UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA

v.

HARDY LEE BROWNER

No. 20 CR 299

Judge Robert M. Dow, Jr. 

Government’s Motion for Pretrial Conference

Pursuant to the Classified Information Procedures Act and

Memorandum of Law in Support Thereof

I. Preliminary Statement

The government respectfully submits this memorandum of law to 

apprise the Court of the applicability of the Classified Information Procedures 

Act, 18 U.S.C. App. 3 (“CIPA”), to matters relating to classified information 

that may arise in connection with the prosecution, both before and during trial. 

The government also submits this memorandum of law in support of its motion 

for a pretrial conference, pursuant to Section 2 of CIPA, to consider such 

matters.

II. Background

To assist the Court in this case, the government herein describes the 

procedures mandated by CIPA for protecting classified information. CIPA “‘is 

essentially a procedural tool’ for a court to address the relevance of classified 

information before it may be introduced.” United States v. Abu Marzook, 412 

F.Supp.2d 913, 917-18 (N.D. Ill. 2006) (quoting United States v. Dumeisi, 424 

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F.3d 566, 578 (7th Cir. 2005)). The fundamental purpose of CIPA is “protecting 

and restricting the discovery of classified information in a way that does not 

impair the defendant’s right to a fair trial.” United States v. O’Hara, 301 F. 3d 

563, 568 (7th Cir. 2002). “CIPA sets forth procedures for handling classified 

information in criminal cases.” United States v. Tounisi, 2013 WL 5835770 

(N.D.Ill. 10/30/2013) (citations omitted). 

A. Pretrial Conferences, Protective Orders, and Discovery 

Under CIPA

1. Pretrial Conferences 

Section 2 of CIPA provides that “[a]t any time after the filing of the 

indictment or information, any party may move for a pretrial conference to 

consider matters relating to classified information that may arise in connection 

with the prosecution.” 18 U.S.C. App. III § 2. After such a motion is filed, “or 

on its own motion, the court shall promptly hold a pretrial conference to 

establish the timing of requests for discovery, the provision of notice required 

by Section 5 of [CIPA], and the initiation of the procedure established by 

Section 6 of [CIPA].” Id. The pretrial conference may be held with the 

government in camera and ex parte.

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2. Protective Orders 

Section 3 of CIPA requires the Court, upon the request of the United 

States, to “issue an order to protect against the disclosure of any classified 

information disclosed by the United States to any defendant in any criminal 

case . . . .” 18 U.S.C. App. III § 3. The key Senate Report on CIPA, issued by 

the Senate Committee on the Judiciary, provides that the terms of a protective 

order may include, but need not be limited to, provisions:

(1) prohibiting the disclosure of the information except as 

authorized by the court; (2) requiring storage of material in a 

manner appropriate for the level of classification assigned to the 

documents to be disclosed: (3) requiring controlled access to the 

material during normal business hours and at other times upon 

reasonable notice; (4) requiring the maintenance of logs recording 

access by all persons authorized by the court to have access to the 

classified information in connection with the preparation of the 

defense; (5) requiring the making and handling of notes taken from 

material containing classified information; and (6) authorizing the 

assignment of government security personnel and the provision of 

government storage facilities.

S. Rep. No. 96-823 at 6, reprinted in 1980 U.S.C.C.A.N. 4294, 4299.

3. Discovery of Classified Information by the Defendant 

Although CIPA does not alter the government’s discovery obligations, 

Section 4 of the Act sets forth a procedural mechanism to protect classified 

information, including classified sources and methods, while protecting a 

defendant’s due process rights. Pursuant to Section 4, the court, upon a 

sufficient showing, may authorize the United States to:

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(1) delete specified items of classified information from documents to 

be made available to the defendant through discovery under the 

Federal Rules of Criminal Procedure;

(2) substitute a summary of the information for such classified 

documents; or 

(3) substitute a statement admitting the relevant facts that classified 

information would tend to prove. 

