of Rios’ fear is speculative at

best.10 Any such prejudice was mitigated by a cautionary

instruction that the district court gave to the jury.11 Moreover,

10

Cf. Bruton, 391 U.S. at 135 (reversing conviction where the co-

defendant’s statement, which expressly implicated the defendant as a

participant in the crime, was “powerfully incriminating”); see

generally Gray v. Maryland, 523 U.S. 185, 195-96 (1998); Richardson

v. Marsh, 481 U.S. 200, 208 (1987).

11

The court instructed the jury: “One defendant’s statement made

at a time after his arrest constitutes evidence only against the

defendant making it. It is not evidence against the other defendant.

You must not consider it in any way in determining the guilt or

innocence of the other defendant.” Trial Tr., vol. XIX-A at 23 (Nov.

13, 2001); see United States v. Johnson, 767 F.2d 1259, 1274 (8th Cir.

1985) (holding that the court’s “limiting instruction eliminated the

chance of plain error” after a police officer testified concerning the

26

it was vastly outweighed by the overwhelming evidence of

Mejia’s guilt.12

D

Finally, the defendants challenge the sufficiency of the trial

evidence proving that they conspired to distribute cocaine with

the intent or knowledge that it would be unlawfully imported

into the United States. See 21 U.S.C. §§ 959(a), 963. Our

review of the government’s proof is limited: We must accept

the jury’s guilty verdicts if we conclude that “‘any rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.’” United States v. Arrington, 309

F.3d 40, 48 (D.C. Cir. 2002) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)). In making this determination, “the

prosecution’s evidence is to be viewed in the light most

favorable to the government, drawing no distinction between

direct and circumstantial evidence, and giving full play to the

right of the jury to determine credibility, weigh the evidence and

draw justifiable inferences of fact.” United States v. Dykes, 406

F.3d 717, 721 (D.C. Cir. 2005) (internal quotations and citation

omitted).

out-of-court statements of an absent defendant that implicated a co-

defendant).

12

See United States v. Richards, 241 F.3d 335, 337 (3d Cir. 2001)

(finding that, although the admission of a non-testifying co-

defendant’s out-of-court statement incriminating the defendant was

Bruton error, it did not amount to plain error because of overwhelming

independent evidence of the defendant’s guilt); United States v.

Brazel, 102 F.3d 1120, 1141 (11th Cir. 1997) (same where there was

“abundant properly admitted evidence linking” the defendant to the

crime, and the improperly admitted statement “added little if anything

more to the government’s case”).

27

In its order denying the defendants’ motion for a judgment

of acquittal, the district court found that the evidence was “more

than sufficient to establish that both defendants were involved

in a criminal conspiracy.” United States v. Mejia, No. 99-389,

Mem. Op. & Order at 10 (D.D.C. May 14, 2002). We agree. As

detailed by the district court and recounted in Part I above,

evidence of the conspiracy included the tape-recorded

conversations in which the defendants discussed, in code,

numerous drug transactions. Inspector Sanchez decoded those

conversations and linked them to seizures of cocaine. Multiple

witnesses identified the voices of both defendants on those

tapes. Moreover, Mejia made oral statements and Rios provided

a written statement to the DEA, confessing their involvement in

an international drug transportation network.

The district court likewise concluded -- and again we agree

-- that there was sufficient evidence for the jury to find that the

“intent of the defendants and the object of the conspiracy was to

import cocaine into the United States.” Id. at 12. Evidence of

the defendants’ intent and knowledge was both circumstantial

and direct. See United States v. Chun-Yin, 958 F.2d 440, 443

(D.C. Cir. 1992) (holding that proof that the defendant knew

drugs were to be imported into the United States “may take the

form of circumstantial as well as direct evidence”). Former

DEA Agent Garland provided expert testimony noting that the

drugs were seized on the principal land route for cocaine from

Panama to the United States and were hidden in ways that

suggested the cocaine was headed for the United States. In

addition, cooperating witnesses Funez and Sanchez testified

about trafficking drugs to the United States with Mejia in 1996

and 1997, and both testified that Mejia told them the drugs were

destined for the United States. Indeed, Mejia himself confessed

to being a part of an organization involved in shipping cocaine

to the United States.

