Copyright 2004, Miami Business Review

Secret federal court dockets are exposed in 11th Circuit criminal case. Appeal focuses on 'super-sealed' court documents that hide cases' existence

(Miami Business Review 11/22/04) -- In a case that's being closely watched by civil libertarians, journalists and the criminal defense bar, lawyers for convicted Colombian narcotics boss Fabio Ochoa have attacked his 2003 conviction partly on the grounds of federal court secrecy practices.

A key issue in last week's oral arguments before the 11th U.S. Circuit Court of Appeals in Atlanta was the constitutionality of secret court dockets that federal judges in South Florida and Atlanta have used to hide the existence of some civil and criminal court cases.

Judge Rosemary Barkett expressed strong concerns about the use of secret dockets. She wanted to know how one of the potential witnesses for Ochoa, Nicholas Bergonzoli, came to be convicted, sentenced and imprisoned in total secrecy in U.S. District Court in Miami in 2002.

"Who authorized that?" asked Barkett, who led the three-judge panel that's considering Ochoa's appeal. "I've never heard of such a thing."

In seeking a new trial for Ochoa, Miami attorneys Roy Black and G. Richard Strafer contended that federal prosecutors bottled up evidence favorable to their client by convincing judges to conceal, in whole or in part, drug cases involving potential witnesses for Ochoa's defense.

Prosecutors sought such extraordinary secrecy, they argue, to hide a U.S. government-led extortion scheme against their client. Besides asking for a new trial, Ochoa's defense wants the 11th Circuit to declare unconstitutional, on First Amendment grounds, "nonpublic" docketing systems that block access to court records by the news media and public.

In Ochoa's case, they said, such denial of access led to additional violations of Ochoa's constitutional rights under the Fifth and Sixth Amendments by denying him the ability to adequately prepare his defense.

The defense lawyers are also seeking a court order unsealing all documents and hearings involving the extortion scheme that authorities have insisted was run without their knowledge by a renegade informant.

Assistant U.S. Attorney Emily M. Smachetti did not defend the government's secrecy practices in the Ochoa and related cases. And in response to Judge Barkett's question about the secrecy of Bergonzoli's case, Smachetti said "it was super-sealed originally and never got unsealed."

Super-sealing is a relatively new word in the legal lexicon that describes the total eclipse of entire cases or individual pleadings by keeping everything about them -- even case and docket numbers -- secret.

"Who made the decision to seal?" asked Judge B. Avant Edenfield, a visiting U.S. District Court judge from Savannah serving on the 11th Circuit panel.

"I think the prosecution asked for the seal," Smachetti said. She argued that secret dockets had no impact on Ochoa's case. "The problem was the indictment wasn't just put under seal, it was removed from the docket."

Former Southern District of Florida Chief Judge Edward B. Davis and U.S. District Judge Patricia A. Seitz presided over Bergonzoli's case.

Barkett also spoke up when Smachetti mentioned defense concerns about the 11th Circuit's use of a secret docket to hide a civil habeas corpus case brought by a Deerfield Beach, Fla., man of Algerian origin, Mohamed Kamel Bellahouel, challenging his detention in the post-Sept. 11 dragnet.

"I have concerns about that, too," Barkett said.

Ochoa was one of 33 persons indicted in 1999 as part of an investigation into Colombian drug trafficking called Operation Millennium. He was extradited to the United States in September 2001, and later stood trial alone under heavy security. U.S. District Judge K. Michael Moore sentenced Ochoa to 365 months in August 2003 following his conviction on various drug conspiracy charges.

At trial, Ochoa's defense unsuccessfully sought to argue that Ochoa was indicted because he refused to pay a $30 million bribe to a government informant in an alleged U.S.-backed "program" to induce major Colombian drug traffickers to surrender by selling them advance "sentence reductions."

Bergonzoli, an Ochoa associate, was a key "intermediary" in that corrupt scheme, Black said.

Before trial, Judge Moore rejected that defense theory as unsupported by any evidence. But Black and Strafer contend the government has kept such evidence under wraps by getting judges to super-seal it in five separate drug cases involving defendants they say were involved in the extortion scheme. They cite Bergonzoli's case as the main example.

Bergonzoli, now 41, was indicted in U.S. District Court in Bridgeport, Conn., in 1995 for conspiracy to import cocaine. But his dormant case seemed to vanish in 1999 after it was transferred to Miami. No record of it existed on the public court docket here.

It later turned out Bergonzoli cut a deal and went to work as an informant for the U.S. Drug Enforcement Administration. For four years, Black sought to learn more about Bergonzoli's case as he prepared Ochoa's defense; he was unable to locate either the man or the case file.

That changed on May 23, 2003. Toward the end of Ochoa's trial, Moore ordered the clerk's office to list Bergonzoli's case on the public docket and unsealed many documents in the case in response to defense motions. Black has said the disclosure was too little and too late to help Ochoa's defense.

Federal records show that Bergonzoli has completed his 39-month prison sentence and was released in July.

Following Ochoa's conviction, a number of issues were raised on appeal. One argued by Black on Tuesday involved claims that the government improperly had struck Hispanic males from serving on the jury. Black also argued that Moore had failed to inquire about the impact of special trial security measures on the ability of jurors to be fair to Ochoa.

The appellate issue in the case that has drawn the widest attention, however, is the federal courts' use of secret dockets. Both the ACLU of Florida and the 1,600-member Florida Association of Criminal Defense Lawyers filed friend-of-the-court briefs opposing the use of secret dockets.

In a separate amicus brief, the Reporters Committee for Freedom of the Press, based in Arlington, Va., asked the 11th Circuit to halt the practice, and also to void a wide range of lower court secrecy orders that sealed information related to Ochoa's case.

The Reporters Committee argued that judges in the U.S. District Court in South Florida have ignored court precedent regarding the imposition of secrecy to employ a "secretive administration of justice" characterized by "closed hearings, sealed docket entries and even the removal of entire cases from the public docketing system."

The committee has leveled similar criticism about excessive secrecy at the 11th Circuit itself for secretly docketing a habeas case filed by Bellahouel.

Bellahouel was jailed for five months in the aftermath of Sept. 11 when FBI agents tenuously linked him to some of the hijackers involved in those attacks.

When Bellahouel filed a habeas corpus petition for his release in January 2002, his case was super-sealed by U.S. District Judge Paul C. Huck in Miami. After Bellahouel appealed Huck's still-secret ruling, the 11th Circuit super-sealed his case. But a clerk's error allowed it to be discovered and reported on by the Miami Daily Business Review.

Last February, the U.S. Supreme Court declined to hear Bellahouel's appeal of the 11th Circuit's confidential ruling.

In the U.S. Attorney's appeal briefs, and in Assistant U.S. Attorney Smachetti's arguments last Tuesday, the government did not defend the practice of secretly docketing cases. Rather, Smachetti told Barkett, Edenfield and Judge Frank M. Hull that what was super-sealed on the secret docket had no effect on the outcome of Ochoa's case.

"The secret docket does not impact the fairness of the trial," said Smachetti, who was accompanied at argument by Ochoa prosecutor Edward Ryan.

Still, Barkett contrasted the impact on court access of super-sealing with standard court seals that are used by judges to shield sensitive information. Standard seals leave a public trail of court events.

"It's totally different when you call the clerk's office and ask if there's a case against someone and they say no," Barkett said.

By Dan Christensen. Greg Bluestein and Jonathan Ringel provided additional reporting for this arfticle.