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Handling Naaman’s Secret Evidence

As we mentioned a few weeks ago, Ousama Naaman’s sentencing is on hold while he and the government review new evidence that may be classified.

It’s a complicated process, and prosecutors now want his sentencing, first set for August 4 and then moved to September 8, delayed indefinitely.

Naaman pleaded guilty in January to an FCPA conspiracy count. As Innospec’s agent, he paid $4 million in kickbacks to the Iraqi government and more than $3.5 million in bribes to senior Iraqi government officials.

He introduced the new evidence during his sentencing phase.

When a defendant wants to discover classified information or put it into evidence, there’s a tricky balancing act between his right to a fair trial and national security.

In the Giffen case, for example, prosecutors agreed that Giffen’s lawyers could see some classified material but couldn’t tell their client about it without permission from the government and the court. In other words, the presence of the classified evidence tied the case up in knots.

That’s not supposed to happen. A U.S. law — the Classified Information Procedures Act, or CIPA — was intended to balance the interests of everyone and make trials run smoother. The law calls for orderly disclosures, in camera conferences and hearings, interlocutory appeals, and high-level DOJ coordination.

A government filing last week in the Naaman case nicely describes how CIPA is supposed to work. (How it works in real life isn’t always so clear.)

While we can’t see Naaman’s new evidence because it might be classified, we can see how the government proposes handling it.

Download a copy of the United States’ August 22, 2011 motion for a status conference pursuant to 18 U.S.C. APP. III (CIPA) Section 2 here.

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