28

Notwithstanding the district court’s denial of his motion for

judgment of acquittal, Mejia separately insists that the court’s

refusal, at sentencing, to attribute to him a total of 355 kilograms

of cocaine seized from three shipments during 1998 “was

tantamount to a reconsideration and reversal of the court’s

previous denial of his motion.” Appellants’ Br. 16. Given that

the court went on to attribute 2,374 other kilograms to Mejia and

to sentence him to 400 months in prison, Sentencing Hr’g Tr.

46-47 (July 10, 2002), Mejia’s insistence that the court “had a

change of heart about the case,” Apellants’ Br. 16, rings hollow.

Rather, as the court explained, it found it “unnecessary to deal

with the 355, given how it was not dealt with to [the court’s]

satisfaction in the [government’s sentencing] memo” and given

that it would not “make a difference with respect to the ultimate

adjustment of offense level.” Sentencing Hr’g Tr. 59 (July 10,

2002).

At bottom, Mejia’s argument is just another variant on the

defendants’ theme that the indictment only charged them with

transactions relating to the October 1998 seizures. But saying

that -- even repeatedly -- does not make it so. The superseding

indictment charged the defendants with a conspiracy that ran

from 1995 to 2000, and the evidence was more than sufficient

to warrant their convictions whether or not the cocaine seized in

1998 was included in the sentencing calculations.

IV

We next consider two post-trial issues, each of which

necessitates a limited remand under the case law of this Circuit.

A

Almost a year after the jury’s verdict was entered,

defendant Rios moved for a new trial based on a claim that his

29

attorney had provided ineffective assistance of counsel. See

Strickland v. Washington, 466 U.S. 668, 691-92 (1984). The

district court denied the claim as untimely under Federal Rule of

Criminal Procedure 33, and Rios, represented by new counsel,

renews that claim here.

In United States v. Rashad, 331 F.3d 908 (D.C. Cir. 2003),

we held that, when a defendant asserts an ineffective assistance

claim for the first time on appeal, our “‘general practice is to

remand the claim for an evidentiary hearing’ unless ‘the trial

record alone conclusively shows’ that the defendant either is or

is not entitled to relief.” Rashad, 331 F.3d at 909-10 (quoting

United States v. Fennell, 53 F.3d 1296, 1303-04 (D.C. Cir.

1995)). Although Rios first asserted his ineffective assistance

claim in the district court, the court did not hold an evidentiary

hearing because the assertion was untimely. As a consequence,

we are in the same position as if the claim had first been raised

on appeal: the record does not conclusively show whether or

not the defendant is entitled to relief. Accordingly, we must

remand this claim to the district court for an evidentiary hearing.

B

We must also remand the defendants’ sentencing claims.

Almost three years after the district court sentenced the

defendants in this case, the Supreme Court issued its decision in

United States v. Booker, 543 U.S. 220 (2005). Booker held that

the enhancement of a defendant’s sentence pursuant to a

mandatory Sentencing Guidelines regime, based on facts not

submitted to the jury, violates the Sixth Amendment. See

Booker, 543 U.S. at 244. There is no dispute that the sentences

of defendants Mejia and Rios contain Booker errors. These

include mandatory enhancements based on attributable drug

amounts and on the role of each defendant in the offense. See

30

U.S. SENTENCING GUIDELINES MANUAL §§ 2D1.1(c)(1), 3B1.1

(2001).

At his sentencing, Mejia raised a Sixth Amendment

objection based upon Apprendi v. New Jersey, 530 U.S. 466

(2000) -- the progenitor of the Court’s decision in Booker.

Accordingly, unless the errors in his sentencing were harmless,

see FED. R. CRIM. P. 52(a), Mejia’s sentence must be vacated

and his case remanded to the district court for resentencing. See

United States v. Coumaris, 399 F.3d 343, 351 (D.C. Cir. 2005).

To establish harmlessness, the government must demonstrate

“beyond a reasonable doubt that the error complained of did not

contribute to the [sentence] obtained.” Chapman v. California,

386 U.S. 18, 24 (1967). The government concedes that it cannot

satisfy that standard, and that we must remand Mejia’s case for

resentencing consistent with Booker. See Appellee’s Br. 52.

