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Old 05-12-2003, 10:23 AM
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Default Federal Court in Florida Hides Cases From Public

Dan Christensen
Miami Daily Business Review
05-12-2003


With the start last week of the government's high-profile drug trafficking case against accused Colombian drug lord Fabio Ochoa, a fresh spotlight is shining on a little-known practice by the U.S. District Court in South Florida that's hiding civil and criminal cases from the public.

Ochoa's defense team, including Miami super-lawyer Roy Black, says it has identified several drug cases in which the existence of events and pleadings were omitted from the public docket. The Daily Business Review learned that in one case drug defendant Nicholas Bergonzoli was convicted, sentenced and imprisoned last year in total secrecy.

Drug cases aren't the only ones sometimes kept completely secret. Also obscured from view on the docket kept by Court Clerk Clarence Maddox's office is a civil case brought against a prison warden by a young Algerian man living in Deerfield Beach, Fla., Mohamed Kamel Bellahouel, who was once mistakenly suspected of involvement with terrorists.

Neither the courts nor the U.S. Attorney's Office, however, acknowledges that dockets are being secretly maintained. A 10-year-old decision by the 11th U.S. Circuit Court of Appeals in Atlanta -- U.S. v. Valenti -- forbids the use of so-called dual dockets in which some matters are held back from the public.

"The government has convinced judges in this court to use the same type of dual docketing system prohibited by Valenti," said Black in a recent court filing. Black has sought to document what he alleges was a government-led extortion scheme against his client. Black contends the secrecy is part of the government's effort to keep the lid on a major scandal.

Black cites four other drug cases where he "has reason to believe" that documents and events have been kept off the public docket. Each of those cases involves defendants who, like Bergonzoli, are alleged to have been involved in the extortion scheme. But there's no way of determining how many cases in all are kept off the public docket in South Florida in whole or in part.

The docket is the backbone of a case file, a listing reference for every document and every hearing. If access to it is thwarted, as Black contends in his case, lawyers may find it impossible to obtain information needed to defend clients. The media and the public, unaware, would not know to challenge a questionable order.

In 1993, after learning that a federal judge in Tampa, Fla., had sealed docket entries in a corruption case, the 11th Circuit held that the lower court's "dual docketing system," one public and one secret, was an unconstitutional breach of the First Amendment.

"The Middle District's maintenance of a public and a sealed docket is inconsistent with affording the various interests of the public and the press meaningful access to criminal proceedings," says the opinion in U.S. v. Valenti.

Who is responsible for cases being sealed in South Florida is unclear. No one in authority is talking much.

Chief Judge William J. Zloch of the Southern District of Florida, who sits in Fort Lauderdale, did not return calls seeking comment about his court's docketing practices. In a written response to questions, Court Clerk Maddox said his office "does not employ a 'dual' docketing system. We use a single docketing system -- the integrated case management system -- for all our docketing work."

Maddox did not respond specifically to questions about the anomalies the Daily Business Review found in the dockets maintained by his office. He did say, however, that the court "in its discretion is the authority for what is sealed and thus unavailable to the public. This is an established and long-standing practice."

Maddox also did not answer questions about whether his office was withholding the existence of entire cases from the public docket, or whether federal district judges were issuing specific instructions to seal documents and dockets.

Dick Carelli, a spokesman for the Administrative Office of the U.S. Courts in Washington, D.C., declined comment. Assistant U.S. Attorney Matthew Dates, a spokesman for U.S. Attorney Marcos Jimenez in Miami, said his office would not comment.

THE LAW

Under federal law, even matters that are properly sealed by a district court judge aren't supposed to be hidden completely from view. Says Local Rule 5.4: "Unless otherwise provided by law, court rule or court order, proceedings in the U.S. District Court are public and court filings are matters of public record." There's even a form for judges to close individual filings from public view, "Order Re: Sealed Filing." But there are no provisions for sealing the entire docket of a case, or sealing individual docket entries themselves.

Several defense attorneys interviewed for this article said there is no law or rule issued before or after the attacks of Sept. 11 that could justify the sealing of dockets in cases involving terrorism, immigration or anything else in the district court or in higher courts.

That includes the Classified Information Procedures Act, a framework for allowing defense counsel access to sensitive documents. CIPA was invoked in Ochoa's case.

