Judges mull over secrecy of litigation (Gov't-Randy Cunningham)

San Diego Union ^ | 7 AUG 2007 | Greg Moran

[radar101]

PASADENA – A federal appeals panel yesterday wrestled with issues of secrecy, classified information and the public's right to monitor court proceedings in two separate high-profile prosecutions from San Diego. The three-judge panel of the 9th U.S. Circuit Court of Appeals made no final rulings on either case.

One case centers on the guilty plea of a co-conspirator in the Randy “Duke” Cunningham bribery scandal. Government lawyers have blanketed the proceedings in a thick shroud of secrecy, which The San Diego Union-Tribune has been trying to get lifted.

The judges ended up asking for more arguments in the next two weeks from prosecutors and The Copley Press Inc., publisher of the Union-Tribune.

The judges want both sides to address whether government lawyers, who are members of the executive branch, can designate records generated in a court proceedings as “classified.” Court records are part of the judicial branch, so the issue concerns the separation of powers among the branches of government.

The case involves a February guilty plea entered in secret by Thomas Kontogiannis, who admitted to laundering bribes defense contractors gave to then-Rep. Cunningham, R-Rancho Santa Fe.

In trying to keep the information about the plea secret, government lawyers invoked a law dealing with the handling of classified information. At least one transcript of a hearing was stamped “classified” by the government – a move that was criticized by U.S. District Judge Larry Burns, who is presiding over the case and initially agreed to the secret proceedings.

Burns moved to lift the seal in June. Prosecutors, however, objected and took the case to the appellate court. Their reasons for secrecy are unknown because the objections were filed under seal.

After holding a 30-minute hearing yesterday with only the prosecutors present, the judges allowed about 10 minutes of open hearings so the newspaper's lawyer could speak.

Previously, the court had said the entire matter would be closed, and the day's calendar clearly noted the same. It was unclear what led to the change.

Yet it was clear at the conclusion of the open proceedings that the judges were grappling with how to handle information from court cases that government lawyers have deemed classified.

Kontogiannis, a New York developer, pleaded guilty in February to a money-laundering charge. Prosecutors said he laundered $1.1 million in bribes to Cunningham, who pleaded guilty to conspiracy and tax evasion for accepting a total of $2.4 million in bribes from contractors. He is serving an eight-year, four-month sentence in federal prison.

At the end of the hearing, Assistant U.S. Attorney Jason Forge asked the court to order that the Union-Tribune'slegal filings be sealed as well.

Forge said he was neither confirming nor denying publicly that the issue in the case deals with classified information – an odd stance because Burns has said publicly that at least part of the government's reason for seeking the continued secrecy rests on a law dealing precisely with how classified information is handled.

The newspaper wants its filing to be public.

The second case the appellate court heard yesterday involves sealed documents in the guilty plea of a co-defendant in the prosecution of suspected drug kingpin Javier Arellano Félix. The panel seemed skeptical of government claims that the information had to be kept under wraps to protect the safety of some witnesses.