Rios, by contrast, did not raise a Sixth Amendment

objection to his sentencing in the district court. His appeal is

therefore governed by the plain error standard, see FED. R CRIM.

P. 52(b), and by this circuit’s application of that standard to

Booker errors in United States v. Coles, 403 F.3d 764 (D.C. Cir.

2005), and United States v. Gomez, 431 F.3d 818 (D.C. Cir.

2005). Coles and Gomez set forth the following paradigm: “[I]n

a Booker plain-error case: (1) if the record establishes a

reasonable likelihood that the sentence would have been lower

[had the district court known to apply the law as subsequently

announced in Booker], we remand for full resentencing; (2) if

the record makes us confident that the sentence would not have

been lower, we affirm; and (3) if neither of the above, we grant

a limited remand.” Gomez, 431 F.3d at 824.

This case falls into the “neither of the above” category, id.,

because “the record simply is not sufficient for an appellate

court to determine prejudice with any confidence.” Coles, 403

31

F.3d at 769. At sentencing, the district court said nothing from

which we can deduce what course it would have taken in the

absence of a mandatory Guidelines regime. See id. at 769-70.

Given the limitations of the record, we follow Coles and Gomez

and grant a limited remand of Rios’ claim: “While retaining

jurisdiction over the case, we remand the record to the District

Court . . . to determine whether it would have imposed a

different sentence materially more favorable to the defendant

had it been fully aware of the post-Booker sentencing regime.”

Coles, 403 F.3d at 770.

V

Finally, we address an issue regarding classified

information that was not addressed in the parties’ initial briefs.

A

On October 4, 2001, five days before the defendants’ trial

was scheduled to begin, the Drug Intelligence Unit (DIU) of the

Justice Department’s Narcotic and Dangerous Drug Section

filed an ex parte, in camera motion under seal with the district

court. Pursuant to the Classified Information Procedures Act

(CIPA), 18 U.S.C. App. III, § 4, and Federal Rule of Criminal

Procedure 16(d)(1), the DIU sought review and protection from

disclosure of certain classified information13 related to the

defendants and arguably subject to discovery under the Federal

Rules. The DIU’s motion represented that none of the

investigators or attorneys involved in the prosecution (or

13

CIPA defines “classified information” as “any information or

material that has been determined by the United States Government

pursuant to an Executive order, statute, or regulation, to require

protection against unauthorized disclosure for reasons of national

security.” 18 U.S.C. App. III, § 1.

32

defense) of the case knew of the existence or content of the

classified material, nor had they been made aware of the filing

of the motion by the DIU. After examining the material ex parte

and in camera, the district court determined that it was not

subject to discovery under Brady v. Maryland, 373 U.S. 83

(1963), and issued a sealed protective order. In the event that

either defendant was convicted, the order required the DIU to

provide notice of the protective order to the court of appeals,

which it subsequently did by letter.

On August 5, 2005, the DIU filed a motion under seal with

this court requesting permission to transfer the district court’s

protective order and the underlying materials for our in camera

review. The DIU advised that both the prosecution and the

defense remained unaware of the ex parte proceedings below.

In response, we issued orders directing the government to show

cause why the fact of its filings in this and the district court --

not the content of the materials the filings sought to protect --

should remain sealed. The DIU responded by contending that

disclosure would not be useful to the defendants, and by quoting

our statement in United States v. Yunis that “[t]hings that did not

make sense to the District Judge would make all too much sense

to a foreign counter-intelligence specialist who could learn much

about this nation’s intelligence-gathering capabilities from what

these documents revealed about sources and methods.” United

States v. Yunis, 867 F.2d 617, 623 (D.C. Cir. 1989) (Yunis I).

The quotation from our opinion in Yunis I referred to

disclosure of the underlying classified documents in that case

and was expressly based on “what th[o]se documents revealed.”

Id. It did not refer to mere notice of the government’s efforts to

protect those documents -- a fact that was on the public record

in Yunis I. See id. at 619-20. Although there may be situations

in which the fact that the government has sought a protective

order could itself create a risk of harm, see United States v.

