Is the CIA Sweating Bullets Over A Money Laundering Idiot?

William J. Schwartz, Esq.
Is the CIA Sweating Bullets Over A Money Laundering Idiot?
Thu Dec 9, 2004 16:07

Is the CIA Sweating Bullets Over A Money Laundering Idiot?
Posted on Friday, December 03 @ 21:59:03 EST
Topic: CIA

Is the CIA getting nervous over James Giffen. Certainly seems to be the case. The agency has been banking on the courts to keep Giffen's defensive tactics sealed. Why oh why would they be concerned with this you ask? Ever hear of a CIA defense? No? It's where the defendant acknowledges having worked for the Central Intelligence Agency and the shit starts rolling downhill. Yea! That defense. Many have tried and just about all have failed. Funny how these "oil related" idiots are always in the middle of something shady isn't it.


[7 pages.]

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S2 03 CR. 404 (WHP)
-against- :


Defendant. :

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WILLIAM H. PAULEY III, District Judge:

Presently before the Court is Defendant James H.

Giffen's application to unseal various letter memoranda and

transcripts of proceedings in this action. This application

stems from the Government's pursuit of contradictory strategies

for the filing of documents containing potentially classified


Oblivious to the requirements of Classified Information

Procedures Act (CIPA) and Rule 12.3 of the Federal Rules of

Criminal Procedure, the Government initiated public filings with

this Court. Then, in an abrupt about-face, the Government began

submitting every document under seal and insisted that Defendant

James Giffen do the same. The Government now asserts that its

earlier public filings contain potentially classified information

and ought to be sealed.

By letter application dated September 2, 2004,

Defendant sought, inter alia, to unseal the transcript of the


July 29, 2004 hearing as well as various submissions by the

parties concerning CIPA. The Government responded by letter

dated September 8, 2004 and agreed in principle that portions of

the July 29, 2004 hearing and earlier submissions relating to

CIPA procedural matters should be unsealed.

Thereafter, by letter application dated September 23,

2004, the Government consented to unsealing its July 28, 2004

memorandum of law regarding CIPA and discovery. That concession

was well-advised because the Government's purportedly classified

memorandum simply copied a large segment of a CIPA synopsis in

the United States Attorneys' Manual, which is available on the

U.S. Department of Justice's publicly accessible web page. .

That letter also consented to unsealing a September 7, 2004

letter from defense counsel and a letter from the Government

dated September 10, 2004 enclosing a proposed protective order.

In that letter, the Government requested that the Court postpone

ruling on Defendant's unsealing motion until the Government

completed its review of other documents under seal.

By letter dated September 27, 2004, the Government

announced its position with regard to the unsealing of portions

of the July 29, 2004 transcript and several letters filed under

seal between August 3, 2004 and September 8, 2004. Those letters

include the Defendant's August 3, 2004 letter, the Government's


August 4, 2004 letter, the Defendant's August 16, and September

2, 2004 letters and the Government's September 8, 2004 letter.

In the portions relevant to Defendant's application, each of

these letters discuss a potential public authority defense. The

Government does not contend that these letters disclose

classified information. Instead, it argues that they provide

notice of Defendant's intent to assert a public authority defense

naming federal intelligence agencies.

Rule 12.3(a) (1) of the Federal Rules of Criminal

Procedure requires that if a defendant gives notice of a public

authority defense which "identifies a federal intelligence agency

as the source of the public authority," then the notice "filed

with the clerk must be under seal." That notice must contain the

following information: "(A) the law enforcement agency or federal

intelligence agency involved; (B) the agency member on whose

behalf the defendant claims to have acted; and (C) the time

during which the defendant claims to have acted with public

authority. " Fed. R. Crim. P. 12.3(a)(2).

Without citation to any authority, the Government

argues that "ancillary proceedings related to a possible public

authority defense which reveal directly or indirectly that a

defendant is contemplating a public authority defense based on

authority allegedly provided by a federal intelligence agency

also ought to be sealed." The Government's position is


untenable. Rule 12.3 does not require that all documents

relating to a public authority defense be filed under seal.