The U.S. government invoked the act in the late 1990s because of the backdrop of intrigue in Colombia linking drug dealers and certain leaders of powerful political factions in the South American nation. U.S. District Judge K. Michael Moore's order about CIPA, recently unsealed, makes no mention of sealing dockets.

The rationale for retaining at least a minimal public record of sealed matters is that defendants, the public or the news media can only mount a legal challenge to a prosecutor's motion to seal or a judge's sealing order if they know that a sealing has occurred or is being sought. Typically, the public docket will record that some nonpublic development has occurred in a case with a docket entry saying "sealed."

In a motion filed late last month, Roy Black asked Moore, who is presiding over the case, "to direct the government and the clerk's office to file on the public docket any remaining sealed pleadings or hearings" in Ochoa's case.

"The secret or dual docketing system being used in this case is unconstitutional under the First Amendment," Black wrote, citing the 1993 Valenti ruling. Moore has not ruled on the request.

'AT A LOSS'

Informed by the Daily Business Review about the secret cases, three prominent South Florida defense attorneys, all of whom are past presidents of the National Association of Criminal Defense Lawyers, expressed shock and anger.

"I find it offensive," said Miami's Albert Krieger. "While it's possible to conceive of a situation sealing a docket might be required, I'm at a loss to see it at the moment."

"I've never seen this before," said Fort Lauderdale's Bruce Lyons, a former president of the National Association of Defense Lawyers. "Although on the 50th anniversary of the House Un-American Activities Committee there's nothing that surprises me."

Miami lawyer Neal R. Sonnett, a spokesman for the American Bar Association on criminal justice issues, said he'd not encountered secret dockets. He termed the Bergonzoli case "an extraordinary circumstance" and called the sealing of dockets "inexcusable" if used to hide from defense lawyers matters relevant to the defense of clients.

A spokesman for the NACDL in Washington, D.C., Daniel Dodson, said he, too, was unaware of secret dockets being used to hide cases. He sent a broad electronic inquiry to NACDL members about the matter last week. No examples outside South Florida were reported.

"The ever-expanding introduction of secrecy into the criminal justice system is an alarming trend that is contrary to the most basic principles of a democratic government," said Miami Federal Public Defender Kathleen Williams.

INVISIBLE

There are at least two completely invisible cases on the secret docket of the Southern District of Florida.

One is the criminal case in federal district court in Miami against Colombian businessman and imprisoned drug dealer Nicholas Bergonzoli. A federal grand jury in Bridgeport, Conn., indicted Bergonzoli on a conspiracy to import cocaine charge in October 1995. That court's docket shows the case was transferred in March 1999 to Miami, where it was given a case number, 99cr196, and assigned to then-Chief Judge Edward B. Davis, who has since retired.

Once the case landed in Miami, though, it seemed to vanish. Court dockets accessible to the public don't include Bergonzoli's name. And a computerized search for Docket No. 99cr196 on the PACER electronic docket system yields the reply "no matches found."

But the Daily Business Review has learned that Bergonzoli, now 39, was convicted on the conspiracy charge. On Jan. 29, 2002, U.S. District Judge Patricia A. Seitz in Miami sentenced him to 39 months in prison. Today, Bergonzoli is serving that secret sentence in the Federal Detention Center in downtown Miami.

Information is not publicly available about whether Bergonzoli had a trial or pleaded guilty. But the length of Bergonzoli's sentence suggests there was a plea deal, because a much longer sentence of 20 to 30 years is common for those convicted on such a charge. Such deals typically involve the defendant providing information to help the government nail other offenders. Bergonzoli's projected release date is June 14, 2005, according to the Federal Bureau of Prisons.

A source familiar with the case said the main reason for keeping Bergonzoli's case completely under wraps was Bergonzoli's personal safety. That's because of the murderous reputations of the defendants in cases that overlap Bergonzoli's. One of those defendants is Ochoa.

Ochoa's defense lawyer, Black, has subpoenaed Bergonzoli as a witness in the sprawling cocaine distribution and money-laundering case that began with jury selection last week in Miami before Judge Moore. Ochoa was among 43 defendants charged in the case.

Most have pleaded guilty and gotten deals in exchange for their cooperation. Some remain fugitives. Only Ochoa is on trial.

In court papers, Black identifies Bergonzoli as an "intermediary" in an alleged U.S.-backed "program" to induce major Colombian drug traffickers, including Ochoa, to surrender by selling them advance "sentence reductions." Bergonzoli played an "integral role" in peddling cooperation deals to traffickers, including several who are expected to testify against Ochoa, according to defense filings.