33

Innamorati, 996 F.2d 456, 488 (1st Cir. 1993), the DIU made no

such showing in this case. To the contrary, and despite our

issuance of a second order giving it a second opportunity to

show cause, the DIU offered no reason at all why disclosing the

fact of its filings here could cause injury.

On September 6, 2005, after concluding that the DIU had

failed to justify keeping the fact of its filings secret and that the

views of the defense regarding the legal issues at stake would be

useful to the court, we issued an order notifying the parties that

the ex parte filings had taken place. In so doing, we followed

the lead of the First Circuit in United States v. Innamorati. See

id. at 487. The order did not disclose anything about the

materials that were reviewed by the district court and subject to

its protective order. Because counsel for both sides had been

unaware of the filings when their initial appellate briefs were

submitted, we directed them to submit supplemental briefs

addressing “whether, to what extent, and under what

circumstances CIPA § 4 and Federal Rule of Criminal Procedure

16(d)(1) authorize the non-disclosure of information otherwise

arguably subject to discovery under Rule 16.” United States v.

Mejia, No. 02-3067, Order at 2 (D.C. Cir. Sept. 6, 2005). We

now proceed to consider those issues with the benefit of that

briefing.

B

Rule 16 of the Federal Rules of Criminal Procedure, entitled

“Discovery and Inspection,” sets forth categories of

“[i]nformation [s]ubject to [d]isclosure” by the government in

a criminal case. FED. R. CRIM. P. 16(a)(1). The district court

granted the DIU’s motion for a protective order against the

production of certain classified documents that the DIU

characterized as arguably subject to discovery under Rule 16.

34

In support, the court cited CIPA § 4, entitled “Discovery of

classified information by defendants,” which provides in part:

The 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 . . . . 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.

18 U.S.C. App. III, § 4.14 The district court also relied on

Federal Rule of Criminal Procedure 16(d)(1), entitled

“Protective and Modifying Orders,” which provides:

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

restrict, or defer discovery or inspection . . . . The

court may permit a party to show good cause by a

written statement that the court will inspect ex parte.

FED. R. CRIM. P. 16(d)(1).

The defendants argue that CIPA is a procedural statute that

does not itself create a privilege against discovery of classified

information. We agree. Indeed, we said as much in Yunis I.

See 867 F.2d at 621 (declaring that CIPA § 4 “creates no new

14

Section 4 further provides that, “[i]f the court enters an order

granting relief following such an ex parte showing, the entire text of

the statement of the United States shall be sealed and preserved in the

records of the court to be made available to the appellate court in the

event of an appeal.” 18 U.S.C. App. III, § 4. It was pursuant to this

provision that the district court ordered the DIU to advise this court of

the ex parte proceedings. See also FED. R. CRIM. P. 16(d)(1).

35

rights of or limits on discovery of a specific area of classified

information”).15 CIPA § 4 was, however, intended to “clarify”

a court’s existing “powers under Federal Rule of Criminal

Procedure 16(d)(1)” to protect classified information. SEN. REP.

NO. 96-823, at 6 (1980).16 In Yunis I, we recognized that,

“[w]hile CIPA creates no new rule of evidence regarding

admissibility, the procedures it mandates protect a government

privilege in classified information.” 867 F.2d at 623.

To give content to the classified information privilege,

Yunis I adopted the test that the Supreme Court had applied to

the “informant’s privilege” in Roviaro v. United States, 353 U.S.

53 (1957). Yunis I, 867 F.2d at 622. Under that test, the

reviewing court must first find that the information “crosse[s]

the low hurdle of relevance,” id. at 623, a hurdle that we assume

for the sake of argument has been surmounted here. Second, the

court must determine whether “the assertion of privilege by the

government is at least a colorable one.” Id. As in Yunis I, “our

15

See also H.R. REP. NO. 96-1436, at 12 (1980) (Conf. Rep.)

(stating that “nothing in [CIPA] is intended to change the existing

standards for determining relevance and admissibility”); H.R. REP.

NO. 96-831, pt. 1, at 27 (1980) (stating that CIPA § 4 “is not intended

to affect the discovery rights of a defendant”).

