                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                   No. 11-30342
            Plaintiff-Appellee,
                                               D.C. No.
               v.                           6:05-cr-60008-
                                                HO-2
PIROUZ SEDAGHATY,
          Defendant-Appellant.                OPINION


      Appeal from the United States District Court
               for the District of Oregon
      Michael R. Hogan, District Judge, Presiding

               Argued and Submitted
        December 3, 2012—Seattle, Washington

                    Filed August 23, 2013

  Before: Mary M. Schroeder, M. Margaret McKeown,
        and Richard C. Tallman, Circuit Judges.

              Opinion by Judge McKeown;
Partial Concurrence and Partial Dissent by Judge Tallman
2                UNITED STATES V. SEDAGHATY

                           SUMMARY*


                          Criminal Law

    The panel affirmed in part and reversed in part a criminal
judgment and remanded for a new trial in a tax fraud case –
that involved significant amounts of classified materials and
in camera, ex parte reviews as well as classified proceedings
– stemming from charges that the defendant falsified a 2000
charitable organization tax return in order to conceal his
support of an independence movement in Chechnya.

    The panel was not persuaded by the defendant’s
arguments regarding the classified material, the district
court’s evidentiary decisions, the notion that the government
was one-sided in its effort to obtain evidence abroad, or his
view that the government’s characterization of the evidence
rose to the level of a constitutional violation.

    The panel held that the government violated its
obligations pursuant to Brady v. Maryland by withholding
significant impeachment evidence relevant to a central
government witness.

    After reviewing the classified record, the panel
determined that the district court erred in approving an
inadequate substitution for classified material that was
relevant and helpful to the defense. The panel held that the
substitution did not satisfy the requirement in the Classified
Information Procedures Act, 18 U.S.C. app. 3 § 6(c)(1), that

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               UNITED STATES V. SEDAGHATY                     3

the summary “provide the defendant with substantially the
same ability to make his defense as would disclosure of the
specified classified information.”

    The panel also concluded that the search that the
government conducted of the defendant’s computer hard
drives went well beyond the explicit limitations of the
warrant, and remanded to the district court to consider the
appropriate scope of items seized and whether the
exclusionary rule should apply.

   Considering the errors both individually as well as
cumulatively in light of the evidence as a whole, the panel
concluded that the errors were prejudicial.

    The panel filed concurrently, under appropriate seal, a
classified opinion with respect to the substitution. That
opinion also addresses in more detail the defendant’s claim
regarding foreign bank records.

    Concurring in part and dissenting in part, Judge Tallman
wrote that the opinion’s recitation of the facts is
inappropriately written from the perspective of the defense
theory of the case, that the majority unduly constricts the text
of the search warrant and disregards the underlying reason for
the very existence of the exclusionary rule, that the opinion
disregards the district judge’s express factual findings and his
rulings on the potential impact of challenged witness
testimony following an evidentiary hearing, and that the
opinion discounts the extraordinary efforts by the Department
of Justice to abide by its criminal discovery obligations and
the district court’s extensive oversight of those efforts in
dealing with extremely sensitive national security concerns.
4               UNITED STATES V. SEDAGHATY

                            COUNSEL

Steven T. Wax (argued), Federal Public Defender, Portland,
Oregon; Lawrence Matasar, Lawrence Matasar, P.C.,
Portland, Oregon, for Defendant-Appellant.

Kelly A. Zusman (argued), Christopher Cardani, and Charles
Franklin Gorder, Jr., Assistant United States Attorneys,
Office of the United States Attorney for the District of
Oregon; Virginia Marie Vander Jagt, Counsel, United States
Department of Justice, Washington, D.C., for Plaintiff-
Appellee.


                             OPINION

McKEOWN, Circuit Judge:

    This is a tax fraud case that was transformed into a trial
on terrorism. The case stems from charges that Pirouz
Sedaghaty (known as Pete Seda) falsified a 2000 charitable
organization tax return in order to conceal his support of an
independence movement in Chechnya, a republic in the
Caucasus mountains of southern Russia. Seda founded the
U.S. branch of the Al-Haramain Islamic Foundation, Inc.
(“Al-Haramain”), a Saudi Arabian charity that the U.S.
government suspected of funding terrorist activities and
supporting the Chechen mujahideen (holy warriors engaged
in violent jihad against Russian forces) under the guise of
humanitarian aid.1 Seda’s defense was based on his claim


    1
   Seda was indicted along with the U.S. chapter of Al-Haramain, which
was later dropped as a defendant, as well as an alleged co-conspirator,
Soliman Al-Buthe, who remains a fugitive abroad.
              UNITED STATES V. SEDAGHATY                    5

that any discrepancy on the tax return could be traced to his
accountant, as well as on his long history of peaceful
engagement on behalf of Islam and his track record of
charitable work in the United States and abroad.

     The appeal illustrates the fine line between the
government’s use of relevant evidence to document motive
for a cover up and its use of inflammatory, unrelated evidence
about Osama Bin-Laden and terrorist activity that prejudices
the jury. This tension was evident both before and during
trial and dominates much of the briefing on appeal.

    Similarly, what was charged as a tax fraud case in fact
involved significant amounts of classified materials and
multiple in camera, ex parte reviews as well as classified
proceedings. These classified proceedings figure prominently
in the appeal. To the extent possible, we have written our
opinion without reference to classified materials so as to
allow the maximum transparency in this criminal case. To
supplement this opinion, we are filing concurrently, under
appropriate seal, a classified opinion with respect to the
substitution—a terse summary that the government provided
Seda in place of actual classified documents that are relevant
and helpful to his defense. That opinion also addresses in
more detail Seda’s claim regarding foreign bank records.

    We recognize that a system that permits ex parte hearings
and requires the court to pass on the legitimacy of claims
related to classified information places a heavy burden on the
court. We also recognize that defense counsel, who best
know their client’s interests, are placed at a serious
disadvantage in challenging classified proceedings in a
vacuum. Toward that end, we take our duty very seriously
6                UNITED STATES V. SEDAGHATY

and undertake our review of classified information with
special scrutiny.2

    Following his conviction for tax violations, Seda
challenges a host of rulings. In particular, he takes aim at the
prosecution’s failure to disclose its interview notes regarding
payments to a key witness, the court’s handling of classified
information under the provisions of the Classified
Information Procedures Act (“CIPA”), 18 U.S.C. app. 3, the
breadth of computer and other documents seized pursuant to
a warrant, and various evidentiary rulings. Seda also claims
that he was deprived of a fair trial by the government’s
refusal to aid him in obtaining evidence from overseas, by its
appeal to religious preferences, and by its use of
inflammatory evidence of guilt by association.

    In the main, we are not persuaded by Seda’s arguments
regarding the classified material, the district court’s
evidentiary decisions, the notion that the government was
one-sided in its effort to obtain evidence abroad, or his view


 2
   Because of the strong public policy in favor of public access to judicial
proceedings, we heard argument on nearly all of the issues on appeal in
open court. On several very limited issues, we held an in camera hearing
with counsel from the government and from the defense together, and then
with the government ex parte. On one issue, we heard from a single
government attorney who was not part of the prosecution team. The
government trial lawyers were walled off from certain classified material
so it would not taint the conduct of the prosecution.

     We take note of the careful procedures instituted by the district court
and followed by the government to protect classified information, as well
as defense counsel’s cooperation with these procedures. Our judgment as
to the government’s discovery violations is not a reflection on the trial
court’s good faith efforts to ensure a fair trial while protecting national
security.
              UNITED STATES V. SEDAGHATY                    7

that the government’s characterization of the evidence rose to
the level of a constitutional violation. Nonetheless, there
were significant errors that merit a new trial.

    We conclude that the government violated its obligations
pursuant to Brady v. Maryland, 373 U.S. 83 (1963), by
withholding significant impeachment evidence relevant to a
central government witness. After reviewing the classified
record, we also determine that the court erred in approving an
inadequate substitution for classified material that was
relevant and helpful to the defense. The substitution did not
satisfy CIPA’s requirement that the summary “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. 3 § 6(c)(1). We reject Seda’s
remaining challenges to the handling of classified information
under CIPA. We also conclude that the search that the
government conducted of Seda’s computer hard drives went
well beyond the explicit limitations of the warrant and
remand to the district court to consider the appropriate scope
of items seized and whether the exclusionary rule should
apply.

    We are particularly troubled by the cumulative effect of
these errors, which resulted in admitting evidence illegally
seized while denying Seda both material impeachment
evidence and potentially exculpatory evidence. See United
States v. Wallace, 848 F.2d 1464, 1476 (9th Cir. 1988)
(emphasizing the cumulative effect of three trial errors
improperly admitting impeachment evidence of a defense
witness, erroneously bolstering the testimony of a prosecution
witness, and admitting defendant’s statements that should
have been suppressed). Although each of these issues
potentially merits a remand or a new trial on its own, given
8              UNITED STATES V. SEDAGHATY

these multiple, significant errors, “‘a balkanized, issue-by-
issue harmless error review’ is far less effective than
analyzing the overall effect of all the errors in the context of
the evidence introduced at trial. . . .” United States v.
Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (quoting
Wallace, 848 F.2d at 1476). Considering the errors both
individually as well as cumulatively in light of the evidence
as a whole, we conclude that the errors were prejudicial and
reverse and remand for a new trial. As a consequence, we do
not address Seda’s arguments regarding his sentence.

                       BACKGROUND

    In the 1990s, Al-Haramain was one of Saudi Arabia’s
largest non-governmental organizations, with more than fifty
offices worldwide distributing humanitarian aid and funding
religious education. With close ties to the Saudi government,
it has been described by U.S. government officials as the
“United Way” of Saudi Arabia. Apart from humanitarian aid
and educational materials, however, some Al-Haramain
offices distributed funding and other support to terrorists.
Based on joint submissions by the governments of the United
States and Saudi Arabia, the United Nations implemented
sanctions against Al-Haramain offices in eleven countries
beginning in 2002. By 2004, the Saudi government had
dissolved Al-Haramain altogether. That same year, the
United States designated former Al-Haramain principals Aqil
Al-Aqil and Soliman Al-Buthe and the U.S. chapter of Al-
Haramain as “Specially Designated Global Terrorists” subject
to financial sanctions because of their role in providing
financial support to terrorist groups. Seda came under
investigation by the FBI and the IRS because of his role in the
U.S. chapter of Al-Haramain.
              UNITED STATES V. SEDAGHATY                    9

    Seda moved from his native Iran to Ashland, Oregon, in
the 1970s. After attending Southern Oregon University, he
became a well-known arborist in the city. With the mission
of promoting the understanding of Islam and building bridges
within the community, Seda cofounded the Qur’an
Foundation with his friend David Rodgers, who had grown up
in Ashland. The Qur’an Foundation hosted public lectures
and distributed the Qur’an locally and to prisoners who
requested copies.

    While working as a horse trainer in Saudi Arabia,
Rodgers was approached by Al-Haramain officer Al-Buthe,
who suggested that Al-Haramain could supply Qur’ans to the
Ashland effort. In 1997, the two organizations entered into
a partnership to “promote peace through understanding of
Islam” and Al-Buthe and Seda opened Al-Haramain’s only
U.S. branch (“Al-Haramain-U.S.”). Al-Aqil became the U.S.
branch’s president, Al-Buthe its treasurer, and Seda its
secretary. Seda opened a bank account for Al-Haramain-U.S.
at Bank of America and successfully applied for tax-exempt
status.

    In late 1999, both Al-Haramain and its U.S. branch
solicited funds for aid to the people of Chechnya. Although
the efforts of Al-Haramain were conducted under the
supervision of the Saudi government and through a separate
entity the government created, the Saudi Joint Relief
Committee, at trial it was disputed whether these efforts were
truly humanitarian in nature or a cover to fund the
mujahideen operating in Chechnya.

   In February 2000, an engineer and construction executive
in England, Dr. Mahmoud Talaat El-Fiki, contacted Al-
Haramain saying that he wanted to donate $150,000 for
10               UNITED STATES V. SEDAGHATY

Chechen relief. Al-Haramain instructed El-Fiki that he could
wire the money for “the poor, orphans and refugees” in
Chechnya to its Al-Rajhi Bank account in Riyadh, Saudi
Arabia, or its Bank of America account in Ashland. El-Fiki
transferred $150,000 to the Al-Haramain-U.S. account in
Ashland on February 24, 2000. On March 7, Al-Buthe
traveled from Saudi Arabia to Oregon. Seda and Al-Buthe
went together to a branch of Bank of America in Ashland on
March 10 and met with the branch manager to withdraw
$130,000 in travelers checks. The following day, Seda
withdrew a $21,000 cashier’s check made out to Al-Buthe.
Al-Buthe later returned to Saudi Arabia, cashed the travelers
checks at his bank, and deposited the cashier’s check into his
personal account, where he often commingled personal
money with Al-Haramain funds. The counter check signed
by Seda bore the notation “Soliman” and the actual cashier’s
check deposited by Al-Buthe bore the notation “Donation for
Chichania Refugees.”

    At trial, the significance of Al-Buthe’s use of travelers
checks was contested. The government characterized the use
of travelers checks, as opposed to a less-expensive wire
transfer, as highly suspicious and argued that it made the
transfer of funds more difficult to trace. The defense pointed
out that Al-Buthe regularly brought funds in the form of
travelers checks to the United States for Al-Haramain’s
operating expenses and reported those checks to U.S.
Customs, so his use of travelers checks was not unusual, nor
did it correlate with an effort to conceal the movement of
funds.3 The bank manager testified that Seda set up an


  3
     Between October 1997 and April 2001, Al-Buthe reported to U.S.
Customs his transportation of $777,845 into the United States over nine
different trips, seven of them involving travelers checks. Every time Al-
                 UNITED STATES V. SEDAGHATY                           11

appointment in advance so that he and Al-Buthe could meet
with her in person, and that Al-Buthe came in his traditional
Saudi dress, produced his passport to be copied for the bank’s
records, and personally signed each travelers check in front
of her.

    What happened to the money after Al-Buthe cashed the
travelers checks and deposited the cashier’s check was also
disputed. Seda’s attorneys argued that it was given to Al-
Haramain and deposited in Al-Rajhi Bank account number
9889, which was used for humanitarian relief in Chechnya.
The government represented that “[a]n Al-Haramain
employee took most of El-Fiki’s money to a representative of
Abu ‘Umar [a leader of the Chechen mujahideen], to be
smuggled into Chechnya, claiming it was for needy Chechen
families.”

     In June 2000, Al-Buthe returned to Ashland, reporting to
U.S. Customs $300,000 in travelers checks from Al-
Haramain for the purchase of a building in Springfield,
Missouri, to serve as a prayer house. Having already made an
initial deposit of $60,000, Al-Haramain-U.S. then paid
$318,291 to complete the purchase of the Springfield
building.

    Four days after the September 11, 2001, terrorist attacks,
several FBI agents came to speak with Seda. The
interviewing agent testified that Seda had volunteered


Buthe reported the transportation of currency was when he was arriving
in the United States and was presented with a customs form, like all other
arrivals. Seda’s attorneys maintained that Al-Buthe failed to report the
transfer of El-Fiki’s donation out of the United States because he did not
know that it was required.
12               UNITED STATES V. SEDAGHATY

information about Al-Haramain-U.S.’s purchase of the
Springfield property and told him Al-Haramain-U.S. had paid
between $300,000 and $325,000, reflecting the closing price.

    One month later, Tom Wilcox, Al-Haramain-U.S.’s
accountant and a former IRS agent, filed a Form 990 for Al-
Haramain-U.S. for the year 2000, reviewed and signed by
Seda. Filing a Form 990 is an annual reporting requirement
for tax exempt organizations. The Form 990 was inaccurate
in several respects. Line 57a inaccurately represented the
cost of the Missouri building purchase as $461,542 because
the $130,000 withdrawn by Al-Buthe was marked as a
payment for the prayer house. Line 1 underestimated the
donations that Al-Haramain-U.S. had received because it
misdesignated the $21,000 check to Al-Buthe as a returned
donation. Line 22, representing outgoing donations, was also
inaccurate because it failed to record whatever portion of the
$150,000 El-Fiki donation was transferred to Al-Haramain.4

    In 2004, the government obtained a warrant to search for
financial records and communications pertaining to the
preparation of the 2000 Form 990 and Al-Buthe’s failure to
report the $150,000 he was carrying when he left the country.
The government searched Seda’s house, which doubled as the
Al-Haramain-U.S. office and prayer hall, and seized nine
computers together with books, videos, and religious
materials. Before trial, Seda challenged the seizures as going
beyond the scope of the warrant; the district court denied his
motion to suppress.


