Miami federal court has 'secret docket' to keep some cases hidden from public

By Ann W. O'Neill
Staff Writer

January 8, 2004

A secret docketing system hiding some sensitive Miami federal court cases from public view has been exposed and is being challenged in two higher courts, including the U.S. Supreme Court.

"We don't have secret justice in this country," said Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press. The Washington-based journalists watchdog group is asking the appellate courts to open up two Miami federal cases it says were litigated in secret.

The group has filed briefs in the Supreme Court and in the 11th U.S. Circuit Court of Appeals in Atlanta. Representing two dozen media and legal organizations, it is mounting the stiffest challenge yet to a practice legal experts say violates free speech rights and ignores established court decisions favoring open records and courtrooms.

The legal challenges are emerging as the higher courts are taking a long look at the government secrecy surrounding the detention of more than 1,000 Muslim and Middle Eastern men in the days after the Sept. 11, 2001, terror attacks.

"In recent months, it has become evident that the U.S. District Court for the Southern District of Florida maintains a dual, separate docket of public and non-public cases," Dalglish wrote in a brief filed late last month in the 11th Circuit appeal of convicted Colombian drug lord Fabio Ochoa Vasquez.

In its Supreme Court brief, the media group called the secret jailing of an Algerian-born waiter "perhaps the most egregious recent example of an alarming trend toward excessive secrecy in the federal courts, particularly in cases that bear even a tangential connection to the events of Sept. 11."

Mohamed Kamel Bellahouel, 34, of Deerfield Beach, was arrested for a violating his student visa a month after the terror attacks. Although he sought his release in the District Court and appealed to the 11th Circuit, no public record of his case existed until his appeal to the U.S. Supreme Court. The media group last week asked to join the case as a party, a request the high court rarely grants.

In Ochoa's 11th Circuit appeal, the media group is challenging a secret plea bargain and sentencing involving Nicolas Bergonzoli, a Colombian drug smuggler who had business dealings with Ochoa. The case suggests the secret docketing system predates the Sept. 11 attacks.

Both men were potential witnesses.

Bergonzoli was indicted in Connecticut for drug trafficking in 1995. Four years later his case, still open, was transferred to Miami. No record of it existed until Ochoa's lawyers were able to unseal parts of the file in May. At the time, Ochoa was on trial and prosecutors were resting their case. Bergonzoli entered a secret plea bargain and was never called to testify at Ochoa's trial.

Neither case appeared on the court's public docket, where it would have been assigned a number and scanned into a computer file. As a result, the public had no way of knowing they existed. Hearings were conducted behind closed doors, and all documents and legal motions were filed under seal. The sensitive court papers were kept separately in a vault at the court clerk's office in Miami, according to attorneys familiar with the practice.

U.S. District Judge William J. Zloch, chief judge for the South Florida district, and Clerk of Courts Clarence Maddox were out of the office and unavailable for comment on Wednesday.

Attorney Floyd Abrams, a nationally recognized expert on free press and court access issues, said sealed documents and closed courtrooms are nothing new and are sometimes necessary to protect national security or investigations. But, he said from his New York office, he was "very surprised" to learn about cases that were fully litigated with no public record.

"Without public docket sheets, there is no way for the public to even know that a case has been brought or resolved," Abrams said. "It's a significant infringement of the genuine public interest in knowing what is going on in its judicial system."

Bellahouel's case accidentally came to light when a clerk's mistake made his name and case number public for a few hours. A reporter for The Daily Business Review, a South Florida legal newspaper, picked it up.

According to the newspaper, the case to detain Bellahouel was laid out in an FBI agent's affidavit. The FBI reportedly said Bellahouel served two of the Sept. 11 hijackers, Mohamed Atta and Marwan al-Shehhi, at a Middle Eastern restaurant in Delray Beach. He also reportedly was seen at a nearby movie theater with a third hijacker, Ahmed Alnami.

Bellahouel was held at Krome detention center in southwest Miami-Dade County, testified before a federal grand jury in Virginia, and was released in March 2002 on a $10,000 immigration bond.

Bellahouel's appeal to open his files was denied by the 11th Circuit, which issued its decision -- under seal -- on March 31. Attorneys involved in the case are under a gag order and can't comment.

Kathleen M. Williams and Paul M. Rashkind, Bellahouel's federal public defenders in Miami, then turned to the U.S. Supreme Court, where their papers refer to their client by his initials, MKB. The petition, the first official public record of the case, is heavily edited, with blank pages and huge gaps of white space.

"The world has changed since 9/11," the lawyers argue. "But the common-law and First Amendment rights to discuss and debate those changing events remain alive ... The blanket sealing utilized in this case and appeal, however, hides everything."

The Supreme Court asked the government to defend the secrecy. Late Monday, Solicitor General Theodore B. Olson filed the government's response -- under seal. The Supreme Court has not yet decided whether to take the case.

Ochoa's lawyers, G. Richard Strafer and Roy Black, had heard rumors about Bergonzoli, ran a name search and discovered a federal case filed in Connecticut. The file included a letter to the court clerk, transferring the case, and a new Miami docket number. But when Strafer plugged the number into the court's computer system, he found nothing. The court clerk told him no such case existed, he said.

He found Bergonzoli in a federal prison, serving 37 months.

Strafer and Black have long argued that government secrecy hampered Ochoa's defense. Now, the American Civil Liberties Union and the media group, representing The New York Times, The Washington Post, ABC, CNN and other news organizations, are objecting, saying it hampers their ability to inform the public.

"We're happy that the cavalry is coming to the rescue," Strafer said. "This is a dangerous precedent. The media and the public should be alarmed that people can be sent to prison without anyone even knowing they had a case."

Ann W. O'Neill can be reached at awoneill@sun-sentinel.com or 954-356-4531.