Black has claimed Ochoa was indicted because he refused to play this game. According to Black, Ochoa wouldn't pay a $30 million bribe to Bergonzoli's contact, government informant Baruch Vega of Miami Beach, to arrange a sweetheart deal with the feds.

In February, however, U.S. Magistrate William Turnoff in Miami rejected Black's efforts to get Ochoa's indictment dismissed on this theory. Turnoff held that Ochoa "has not offered one iota of evidence in support of his claims" that federal agents and prosecutors knew about the alleged sentence-reduction sales scheme.

Even so, Black and Miami appellate lawyer G. Richard Strafer have continued to push in Florida and in Atlanta to unseal dozens of documents in the case that their court filings assert would shed light on what they contend is a government scandal that's being covered up by a blanket of secrecy. Late last month, some documents were ordered unsealed, but others remain shielded.

Black, a founding partner at Black, Srebnick, Kornspan & Stumpf in Miami, did not return calls for comment.

Through an intermediary, Bergonzoli declined to be interviewed. Asked whether Bergonzoli is comfortable with the fact that his case is not a matter of public record, his attorney, Joaquin G. Perez of Miami, was cryptic.

"Obviously Mr. Bergonzoli knows there's a case," Perez said. "There are some times when it is not advisable for matters to be of public record."

He declined to elaborate.

But from a public policy perspective, Bergonzoli's feelings about the secrecy aren't relevant, said one attorney familiar with the case who asked to remain unidentified. "Why should the parties define what the public knows about a case," the lawyer said.

TRACES OF CASE REMOVED

A second case kept completely out of the South Florida sunshine is an apparent habeas corpus petition stemming from an immigration detention case brought by the Algerian, Mohamed Bellahouel. He was detained for five months on skimpy evidence of ties to the Sept. 11 terrorists.

As first reported in the Daily Business Review in March, Bellahouel was a waiter at a Middle Eastern restaurant in Delray Beach, Fla., where he apparently served food to some of the Sept. 11 hijackers who dined at the restaurant. A Delray Beach movie theater employee told the FBI she thought she saw Bellahouel go into the theater with one of the hijackers. As a result, in October 2001, he was detained at the Krome Processing Facility in southwest Miami-Dade.

Bellahouel, who lives in Deerfield Beach, Fla., later was hauled before a federal grand jury in Alexandria, Va. -- apparently the same grand jury that investigated the so-called "20th hijacker," Zacarias Moussaoui. Bellahouel has since been released on a $10,000 bond. But his case has rolled along in secret. Sealed proceedings of an unknown nature took place March 5 before a three-judge panel of the 11th U.S. Circuit Court of Appeals sitting in Miami.

Bellahouel's case surfaced briefly because of a court clerk's mistake. Later, the Daily Business Review found, a court calendar and the 11th Circuit's computerized docketing system in Atlanta were altered to remove any trace of Bellahouel's case from the public record.

Information on why the appellate court heard the case and whether it has ruled is not publicly available. Federal Public Defender Williams and her chief of appeals, Paul Rashkind, were present at the sealed appellate hearing in March and represented Bellahouel. They don't acknowledge representing Bellahouel and won't discuss the case at all.

The Daily Business Review has asked each of the 11th Circuit judges in the case -- Stanley F. Birch Jr., Ed Carnes and visiting Judge Procter Hug Jr. of the 9th Circuit -- to unseal Bellahouel's case and any opinion. There has been no response.

MISSING DOCKET ENTRIES

While Bergonzoli's and Bellahouel's cases were entirely disappeared from the public docket, the cases of other federal criminal defendants in South Florida feature public dockets in which certain documents and events were kept out. They include the case of Julio Correa, another alleged "intermediary" in the government's purported sentence-reduction sale scheme involving Ochoa.

Correa was indicted in Miami in 1995 for cocaine conspiracy. He was a fugitive at the time, and a superseding indictment against him was issued in January 1999. Correa disappeared in Colombia in August 2001 and is presumed murdered. In September 2001, The Miami Herald reported that Correa was a "prized government informant" who lived in a plush Aventura condominium and never served a day in prison after he secretly surrendered to the FBI in 1997.

What happened in Correa's criminal case from the time the superseding indictment was unsealed in March 1999 until he vanished nearly 2 1/2 years later isn't known. The public docket contains no entries.