  4
   The defense argued that because the donation merely passed through
Al-Haramain-U.S. on its way from El-Fiki to Al-Haramain in Riyadh,
none of the mistakes are material because the tax code did not require the
“pass-through” to be recorded at all.
               UNITED STATES V. SEDAGHATY                    13

     The grand jury indicted Seda, Al-Buthe, and Al-Haramain
in a three count indictment. Count One alleged a conspiracy
to defraud the United States through the crimes alleged in
counts Two and Three, in violation of 18 U.S.C. § 371.
Count Two alleged filing a false Form 990, in violation of
26 U.S.C. § 7206(1). Count Three charged Al-Buthe with
failing to file a Currency and Monetary Instrument Report
(CMIR) form when he left the United States with $150,000,
in violation of 31 U.S.C. § 5316(a)(1)(A). The charges
against Al-Haramain were eventually dismissed because, by
the time of trial, it was little more than a shell organization.

    The central issue at trial was whether the errors on the
Form 990 were willful. The prosecution’s theory was that
Seda wanted to fund the Chechen mujahideen and
intentionally reported false information to his accountant in
an effort to cover up the diversion of El-Fiki’s donation to the
mujahideen. The primary defense theory was that Wilcox
was responsible for these careless mistakes, that Seda had
given the money to Al-Buthe to give to Al-Haramain, and
that Seda was transparent and forthright with Wilcox, the
FBI, and the public about the disposition of Al-Haramain-
U.S.’s funds and his desire to provide humanitarian aid to
refugees in Chechnya.

    When the IRS questioned Wilcox in June of 2003 about
the price of the building as reported on the 2000 tax return,
Wilcox said that someone at Al-Haramain-U.S. had prepared
the schedule of purchase costs in Quickbooks and that he had
just based the purchase price in the tax return on that
schedule. At trial, however, Wilcox admitted that he had
actually been the one to code the $130,000 withdrawal of
travelers checks as related to the building purchase and that
he had created the schedule with the erroneous purchase
14              UNITED STATES V. SEDAGHATY

price. He maintained, however, that the schedule was based
on Seda’s instructions as to how to categorize the checks.5

    The parties vigorously debated evidence related to the
“money trail.” After introducing evidence demonstrating that
Al-Buthe cashed the travelers checks in Saudi Arabia and
deposited the cashier’s check into his own account, the
government said that it had followed the money trail as far as
it could go and that Al-Buthe’s actions were consistent with
his misappropriation of some funds and diversion of others to
fund the mujahideen. Seda attempted to introduce receipts
documenting his transfer of the donation to Al-Buthe, and Al-
Buthe’s transfer of the donation to Al-Haramain for Chechen
relief, but he was unable to authenticate the records.

    To establish willfulness, the government called two
former members of the Ashland prayer house: David
Gartenstein-Ross and Barbara Cabral. Among other subjects,
the government questioned Gartenstein-Ross about the
distribution of Qur’ans to prisoners, donations made to
support Kosovan refugees, and fundraising at the prayer
house for two individuals planning to go to Kosovo to fight
against the Serbs. Cabral, a convert to Islam who abandoned
the religion before trial, described the mosque and prayer
services at the Al-Haramain-U.S. prayer house in Ashland as
well as Seda’s marriage to a Russian-speaking wife.
Providing the only direct evidence of Seda’s alleged desire to

     5
      The government also introduced emails between Seda and Al-
Haramain’s accountant in Riyadh regarding the budget and expenses of
Al-Haramain-U.S. Those documents include a spreadsheet sent from the
Al-Haramain accountant that records the travelers checks and cashier’s
check from the El-Fiki donation as going to Al-Buthe. The emails also
include desperate pleas from the Al-Haramain accountant to Seda to keep
better records.
               UNITED STATES V. SEDAGHATY                     15

fund the Chechen mujahideen, Cabral testified that Seda
solicited funds for the mujahideen in Chechnya after Cabral
and others from Oregon joined Seda in a pilgrimage to Mecca
sponsored by Al-Haramain.

    In addition to the witnesses from the prayer house, the
government introduced a number of exhibits seized in the
search, including videos related to the Chechen mujahideen,
religious edicts regarding support for the Chechen
mujahideen, plus emails Seda received and websites Seda
visited about Chechnya. The government also introduced an
email from Seda to Al-Buthe titled “What support?” that
reproduced an excerpt of a published interview with Chechen
mujahideen leader Ul-Khattab stating:

        I’m sorry to say there is not a single Islamic
        charity organization active inside Chechnya at
        present. Only the Red Cross is present in
        Chechen towns and cities. Therefore, we
        advise the Muslims in the Muslim countries to
        take a sincere stand with the Mujahideen in
        the land of the Caucasus.

     The government also relied extensively on the testimony
of its expert, Evan Kohlmann, who drew connections between
Al-Haramain officials and figures such as Ul-Khattab and
Osama Bin-Laden. Kohlmann, who had no direct knowledge
of the facts of the case, testified, among other things, that the
former director of the Saudi Joint Relief Committee through
which Al-Haramain provided relief in Chechnya, had been an
“old friend” of Bin-Laden’s in the 1980s.

    At trial, the government frequently referred to a large
(3 foot by 4 foot) chart with photographs of Seda and his co-
16            UNITED STATES V. SEDAGHATY

defendant Al-Buthe, along with a photograph of an Al-
Haramain officer in Riyadh who sent out frequent emails
about Chechnya, a shadowed cutout of a figure representing
Al-Haramain’s accountant in Riyadh, and a photograph of the
armed mujahideen leader Ul-Khattab, whom Seda did not
know and whom Kohlmann had connected to Bin-Laden.
The jury also watched a violent video provided by Kohlmann
of a training camp for the Chechen mujahideen, which was
introduced on the ground that the existence of a still image
from the video on Al-Haramain-U.S.’s computers “tended to
make it more likely that [Seda] intended that the El-Fiki
money end up in the hands of the Chechen mujahideen.”

     During trial, the government referenced Bin-Laden on
five different occasions, including at closing, where the
prosecution referred to the director of the Saudi Joint Relief
Committee as Bin-Laden’s “best friend.” The prosecution’s
arguments repeatedly emphasized the concept of jihad,
referring to it thirty-two times over the course of the six-day
trial.

    The government highlighted Seda’s religious activities
with Al-Haramain-U.S., including the distribution to
prisoners of an edition of the Qur’an (entitled the “Noble
Qur’an”) supplied by Al-Haramain that contained an
appendix called “A Call to Jihad.” The prosecution stated at
closing:

       The Noble Qur’an is the defendant, after he
       started working for al-Haramain, sending to
       U.S. prisons around this country, in the
       thousands, 10 to 15,000 prisoners, violent
       people serving time, getting junk like this
              UNITED STATES V. SEDAGHATY                   17

       from al-Haramain saying jihad is an
       obligation for Muslims.

After offering this statement, the prosecutor threw or tossed
the Qur’an onto a courtroom table in front of the jurors. The
government did not mention that Seda worked successfully to
have Al-Haramain publish for distribution a new edition of
the Noble Qur’an without the inflammatory appendix that the
government referenced. The defense made no objection at
the time, but now cites the prosecutor’s statement as an
example of the government’s inflammatory rhetoric.

   The prosecution also insinuated a connection between
Seda and violent jihad:

       It [i.e., sending Qur’ans to U.S. prisoners] was
       a huge project sponsored by al-Haramain
       Saudi Arabia with their Wahhabi, violent
       jihad propaganda. They get a foothold in the
       United States. Pete Seda becomes their man.
       And out goes this hateful, crazy jihad stuff
       into prisons.

    Seda’s witnesses testified, among other things, to Al-
Haramain-U.S.’s role as a charity, Seda’s good character, and
his moderate political and religious beliefs. A former
Congregational Church pastor in Ashland related Seda’s
active participation in Ashland’s interfaith and peace
communities over the twenty years she was a pastor and his
role speaking out at a rally against homophobic violence after
the murder of a lesbian couple in Ashland in the 1990s. A
local rabbi testified about how Seda in the late 1980s began
coming to his synagogue to learn about Judaism, how Seda
welcomed students from the synagogue’s Hebrew school to
18               UNITED STATES V. SEDAGHATY

the Ashland prayer house, and how Seda met with the Israeli
Consul General in 2002 in an effort to gather support for a
charitable relief effort that could bring together Israelis and
Palestinians.

    The jury convicted Seda of conspiracy to defraud the
United States and filing a false return on behalf of a tax
exempt organization. He was sentenced to thirty-three
months’ imprisonment, three years of supervised release, and
restitution to the Department of the Treasury of $80,980.

    After trial but before sentencing, the government
produced reports and notes for twelve previously undisclosed
interviews the FBI conducted with government witness
Barbara Cabral and her husband Richard Cabral. Among
other things, the notes and reports revealed to the defense for
the first time that the FBI had paid Richard Cabral $14,500
over the course of the investigation, that at least one of those
payments was made in the presence of Barbara Cabral, and
that the FBI had made an offer of payment to Barbara Cabral
before trial.

    Seda filed two separate motions for a new trial: the first
motion focused on what he characterized as the prosecution’s
appeal to prejudice and the second motion, which
alternatively sought dismissal of the charges, related to the
Brady violation. The district court denied both motions.6

     6
      The dissent takes issue with our recitation of the background
information. This purported debate over a standard of review is a
distraction. If there were a challenge to the sufficiency of the evidence,
we would review that challenge drawing all inferences in favor of the
prosecution. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); United
States v. Alvarez–Valenzuela, 231 F.3d 1198, 1201–02 (9th Cir. 2000).
But the jury’s verdict based on the evidence before it is not at issue. What
                  UNITED STATES V. SEDAGHATY                             19

                               ANALYSIS

I. THE BRADY CLAIM

     As the district court found, “the only direct evidence
about [Seda’s] desire to fund the mujahideen,” came from
Barbara Cabral, a witness who the prosecution showcased as
critical. Despite a defense request, the government withheld
material, significant, and non-cumulative impeachment
evidence about Cabral, including government payments and
interview notes. This Brady violation therefore merits a new
trial.

    FBI Special Agents contacted Cabral and her husband
Richard Cabral, members of the Ashland prayer house,
shortly after September 11, 2001. The agents “opened”
Cabral as a cooperating witness in 2004 but closed her file in
2006 after deciding that Richard was more likely to be a trial
witness. The FBI re-opened Cabral as a witness in 2008 after
Richard passed away. The FBI interviewed the Cabrals either
individually or together twenty times between 2003 and 2010,
paid Richard $14,500, and offered Barbara additional
financial assistance with medical bills after Richard’s death.
An FBI Special Agent told Cabral that he would seek
authorization to pay her $7,500. Before trial, the district
court ordered the government to produce exculpatory
materials, materials for impeaching potential witnesses, and
agent notes. The government, however, disclosed reports for
only eight of the twenty interviews and revealed nothing
about payments to either spouse.


is at issue is whether the appropriate evidence was actually before the jury.
We review each of Seda’s claims regarding these procedural errors
according to the appropriate standard.
20               UNITED STATES V. SEDAGHATY

    Cabral’s testimony was the only evidence directly linking
Seda to an effort to fund the Chechen mujahideen. Cabral
testified that after a Hajj—a pilgrimage to Mecca—that she
made with Richard, Seda, and others, Seda asked the group to
return to him unused money received from Al-Haramain
Saudi Arabia’s sponsorship of their Hajj. Cabral quoted Seda
as saying the money “would . . . help send blankets and food
and help the mujahideen in Chechnya.”

    After trial, but before sentencing, the government
disclosed that it had failed to produce in discovery a
significant amount of evidence relating to Cabral. The
withheld material documented the previously undisclosed
$14,500 in FBI payments to Richard (including a payment for
$5,000 made in Barbara’s presence) and a separate offer of
payment to Barbara Cabral shortly before trial when she was
experiencing financial difficulty.7 The materials additionally
included a number of undisclosed reports, draft reports, and
notes of multiple interviews with both Cabrals as well as
handwritten notes of interviews with Barbara Cabral. The
government acknowledged that one of the case agents, a
member of the prosecution team, knew all of the relevant
details of the suppressed material prior to trial. Seda moved
for a new trial.

   The district court made several findings with regard to
Seda’s Brady claims. First, the district court found that the
withheld information was favorable to Seda because it was


  7
    One FBI summary of a post-trial interview of Cabral reported her
belief that these payments were for the assistance of both Cabrals: “Cabral
has always felt the money Richard received from [the FBI] satisfied any
monetary consideration that might have been due for her and Richard’s
help. . . .”
                 UNITED STATES V. SEDAGHATY                            21

impeachment evidence. Second, the district court found that
the information was in the government’s possession and was
withheld by the government. Accordingly, the district
concluded that the failure to disclose the information was a
discovery violation.

     Although the court recognized that “[t]here was some
significance to the terrorist issue [i.e., soliciting funds for the
mujahideen] because the government ostensibly wanted to
establish a reason for the tax fraud,” it nevertheless
determined that Cabral’s testimony was not material to the
conviction because “it did not matter where the money
fraudulently reported on the tax return actually went and
because of other significant evidence regarding willfulness.”
The court opined that “the government made great
significance of the terrorist aspect of the case and presented
a great deal of evidence and argument about the mujahideen
in Chechnya” but felt that this argument “was collateral to the
charges” because Wilcox was the government’s key witness.
Even though the district court denied Seda’s motion for a new
trial, it determined that Cabral’s testimony was material to the
terrorism sentencing enhancement sought by the government
because “this was really the only direct evidence about
defendant’s desire to fund the mujahideen.”8

    The Brady standard is familiar: “the suppression by the
prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad


 8
  The district court ultimately did not apply the sentencing enhancement,
concluding that “there has been a failure to prove the terrorist
enhancement . . . [a] failure to prove a link between the defendant and the
money being used for terrorist activities.”
22            UNITED STATES V. SEDAGHATY

faith of the prosecution.” Brady, 373 U.S. at 87. The
Supreme Court emphasized that “[s]ociety wins not only
when the guilty are convicted but when criminal trials are
fair; our system of the administration of justice suffers when
any accused is treated unfairly.” Id.

    To establish a Brady violation, a defendant must show
that: (1) the evidence at issue is favorable to the accused,
either because it is exculpatory or because it is impeaching;
(2) the evidence was suppressed by the government,
regardless of whether the suppression was willful or
inadvertent; and (3) the evidence is material to the guilt or
innocence of the defendant. See Brady, 373 U.S. at 87; see
also United States v. Jernigan, 429 F.3d 1050, 1053 (9th Cir.
2007) (en banc). Although there is no convincing evidence
of bad faith on the part of the prosecution, the government
concedes, as the district court found, that the withheld
information is favorable to Seda and that it should have been
turned over before trial. Our Brady analysis therefore hinges
on materiality.

    We review de novo a district court’s denial of a new trial
motion based on a Brady violation. See United States v.
Pelisamen, 641 F.3d 399, 408 (9th Cir. 2011). Likewise, “the
question of ‘materiality[]’ is a legal matter that we review de
novo.” United States v. Price, 566 F.3d 900, 907 n.6 (9th Cir.
2009); see also United States v. Oruche, 484 F.3d 590,
595-96 (D.C. Cir. 2007) (“[O]nce the existence and content
of undisclosed evidence has been established, the assessment
of the materiality of this evidence under Brady is a question
of law.”). We see no error in the district court’s underlying
factual findings and, in any event, the level of deference
accorded to those findings is not dispositive here.
               UNITED STATES V. SEDAGHATY                    23

    In evaluating materiality, we focus on whether the
withholding of the evidence undermines our trust in the
fairness of the trial and the resulting verdict. The touchstone
is the “reasonable probability” of a different result, that is,
“not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Kyles v.
Whitley, 514 U.S. 419, 434 (1995) (citation omitted).

     As the Supreme Court has explained, the test of
materiality “is not a sufficiency of evidence test. A defendant
need not demonstrate that after discounting the inculpatory
evidence in light of the undisclosed evidence, there would not
have been enough left to convict.” Id. at 434–35.
“Consistent with ‘our overriding concern with the justice of
the finding of guilt,’ United States v. Agurs, 427 U.S. at 112,
a constitutional error occurs, and the conviction must be
reversed, only if the evidence is material in the sense that its
suppression undermines confidence in the outcome of the
trial.” United States v. Bagley, 473 U.S. 667, 678 (1985).
Materiality is defined “in terms of suppressed evidence
considered collectively, not item by item.” Kyles, 514 U.S.
at 436.