16

See SEN. REP. NO. 96-823, at 6 (“This clarification [was]

necessary because some judges ha[d] been reluctant to use their

authority under [Rule 16] although the advisory comments of the

Advisory Committee on Rules state[d] that ‘among the considerations

[to be] taken into account by the court’ in deciding on whether to

permit discovery to be ‘denied, restricted or deferred’ would be ‘the

protection of information vital to the national security.’” (quoting FED.

R. CRIM. P. 16 advisory committee’s note)); United States v.

Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988) (“Congress intended

section 4 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.”).

36

ex parte in camera review of the classified information in this

case convinces us that the claim of the government to privilege

is a great deal more than merely colorable.” Id. (italicization

omitted). Third, and most significant, Yunis I held “that

classified information is not discoverable on a mere showing of

theoretical relevance . . . [;] the threshold for discovery in this

context further requires that [the information be] . . . at least

‘helpful to the defense of [the] accused.’” Id. (quoting Roviaro,

353 U.S. at 60-61) (emphasis added); see United States v. Yunis,

924 F.2d 1086, 1095 (D.C. Cir. 1991) (Yunis II).17

As in Yunis I, we have carefully examined the classified

information at issue and conclude that it “falls far short” of the

“helpful or beneficial character” necessary to meet the threshold

showing for overcoming the privilege. 867 F.2d at 624.18 We

17

Other circuits have adopted a similar test. See United States v.

Klimavicius-Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (holding

that, “[i]n order to determine whether the government must disclose

classified information, the court must determine whether the

information is ‘relevant and helpful to the defense’” (quoting Yunis I,

867 F.2d at 623)); United States v. Varca, 896 F.2d 900, 905 (5th Cir.

1990) (noting that, in CIPA cases, “the government is not required to

provide criminal defendants with information that is neither

exculpatory nor, in some way, helpful to the defense” (citing Yunis I,

867 F.2d at 617)); United States v. Smith, 780 F.2d 1102, 1107 (4th

Cir. 1985) (applying Roviaro test to the assertion of privilege in a

CIPA case).

18

Because the classified information does not reach the threshold

of being helpful to the defense, we need not decide whether the district

court should have considered the protective options short of full

disclosure that are set forth in CIPA § 4, namely, permitting the

government “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.

37

have made that determination on the basis of a de novo review,

notwithstanding that in the ordinary case we would review a

district court’s issuance of a protective order only for abuse of

discretion. See id. at 622; United States v. Rezaq, 134 F.3d

1121, 1142-43 (D.C. Cir. 1998). We have conducted our review

de novo because the district court did not determine whether the

classified material would be helpful to the defendants under the

Yunis I standard, but rather stated only that it was not subject to

disclosure under Brady v. Maryland. Brady and its progeny

hold that due process requires the disclosure of information that

is “favorable to the accused, either because it is exculpatory, or

because it is impeaching” of a government witness. Strickler v.

Greene, 527 U.S. 263, 281-82 (1999); see In re Sealed Case No.

99-3096 (Brady Obligations), 185 F.3d 887, 892 (D.C. Cir.

1999).19 While Brady information is plainly subsumed within

App. III, § 4; see also FED. R. CRIM P. 16(d)(1) (authorizing a court,

for good cause, to “deny, restrict, or defer discovery,” or to “grant

other appropriate relief”). As in Yunis I, we also need not consider

whether, if the information were helpful, it could nonetheless be

withheld if “the government’s need to keep the information secret”

outweighed the “defendant’s interest in disclosure.” 867 F.2d at 625;

see also Yunis II, 924 F.2d at 1095 (noting that, although other circuits

have “endorsed a balancing approach” when the threshold showings

have been made, this court has not had the occasion to do so). In

particular, we need not decide whether a defendant’s interest in

information that is helpful, but that does not rise to the level that is

subject to disclosure under Brady v. Maryland, can overcome the

government’s interest in protecting properly classified information.

Cf. United States v. Galston, 357 F.3d 77, 84 (D.C. Cir. 2004)

(discussing whether Roviaro requires disclosure of an informant’s

identity that is merely “relevant or helpful,” but that is not “essential

to the defense” (internal quotation marks and citations omitted)).