As with the procedures in Fed. R. Crim. P. 16(d)(1), Section 4 of CIPA 

provides that the United States may demonstrate the need for such 

alternatives through an in camera, ex parte submission to the Court. See 

United States v. Rezaq, 134 F.3d 1121, 1142 (D.C. Cir. 1998); United States v. 

Yunis, 867 F.2d 617, 622-23 (D.C. Cir. 1989); United States v. Sarkissian, 841 

F.2d 959, 965 (9th Cir. 1988); United States v. Pringle, 751 F.2d 419, 427 (1st 

Cir. 1984); Marzook, 435 F.Supp.2d. at 745. CIPA’s legislative history makes 

clear that the Court may take national security interests into account in 

determining whether to permit discovery to be denied, restricted, or deferred. 

S. Rep. No. 96-823, at 6 (reprinted in 1980 U.S.C.C.A.N. 4294, 4299-4300); 

United States v. Smith, 780 F.2d 1102, 1110 (4th Cir. 1985) (holding that 

defendant’s right to discovery must be balanced against public’s interest in 

non-disclosure); Pringle, 751 F.2d at 427. 

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B. Notice of Defendant’s Intent to Disclose and Pretrial 

Evidentiary Rulings

The United States anticipates providing classified information to the 

defense in this case. There are three critical pretrial steps in the handling of 

such classified information should the defense reasonably expect to disclose or 

cause the disclosure of classified information. 

First, pursuant to Section 5(a) of CIPA, defense counsel must specify the 

precise classified information they reasonably expect to disclose or to cause the 

disclosure of “in any manner in connection with any trial or pretrial 

proceeding....” See, e.g., United States v. Wilson, 750 F.2d 7, 9 (2d Cir. 1984); 

United States v. Collins, 720 F.2d 1195, 1199-1200 (11th Cir. 1983).

Second, the Court, upon motion of the government, shall hold a hearing 

pursuant to Section 6(a) to determine the use, relevance, and admissibility of 

the proposed evidence. At the Section 6(a) hearing, the Court hears the defense 

proffer and the arguments of counsel, then rules whether the classified 

information identified by the defense is relevant under Rule 401 of the Federal 

Rules of Evidence.1 Smith, 780 F.2d at 1106; see generally Yunis, 867 F.2d at 

 1 CIPA does not change the “generally applicable evidentiary rules of 

admissibility.” Wilson, 750 F.2d at 9; accord Yunis, 867 F.2d at 623. Rather, CIPA alters the 

timing of rulings concerning admissibility, so as to require them to be made before trial. 

United States v. Poindexter, 698 F. Supp. 316, 318 (D.D.C. 1988); accord Smith, 780 F.2d at 

1106.

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622. The Court must also determine whether the evidence is cumulative, 

“prejudicial, confusing, or misleading,” so that it should be excluded under Rule 

403 of the Federal Rules of Evidence. See Wilson, 750 F.2d at 9. At the 

conclusion of the Section 6(a) hearing, the Court must state in writing the 

reasons for its determination as to each item of classified information. 

Third, following the Section 6(a) hearing and formal findings of 

admissibility by the Court, the United States may move to substitute an

admission of relevant facts or summaries for classified information that the 

Court rules is admissible. The Court must grant the motion for substitution “if 

it finds that the statement or summary will provide the defendant with 

substantially the same ability to make his defense as would disclosure of the 

specific classified information.” 18 U.S.C. App. III § 6(c)(1).

If the Court determines that the item of classified information at issue 

is relevant and admissible and denies the government’s motion for 

substitution, Section 6(e)(1) of CIPA permits the government to object to the 

classified information’s disclosure. 18 U.S.C. App. III § 6(e)(1). In such cases, 

the Court “shall order that the defendant not disclose or cause the disclosure 

of such information.” Id. Section 6(e) then sets forth a sliding scale of remedies 

that the Court may impose in such a case. Id. at § 6(e).

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C. Rules Governing Introduction of Classified Information 

In order to prevent “unnecessary disclosure” of classified information, 

CIPA Section 8(b) permits the Court to order admission into evidence of only a 

part of a writing, recording, or photograph. Alternatively, the Court may order 

into evidence the entire writing, recording, or photograph with all or part of 

the classified information contained therein excised. Excision of such classified 

information may not be authorized, however, if fairness requires that the 

whole document, recording, or photograph be considered.