    Here, we zero in on whether the suppressed materials
could have provided an effective means of impeachment.
This is not a case where the impeachment evidence would
have been cumulative or marginal. Rather, as to Cabral, the
defense was empty handed at trial precisely because the
government did not disclose a substantial amount of relevant
information. See Gonzalez v. Wong, 667 F.3d 965, 982 (9th
Cir. 2011) (“Where the withheld evidence opens up new
avenues for impeachment, [even if significant impeachment
24            UNITED STATES V. SEDAGHATY

evidence was already introduced] it can be argued that it is
still material.”). Seda consistently denied that he solicited
funds for mujahideen after the Hajj, and before trial, Seda
moved to exclude Cabral’s testimony. Seda’s counsel
highlighted that “those facts [concerning the request for funds
after the Hajj] are contested. We do not believe that that
occurred.” In response, the government argued strenuously
for admission of Cabral’s testimony, which it characterized
as “critical state of mind, and motive, opportunity evidence.”
The district court ultimately admitted the testimony,
concluding that it was evidence of “motive, opportunity,
intent, knowledge, and absence of mistake.”

    At trial, Cabral presented as a straightforward citizen
witness; she had no tawdry or unsavory past and no apparent
reason to shade the truth. Of modest means, she worked at
J.C. Penney’s as a master stylist; her visually impaired
husband of thirty-five years had passed away two years
before trial. At times relevant to the case, she attended
services at the Ashland prayer house, but before trial
renounced the Muslim faith. However, because of the
suppression, Seda’s counsel had virtually no material with
which to question her neutrality.

    The records of the FBI’s payments provide significant
impeachment evidence that would have shaded the jurors’
perceptions of Cabral’s credibility. Although Cabral testified
about Seda’s motive, Cabral’s motive for testifying was left
untouched. Payments to a government witness are no small
thing. See Singh v. Prunty, 142 F.3d 1157, 1162 (9th Cir.
1998) (reversing conviction because of Brady violation where
key witness received undisclosed “substantial benefits in
exchange for his testimony,” because “disclosure of an
agreement to provide . . . benefits, as well as evidence of the
               UNITED STATES V. SEDAGHATY                    25

benefits themselves, could have . . . substantially impeached
[the witness’s] credibility”).

     Withheld notes also revealed that Cabral told the case
agent that she had been experiencing serious medical issues
that left her with several thousand dollars of out-of-pocket
medical expenses. The agent responded to this by indicating
that the FBI might be able to help her out financially after
trial. Although Cabral later said that she did not recall the
offer, her relatively modest position and unpaid medical bills
would have supported an inference that the FBI payments,
together with the offer of possible future payment, were a
substantial influence on Cabral’s testimony. This inference
is particularly strong because of the uncertain nature of the
promise. See Sivak v. Hardison, 658 F.3d 898, 916 (9th Cir.
2011) (“[W]itnesses have greater incentives to lie if the
potential benefits are ‘not guaranteed through a promise or
binding contract.’”) (quoting Bagley, 473 U.S. at 683);
Bagley v. Lumpkin, 798 F.2d 1297, 1302 (9th Cir. 1986)
(“The more uncertain the agreement, the greater the incentive
to make the testimony pleasing to the promisor.”) (citation
omitted).

    The payments and notes also would have provided an
opening for the defense to highlight significant
inconsistencies in the couple’s stories. For instance, Richard
at different times told the case agents that Seda had identified
the intended recipients of the funds collected simply as “the
people of Chechnya” and “Chechen refugees,” without
reference to the mujahideen. The notes also revealed that
Cabral erroneously informed the FBI that Seda traveled to
Saudi Arabia for a Hajj in 2000. Draft interview summaries
revealed additional inconsistencies. For example, one draft
summary of an interview with Richard contained the
26             UNITED STATES V. SEDAGHATY

statement that “[Richard] Cabral did not recall Sedaghaty
discussing the topic of Kosovo or supporting mujahedin
there” while another draft of the summary excluded that same
statement. Another early draft revealed a conflict about the
amount of the supposed payments that were collected at the
end of the Hajj.

    Without the suppressed materials, Seda’s counsel was
severely limited on cross examination, unable to explore, let
alone establish, grounds for Cabral’s possible bias. See
United States v. Schoneberg, 396 F.3d 1036, 1042 (9th Cir.
2005) (recognizing that the defense must be given the
opportunity to cross-examine a witness and explore any
motive to falsely testify in order to assist government).
Taken together with the substantive issues described above,
the undisclosed material would have allowed the defense to
paint a picture of, at best, a witness whose shaky recollection
was influenced by her gratitude to the FBI for its financial
assistance; at worst, a witness making up a story to obtain
money for medical bills, with the FBI revising its materials to
match her anticipated testimony. Either story could have had
a substantial impact on the jury.

     This conclusion is buttressed by Supreme Court precedent
highlighting the importance of witness credibility: “The
jury’s estimate of the truthfulness and reliability of a given
witness may well be determinative of guilt or innocence, and
it is upon such subtle factors as the possible interest of the
witness in testifying falsely that a defendant’s life or liberty
may depend.” Napue v. Illinois, 360 U.S. 264, 269 (1959).
“[T]he exposure of a witness’ motivation in testifying is a
proper and important function of the constitutionally
protected right of cross-examination.” Davis v. Alaska,
415 U.S. 308, 316–17 (1974) (citation omitted). Where, as
               UNITED STATES V. SEDAGHATY                    27

here, important additional grounds for impeachment have
been suppressed, we have held that it “would have added an
entirely new dimension to the jury’s assessment of [the
witness]” such that “‘there is a reasonable probability that the
withheld evidence would have altered at least one juror’s
assessment [of the evidence]’” United States v. Kohring,
637 F.3d 895, 905–06 (9th Cir. 2011) (quoting Price,
566 F.3d at 914). Such is the case here.

     Although proof of the precise destination of the funds was
not essential to the conviction, proof of willful misreporting
beyond a reasonable doubt was required. The government’s
briefing before the district court confirms that “the main issue
for the jury was whether the defendant acted willfully in 2000
and 2001 to cover up the true nature of the El Fiki transaction
and his [Seda’s] knowledge of the intended use of that money
by Al Haramain to fund the mujahideen in Chechnya.”
Cabral’s testimony provided the only direct evidence that
Seda intended to conceal the transactions and her testimony
was therefore crucial to the question of willfulness. The
government’s other evidence of motive was circumstantial.
We emphasize the district court’s view: “this was really the
only direct evidence about defendant’s desire to fund the
mujahideen.”

    “Impeachment evidence is especially likely to be material
when it impugns the testimony of a witness who,” like
Barbara Cabral here, “is critical to the prosecution’s case.”
Silva v. Brown, 416 F.3d 980, 987 (9th Cir. 2005). It is ironic
that when arguing that Cabral should be allowed to testify,
the government deemed her “critical” but, in its appeal brief,
portrayed her as a “minor witness.” The government’s
attempt to minimize her role because her time on the witness
stand was comparatively brief is not persuasive. In fact, the
28             UNITED STATES V. SEDAGHATY

opposite is true: given the limited scope of her testimony, the
only reason to call Barbara Cabral was because her testimony
was critical to the crucial point of wilfullness. See Weiler v.
United States, 323 U.S. 606, 608 (1945) (“The touchstone is
always credibility; the ultimate measure of testimonial worth
is quality and not quantity.”).

    Cabral’s importance is confirmed by her starring role in
the government’s closing argument, where the prosecution
referred to her testimony four separate times. Discussing
jihad and questioning Al-Haramain-U.S.’s status as a charity,
the government stated: “Barbara Cabral . . . testified . . . that
the defendant went to her and said, ‘can we get that money
for the mujahideen in Chechnya?’” Addressing the key issue
of willfulness, the prosecution turned again to Cabral’s
testimony: “The willfulness is represented by . . . after the
Hajj with Cabral, direct funding [of mujahideen].” The
defense also saw Cabral’s testimony as sufficiently damaging
to raise in its closing argument. Counsel stated: “Was there
any call for money to mujahideen after the Hajj? I submit
not. I don’t think that that is reliable. Bottom line is it is
contrary to everything else you know about Pete Seda.”

    There is also evidence that Cabral’s testimony in fact had
a significant impact on the jury. Cabral was a particularly
sympathetic witness, as a local resident who had converted to
Islam when she joined the prayer house Seda led and then
later left the faith. The government’s other witnesses were
either significantly less sympathetic, had no direct knowledge
of Seda, or were shown by the defense to have possible bias
or ulterior motives. Cabral appeared to be the government’s
only disinterested witness who was actually close to Seda,
and she testified in a terrorism-tinged prosecution about an
effort to help Muslim guerilla combatants. Notably, as
               UNITED STATES V. SEDAGHATY                    29

Cabral was leaving the witness stand after completing her
testimony, one of the jurors whispered a compliment to her
on her testimony. The juror was excused, but the fact that the
juror complimented Cabral’s testimony underscores her
impact as a witness.

     The prosecution’s earlier description of Cabral’s
testimony as “critical” only confirms this conclusion. Kyles,
514 U.S. at 444 (“The likely damage [of suppressed
evidence] is best understood by taking the word of the
prosecutor . . . .”). Viewing the suppressed evidence
holistically in light of the other evidence, the withheld
evidence “undermines confidence in the outcome of the trial.”
Bagley, 473 U.S. at 678. We conclude that Cabral’s
testimony was important enough that a changed perception of
her credibility creates a reasonable probability of a different
verdict. See United States v. Shaffer, 789 F.2d 682, 688-89
(9th Cir. 1986) (noting that where a witness’s testimony “was
critical to . . . conviction, the jury’s assessment of . . .
credibility was crucial to the outcome of the trial.”). In light
of the “importance of allowing a full and fair
cross-examination of government witnesses whose testimony
is important to the outcome of the case,” Seda has established
a Brady violation that merits a new trial. United States v.
Brooke, 4 F.3d 1480, 1489 (9th Cir. 1993).

II. CIPA CLAIMS

    Although this is a tax fraud case, the prosecution
discovered that the government possessed some relevant
classified information, which was handled under CIPA
procedures. Those procedures endeavor to harmonize a
defendant’s right to a fair trial with the government’s right to
protect classified information. See United States v. Abu-
30             UNITED STATES V. SEDAGHATY

Jihaad, 630 F.3d 102, 140 (2d Cir. 2010). While the
government must safeguard classified information in the
interest of national security, “courts must not be remiss in
protecting a defendant’s right to a full and meaningful
presentation of his claim to innocence.” United States v.
Fernandez, 913 F.2d 148, 154 (4th Cir. 1990).

    The government filed six motions seeking protection for
classified materials, all of which were granted by the district
court. Seda challenges the court’s handling of these classified
matters, including its approval of an unclassified summary,
the use of ex parte proceedings, and the restriction on defense
counsel’s use of classified material that the defense had
placed in safekeeping.

     A. CIPA PROVISIONS

    Congress enacted CIPA in 1980 “to help ensure that the
intelligence agencies are subject to the rule of law and to help
strengthen the enforcement of laws designed to protect both
national security and civil liberties.” S. Rep. No. 96-823, at
3 (1980), reprinted in 1980 U.S.C.C.A.N. 4294, 4296. CIPA
does not expand or restrict established principles of discovery
and does not have a substantive impact on the admissibility
of probative evidence. United States v. Johnson, 139 F.3d
1359, 1365 (11th Cir. 1998); S. Rep. No. 96-823 at 8,
reprinted in 1980 U.S.C.C.A.N. at 4301–03. Instead, CIPA
“establishes procedures for handling classified information in
criminal cases,” United States v. Aref, 533 F.3d 72, 78 (2d
Cir. 2008), so that district courts may rule “on questions of
admissibility involving classified information before
introduction of the evidence in open court,” United States v.
Sarkissian, 841 F.2d 959, 965 (9th Cir. 1988) (citation
omitted). Two sections of CIPA are relevant here: § 4
                  UNITED STATES V. SEDAGHATY                           31

governs the pretrial discovery of classified information by
defendants, and § 6 sets out procedures to safeguard classified
information, both before and during trial.

    CIPA § 4 was intended “to clarify the court’s powers
under Fed. R. Crim. P. 16(d)(1) to deny or restrict discovery
in order to protect national security.”9 Sarkissian, 841 F.2d
at 965; S. Rep. No. 96-823 at 6, reprinted in 1980
U.S.C.C.A.N. at 4299. Section 4 provides that:

          [t]he court, upon a sufficient showing, may
          authorize the United States to delete specified
          items of classified information from
          documents to be made available to the
          defendant through discovery under the
          Federal Rules of Criminal Procedure, to
          substitute a summary of the information for
          such classified documents, or to substitute a
          statement admitting relevant facts that the
          classified information would tend to prove.

18 U.S.C. app. 3 § 4.



 9
     Federal Rule of Criminal Procedure 16(d)(1) provides that:

          At any time the court may, for good cause, deny,
          restrict, or defer discovery or inspection, or grant other
          appropriate relief. The court may permit a party to show
          good cause by a written statement that the court will
          inspect ex parte. If relief is granted, the court must
          preserve the entire text of the party’s statement under
          seal.

Fed. R. Crim. P. 16(d)(1).
32            UNITED STATES V. SEDAGHATY

    When considering a motion to withhold classified
information from discovery, a district court must first
determine whether, pursuant to the Federal Rules of Criminal
Procedure, statute, or the common law, the information at
issue is discoverable at all. United States v. Rewald, 889 F.2d
836, 847–48 (9th Cir. 1989). If the material at issue is
discoverable, the court must next determine whether the
government has made a formal claim of the state secrets
privilege, “‘lodged by the head of the department which has
actual control over the matter, after actual personal
consideration by that officer.’” United States v. Klimavicius-
Viloria, 144 F.3d 1249, 1261 (9th Cir. 1998) (quoting United
States v. Reynolds, 345 U.S. 1, 7–8 (1953)). Once a court
concludes that the material is discoverable and that the state
secrets privilege applies, then the court must determine
whether the evidence is “relevant and helpful to the defense
of an accused.” Roviaro v. United States, 353 U.S. 53, 60–61
(1957); United States v. Gurolla, 333 F.3d 944, 951 (9th Cir.
2003). If the information meets the “relevant and helpful”
test, CIPA § 4 empowers the court to determine the terms of
discovery, if any. 18 U.S.C. app. 3 § 4.

    CIPA § 6, which applies to both pre-trial and trial
proceedings, guides the procedures for making
“determinations concerning the use, relevance, or
admissibility of classified information. . . .” 18 U.S.C. app.
3 § 6(a). Specifically, CIPA § 6(c)(1) deals with substitutions
and provides that a court may authorize a substitution for
classified material in the form of a statement or summary “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. 3 § 6(c)(1). This requirement
arises out of the Constitution’s guarantee that all criminal
              UNITED STATES V. SEDAGHATY                   33

defendants must have “‘a meaningful opportunity to present
a complete defense.’” Holmes v. South Carolina, 547 U.S.
319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683,
690 (1986)). Indeed, the “need to develop all relevant facts
in the adversary system is both fundamental and
comprehensive.” United States v. Nixon, 418 U.S. 683, 709
(1974).

    The substitution need not be of “precise, concrete
equivalence,” and the “fact that insignificant tactical
advantages could accrue to the defendant by the use of the
specified classified information should not preclude the court
from ordering alternative disclosure.” H.R. Rep. No.
96-1436, at 12-13 (1980) (Conf. Rep.), reprinted in 1980
U.S.C.C.A.N. at 4310–11. Nevertheless, the fundamental
purpose of a substitution under CIPA is “to place the
defendant, as nearly as possible, in the position he would be
in if the classified information . . . were available to him.”
United States v. Moussaoui, 382 F.3d 453, 477 (4th Cir.
2004); see also United States v. Rezaq, 134 F.3d 1121, 1143
(D.C. Cir. 1998) (approving substitutions where “[n]o
information was omitted from [them] that might have been
helpful to [the] defense, and the discoverable documents had
no unclassified features that might have been disclosed”).

   B. THE SUBSTITUTION

    The government acknowledged in advance of trial that it
had classified information that was helpful to Seda’s defense.
The government proposed, and the court authorized, the
following unclassified summary of classified material
responsive to Seda’s discovery requests:
34            UNITED STATES V. SEDAGHATY

       The U.S. Government obtained information
       that Sami ‘Abd Al ‘Aziz Al-Sanad worked
       during 2000 and 2001 for the Al-Haramain
       organization and was responsible for
       providing currency supplied by Al-Haramain,
       including the currency obtained by
       codefendant Soliman Al-Buthe from Al-
       Haramain USA, to a representative of
       Muhammad Al-Sayf, aka Abu Umar, to be
       smuggled into Chechnya. Al-Sanad has
       claimed that the monies he provided to Al-
       Sayf’s representative were destined for needy
       Chechen families.