19

See also Strickler, 527 U.S. at 280 (stating that the government

must disclose “evidence favorable to an accused . . . where the

38

the larger category of information that is “at least helpful” to the

defendant, information can be helpful without being “favorable”

in the Brady sense -- a point to which we alluded in Yunis I.20

See also Kyles v. Whitley, 514 U.S. 419, 436-37 (1995) (“[T]he

Constitution is not violated every time the government fails or

chooses not to disclose evidence that might prove helpful to the

defense.”). Accordingly, in the absence of a district court

finding as to whether the withheld material meets the standard

articulated in Yunis I, we have examined the documents de novo

and on that basis conclude that they are not helpful to the

defense.

The defendants insist that CIPA contemplates that judicial

determinations regarding the disclosure of classified information

will be made with the participation of defendants and their

counsel, and will not be made ex parte. But while CIPA §§ 5

and 6 establish procedures for participation by defendants in

certain in camera hearings, those sections apply to the disclosure

of classified information in trial or pretrial proceedings. 18

U.S.C. App. III, §§ 5(a), 6(a); see SEN. REP. NO. 96-823, at 7-8.

CIPA § 4, by contrast, is the section that governs the

evidence is material either to guilt or to punishment” (quoting Brady,

373 U.S. at 87), and explaining that “evidence is material ‘if there is

a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different’”

(quoting United States v. Bagley, 473 U.S. 667, 682 (1985))).

20

In Yunis I, we noted Roviaro’s statement that the informant’s

privilege must give way where the evidence is “‘essential to a fair

determination of a cause.’” Yunis I, 867 F.2d at 622 n.9 (quoting

Roviaro, 353 U.S. at 60-61). We thought it “apparent that evidence

‘essential to a fair determination of a cause’ creates a different

situation than” information that is “merely helpful,” and that “[i]n the

case of such ‘essential’ evidence, due process . . . might afford the

defendant further relief.” Id.

39

“[d]iscovery of classified information by defendants.” 18

U.S.C. App. III, § 4 (emphasis added). And that section

provides that “[t]he court may permit the United States to make

a request [for a protective] order in the form of a written

statement to be inspected by the court alone.” Id. (emphasis

added); see SEN. REP. NO. 96-823, at 6; H.R. REP. NO. 96-1436,

at 10 (1980) (Conf. Rep.).

As the House Report explains, “since the government is

seeking to withhold classified information from the defendant,

an adversary hearing with defense knowledge would defeat the

very purpose of the discovery rules.” H.R. REP. NO. 96-831, pt.

1, at 27 n.22 (1980). Similarly, Rule 16(d)(1) authorizes the

court to permit a party to make its case for a protective order “by

a written statement that the court will inspect ex parte.” And the

Advisory Committee’s notes to Rule 16 offer an explanation

similar to that in the House Report:

In some cases it would defeat the purpose of the

protective order if the government were required to

make its showing in open court. The problem arises in

its most extreme form where matters of national

security are involved. Hence a procedure is set out

where . . . the court may permit the government to

make its showing, in whole or in part, in a written

statement to be inspected by the court in camera.

FED. R. CRIM. P. 16 advisory committee’s note.21

21

See Sarkissian, 841 F.2d at 965-66 (holding that CIPA § 4

allows the court to assess a claim of privilege through an ex parte, in

camera submission); Innamorati, 996 F.2d at 487 (noting that both

CIPA and Rule 16(d)(1) authorize the court to deny discovery based

on an ex parte showing by the government); see also United States v.

Gurolla, 333 F.3d 944, 951 (9th Cir. 2003).

40

We recognize, as we did in Yunis I, that the defendants and

their counsel, who are in the best position to know whether

information would be helpful to their defense, are disadvantaged

by not being permitted to see the information -- and thus to

assist the court in its assessment of the information’s

helpfulness. See 867 F.2d at 624. For that reason, we have

applied the “at least helpful” test in a fashion that gives the

defendants the benefit of the doubt. See generally Rezaq, 134

F.3d at 1142-43; Innamorati, 996 F.2d at 488. We note,

however, that while the defendants’ predicament is difficult, it

is not without close analogies. When a court (rather than the

prosecutor alone, as is ordinarily the case) reviews evidence in

camera to determine whether it constitutes a witness statement

subject to disclosure under the Jencks Act, 18 U.S.C. § 3500(b),

or exculpatory material subject to disclosure under Brady, the

defendant is likewise “not entitled to access to any of the

evidence reviewed by the court . . . to assist in his argument”