Section 8(c) establishes a procedure for addressing the problems that 

may emerge during the taking of testimony from a witness who possesses 

classified information not previously found to be admissible. If a defendant 

reasonably expects that a question or a line of inquiry would result in 

disclosure of classified information, CIPA mandates that he or she give the 

United States notice under Section 5 of the Act; Section 8(c), in effect, serves 

as a supplement to the Section 6(a) procedures, addressing circumstances that 

might not have been anticipated in advance of the taking of testimony. Thus, 

upon objection of the United States to a defense question or line of inquiry not 

covered in a Section 6(a) proceeding, the Court must take suitable action to 

avoid the improper disclosure of classified information by a witness.

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D. Security Procedures

Section 9 of CIPA required the Chief Justice of the United States to 

prescribe security procedures for the protection of classified information in the 

custody of federal courts. On January 15, 2011, Chief Justice Roberts 

promulgated revised security procedures.

E. Existence of Classified Material

In this case, classified material exists as part of the investigation. The 

disclosure of such material, however, would raise issues of national security. 

Pursuant to Section 2 of CIPA, the United States respectfully requests that the 

Court hold a pretrial conference hearing on a date convenient to the Court. 

At that pretrial conference, the government anticipates that it will be 

prepared to report to the Court the universe of classified material gathered by 

the government during this investigation and the government’s proposed plan 

to address its discovery obligations, as well as for the filing of any motions 

pursuant to CIPA Section 4.

II. Argument

Defendant Hardy Browner is charged with knowingly and willfully make 

a materially false, fictitious, and fraudulent statement and representation to 

the FBI in a matter involving international terrorism, in violation of 18 U.S.C. 

§ 1001(a)(2). Due to the nature of the charges and the expected evidence, the 

United States anticipates that issues relating to classified information will 

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arise in connection with this case. Accordingly, the United States respectfully 

moves for a pretrial conference pursuant to Section 2 of CIPA to establish a 

discovery and motion schedule relating to any classified information. Before 

that conference, the government will endeavor to identify all possible classified 

material and determine its potential applicability, nature and, volume.

At the Section 2 pretrial conference, the government anticipates it will 

be prepared to report to the court regarding the volume of possible classified 

information that may be implicated in this case, and to provide an estimate of 

the time necessary to conduct a complete review of any potentially relevant 

classified information. Based on that estimate, the government will be 

prepared to suggest a schedule for the completion of the review, and be 

prepared to discuss discovery and the timing for the filing of motions, pursuant 

to Sections 3 and 4 of CIPA. Because of the classified nature of any such 

information, the government will not be able to describe the nature of the 

information in open court. As such, government requests authorization to 

convey the classified information ex parte and in camera, either orally at a 

sealed conference or through a sealed letter. Finally, pursuant to Section 4 of 

CIPA, the government will request that the Court authorize in camera, ex parte

submissions regarding classified materials that the government believes 

should be subject to deletion, a process courts have consistently regarded as 

proper in matters involving national security. See, e.g., United States v. Mejia, 

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448 F.3d 436, 455 (D.C. Cir. 2006); United State v. Gurolla, 333 F.3d 944, 951 

(9th Cir. 2003); Pringle, 751 F.2d at 427; and United States v. Marzook, 435 

F.Supp. 2d at 745.

III. Conclusion 

For the foregoing reasons, the government respectfully requests that at 

the arraignment the Court set a date for a pretrial conference pursuant to 

Section 2 of CIPA.

Respectfully submitted,

JOHN R. LAUSCH, Jr. 

United States Attorney

By: /s/ Barry Jonas

BARRY JONAS

JORDAN MATTHEWS

Assistant U.S. Attorneys

219 South Dearborn St., Rm. 500

Chicago, Illinois 60604

(312) 353-5300

Dated: July 13, 2020

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