Seda objected to the substitution and asked either for “an
uneditorialized summary” or for the production of the
underlying material. After careful review of the materials at
issue, we conclude that the substitution’s language unfairly
colored presentation of the information and, even more
problematic, that the substitution omitted facts helpful to
Seda’s defense. Further detail and analysis of the substitution
is contained in the classified opinion with respect to the
substitution. The substitution is statutorily inadequate
because it does not provide Seda with “substantially the same
ability to make his defense as would disclosure of the specific
classified information.” 18 U.S.C. app. 3 § 6(c)(1).

    The brief summary contains both inculpatory and
exculpatory information. On the one hand, it supports the
government’s theory that the El-Fiki donation went to fund
the mujahideen in Chechnya because it indicates that Al-
Sanad gave the money to a representative of Al-Sayf, who the
government established at trial was a religious leader
associated with the Chechen mujahideen at the time. On the
              UNITED STATES V. SEDAGHATY                    35

other hand, it supports Seda’s claim that, as far as he knew,
the donation was to be used to fund humanitarian relief.

    The wording of the summary bolsters the inculpatory
section while discrediting the exculpatory section. For
example, the first sentence presents Al-Sanad’s transfer of the
El-Fiki donation to Al-Sayf’s representative as a fact about
which the government has “obtained information.” The
second sentence, by contrast, embeds skepticism into Al-
Sanad’s exculpatory statement about the destination and use
of the funds, dismissing it as something Al-Sanad “has
claimed.” This is but one example of the neutrality
deficiencies in the statement. It is no surprise that Seda
ultimately chose not to use the substitution at trial.

     Because the underlying documents are classified, we are
constrained in our comments about the summary. But it is a
fundamental principle underlying CIPA that the summary
should be evenhanded, worded in a neutral fashion and not
tilted or shaded to the government’s advantage. See S. Rep.
No. 96-823 at 9 (1980), reprinted in 1980 U.S.C.C.A.N. at
4302-03 (stating that the “judge should ensure that a
substitution . . . is crafted so that the Government obtains no
unfair advantage in the trial”).

    In isolation, the characterization of the evidence may not
be a sufficient basis to reject the substitution. More
troubling, however, is the exclusion from the summary of
further information that is helpful to Seda’s defense. The
classified nature of the material highlights the awkward
nature of our review: Seda is forced to argue for the relevance
of the material without actually knowing what the classified
record contains, while we know what it contains but are
unable to describe it on the public record. See United States
36               UNITED STATES V. SEDAGHATY

v. Amawi, 695 F.3d 457, 471 (6th Cir. 2012) (without the
benefit of “the adversarial process, we must place ourselves
in the shoes of defense counsel, the very ones that cannot see
the classified record, and act with a view to their interests”)
(citation omitted).10 We can say, however, that the summary
excludes exculpatory information and fails to provide crucial
context for certain information that it does convey.

    Although there is no indication of bad faith, the
government appears to have looked with tunnel vision at
limited issues that it believed were relevant. Even granting
the district court wide latitude in its evidentiary decision-
making, as we must, we conclude that the summary is
inadequate not only because of its slanted wording but more
fundamentally because it is incomplete. United States v.
Clegg (“Clegg I”), 740 F.2d 16, 18 (9th Cir. 1984)
(upholding rejection of a substitution where the classified
documents “are relevant to the development of a possible
defense” and the “government’s proposed summaries of the
materials are inadequate”). It would be illogical to conclude
that a substitution that excludes non-cumulative exculpatory
information could “provide the defendant with substantially
the same ability to make his defense as would disclosure of
the specific classified information” as required by CIPA § 6.
18 U.S.C. app. 3 § 6(c)(1); see also Moussaoui, 382 F.3d at
478–79 (rejecting proposed substitutions that failed to include
exculpatory information); Fernandez, 913 F.2d at 158
(upholding rejection of proposed substitutions because the
“substitutions would have required the jury to judge [the
defendant’s] role . . . , and thus the truth of his statements
about it, in a contextual vacuum”).

 10
    The defense did file an ex parte submission outlining its theory of the
defense to aid the court in its review of the classified material.
                  UNITED STATES V. SEDAGHATY                         37

    The dissent attempts to minimize the importance of the
substitution by taking the position that the evidence would be
inadmissible hearsay and that Seda waived his objection to
the substitution. The dissent overlooks the most important
fact about the substitution’s admissibility—the government
agreed to stipulate to its admission at trial. The government
did not argue that the substitution was hearsay or otherwise
inadmissible. Rather, recognizing that it was in a difficult
position with respect to the possession of exculpatory
information and Seda’s right to a fair trial, the government
made the calculated move to agree to stipulate to the
admission of the substitution as a trial exhibit. Not
surprisingly, in the face of a slanted and unhelpful summary,
Seda’s counsel ultimately withdrew the substitution as a
stipulated exhibit just before trial. But defense counsel ought
not be put in a Catch-22 situation whereby it has to accept the
government’s deficient summary or none at all.

    The dissent also manufactures an argument not presented
by the government—that Seda waived his objections to the
substitution.11 On August 20, 2010, Seda filed objections to
the summary substitution and moved for “an uneditorialized
summary.” Without being able to access any of the
underlying documents, Seda objected that the summary
omitted relevant and helpful information about the individual
to whom Al-Sanad transferred the funds. He also objected to
the fact that the summary included language that questioned
Al-Sanad’s veracity and argued that the defense should be
entitled to offer the exculpatory statements actually provided
by Al-Sanad. Alternatively, Seda moved for access to more
complete unclassified versions of the underlying materials on


 11
      The government simply replied to Seda’s objections on the merits.
38             UNITED STATES V. SEDAGHATY

which the summary was presumably based. Seda never
withdrew or waived this objection.

     At a hearing the week before trial, the defense reiterated
its objections to the summary substitution. The government
replied that it would stipulate to the admission of the
summary, but would not revise or alter it, saying, “we think
it’s either all or nothing.” In response, the court said only,
“Okay,” and moved on to another topic. Later in that same
hearing, as the judge was making final rulings on the exhibits,
the government reiterated its position with regard to the
summary and stated that the only decision was whether the
defense wanted to accept the summary in its current form or
not. The defense responded, “At this time, Your Honor, we
would not be offering it. We’ve pointed out what we believe
needs to be done.” (emphasis added). The defense withdrew
the exhibit in that form, at that time, but explicitly referenced
and reiterated its objection. Seda did not withdraw or waive
his objection to the court’s approval of the government’s
summary substitution. Nor could Seda’s counsel have been
expected to offer an intelligent substitution or alternative
language, since he did not have access to the underlying
classified documents.         Having been unsuccessful at
challenging the substitution before trial, Seda’s recourse is in
this appeal.

    We are fully cognizant of the delicate task entrusted to the
district court in matters involving classified information. To
that end, CIPA lays out a defined process for substitutions
such that, when classified information is relevant and helpful
to his defense, the defendant should be placed, “as nearly as
possible, in the position he would be in if the classified
information were available to him.” Moussaoui, 382 F.3d at
477; see also, 18 U.S.C. app. 3 § 6(c)(1). In the end, the
                  UNITED STATES V. SEDAGHATY                             39

inadequate substitution interfered with Seda’s ability to
present a complete defense. Although the government argues
that substitution was sufficient, it does not make any
argument that the facts omitted are harmless. See United
States v. Boulware, 384 F.3d 794, 898 (9th Cir. 2004).

       C. OTHER CIPA CLAIMS

    Seda raises four other claims related to CIPA: the ex parte
nature of many of the CIPA proceedings; the potential
withholding of additional classified information that is
relevant and helpful to the defense; the exclusion of a
classified document in his counsel’s possession; and the
claim that classified evidence reveals the search warrant was
prompted by prior illegal surveillance.

         1. Ex Parte Proceedings

    Seda’s broadside challenge to the in camera and ex parte
proceedings is a battle already lost in the federal courts.12
Long ago we underscored that “[e]x parte hearings are
generally disfavored,” but held that “[i]n a case involving
classified documents, however, ex parte, in camera hearings
in which government counsel participates to the exclusion of
defense counsel are part of the process that the district court
may use in order to decide the relevancy of the information.”
Klimavicius-Viloria, 144 F.3d at 1261.


  12
     Seda moved to strike the classified, ex parte appellate briefs and
excerpts of record filed by the government or, in the alternative, to request
access for his security-cleared counsel and expert to the documents. We
denied the motion for the same reasons discussed below with regard to the
requirements of CIPA. We reviewed the classified briefs and excerpts of
record from both parties.
40               UNITED STATES V. SEDAGHATY

    Seda especially protests three occasions during trial in
which the court held closed hearings with cleared counsel for
both parties and then excused defense counsel and met ex
parte with the prosecutors.13 These brief ex parte hearings,
which directly followed the hearings with defense counsel,
were held at the court’s request to clarify issues related to the
court’s prior CIPA rulings. CIPA does not limit the court’s
discretion to hold an ex parte conference if it is required by
some overriding necessity such as the necessity to protect
sensitive information related to national security, as it was
here. See United States v. Thompson, 827 F.2d 1254, 1258
(9th Cir. 1987) (recognizing that “situations where the court
acts with the benefit of only one side’s presentation are
uneasy compromises with some overriding necessity, such as
the need to act quickly or to keep sensitive information from
the opposing party”).

    Apart from his general objections to the ex parte
proceedings, Seda claims that he should have received more
fulsome notice of the subject of the filings and that his
security-cleared counsel should have had access to the
classified documents in discovery. The government filed six
notices informing Seda that it had filed in camera, ex parte
submissions to the court. All of these notices apprised Seda
that the submissions were filed pursuant to CIPA § 4, thus
notifying him that the government requested authorization
from the court to withhold items from discovery that were not
relevant and helpful to Seda’s defense.



  13
     For whatever reason, the docket sheet does not reflect these closed
hearings. The hearings should have been docketed but the failure to do so
is harmless in light of defense counsel’s knowledge of the hearings and
the fact that the transcripts are available for appellate review.
                  UNITED STATES V. SEDAGHATY                             41

    Seda is of the view that the failure of the notices to
describe in unclassified terms the nature of what had been
provided to the court makes the filings inadequate. Both
Federal Rule of Criminal Procedure 16(d)(1) and § 4 of
CIPA, however, explicitly provide for ex parte filings and do
not require that detailed notice of the content of the filing be
provided. Fed. R. Crim. P. 16(d)(1) (“The court may permit
a party to show good cause by a written statement that the
court will inspect ex parte.”); 18 U.S.C. app. 3 § 4 (“The
court may permit the United States to make a request for such
authorization in the form of a written statement to be
inspected by the court alone.”). The notices complied with
CIPA and were constitutionally adequate—Seda has no due
process right to receive a description of materials in the
government’s possession that are not discoverable.14 See
United States v. Mejia, 448 F.3d 436, 458 (D.C. Cir. 2006)
(noting that, in the context of CIPA, as in other discovery in
criminal cases, the defendant is “‘not entitled to access to any
of the evidence reviewed by the court . . . to assist in his
argument’ that it should be disclosed”) (citation omitted).
Similarly, the simple fact that defense counsel held security
clearances does not mean that the attorneys were entitled to
access the government’s classified filings. See United States
v. El-Mezain, 664 F.3d 467, 568 (5th Cir. 2011) (approving,
in the context of the Foreign Intelligence Surveillance Act,
denial of discovery to cleared defense counsel because of the
government’s substantial interest in maintaining secrecy).

  14
     For the limited material that was discoverable, CIPA § 4 allows the
government to either turn over the original material or create an adequate
substitution. 18 U.S.C. app. 3 § 4. An adequate substitution obviates the
need for counsel to access the underlying classified material itself
(although the government may share it with security-cleared defense
counsel to craft an appropriate substitution if the nature and classification
of the material permits and the government so chooses).
42             UNITED STATES V. SEDAGHATY

    In sum, the ex parte proceedings were authorized by
CIPA, Federal Rule of Criminal Procedure 16(d)(1), and the
compelling justification and overriding necessity required by
common law. The proceedings did not violate Seda’s rights.
Our careful review of the classified record confirms that all
of the classified filings and transcripts of all of the hearings,
including the classified ex parte hearings, have been
preserved and made available to us on appeal. The district
judge, now retired, was meticulous in his review of the
classified material.

        2. Relevant and Helpful Information

    The district court did not improperly withhold relevant
and helpful information from discovery under CIPA § 4 or
Federal Rule of Criminal Procedure 16(d)(1). See Gurolla,
333 F.3d at 951. We have reviewed the government’s
classified submissions in their entirety. The bulk of the
information the government sought to withhold was not
discoverable. Apart from the classified material underlying
the inadequate substitution discussed above, those few items
that were discoverable were not relevant and helpful to the
defense. The defense provided an analysis by Colonel Lang,
former head of Human Intelligence for the Department of
Defense. Although we credit Colonel Lang’s experience and
expertise, his speculation concerning the documents (to which
he did not have access) is just that.

        3. Classified Material in Seda’s Possession

    Before trial, Seda’s counsel came into possession of a
classified document. Counsel took appropriate steps to
safeguard access and negotiated an agreement to turn the
material over to a Classified Information Security Officer for
                 UNITED STATES V. SEDAGHATY                            43

placement in a secure facility in Washington, D.C. After the
district court issued what Seda terms a “gag order”—
prohibiting counsel from referencing or disclosing the
document—Seda sought reconsideration of that order six
times. Seda’s counsel also gave notice under CIPA § 5 of its
intent to use the classified information at trial. The district
court reviewed the material in camera, determined that the
material was not relevant to the charges, and denied
reconsideration of the protective order.15 Upon reviewing the
document and the district court’s in camera determinations
with a fresh eye, we affirm the district court’s determination
and conclude that there was no violation of CIPA §§ 5–6.
See Rewald, 889 F.2d at 847–48 (“[W]e decline [the
defendant’s] invitation to undertake an all-encompassing
analysis of this issue, and simply confine our review to the
relevancy and admissibility of the classified materials. . . .”).

    The district court’s limited protective order did not violate
Seda’s right to counsel or his right to present a defense. See
Moussaoui, 591 F.3d at 289 (“The right to communicate with
counsel at any point in the proceedings is not absolute.”).
The order was justified by compelling national security
concerns and the restrictions were limited to a single
document that was not relevant to the charges. See Morgan
v. Bennett, 204 F.3d 360, 367 (2d Cir. 2000) (“[T]he court
should not, absent an important need to protect a

   15
      Seda also raises a concern that government attorneys or agents
participated in the district court’s review of the material that was placed
in the secure facility. The records and representations of the Classified
Information Security Officers entrusted with the material reflect that no
one has accessed the documents except the court and the Classified
Information Security Officer on one occasion, and the defense counsel
together with the Classified Information Security Officer, on another
occasion.
44             UNITED STATES V. SEDAGHATY

countervailing interest, restrict the defendant’s ability to
consult with his attorney, but . . . when such a need is present
and is difficult to fulfill in other ways, a carefully tailored,
limited restriction on the defendant’s right to consult counsel
is permissible.”).

       4. Fruits of Unlawful Surveillance

    Seda speculates that the classified materials contain
evidence of prior unlawful surveillance that led to the search
warrant application. The record does not support a claim of
taint. See Murray v. United States, 487 U.S. 533, 542 (1988).
The affidavit attached to the warrant detailed the
investigation that established probable cause for the search.
The investigative interviews, grand jury subpoenas, and other
lawful investigative techniques that made up that
investigation were the legitimate basis for the decision to seek
the warrant.

III.   SEIZURE BEYOND THE SEARCH WARRANT

    Government agents searched Seda’s home in 2004
pursuant to a valid search warrant authorizing the seizure of
a limited set of documents: financial records and
communications related to the preparation of the 2000 tax
return. The government emerged from the search, however,
with much more: news articles, records of visits to various
websites about Chechnya, photographs of Chechen war
scenes, and other documents that were introduced at trial as
evidence of Seda’s desire to fund the Chechen mujahideen.