Roy Black and his law partner Howard M. Srebnick have brought this puzzle to the attention of Judge Moore in the Ochoa case. "Counsel have reason to believe other proceedings occurred in Correa that, as in the Bergonzoli case, are not reflected in the publicly available docket sheets," Black and Srebnick said in court papers.

Black and Srebnick also cite criminal drug prosecutions against other defendants in which they believe docket entries were kept off the public docket and which they think could help with their defense of Ochoa. Those cases include U.S.A v. Ramon, Docket No. 99cr711; U.S.A. v. Prado, No. 99-cr27; and U.S.A. v. Escaf, No. 99cr433.

Some evidence presented to the court by Black to document the existence of dual docketing came from the Ochoa case itself. Black cited pleadings and events that appeared only recently on the docket after being "withheld and kept secret from public docketing of any kind, sometimes for years." These were entries for documents filed by the government that have now appeared, for no stated reason, on the Ochoa case's extensive docket. The contents remain sealed to the public and Ochoa's defense team alike.

A "startling" example, Black said, was the recent appearance of an entry for a "sealed document" in the Ochoa case that was filed with the court on June 15, 2000. The docket entry, No. 1166, stands out strangely because it's listed between docket numbers 222 and 223, which were also filed in mid-June 2000. Entry 1166 went public on Feb. 25, 2003.

Then there's the even more mysterious docket entry 1213, which first appeared on the public docket on March 28, 2003. The docket describes 1213 as an order unsealing grand jury proceedings involving many defendants. The problem is the docket says Judge Moore signed that order more than three years earlier on Feb. 15, 2000.

HOW SECRET SYSTEM WORKS

Further evidence of a secret docket and the human dynamics behind it comes from a once-sealed transcript, recently uncovered by Black, of a Nov. 2, 1999, bond hearing for one of Ochoa's many drug co-defendants, Orlando Sanchez-Cristancho. He was under public indictment when he appeared for the bond hearing. But he was finalizing a deal to cooperate with the government which, judging from the transcript, the federal prosecutor wanted to keep secret.

During that hearing, according to the transcript, then-prosecutor Theresa M.B. Van Vliet asked Chief U.S. Magistrate Ann Vitunac in West Palm Beach to seal the proceedings as well as any evidence the hearing ever happened.

Van Vliet told Vitunac that 11 days earlier, U.S. Magistrate Lurana Snow in Fort Lauderdale had granted a no-cash bond releasing Sanchez-Cristancho to the custody of the Drug Enforcement Administration and then sealed everything -- including a tape recording of the hearing -- so it would "not be obvious in the court record itself."

Van Vliet explained to the chief magistrate that "apparently when it gets filed, even if it's under seal, the court's computer, the WinDOC system, indicates sealed document."

To prevent that from happening, Van Vliet asked Vitunac to follow Magistrate Snow's lead, which Vitunac did. "We will hold those tapes, not docket this proceeding," Vitunac said. "And my order at this moment is oral and to be put in writing at a later date."

Seven months passed before the court disclosed in the public docket that a hearing regarding Sanchez-Cristancho was held that day.

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Old 05-12-2003, 02:39 PM
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Old 05-26-2003, 01:51 PM
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Generally speaking, if you have a PACER account, you are able to access federal cases heard by the District Courts both during the court hearings and when all is said and done. It costs .07cents per-page for each document you want to read, but lists all documents, including motions and rulings submitted to the court. For those who are involved or who know someone who is involved in a case before a federal court, it is a good way to keep up to date with what is taking place in the hearing as it happens.

Many courts are or will be transferring to a pay for service system, including the federal courts as well...within the next couple of years. Though I strongly oppose such because it immediately places a substantial limit on public access. It is nevertheless something our courts are pursuing... in the interests of our legal system being a for profit business or so it strangely resembles.
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Old 05-26-2003, 04:29 PM
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I have a pacer account and find it worth its weight in gold.

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Old 05-26-2003, 06:47 PM
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Yes, it is worth its' weight in gold...the nice thing or perhaps a pitfall is that you get a quarterly bill, rather than a monthy bill. Of course the pitfall is a higher bill if you research excessively and thus run up a bill. I particularly like that the bill also includes a detailed account of your research, time, date, cases accessed, documents reviewed and so forth, as well as a space to list the clients code for billing purposes.
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