Rather, it requires only that notice of a public authority

defense containing the statutorily-required items of information

be filed under seal.

There is no dispute that neither the July 29, 2004

transcript nor any of the letters filed between August 3, 2004

and September 8, 2004 constitute actual notice of a public

authority defense. However, were this Court to allow public

filing of documents containing information that must be included

in a public authority defense notice, the national security

concerns undergirding Rule 12.3 would be compromised. Therefore,

this Court will continue to seal those portions that give notice

of a potential public authority defense identifying a federal

intelligence agency. Such sealing will extend only to portions

of documents that disclose the information listed in Rule

12.3(a)(2). Further, this Court declines to seal references to

Robert Baer's book, titled See No Evil: The True Story of a

Ground Soldier in the CIA's War on Terrorism (Crown Publishers

2002), because it was vetted and approved by a federal

intelligence agency prior to its publication. With these

principles in mind, this Court is issuing an Order under seal

identifying the specific portions of the letters and transcript

that shall remain sealed.


In its September 27, 2004 letter, the Government also

launched a new application seeking to seal previously publicly

filed documents. Those documents include portions of Defendant's

memorandum in support of his pretrial motions, the Government's

Defendant's reply memorandum In support or his pretrial motion,

the June 3, 2004 hearing transcript, and this Court's July 2,

2004 Memorandum and Order concerning discovery issues. In

addition, the Government sought to seal some public portions of

the September 5, 2003 and the July 29, 2004 hearings conducted in

open court. In its September 27, 2004 salvo, the Government

acknowledged the self-evident: "it is obviously impossible to

completely repair any damage caused by these public filings."

(Letter, dated September 27, 2004, at 3.)

The notion that this Court should seal a portion of its

Memorandum and Order four months after it was publicly filed,

made available on Westlaw, published in the New York Law Journal

and discussed in the national media is absurd. Such a sealing

Order would be an exercise in futility. If docketed, its

practical effect would be to make this Court's opinion available

everywhere, except in the Clerk's office for the Southern

District of New York. Accordingly, the Government's application

to seal portions of this Court's July 2, 2004 Memorandum and

Order is denied. For the same reason, this Court declines to


seal documents that the Government filed in the public domain or

comments made in open court.


For the foregoing reasons, this Court grants in part

Defendant's application to unseal materials filed under seal.

This Court grants the Government's request to seal portions of

the July 29, 2004 transcript, Defendant's August 3, August 16,

and September 2, 2004 letters, and the Government's September 8,

2004 letter and denies the Government's application to seal

portions of documents previously docketed in the public file.

The Government is directed to provide this Court and Defendant

with redacted copies of the transcript and letters within five

(5) business days for public filing.

The parties are directed to provide this Court with

their positions regarding the unsealing of the November 3 and

November 23, 2004 transcripts, the Government's September 27 and

November 16, 2004 letters, and the Defendant's October 4 and

November 19, 2004 letters by December 15, 2004.

Finally, the Clerk of the Court is directed to unseal

the following documents:

1. Docket entry # 50 the Government's
letter dated August 4, 2004;

2. Docket entry # 52 the Government's
Memorandum regarding Classified
Information Procedures Act (CIPA), dated


July 28, 2004; and

3. Docket entry # 55 the Protective
Order, dated September 10, 2004.

Dated: December 2, 2004
New York, New York



Copies faxed to:

AUSA Peter Neiman
United States Attorney's Office
One St. Andrew's Plaza
New York, New York 10007

Philip Urofsky, Esq.
Special Counsel for International Litigation
Fraud Section
U.S. Department of Justice
10th & Constitution Ave., N.W.
Washington, D.C. 20530

William J. Schwartz, Esq.
Steven M. Cohen, Esq.
Kronish, Lieb, Weiner & Hellman LLP
1114 Avenue of the Americas
New York, New York 10036-7798
Counsel for Defendant   

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