    The Fourth Amendment famously protects the “right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures. . . .” U.S.
              UNITED STATES V. SEDAGHATY                   45

Const. amend. IV. To effectuate this right, it provides that
“no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.” Id.
The question we consider de novo is whether the search was
unreasonable because agents relied on the affidavit in support
of the warrant to expand the authorized scope of items
detailed in the warrant itself. See United States v. Hurd,
499 F.3d 963, 965 (9th Cir. 2007) (considering whether a
search is within the scope of a warrant is a question of law
reviewed de novo).

    The search warrant incorporated two attachments (A and
B) and an affidavit supporting probable cause for the search.
See United States v. SDI Future Health, Inc., 568 F.3d 684,
699–701 (9th Cir. 2009) (“A warrant expressly incorporates
an affidavit when it uses ‘suitable words of reference.’”)
(quoting United States v. Towne, 997 F.2d 537, 545 (9th
Cir.1993)). The affidavit described Al-Haramain-U.S. and its
structure, detailed facts about the El-Fiki donation, Al-
Haramain-U.S.’s purchase of the Ashland and Springfield
prayer houses, and inconsistencies on the 2000 tax return.
The affidavit also included background information from
news articles about the conflict in Chechnya, investigations
into connections between several Al-Haramain branches and
the funding of terrorism, and statements of Al-Haramain’s
former director about funding for the Chechen mujahideen.

   Attachment A described the location of Seda’s home (also
Al-Haramain-U.S. headquarters). Attachment B listed five
46               UNITED STATES V. SEDAGHATY

individuals and five entities associated with the violations and
it detailed the items to be seized:16

         Evidence Relating to the Tax Violation

             Evidence concerning the subscription to a
         false Form 990 Tax Return, in violation of
         Title 26, United States Code, Section 7206(1),
         as described in the attached affidavit, for the
         year 2000, limited to the following:

             Records and communications, including
         electronic records and communications
         involving the individuals or entities above,
         pertaining to the preparation of an IRS Form
         990 for the year 2000;

              Records relating to bank accounts, bank
         transactions, bank records, safe deposit
         records, asset purchases or sales, other
         financial transactions, and donor and donee
         lists, involving the year 2000 which relate to
         the individuals or entities above; and




 16
    The five individuals listed were: Pirouz Sedaghaty, Soliman Al-Buthe,
Aqeel Al-Aqeel, Mansour Al-Kadi, Mahmoud Talaat El-Fiki. The five
entities listed were: Al Haramain; Al Haramain Foundation; Al Haramain
Islamic Foundation, Inc.; Al Haramain Headquarters aka Al Haramain
Riyadh.
                 UNITED STATES V. SEDAGHATY                           47

             Records relating to credit card accounts,
         records, and transactions involving the year
         2000, which relate to the individuals or
         entities above.

(emphasis added).17

    The warrant contained similar language for the currency
reporting (CMIR) violation, expressly limiting the evidence
seizure to “records of financial transactions and
communications” between October 1997 and February 2003
pertaining to the same named individuals and entities.
Neither Attachment A nor B referenced Chechnya or the
mujahideen.

    Attachment B also permitted the government to review
computer equipment to determine whether it would be
practical to search or copy it on site and, if not, allowed the
government to remove the computers in order to “extract and
seize any data that falls within the list of items to be seized”
described above. Attachment B required the government to
return any data outside of that list within sixty days.

    Agents removed nine computers from the house, and
computer forensic experts used an evolving list of search
terms to comb through the computers for useful materials. In
addition to financial records and communications describing
the preparation of the tax return, the agents seized hundreds
of other items, including internal Al-Haramain-U.S.
organizational documents, news articles, records of internet


  17
    The dissent selectively quotes from the warrant to support its broad
reading. In fact, the plain language of the warrant explicitly limits the
items to be seized more narrowly.
48               UNITED STATES V. SEDAGHATY

access to various websites about Chechnya, webpages sent to
Al-Haramain-U.S. by various listservs, photographs of
Chechen war scenes, and articles about Seda’s civic life.
Seda moved to stop the searches of electronic media and to
suppress the evidence that was beyond the scope of the
warrant.18

    The district court denied Seda’s motion, reasoning that
the “crimes charged require proof of intent and thus records
beyond simple financial records were appropriately seized,
such as evidence of support of the efforts of the Chechnyan
mujahideen.” The district court cited SDI Future Health,
568 F.3d at 699, for the proposition that an affidavit
incorporated in the warrant is “potentially curative of any
defects.”

    Without doubt, the warrant references the affidavit, but
the question is to what effect. The plain meaning of the text
provides the answer: the warrant seeks “evidence concerning
the” tax and currency reporting violations “described in the
attached affidavit.” The affidavit describes in separate
sections both the willful filing of a false return and the CMIR
violations, along with the requirements for each and evidence
supporting probable cause for the search. Adopting the
commonsense reading that the affidavit was incorporated for
the specific purpose of describing the offenses and
establishing probable cause does not require a hyper-technical
parsing of the language.



  18
     Seda consistently argued that the seizure was unlawful because it
exceeded the scope of the warrant. At oral argument, Seda’s counsel
argued that the seizure exceeded the warrant’s scope even if the affidavit
was incorporated into the warrant.
                  UNITED STATES V. SEDAGHATY                              49

     The plain text of the warrant likewise clearly delineates
what is to be seized. Under the heading “ITEMS TO BE
SEIZED,” Attachment B states that “[e]vidence concerning
the” tax violation is “limited to the following,” and then
discusses tax documents, financial records, and associated
communications “pertaining to the preparation of an IRS
Form 990 for the year 2000.” “Evidence concerning the”
CMIR charge is similarly limited to records of financial
transactions and associated communications between the
listed individuals from 1997 to 2003. The only reference in
the affidavit to the evidence sought is the concluding request
for authorization to search “for the evidence listed in
Attachment B and to seize the same.” Therefore, there is no
reason to read the affidavit as defining the scope of the items
to be seized. Instead, that list is contained in Attachment B
to the warrant.19

    Even if the affidavit is understood to describe evidence
“relevant” to the violations, that does not authorize the far
flung scope of the agents’ search. Relevance, of course, is
not the standard; the language of the warrant controls. United
States v. Tamura, 694 F.2d 591, 595 (9th Cir. 1982) (“As a

   19
      The affidavit, in fact, is consistent with a limited authorization
focusing on financial records and communications pertaining to the 2000
tax return and the CMIR: in describing documents likely to be found at
Al-Haramain-U.S.’s Ashland office in order to establish probable cause
for the search, it lists “financial records” such as “correspondence,
receipts, negotiated instruments, contracts, bank statements and other
records,” plus documentation concerning “income, expenses, asset
purchases, communications with tax preparers and other officers.” The
affidavit specifically references an interest in “transaction details from the
organization’s Quickbooks program for the 1999 and 2000 years.” The
magistrate judge could not have known from the affidavit that the agents
instead intended to seize records of Seda’s internet browsing of religious
websites or his correspondence with friends and co-workers.
50             UNITED STATES V. SEDAGHATY

general rule, in searches made pursuant to warrants only the
specifically enumerated items may be seized.”) (citation
omitted). The warrant was expressly limited in scope and did
not include items such as the records of visits to websites
about Chechnya, the communications unrelated to the
preparation of the tax return with individuals never named or
referenced in the affidavit, or the general background
information about the Chechen mujahideen that were seized.
The dissent suggests that all of this evidence is necessary to
establish the required mens rea. But it is not authorized by
the warrant. Upon failing to find evidence of willfulness in
the records pertaining to the preparation of the tax return that
were authorized to be seized, the government should not be
able to comb through Seda’s computers plucking out new
forms of evidence that the investigating agents have decided
may be useful, at least not without obtaining a new warrant.
See United States v. Heldt, 668 F.2d 1238, 1266 (D.C. Cir.
1981) (“[T]he particularity requirement of the fourth
amendment prevents the seizure of one thing under a warrant
describing another. As to what is to be taken, nothing is left
to the discretion of the officer executing the warrant.”)
(internal quotation marks and citation omitted). In light of
the specific limitations of the warrant, it is difficult to
embrace the government’s justification that the search terms
“bore a logical connection to the affidavit” and that all of the
materials seized “were relevant given the nature of the
charges.”

    To adopt the government’s approach would permit a
kitchen sink probable cause affidavit to overrule the express
scope limitations of the warrant itself. The issue here is not
whether the warrant incorporated the affidavit. That is not in
doubt—instead the issue is the scope of the reference. May
a broad ranging probable cause affidavit serve to expand the
              UNITED STATES V. SEDAGHATY                    51

express limitations imposed by a magistrate in issuing the
warrant itself? We believe the answer is no. The affidavit as
a whole cannot trump a limited warrant.

    Our cases have not dealt with this situation directly.
Rather, we have considered cases in which an affidavit could
cure a defective warrant. That circumstance has arisen when
there is a clerical error or when the warrant is overbroad but
could be cured by a particularized affidavit. Towne, 997 F.2d
at 544 (affirming the “well-settled principle that a warrant’s
overbreadth can be cured by an accompanying affidavit that
more particularly describes the items to be seized”) (citation
omitted); United States v. Bowler, 561 F.2d 1323, 1326 (9th
Cir. 1977) (holding that the presence of the correct address in
the sworn affidavit could correct a typographical error in the
warrant). Here, however, there is no error in the warrant for
the affidavit to cure. The error is with the seizure, which
exceeded the warrant’s scope. See United States v. Angelos,
433 F.3d 738, 746 (10th Cir. 2006) (noting that “it is apparent
that the problem lies in the execution, and not the
constitutionality, of the search warrant”). We have never
held that an affidavit could expand the scope of a legitimate
warrant beyond its express limitations nor do we do so here.

    Our approach accords with the D.C. Circuit’s treatment of
a warrant in United States v. Kaye, 432 F.2d 647, 649
(D.C. Cir. 1970): “It is the description in the search warrant,
not the language of the affidavit, which determines the place
to be searched.” The same principle—that it is the warrant
and not the affidavit that controls—applies equally to the
items to be seized. The court in Kaye explicitly rejected the
argument that “the scope of the search warrant was
determined or broadened by the . . . supporting affidavit.”
Id.; see also Angelos, 433 F.3d at 746 (concluding that a
52            UNITED STATES V. SEDAGHATY

search congruent with the affidavit but beyond the explicit
terms of the warrant exceeded the warrant’s scope).

    This approach is also supported by the Third Circuit’s
decision in Doe v. Groody, 361 F.3d 232, 240 (3d Cir. 2004).
Although the affidavit in Groody was not incorporated into
the warrant, the court reasoned more generally that while an
affidavit can be used to cure an otherwise overbroad warrant
by narrowing its scope, an affidavit cannot be relied upon to
authorize a search beyond the scope of a judicially authorized
warrant. Id. at 241. (“Bluntly, it is one thing if officers use
less than the authority erroneously granted by a judge [by
relying on an affidavit to narrow the warrant]. It is quite
another if officers go beyond the authority granted by the
judge.”) (emphasis added). Indeed, “the warrant provides the
license to search, not the affidavit.” Id.

    The supervising agent here may well have believed that
the affidavit took precedence over the warrant, but the
subjective state of mind of the officer executing the warrant
is not material to our initial inquiry. United States v. Ewain,
88 F.3d 689, 694 (9th Cir. 1996) (“A policeman’s pure heart
does not entitle him to exceed the scope of a search
warrant . . . .”). Any other conclusion would elevate the
author of the incorporated probable cause affidavit over the
judge issuing the warrant. Cf. Johnson v. United States,
333 U.S. 10, 13–14 (1948) (noting that the Fourth
Amendment requires that any inferences from the evidence be
“drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive
enterprise of ferreting out crime”).

   The district court determined that the “fact that a further
warrant was requested when information possibly relating to
              UNITED STATES V. SEDAGHATY                    53

a separate crime was discovered belies the allegations that the
search was a general fishing expedition.” That may be. But
the fact that the government sought a separate warrant for
some materials outside the scope of the warrant does not
somehow countenance the seizure of other materials outside
its scope. Cf. United States v. Crozier, 777 F.2d 1376, 1381
(9th Cir. 1985) (“A search must be limited to the terms of the
warrant.”). To the extent the agents wanted to seize relevant
information beyond the scope of the warrant, they should
have sought a further warrant.

    The Supreme Court has emphasized that “there are grave
dangers inherent in executing a warrant authorizing a search
and seizure of a person’s papers” as opposed to physical
objects, and that given the danger of coming across papers
that are not authorized to be seized, “responsible officials,
including judicial officials, must take care to assure that
[searches] are conducted in a manner that minimizes
unwarranted intrusions upon privacy.”             Andresen v.
Maryland, 427 U.S. 463, 482 n.11 (1976). The search
warrant here was properly issued and clearly stated the
locations to be searched and the items that could be seized.
The government agents responsible did not minimize
intrusions on privacy, however, but instead seized papers and
records beyond those the warrant authorized. See United
States v. Rettig, 589 F.2d 418, 423 (9th Cir. 1978)
(concluding that although the warrant was sufficiently
particular, the executing “agents did not confine their search
in good faith to the objects of the warrant, and that while
purporting to execute it, they substantially exceeded any
reasonable interpretation of its provisions” ). Unlike cases
where the magistrate judge erred in filling out the warrant but
the government reasonably relied on the judge’s approval,
here the magistrate judge properly authorized the warrant but
54             UNITED STATES V. SEDAGHATY

the agents did not follow it. See Hurd, 499 F.3d at 969
(holding that officers reasonably relied on the warrant, though
judge inadvertently failed to initial the appropriate line);
United States v. Hitchcock, 286 F.3d 1064 (9th Cir. 2002)
(determining that magistrate’s error in post-dating one line of
the warrant did not require suppression of the evidence
seized).

    The government’s seizure of items beyond the terms of
the warrant violated the Fourth Amendment. In the absence
of “flagrant disregard for the terms of the warrant,” a district
court need not “suppress all of the evidence, including
evidence that was not tainted by the violation.” United States
v. Chen, 979 F.2d 714, 717 (9th Cir. 1992) (internal quotation
marks omitted). “Th[e] extraordinary remedy [of suppressing
evidence seized within the scope of the warrant] should be
used only when the violations of the warrant’s requirements
are so extreme that the search is essentially transformed into
an impermissible general search.” Id.

    Because the record does not reflect a flagrant general
search, we reject Seda’s contention that the violation requires
suppression of all of the evidence seized. However, the
exclusionary rule generally bars admission of the evidence
seized that was beyond the scope of the warrant. See United
States v. Payton, 573 F.3d 859, 864 (9th Cir. 2009) (reversing
conviction where “search of [defendant’s] computer without
explicit authorization in the warrant exceeded the scope of
that warrant”). The illegal seizure of this evidence was not
without consequence, as much of the illegally seized evidence
was admitted to bolster the government’s theory that Seda
sympathized with and sought to aid the mujahideen. Cf.
Tamura, 694 F.2d at 597 (declining to order a new trial
where, despite unlawful seizure of items outside the scope of
               UNITED STATES V. SEDAGHATY                    55

the warrant, “[a]ll of the documents introduced at trial were
seized and retained lawfully because described in and
therefore taken pursuant to the valid search warrant”).

    The district court erroneously concluded that the items
seized were within the scope of the warrant, and thus did not
consider the applicability of the exclusionary rule. Nor did
the parties brief this issue on appeal. For this reason, we part
company with the dissent and conclude that it is not
appropriate for us to make the initial determination of good
faith on appeal. On remand, the district court should
determine in the first instance which specific items seized can
be understood to be “records or communications pertaining
to the preparation of an IRS Form 990 for the year 2000” or
otherwise authorized by Attachment B and whether the
seizure of items beyond that scope implicates the principles
of United States v. Leon, 468 U.S. 897 (1984), and Herring
v. United States, 555 U.S. 135, 140–48 (2009).

IV.      OTHER CLAIMS

      A. EVIDENTIARY ISSUES

         1. Receipts

    In 2004, Seda turned over a number of records to the
government, including four receipts. Seda claimed that two
of those receipts recorded his transfer of the El-Fiki donation
to Al-Buthe (termed AHIF-2 and AHIF-3) and the other two
receipts recorded Al-Buthe’s transfer of the donation to Al-
Haramain in Riyadh (rejected defense exhibits 704 and 705).
Seda was unable to authenticate any of these four exhibits.
56             UNITED STATES V. SEDAGHATY

     The district court properly excluded exhibits 704 and 705
because they were unauthenticated. Fed. R. Evid. 901; Orr
v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir.
2002) (“[a]uthentication is a condition precedent to
admissibility”) (internal quotation marks and citation
omitted). At trial, the government introduced the other
receipts—AHIF-2 and AHIF-3—through multiple witnesses,
not for their substance, but so it could argue the receipts were
fabricated. The district court’s admission of these exhibits
“not for their truth” but to corroborate the fabrication theory,
was not an abuse of discretion nor did it deprive Seda of a fair
trial. The hearsay rule does not apply to evidence offered “to
establish a foundation for later showing, through other
admissible evidence, that it was false.” See United States v.
Knigge, 832 F.2d 1100, 1108 (9th Cir. 1988) (quoting
Anderson v. United States, 417 U.S. 211, 220 (1974)).
Contrary to Seda’s assertion, the limited admission of these
receipts did not preclude him from arguing his theory to the
jury.