that it should be disclosed. United States v. Carson, 2002 WL

31246900, at *1 (D.C. Cir. Oct. 2, 2002).22

Finding no support for the defendants’ claim of the right to

participation or access in CIPA or the Federal Rules, we turn to

their constitutional arguments. The defendants contend that

their Sixth Amendment right to confront witnesses was

“eviscerated by . . . [the] denial of [their] participation in the

decision as to whether . . . the material could be disclosed, and

[by] the denial of an opportunity to review the materials.”

Appellants’ Supp. Br. 7. That contention, however, is

22

See United States v. North Am. Reporting, Inc., 761 F.2d 735,

740 (D.C. Cir. 1985) (stating that it would “‘defeat th[e] design [of the

Jencks Act] to hold that the defense may see statements in order to

argue whether it should be allowed to see them” (quoting Palermo v.

United States, 360 U.S. 343, 354 (1959))); see also Pennsylvania v.

Ritchie, 480 U.S. 39, 59 (1987) (regarding exculpatory information).

41

foreclosed by the Supreme Court’s decision in Pennsylvania v.

Ritchie, which held that “the right to confrontation is a trial

right, designed to prevent improper restrictions on the types of

questions that defense counsel may ask during cross-

examination,” and does not create a right to pretrial discovery.

480 U.S. 39, 52 (1987). Although Ritchie does not foreclose the

defendants’ further argument that the Fifth Amendment’s Due

Process Clause guarantees their access to certain categories of

evidence in the possession of the government, see id. at 57, that

right is limited to material within the compass of Brady and its

progeny. See United States v. Valenzuela-Bernal, 458 U.S. 858,

867-69 (1982); Weatherford, 429 U.S. at 545-46. And as noted

above, our determination that the withheld information is not

even helpful to the defendants necessarily means that the district

court correctly found that it is not encompassed by Brady.

Finally, the defendants contend that the district court erred

by not even giving them notice that the government had made an

ex parte filing or that the court had issued a protective order.

The statute is silent as to whether such notice is required. See 18

U.S.C. App. III, § 4; see also FED. R. CRIM. P. 16(d)(1).23 But

even if the court did err in failing to provide notice, any such

error was harmless. As we have indicated above, notice would

not have afforded the defendants the opportunity to participate

in the district court’s in camera inspection. And while notice

could have given them the opportunity to brief the legal issues

regarding CIPA and Rule 16, the order that this court issued --

coupled with de novo review -- made up for any deficit in that

23

Compare Gurolla, 333 F.3d at 951 n.7 (stating that the defense

must “be notified that the district court has made a ruling protecting

classified material from disclosure”), with Sarkissian, 841 F.2d at 965

(holding that the “clear language of [CIPA] and its legislative history

foreclose” the contention that “the government must file a public

claim of privilege before making an ex parte in camera submission”).

42

regard. More fundamentally, because the underlying classified

material is unhelpful to the defendants, they did not suffer from

its unavailability; and because that material was never shown to

the jury, “there is no question here of convictions based upon

secret evidence furnished to the factfinder but withheld from the

defendants.” Innamorati, 996 F.2d at 488.

In sum, we conclude that there is nothing about the

government’s or the district court’s treatment of classified

information that would justify granting the defendants’ request

to vacate their convictions.

VI

We affirm defendant Mejia’s conviction in all respects and

remand his case for resentencing in light of United States v.

Booker, 543 U.S. 220 (2005). While otherwise rejecting

defendant Rios’ challenges, we remand the record in his case to

the district court for the limited purpose of: (1) determining

“whether it would have imposed a different sentence materially

more favorable to the defendant had it been fully aware of the

post-Booker sentencing regime,” Coles, 403 F.3d at 770; and (2)

conducting further proceedings to consider the merits of Rios’

ineffective assistance of counsel claim in accordance with

United States v. Rashad, 331 F.3d 908 (D.C. Cir. 2003).

So ordered.