     2. Distortion of the Fact-Finding Process

    Seda claims that he suffered from an uneven playing field
because the government used its resources to obtain foreign
evidence that was inculpatory but failed to assist him in
obtaining exculpatory evidence, specifically bank records
from Saudi Arabia and depositions from Egypt. The net
result was, according to Seda, a distortion of the evidence.
Seda analogizes his case to United States v. Westerdahl,
945 F.2d 1083, 1086 (9th Cir. 1991), in which we held that
even though a defendant may not compel the government to
offer use immunity to a witness, intentional distortion of the
fact-finding process by denying immunity may constitute
prosecutorial misconduct. See also United States v. Straub,
              UNITED STATES V. SEDAGHATY                    57

538 F.3d 1147, 1160 (9th Cir. 2008) (“Even where the
government has not denied a defense witness immunity for
the very purpose of distorting the fact-finding process, the
government may have stacked the deck against the defendant
in a way that has severely distorted the fact-finding process
at trial.”). Not only does the record not support the argument,
Seda also misunderstands the role of the court vis-a-vis the
discovery he seeks.

    This case involved substantial evidence from abroad,
which presented obstacles for both parties. Nevertheless,
both parties conducted investigations overseas and were able
to obtain some evidence from foreign countries. For
example, Seda sent an investigator to Egypt and Saudi Arabia
to interview witnesses, including Seda’s codefendant Al-
Buthe. Seda located a potential witness in China, and the
court granted Seda’s motion to allow testimony by
videoconference. The government sent agents to observe an
interview by Egyptian authorities with El-Fiki. The
government also sought records pursuant to international
treaties and through its powers to subpoena documents from
financial institutions. See 31 U.S.C. § 5318. Some of these
efforts were successful, while others were not. Although both
sides faced obstacles in obtaining evidence from abroad, there
was no “stacked deck.”

    To assist in obtaining evidence from Egypt, Seda asked
the court to order the government to use a Mutual Legal
Assistance Treaty (“MLAT”) between the United States and
Egypt on his behalf. The express terms of the MLAT
preclude Seda’s reliance on it as a source of discovery:
“[T]he provisions of this Treaty shall not give rise to a right
on the part of any private person to obtain . . . any
evidence. . . .” Treaty Between the Government of the United
58            UNITED STATES V. SEDAGHATY

States of America and the Arab Republic of Egypt on Mutual
Legal Assistance in Criminal Matters, U.S.-Egypt, art. 1(4),
May 3, 1998, T.I.A.S. No. 12948; see also Medellin v. Texas,
552 U.S. 491, 506 n.3 (2008) (describing the “background
presumption . . . that ‘[i]nternational agreements, even those
directly benefiting private persons, generally do not create
private rights or provide for a private cause of action in
domestic courts’” (quoting Restatement (Third) of Foreign
Relations Law of the United States § 907, Comment a, p. 395
(1986))).

    Not only does Seda’s claim fail under the express terms
of the treaty, the district court had no authority to order the
Executive Branch to invoke the treaty process to obtain
evidence abroad for a private citizen. See United States v.
Rosen, 240 F.R.D. 204, 213–14 (E.D. Va. 2007) (explaining
that “the right to compulsory process extends only as far as a
court’s own process powers, and cannot be stretched to
include compelling the invocation of treaty process powers
available only to the Executive Branch”). Seda’s Westerdahl
analogy, which relates to immunity in the domestic context,
does not extend to the world of international treaties. Our
review of the complete record also reveals that the
government’s discovery conduct did not distort the fact-
finding process.

    Seda’s Westerdahl analogy also fails with regard to the
letters rogatory. The government’s position on Seda’s
motions for letters rogatory could hardly skew the discovery
process because the decision to issue a letter rogatory rests
squarely within the discretion of the court, not the
government. See United States v. Staples, 256 F.2d 290, 292
(9th Cir. 1958). Upon Seda’s request, the district court issued
a letter rogatory asking the government of Saudi Arabia to
               UNITED STATES V. SEDAGHATY                      59

assist in obtaining a deposition from Al-Sanad or facilitating
his voluntary testimony at trial. The court received no
response. The court declined to issue letters rogatory to
Egypt with respect to El-Fiki, his son, and his employee
because the potential testimony was not material. See United
States v. Liner, 435 F.3d 920, 924 (8th Cir. 2006) (explaining
that in a criminal case, “the moving party must show the
witness’s unavailability and the materiality of the witness’s
testimony”). El-Fiki and the associated witnesses in Egypt
did not know Seda, did not communicate with Seda, and had
no knowledge of either Seda’s intent with regard to the tax
return or the ultimate disposition of the donation. The court
did not abuse its discretion in concluding that El-Fiki’s intent
regarding use of the money was not probative of Seda’s own
state of mind and thus was neither material nor necessary to
ensure a fair trial.

    B. APPEALS TO FEAR

    Seda argues that the government appealed to religious
prejudices and guilt by association and thus deprived him of
a fair trial, especially in light of the exclusion of some of his
rebuttal evidence. See United States v. Waters, 627 F.3d 345,
354–56 (9th Cir. 2010). Because this case is being sent back
for a new trial, we need not reach this issue. It suffices to say
that the charge here relates to a false tax return filed on behalf
of a tax-exempt organization, and does not allege material
support to terrorism. We are confident that the district court
will recognize the fine line separating necessary and
probative evidence of willful falsity from evidence that would
cast Seda in the role of a terrorist based on appeals to fear and
guilt by association and thereby unduly prejudice the
proceedings. United States v. Elfgeeh, 515 F.3d 100, 127 (2d
Cir. 2008) (recognizing that “evidence linking a defendant to
60               UNITED STATES V. SEDAGHATY

terrorism in a trial in which he is not charged with terrorism
is likely to cause undue prejudice”).

  AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED FOR A NEW TRIAL.



TALLMAN, Circuit Judge, concurring in part and dissenting
in part:

    This is a tax fraud case arising from a false declaration on
a charitable organization’s tax return claiming a donation was
used to purchase a mosque in Missouri when it was actually
sent to terrorists in Chechnya. The conviction and sentence
imposed on Pirouz Sedaghaty, also known as Pete Seda,
should be affirmed. To the extent my colleagues wish to
reverse the district court’s rulings and remand this case for a
new trial, I respectfully dissent.1

     Overall, the majority’s opinion fails to take into account
the exemplary manner in which a seasoned trial judge
handled this case to ensure that the defendant received a fair
trial, despite its substantive and logistical challenges. There
are several critical flaws in the majority’s analysis. First, and
in contravention of the deference we owe the jury’s verdict,
the opinion’s recitation of the facts is inappropriately written
from the perspective of the defense theory of the case.
Second, the majority unduly constricts the text of the search


     1
      Readers of this opinion should be cautioned that to completely
understand my analysis requires the necessary security clearance to review
the classified portion of this dissent, contemporaneously filed under seal
in the custody of the Classified Information Security Officer.
               UNITED STATES V. SEDAGHATY                    61

warrant and disregards the underlying reason for the very
existence of the exclusionary rule in declaring the search
unlawful. Third, the opinion disregards District Judge
Michael Hogan’s express factual findings and his rulings on
the potential impact of challenged witness testimony
following an evidentiary hearing. And, fourth, the opinion
discounts the extraordinary efforts by the Department of
Justice to abide by its criminal discovery obligations and the
district court’s extensive oversight of those efforts in dealing
with the extremely sensitive national security concerns that
underpin the investigation and prosecution of this case.

                               I

    Contrary to the approach taken by the majority in its
factual recitation, in a case involving a criminal conviction,
“all reasonable inferences are to be drawn in favor of the
government, and any conflicts in the evidence are to be
resolved in favor of the jury’s verdict.” United States v.
Alvarez-Valenzuela, 231 F.3d 1198, 1201–02 (9th Cir. 2000).
Furthermore, “[t]he evidence is to be considered in the light
most favorable to the government to determine whether any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Id. at 1201. The
jury convicted Seda after an eight-day trial and the majority
opinion has failed to faithfully apply this legal principle of
deference to the jury’s resolution of contested facts on
appellate review. The rule respecting the jury’s fact-finding
is not confined to sufficiency of the evidence challenges as
posited by the majority. United States v. Kim, 25 F.3d 1426,
62               UNITED STATES V. SEDAGHATY

1432 (9th Cir. 1994) (“[O]n appeal we review the factual
record in the light most favorable to the verdict.”).2

    A prime example of the majority’s slant in favor of the
defense is its dismissive discussion of the government’s key
evidence of Seda’s willfulness in structuring the funds
transfer to hide its intended purpose.3 The defendants’
decision to structure the transaction in the form of traveler’s
checks to move the money from Oregon to Chechnya makes
no sense if their intentions were benign and there was nothing
to conceal. Once the Al-Haramain Islamic Foundation, Inc.
branch office based in Ashland, Oregon (Al-Haramain-US)
received the $150,000 deposit wired from London by the
Egyptian donor, Dr. Mahmoud Talaat Hasan El-Fiki,
defendants could have easily and quickly wire-transferred the
funds to Al-Haramain Islamic Foundation, Inc.’s main office
in Saudi Arabia (Al-Haramain) through international
correspondent banks at a cost of about $15.




 2
   The majority implies that our court must only view the facts in the light
most favorable to the jury verdict when the defendant has challenged the
sufficiency of the evidence. This is not only wrong, see SEC v. Jasper,
678 F.3d 1116, 1120 (9th Cir. 2012) (stating that “[w]e relate the facts
here in the way most favorable to the jury verdict” even though
sufficiency of the evidence was not raised on appeal), but it defies logic.
When a jury reaches a verdict on any issue, we must respect the facts the
jury necessarily found to reach that verdict. That prerogative is even
stronger when, as here, the defendant acknowledged that the evidence
supports the verdict by opting not to challenge the evidence’s sufficiency.
  3
    The charge that Seda was ultimately convicted of, filing a fraudulent
tax return under 26 U.S.C. § 7206, requires that a violator “willfully makes
and subscribes any return, statement or other document . . . not believe[d]
to be true and correct as to every matter.” (emphasis added).
              UNITED STATES V. SEDAGHATY                   63

    Instead, the defendants spent $1,300 in service charges to
divide $130,000 into $1,000-denomination American Express
traveler’s checks that are extremely difficult to trace once
cashed. To further obscure their plan they withdrew another
$21,000 as a cashier’s check made payable to co-defendant,
Soliman Al-Buthe, personally. Evidence showed he later
deposited it in his personal bank account in Riyadh, Saudi
Arabia. A reasonable jury could have concluded on this
evidence that this was Al-Buthe’s “cut” for serving as the
courier.

    Al-Haramain advertised more than a dozen bank accounts
to collect donations, maintained a global presence in at least
50 countries, and operated with an annual budget of $30–$80
million for its charitable work. One would expect an
organization of this size to keep automated banking records
tracking its donations. Yet, when pressed during the
investigation for documentation of the $150,000 transaction,
Al-Haramain could only present through legal counsel two
purported “receipts” with hand-written differing amounts for
the same transaction. The government convincingly argued
these documents were phony, and the district court properly
admitted them only for the limited purpose of impeachment.
The jury very well could have believed from the evidence
presented that the transaction was structured in this manner
so that the traveler’s checks could be easily converted into
untraceable cash in the Middle East with Al-Buthe taking his
$21,000 for personal or nefarious use.

    In addition to this evidence, the jury heard evidence of
other related suspicious behavior by Seda and his
confederates. Most significantly, there was the deceitful
manner in which Seda hid the actual use of the $150,000
“donation” from his Oregon accountant, Tom Wilcox, by
64             UNITED STATES V. SEDAGHATY

falsely claiming it was kept in the United States and included
in the $462,000 price of the Springfield, Missouri, mosque
purchased to expand Al-Haramain-US operations. Then there
is the fact that Al-Buthe properly declared the transport of
negotiable instruments on nine other occasions, totaling
$777,845, over a two-and-a-half-year period prior to the
events in question. He filed a Currency and Monetary
Instrument Report each time he traveled, but significantly did
not do so when he carried the $151,000 in negotiable
instruments from Oregon to Saudi Arabia.

    The jury obviously thought the entire handling of the
money reeked of criminal intent, as evidenced by its verdict.
The complexity of the structured transactions was powerful
evidence of Seda’s willfulness to hide the true use of the
money from the Internal Revenue Service (IRS) when he
subscribed the false non-profit tax return. Despite this
laundry list of nefarious behavior, the majority fails to
recognize the cumulative effect of this important evidence,
which ultimately resulted in the jury’s verdict.

    Aside from the financial disparities, there was other
evidence introduced at trial to show Seda’s intent to lie on the
tax form and hide the real purpose to which the funds were
put. An incriminating email was found during the search of
Seda’s residence in which Seda was communicating directly
with Al-Haramain in Saudi Arabia following receipt of a
battlefield report on activities in Chechnya. On January 22,
2000, just a month before the El-Fiki donation, the defendant
copied into an email to co-defendant Al-Buthe a portion of a
statement by Chechen commander of the Islamic Army of the
Caucasus, Ibn Ul-Khattab, complaining that Islamic charities
were not providing support to the mujahideen. The email
contained the subject line “What Support?” Only a month
                 UNITED STATES V. SEDAGHATY                             65

later Seda received the $150,000 from El-Fiki with a notation
of “Use Zakat in order to participate in your noble support to
our muslim Brothers in Chechnia.”4

    The jury also heard testimony from government expert
witness Evan Kohlmann, who described the role of Al-
Haramain in the Chechen conflict and its funding of terrorist
activity under the guise of charitable donations. The
“normal” process he described was that a “foreign national,
in other words, a non[-]Chechen national, would travel with
a suitcase of between [$]100 and $500,000, would bring it to
a country nearby to Chechnya,” and “[f]rom there the money
would be couriered across the border into the Caucasus in
Chechnya and be distributed to help support the mujahideen
in the field.” The Al-Haramain website also included an
original copy of a fatwa5 by Sheikh Abdallah Bin Jibrin, a
senior influential cleric. It called for Muslims to “[s]upply
[the mujahideen] with weapons and material support which
they would utilize to struggle and fight those who fight
them.”      Muslims were obligated to “[s]upport [the
Mujahideen] financially as they [we]re in dire need for food
and clothing.”

    It is not hard to see why the jury found that Seda willfully
failed to disclose to the IRS the true activities of his


 4
   Zakat is one of the pillars of Islam and is the giving of obligatory alms
or charity, similar to a tithe. “Zakat means to provide charity to suffering
Muslims,” which some interpret to include “distribut[ion] to Muslim
fighters who are fighting a larger opponent,” like the Chechen mujahideen
at war with the Russian army.
 5
   A fatwa issued by a cleric “is the equivalent of a ruling on a particular
issue regarding Islam or Muslims, and it is incumbent upon anyone who
follows the person issuing the fatwa to follow the advice given.”
66             UNITED STATES V. SEDAGHATY

§ 501(c)(3) charitable organization when he signed the
informational Form 990 tax return. The defendants’ activities
and the circumstantial evidence surrounding them mirrored
the modus operandi employed by those who smuggled money
to Chechnya, as called upon by the fatwa announced publicly
on Al-Haramain’s own website. Coupled with incriminating
computer evidence recovered by forensic examiners from his
deleted hard drives, the jury could reasonably infer that Seda
was well aware of the intended recipient’s use for any
donations from Al-Haramain-US.

                               II

    The incriminating evidence seized from Seda’s Ashland
prayer house properly fell within the scope of the search
warrant. On behalf of the defense, the majority opinion
manufactures its argument to limit the scope of the search.
We agree that Seda’s steadfast argument advanced in his
briefs—that the affidavit was not incorporated—is untenable.
However, the majority’s newly created argument invalidating
the search is also flawed. First, it refuses to acknowledge that
when properly read as a whole the warrant’s language
allowed for the collection of the records seized. And, second,
even if the agents exceeded the intended scope of the search
warrant, the exclusionary rule should not bar the use of the
collected evidence based on the good faith exception.

                              A

    The search warrant described the “ITEMS TO BE
SEIZED” as all “[r]ecords and communications” to include
all “[e]vidence concerning the subscription to a false Form
990 Tax Return, in violation of 26 U.S.C. § 7206(1), as
described in the attached affidavit, for the year 2000.”
              UNITED STATES V. SEDAGHATY                    67

(emphasis added). Records and communications were
defined as “electronic records and communications involving
the individuals or entities” associated with the violations.
The subjects of the search warrant included the two
defendants, two other known Al-Haramain officials, the
donor of the money ultimately delivered to the Chechen
mujahideen, as well as five related Al-Haramain entities.
Furthermore, the search warrant defined a careful procedure
to search computers for all “records stored or modified in any
form.” If during the search the law enforcement computer
personnel determined it was not practical to complete the
search of the computers on-site, then the computers could be
“seized and transported to an appropriate law enforcement
[forensic] laboratory for review.”

    The difference in the way the majority approaches the
search warrant inquiry reflects a fundamental difference in
our views of how searching agents are guided by the court’s
authorization of items to be seized in light of the more
detailed statements in the incorporated (and physically
present) affidavit of facts establishing probable cause for its
issuance. The majority focuses upon the words “limited to
the following” while ignoring the 33 pages of detail outlining
the multi-year joint FBI/IRS/ICE investigation “as described
in the attached affidavit” incorporated by reference.

    “The complexity of an illegal scheme may not be used as
a shield to avoid detection when the State has demonstrated
probable cause to believe that a crime has been committed
and probable cause to believe that evidence of this crime is in
the suspect’s possession.” Andreson v. Maryland, 427 U.S.
463, 480 n.10 (1976). A search warrant may include a class
of generic items or goods to be searched, as it did here, “if
there are objective, articulated standards for the executing
68            UNITED STATES V. SEDAGHATY

officers to distinguish between property legally possessed and
that which is not.” United States v. Hilyard, 677 F.2d 1336,
1340 (9th Cir. 1982). “The standards may be contained in the
search warrant or . . . in the accompanying affidavit” if
properly incorporated. Id.

    Seda does not challenge the sufficiency of the showing of
probable cause to support issuance of the warrant. And once
armed with the court’s authority to search the Ashland
premises utilized by the subjects of the investigation, agents
were certainly entitled to seize items of obvious evidentiary
significance to that investigation as detailed in the
accompanying statement of probable cause. In short, there is
no requirement in law that limits items to be seized solely to
those expressly listed in the search warrant. The overarching
Fourth Amendment principle is, as set forth in this dissent,
one of “reasonableness” under the totality of the
circumstances. See United States v. Villamonte-Marquez,
462 U.S. 579, 588 (1983).

                              1

    To determine whether the seized items fell within the
scope of the search warrant, it is important to consider the
mens rea the government is required to prove beyond a
reasonable doubt in this type of case. The statutory language
of 26 U.S.C. § 7206 requires that a person willfully completes
and signs a tax return that the person “does not believe to be
true and correct as to every matter.” In order to establish the
mens rea that Seda “willfully” filed a false tax return, the
government needed to explain the context in which he
directed his accountant to prepare the 2000 tax return for his
organization. The government knew when requesting the
search warrant that gathering evidence to show why Seda
                 UNITED STATES V. SEDAGHATY                          69

wanted to hide the true use of the donation was an important
element of their case. Why else would Seda and his
confederates have structured their transactions in such
deceitful ways?

    To that end, the search warrant incorporated by reference
and the magistrate reviewed an affidavit with background
materials describing the probable cause related to the El-Fiki
payment to Al-Haramain in support of the armed conflict in
Chechnya. The affidavit includes more than five pages of
sworn testimony by the case agent6 specifically attesting to
the connections between Seda, Al-Haramain, the Chechen
conflict, donations, and mujahideen military forces. The
materials collected by the government were relevant to these
topics and helped establish the necessary mens rea for
conviction. Although the majority argues that no “hyper-
technical parsing of the language” of the search warrant
affidavit is required, to interpret it as my colleagues suggest
renders a large portion of the affidavit superfluous.

    As suspected and later confirmed by the excessive
quantity of materials found in his possession, Seda had an
obsessive interest in Chechnya and the armed forces involved
in the conflict. The seized materials supported the
government’s contention that Seda’s zealous interest rose to
a level that compelled him to send money to aid the struggle,
which then drove him to falsify the non-profit tax return to
cover up his support.          The majority’s benevolent
characterization of the evidence as “Seda’s internet browsing
of religious web sites” or “correspondence with friends and
co-workers,” overlooks the fact that these web sites and

 6
   The IRS case agent in charge of the Seda investigation was IRS Special
Agent Colleen Anderson.
70             UNITED STATES V. SEDAGHATY

listserv emails encouraged a call to arms and corroborated the
description of Al-Haramain and its terrorist activities in the
affidavit. Judge Hogan’s factual determinations regarding the
express terms of the search warrant and incorporated affidavit
were not clearly erroneous. United States v. Giberson,
527 F.3d 882, 886 (9th Cir. 2008) (“We review . . . the
district court’s underlying factual findings for clear error.”).

    The majority’s concern regarding the scope of the search
is unfounded, and even my colleagues agree that the warrant
actually incorporated the case agent’s sworn affidavit. We
have held that:

        [t]he warrant requirement is a means of
        preventing arbitrary and unreasonable
        invasions of privacy; the search warrant itself
        is the tangible evidence that precautions have
        been taken to ensure that no such invasion has
        occurred. When the officer who requests
        authorization for the search, the magistrate
        who grants such authorization, and the
        officers who execute the search expressly rely
        upon a given set of papers containing a given
        series of words, they identify that set of
        papers and that series of words as the proof
        that proper precautions were taken to prevent
        an unreasonably invasive search.

United States v. Towne, 997 F.2d 537, 548 (9th Cir. 1993).

     It is a “well-settled principle that a warrant’s overbreadth
can be cured by an accompanying affidavit that more
particularly describes the items to be seized.” Id. at 544
(citing United States v. Luk, 859 F.2d 667, 676 (9th Cir.
               UNITED STATES V. SEDAGHATY                      71

1988)). An affidavit is “part of a warrant, and therefore
potentially curative of any defects, . . . if (1) the warrant
expressly incorporated the affidavit by reference and (2) the
affidavit either is attached physically to the warrant or at least
accompanies the warrant while agents execute the search.”
United States v. SDI Future Health Inc., 568 F.3d 684, 699
(9th Cir. 2009). “When we say that a warrant may be so
facially deficient that it precludes reasonable reliance, what
we mean is that ‘[o]fficers poised to conduct a search should
be able to ascertain that such a warrant fails to offer
sufficiently detailed instruction and instead leaves them
guessing as to their task.’” Towne, 997 F.2d at 549 (quoting
Ortiz v. Van Auken, 887 F.2d 1366, 1370 (9th Cir.1989)).

    The majority mischaracterizes the warrant as
underinclusive and then determines that an affidavit cannot be
read to broaden the scope of the warrant. However, if these
documents are correctly read, this argument fails. The
warrant in this case is not underinclusive. It broadly allows
for the collection of all evidence related to the preparation of
a false tax return. It is the affidavit that then zeros in on the
evidence the investigation had already uncovered related to
Al-Haramain and its connections to funding the mujahideen’s
activities in Chechnya. The affidavit appropriately narrowed
the search to these activities, the underlying reason why Seda
falsified the Al-Haramain-US’s tax return. Just as described
in Luk, supra, the appropriately incorporated affidavit
“cured” any potential overbreadth of the warrant, and the
majority’s argument collapses.

                                2

    The government went to great pains to comply with the
limitations of the warrant. Before giving his independent
72               UNITED STATES V. SEDAGHATY

approval, United States Magistrate Judge John Cooney read
the search warrant, supporting attachments, and the case
agent’s sworn affidavit, incorporated by reference. Prior to
conducting the search, the prosecution and the case agent
developed a search procedure to be followed with a
designated seizing officer and computer-search protocol. The
case agent briefed the nearly 20 agents on site and gave each
agent a copy of the search warrant to read.7 All of the search
warrant documents were available on site for further
reference during the search. Seda’s personal attorney also


  7
    Because the case agent was both the affiant and led the execution of
the search warrant, any concerns regarding the seizures should be
foreclosed. As noted by the Tenth Circuit:

         [i]t would be anomalous to permit an officer’s
         knowledge of the terms of the affidavit to cure a lack of
         particularity on the face of a warrant but not permit the
         officer’s knowledge to clarify the practical meaning of
         a term in a facially valid warrant. Because an affidavit
         can be used to demonstrate that a warrant is not
         constitutionally invalid for lack of particularity when
         the same officer produces the affidavit and executes the
         warrant, an affidavit also may be used to clarify with
         ‘practical accuracy’ the meaning of a disputed term in
         a warrant when the same person is both affiant and
         executing officer.

United States v. Ortega-Jimenez, 232 F.3d 1325, 1329 (10th Cir. 2000);
see also Massachusetts v. Sheppard, 468 U.S. 981, 989 n.6 (1984) (“the
officer who [wrote the affidavit and] directed the search, knew what items
were listed in the affidavit presented to the judge, and he had good reason
to believe the warrant authorized the seizure of those items.”); United
States v. Durk, 149 F.3d 464, 466 (6th Cir. 1998) (recognizing that where
the same officer applies for and executes the warrant, a mistaken search
is unlikely); United States v. Beaumont, 972 F.2d 553, 562 (5th Cir. 1992)
(relying on the executing officer as the affiant for support in upholding
particularity of the warrant).
              UNITED STATES V. SEDAGHATY                   73

reviewed the search warrant and affidavit when he was
summoned to the property by Seda’s son. The case agent
consulted throughout the search with the prosecutor for legal
guidance regarding the seizure of particular items. Some
documents were seized only after Seda’s son talked with
Seda’s attorney on site and gave voluntary consent.

    The majority’s concerns regarding a “kitchen sink”
affidavit and the possible dangers of coming across papers
not authorized by the search are misguided. My colleagues
barely acknowledge the extensive forensic reconstruction
required to salvage any usable evidence from the deleted hard
drives. The investigation then employed an independent taint
team, unrelated to this investigation, to sift through the
electronic materials gained from the search and distinguish
between those that were within the scope of the search, and
those that were not. The case agent developed specific search
terms in conjunction with forensic examiners to cull the
relevant data and focus on the individuals and items listed in
the affidavit of probable cause. When the computer search
revealed evidence of an unrelated crime, agents immediately
sought and obtained a second search warrant.

                              3

    Additionally, the district court conducted an evidentiary
hearing on this issue, and Judge Hogan specifically found that
the search was reasonable and that agents faithfully followed
the issuing magistrate judge’s directions in conducting the
computer searches, employing appropriate protocols. The
district judge concluded that “the warrant, including the
affidavit incorporated into the warrant, was reasonably
specific as to the items sought and the government followed
appropriate protocols to separate intermingled materials.”
74             UNITED STATES V. SEDAGHATY

And, “[t]he crimes charged require proof of intent and thus
records beyond simple financial records were appropriately
seized, such as evidence of support of the efforts of the
Chechnyan [Chechen] mujahideen.” Furthermore, Judge
Hogan determined that “[g]iven the nature of the data and the
fact that it had been deleted, the actions taken by the
government were reasonable and permitted by the warrant as
approved by Magistrate Cooney.” We must defer to factual
findings unless they are clearly erroneous. Giberson,
527 F.3d at 886.

                               4

    The seized inculpatory evidence did not exceed the scope
of the search warrant. The majority’s reliance on Doe v.
Groody, 361 F.3d 232 (3d Cir. 2004), is misplaced and easily
distinguishable when the search warrant is considered in
conjunction with the incorporated affidavit. Based on
Groody, the majority states that “an affidavit cannot be relied
upon to authorize a search beyond the scope of a judicially
authorized warrant.” See id. at 241.

    However, the search in Groody exceeded the scope
because the warrant failed to incorporate the affidavit. Id. at
236, 239–41. This detail, disregarded by the majority, drove
the Third Circuit’s entire analysis. It is simple logic that
when an affidavit is not incorporated then law enforcement is
precluded from relying upon it and to do so would exceed the
scope of the warrant. As noted in that decision, “[w]ere we
to adopt the officers’ approach to warrant interpretation, and
allow an unincorporated affidavit to expand the authorization
of the warrant, we would come dangerously close to
displacing the critical role of the independent magistrate.” Id.
at 241.
               UNITED STATES V. SEDAGHATY                     75

    But here, the majority agrees that the affidavit was
incorporated, and it was available during the search to guide
the agents executing the warrant. This undermines any
application of the Groody decision to this case. The critical
role of the neutral and detached magistrate was not displaced.
Because the scope of the search was permitted under the
warrant and was reasonable on the facts of the case, there was
no Fourth Amendment violation. See Michigan v. Fisher,
558 U.S. 45, 47 (2009) (“[T]he ultimate touchstone of the
Fourth Amendment . . . is ‘reasonableness.’”).

     The majority’s reliance on United States v. Kay, 432 F.2d
647 (D.C. Cir. 1970), and United States v. Angelos, 433 F.3d
738, 746 (10th Cir. 2006), also misses the mark. In both of
the cases the issue on appeal was whether law enforcement
searched a permissible location, such as Kay’s upstairs
apartment which had a “separate and distinct” entrance and
a different street address than the one listed on the warrant.
Kay, 432 F.2d at 649. The express language of the warrant in
Kay only included the location of the search as 3618 14th
Street, whereas the apartment’s actual address was 3618 ½
14th Street. Id. at 648–49. The affidavit included a reference
to the “entire premises” of “a two story brick building” at
“3618 14th Street.” Id. at 649. On appeal, the court held that
based on the facts of that case, “the description in the search
warrant, not the language of the affidavit . . . determin[ed] the
place to be searched.” Id. In Angelos, the Tenth Circuit held
the officers exceeded the scope of the warrant where the
listed search location on the face of the warrant was a safe
and a car, but officers additionally searched the entire home
based on two references to the “residence/premises” made in
the affidavit. 433 F.3d at 745–46.
76            UNITED STATES V. SEDAGHATY

     First, these cases are not applicable because this case is
not about an incorrect search location. Here, the agents
dutifully searched the appropriate premises and received
consent to extend the search to trailers not included in the
description of places to be searched in Attachment “A.” It is
telling that these are the best cases the majority can find to
make their argument. There are no cases on point denying
that an affidavit can be used to clarify and narrow the warrant
when it comes to determining which evidence may be seized.

    And, second, as previously discussed, the majority’s
argument that the affidavit in this case expanded the scope of
the warrant is a mischaracterization.          The affidavit
appropriately limited the warrant to the focused evidence
described therein. Furthermore, although the majority
attempts to analogize searching an incorrect location to
seizing items outside the scope, that gloss ignores the
inherent difference between these two elements of the Fourth
Amendment. A particularized location is a requisite element
for a reasonable search. Regardless of the items seized, law
enforcement must first be at the right location. Location is a
finite concept, whereas the search warrant’s description of all
“[e]vidence concerning the subscription to a false Form 990
Tax Return, in violation of 26 U.S.C. § 7206” requires factual
context, the role of the affidavit. The analysis from these
cases is not an apples to apples comparison, and it cannot be
extended to cover the search here. At bottom, the evidence
was appropriately seized because, just as Judge Hogan found,
the warrant combined with the affidavit authorized the
collection of evidence indicative of Seda’s willful intent to
falsify the Al-Haramain-US tax return.
               UNITED STATES V. SEDAGHATY                    77

                               B

    But, even if the majority is correct in finding that the
search exceeded the scope of the warrant, under the good
faith exception recognized by the Supreme Court in Leon and
Herring, suppression would not serve the purpose of
deterrence. See United States v. Leon, 468 U.S. 897 (1984);
Herring v. United States, 555 U.S. 135 (2009). “Suppression
of evidence . . . has always been our last resort, not our first
impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006).
The Supreme Court has rejected reflexive application of the
exclusionary rule. Id. “[T]he exclusionary rule serves to
deter deliberate, reckless, or grossly negligent conduct, or in
some circumstances recurring or systemic negligence.”
Herring, 555 U.S. at 144. There is no evidence of any such
misconduct here. “Whether the exclusionary sanction is
appropriately imposed in a particular case . . . is ‘an issue
separate from the question whether the Fourth Amendment
rights of the party seeking to invoke the rule were violated by
police conduct.’” Leon, 468 U.S. at 906 (quoting Illinois v.
Gates, 462 U.S. 213, 223 (1983)). “[T]he exclusionary rule
has never been applied except where its deterrence benefits
outweigh its substantial social costs.” Hudson, 547 U.S. at
594 (internal quotation marks omitted).

    Here, the balance weighs strongly in favor of not applying
the exclusionary rule. “[W]hen law enforcement officers
have acted in objective good faith or their transgressions have
been minor, the magnitude of the benefit conferred on such
guilty defendants offends basic concepts of the criminal
justice system.” Leon, 468 U.S. at 908. The government
went to great lengths to conduct a reasonable search. The
search warrant incorporated a lengthy affidavit for the
magistrate’s review. There was an established on-site search
78             UNITED STATES V. SEDAGHATY

procedure and computer search protocol with defined search
terms. The case agent consulted with the prosecutor
throughout the execution of the warrant to make sure the
search was appropriately conducted. The exclusion of
evidence in this case would not serve to deter misconduct in
the future where every indication was that law enforcement
agents complied with the scope of the search warrant. Agents
acted in good faith under Leon and Herring, and accordingly,
exclusion is not warranted.

                              III

    Judge Hogan conducted a full evidentiary hearing to
consider the proposed impeachment evidence regarding
Barbara Cabral discovered after trial. We should defer to the
district court’s factual findings, which were not clearly
erroneous, in upholding his legal determination that the
undisclosed evidence was not material under Brady v.
Maryland, 373 U.S. 83 (1963). The majority applies
complete de novo review to the three-step inquiry and fails to
give the appropriate level of deference we owe the trial court.
Unlike here, for its standard of review, the majority relies
upon a case that did not involve an evidentiary hearing
regarding the Brady violation. United States v. Pelisamen,
641 F.3d 399 (9th Cir. 2011); see also United States v.
Howell, 231 F.3d 615 (9th Cir. 2000).

    This procedural difference is telling. As we noted in
United States v. Price, “[w]hile it is clear that the legal
questions at issue in a Brady claim are reviewed de novo, this
circuit has not yet ‘had the opportunity to consider what, if
any deference should be afforded to a district court’s factual
findings . . . .’” 566 F.3d 900, 907 n.6 (9th Cir. 2009) (citing
United States v. Jernigan, 492 F.3d 1050, 1062 (9th Cir.
               UNITED STATES V. SEDAGHATY                    79

2007) (en banc) (Bea, J. dissenting)). In Price, we avoided
this open question because the judge ruled on the motion for
a new trial from the bench. Id. However, in this case Judge
Hogan denied Seda’s motion for a new trial in a written order
with express factual findings after taking testimony in both
written and oral form and holding an in camera hearing.
These facts cannot be ignored on appellate review.

    We should follow the First, Second, Third, Fifth, Seventh,
Eighth, Tenth and Eleventh Circuits and the United States
Court of Appeals for the District of Columbia, all of whom
have recognized this difference in procedural posture and
given the requisite deference to the trial court’s factual
findings on appeal. Jernigan, 492 F.3d at 1062, 1062–64
(Bea, J., dissenting) (citing and discussing each case). This
is because although legal issues are analyzed de novo, “a
Brady determination is inevitably a contextual inquiry,
involving questions of both law and fact.” United States v.
Sipe, 388 F.3d 471, 479 (5th Cir. 2004). Our sister circuits
apply appellate deference to a district court’s factual findings
bearing on Brady materiality, and recognize that the trial
judge—who listened to the witnesses, heard their testimony,
and watched as they gave it—is in a far superior position to
assess materiality than we are on a cold record. United States
v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995).

    The Brady analysis depends on “nested” factual
determinations which strongly influence the legal
determination. See United States v. Sanchez, 917 F.2d 607,
618 (1st Cir. 1990); United States v. Thornton, 1 F.3d 149,
158 (3d Cir. 1993). The correct standard of review must be
applied to each step of the analysis. In this case Judge Hogan
necessarily had to analyze: (1) the impact of the undisclosed
impeachment evidence specifically on Cabral’s overall
80             UNITED STATES V. SEDAGHATY

testimony; (2) the impact, if any, of that determination on all
the other evidence presented in the case (28 out of 1,800
pages of trial testimony); and (3) whether it was significant
enough to undermine our confidence in the outcome of the
jury’s verdict. Thus, while question three is a legal question
subject to de novo review, questions one and two are
inherently factual determinations that require our deference
unless they are clearly erroneous. To rule otherwise would
amount to appellate fact-finding. Jernigan, 492 F.3d at 1059
(Bea, J., dissenting).

    Accordingly, after conducting an in camera proceeding to
review the contested evidence and taking evidence from
various witnesses, including Barbara Cabral, Judge Hogan
properly determined that the withheld information did not
violate the standard of United States v. Bagley, 473 U.S. 667,
682 (1985). “Evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Id.

    Brady requires the disclosure of evidence only if it is
“both favorable to the accused and ‘material either to guilt or
to punishment.’” Id. at 674 (quoting Brady, 373 U.S. at 87).
A prosecutor only violates a “constitutional duty of
disclosure” where the “omission is of sufficient significance
to result in the denial of the defendant’s right to a fair trial.”
United States v. Agurs, 437 U.S. 97, 108 (1976). While the
government admits it erred by not turning over possible
impeachment evidence related to the testimony of Barbara
Cabral, when the district court’s factual findings are
considered, within the context of the eight-day trial as a
whole, Judge Hogan correctly determined that the withheld
               UNITED STATES V. SEDAGHATY                    81

information did not rise to a level that deprived Seda of a fair
trial.

    On March 17, 2010, well before commencement of trial
on August 30, 2010, the United States disclosed Barbara
Cabral as a witness who would “testify a[b]out observations
made while attending functions at the Al-Haramain Islamic
Foundation, Inc. in Ashland, Oregon.” The most damaging
testimony she offered was that at the conclusion of the Hajj
in the Spring of 1999, while she, Seda, and others were in
Saudi Arabia traveling on money provided by Al-Haramain,
Seda collected $200 from each group members’ remaining
funds for blankets and food for Chechen freedom fighters.
The evidence was only circumstantially relevant since El-Fiki
did not make his $150,000 “donation” until nearly a year
later. The disputed tax return for Al-Haramain-US, which
misstated how those funds were actually used, was not filed
until October 2001, more than 18 months after the Hajj.

    The defense claims that the government’s failure to
disclose information regarding Barbara Cabral warrants a
new trial under Brady and Bagley. But the district court held
an evidentiary hearing on this issue and entered findings of
fact adverse to the defense position:

       Indeed, of the 1800 page transcript generated
       from the trial, Barbara Cabral’s testimony
       takes up only 28 of those pages. She was
       aggressively cross-examined. There was some
       significance to the terrorist issue because the
       government ostensibly wanted to establish a
       reason for the tax fraud. But Cabral’s
       testimony was immaterial to the jury’s
       convictions on the charges presented because
82            UNITED STATES V. SEDAGHATY

       it did not matter where the money
       fraudulently reported on the tax return
       actually went and because of other significant
       evidence regarding willfulness.           The
       government’s case centered on the accountant,
       Thomas Wilcox’s testimony.

       The government’s focus on the issues
       surrounding the mujahideen has a greater
       relation to any enhancement during the
       sentencing phase. The materiality of Cabral’s
       testimony to that question is a little more clear
       given that this was really the only direct
       evidence about defendant’s desire to fund the
       mujahideen.

Ultimately, Judge Hogan chose not to impose the sentencing
enhancement for terrorism to which Cabral’s testimony was
relevant. U.S.S.G. § 3A1.4(a).

    Also, relevant to willfulness, there was other significant,
independent evidence supporting the jury’s finding. Daveed
Gartenstein-Ross, a former employee of Al-Haramain-US,
independently testified that Seda talked about gathering
money for mujahideen forces in Kosovo. There was ample
evidence in the record from emails and other items seized
from Seda’s computers at the Ashland prayer house that
showed his intent to covertly support the mujahideen in
Chechnya, including visits to multiple Jihadi web sites, a pro-
Chechen mujahideen listserv, and battlefield photographs of
the mujahideen. The government obtained still photos from
Seda’s home taken from a mujahideen fundraising video
showing a training camp, as well as other seized items, with
the consent of defendant’s son, whose counsel was present
              UNITED STATES V. SEDAGHATY                   83

during the search. The jury heard background expert
testimony about the Chechen conflict and the relationship
between Al-Haramain, the Saudi Joint Relief Committee, and
support for the mujahideen.

     Most damning, the jury was certainly entitled to infer
from the deletion of the computer hard drives that Seda acted
with criminal intent. Experienced prosecutors, criminal
defense lawyers, and judges know that juries give heightened
weight to a suspect’s efforts to destroy or secrete
incriminating evidence. Seda had ample notice since 2001
that he was under investigation prior to execution of the
search warrant in February 2004. When agents seized his
computers three years into the investigation, they discovered
that the hard drives had been deleted. It was only through
forensic computer examination that the government was able
to laboriously restore the incriminating information and piece
together the inculpatory evidence in this case.

    Given the quantity of alternative, independent evidence,
and when considered cumulatively, it is unlikely that the
failure to disclose the payments to Cabral’s husband, Richard,
and the interview notes, which arguably might have
impeached her testimony, materially prejudiced the defense.
As Judge Hogan, who presided over the trial, so found.

    The majority opinion’s reference to discrepancies in the
interview notes of Richard Cabral are irrelevant. Because he
passed away during the investigation of this case and was
therefore unavailable during trial for cross-examination, any
relevant statements he made during the investigation would
have been inadmissible under Federal Rule of Evidence 802
as hearsay within hearsay, not subject to an exception.
84                UNITED STATES V. SEDAGHATY

    The district court’s factual findings are not clearly
erroneous, and the majority errs in failing to give appropriate
deference. Judge Hogan correctly determined that the error
was not so substantially injurious as to warrant a new trial
because the result would have been no different. See Bagley,
473 U.S. at 682. The jury could easily have reached the same
conclusion without even considering Barbara Cabral’s
testimony and accordingly its exclusion did not serve to
undermine confidence in the outcome of the trial.

                                    IV8

    Contrary to the majority’s ruling, the unclassified
summary complied with the requirements of the Classified
Information Procedures Act (CIPA). 18 U.S.C. app. 3, § 4.
The law permits the creation of an unclassified summary
report or substitution of a statement admitting relevant facts
helpful to the defense in lieu of disclosing state secrets. Id.
The government has the burden under Federal Rule of
Criminal Procedure 16 to disclose evidence “both favorable
to the accused and material either to guilt or to punishment.”
Bagley, 473 U.S. at 674 (citing Brady, 373 U.S. at 87). CIPA
authorizes the government to submit an ex parte motion to the
district court to reveal that it is in possession of relevant
documents and to conduct in camera proceedings ex parte
where classified information responsive to this obligation
exists. 18 U.S.C. app. 3, § 6.




  8
   The analysis in the unclassified dissent is constrained to a discussion
of only unclassified evidence. A more complete analysis of the
substitution is included in the classified dissent under the protection of the
Classified Information Security Officer.
               UNITED STATES V. SEDAGHATY                     85

    This left the government and the court in the awkward
position of having to sift through classified documents from
the intelligence community to try to determine if any
contained exculpatory information helpful to Seda’s defense.
United States v. Amawi, 695 F.3d 457, 471 (6th Cir. 2012)
(“Rather than neutrally deciding disputes with an open record
based on the adversarial process, [the court] must place
[itself] in the shoes of the defense counsel, the very ones who
cannot see the classified record, and act with a view to their
interests.”); see also United States v. Mejia, 448 F.3d 436,
458 (D.C. Cir. 2006) (noting the difficult predicament of “the
defendants and their counsel, who are in the best position to
know whether information would be helpful to their defense,
[but] are disadvantaged by not being permitted to see the
information and . . . assist the court in its assessment of the
information’s helpfulness”). The court must determine
whether there is exculpatory material and whether an
unclassified summary or statement of admitted facts can be
crafted to effectively substitute for production of the
documents themselves, which cannot be disclosed for reasons
of national security. 18 U.S.C. app. 3 § 4.

    The unclassified summary report given to Seda 18 months
before trial complied with the requirements of CIPA as
defined in § 6(c)(1). “The district court must accept [the
substitution] if it will provide the defendant with substantially
the same ability to make his defense as would disclosure of
the specific classified information.” United States v.
Moussaoui, 382 F.3d 453, 477 (4th Cir. 2004) (internal
quotation marks omitted). There was no abuse of discretion
here because the court provided the defense with all the
necessary details from the withheld documents to follow any
potential investigative leads.
86             UNITED STATES V. SEDAGHATY

    The underlying documents themselves were inadmissible
under Federal Rule of Evidence 802 as hearsay within
hearsay, not subject to an exception. The court issued letters
rogatory submitted by the defense asking the Kingdom of
Saudi Arabia for access to Sami Al-Sanad, the subject of the
summary document substitution, while he was in its custody.
The defense had already interviewed Soliman Al-Buthe, the
other individual named in the summary, on multiple
occasions, while ironically the prosecution was refused
official access to interview any Saudi citizens.

    The defense objected to the introduction of the
government’s summary, but it offers no explanation for not
proposing a stipulation in slightly revised form so as to get
before the jury Al-Sanad’s claim that the money was to be
used for legitimate humanitarian purposes in Chechnya. The
defense initially marked the summary as Defense Exhibit
730, but then just ten days before trial raised its first concern
regarding its contents. In a hearing seven days later, Judge
Hogan stated, “I want to look at that again.” Defense counsel
reiterated his concern regarding the summary, but in the same
hearing and prior to Judge Hogan ruling on the objection,
defense counsel withdrew the exhibit. At trial, the defense
team did not renew the objection to the unclassified summary.

    An issue is preserved for appeal “where the substance of
an objection has been thoroughly explored and the trial
court’s ruling was explicit and definitive.” United States v.
Palmer, 3 F.3d 300, 304 (9th Cir.1993). Although “there is
no requirement that a party engage in a futile and formalistic
ritual to preserve the issue for appeal,” that is not this case.
United States v. Varela-Rivera, 279 F.3d 1174, 1177–78 (9th
Cir. 2002).
                 UNITED STATES V. SEDAGHATY                           87

     The summary had been provided to the defense with
sufficient time to litigate over its contents. The defense team
never offered an alternative version to the trial court for
consideration as a possible compromise.9 The defense team
did not afford Judge Hogan an opportunity to make an
“explicit and definitive” ruling on its objection prior to
withdrawing the exhibit. Nor did the defense team reiterate
its objection at trial to preserve the issue on appeal.

     By failing to offer an acceptable alternative, failing to
seek an “explicit and definitive” ruling on the objection,
failing to object to the summary’s language at trial, and
choosing to withdraw the exhibit prior to trial, Seda waived
any challenge to this claim. Deference is owed to defense
counsel’s trial strategy, and we cannot speculate now after the
jury has spoken as to why defense counsel chose not to
pursue their objection further, nor offer the exhibit at trial.
We should not countenance this tactical maneuver on appeal
where Seda waived any objection by failing to preserve it at
trial.

    Judge Hogan went to extraordinary lengths to conduct
multiple in camera proceedings and appropriately review
related classified information in an effort to meet the
commands of CIPA. There was no abuse of discretion in the
court’s authorization of the substituted summary, but because
of the waiver, we should not even reach this issue.



  9
    The majority argues that defense counsel was not in the position to
offer alternative language. However, ten days before trial, defense
counsel could certainly have brought the court’s attention to the specific
words which it considered “editorialized” and recommended less
pejorative alternatives.
88            UNITED STATES V. SEDAGHATY

                              V

    A capable district court judge had a daunting task in
overseeing this complex case, and the record shows he fairly
balanced the competing interests at stake. The search did not
exceed the scope of the properly authorized warrant and its
incorporated affidavit. The procedures employed in its
creation and execution were measured and appropriate. The
district court’s factual findings were not clearly erroneous,
and the determination that the potential impeachment
evidence regarding Barbara Cabral did not warrant a new trial
was correct. The unclassified summary appropriately
complied with the requirements of CIPA and balanced the
need to protect national security with Seda’s right to present
a defense. Under these difficult circumstances, Seda got a
“fair trial,” even though it might not have been a “perfect
one.” Ross v. Oklahoma, 487 U.S. 81, 91 (1988). For these
reasons, I would affirm the conviction and the trial court’s
rulings.
