                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 19a0254p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 UNITED STATES OF AMERICA,                                ┐
                                   Plaintiff-Appellant,   │
                                                          │
                                                           >     Nos. 19-3648/3657
        v.                                                │
                                                          │
                                                          │
 SIROUS ASGARI,                                           │
                                  Defendant-Appellee.     │
                                                          ┘

                          Appeal from the United States District Court
                         for the Northern District of Ohio at Cleveland.
                      No. 1:16-cr-00124-1—James S. Gwin, District Judge.

                               Decided and Filed: October 4, 2019

              Before: BATCHELDER, SUTTON, and DONALD, Circuit Judges.
                               _________________

                                           COUNSEL

ON BRIEF: Steven L. Lane, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., Om M. Kakani, Daniel J. Riedl, Matthew B. Kall, UNITED STATES ATTORNEY’S
OFFICE, Cleveland, Ohio, for Appellant. Stephen C. Newman, Catherine J. Adinaro, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

       SUTTON, Circuit Judge. In this case, federal prosecutors asked the district court for
permission to withhold classified information from defense counsel for Sirous Asgari, an Iranian
scientist charged with theft of trade secrets. The court initially granted the government’s request
because the information was not relevant to the charges.           But after Asgari moved for
reconsideration on the ground his defense counsel had a top-level security clearance, the court
 Nos. 19-3648/3657                     United States v. Asgari                             Page 2


changed its mind and ordered the information’s disclosure to counsel. Because the court’s first
answer was the right answer, we reverse.

          An Iranian scientist who worked for a time at Case Western, Asgari faces criminal
charges for stealing trade secrets and committing visa and wire fraud. A month before his trial
date, he learned that the government intended to withhold classified information from discovery.
Consistent with the Classified Information Procedures Act of 1980, 18 U.S.C. app.3 § 1 et. seq,
the district court reviewed the information and concluded that none of it would help Asgari. It
thus allowed the government to withhold the information.

          Asgari moved for reconsideration, asserting that his counsel held a top secret/sensitive
compartmented information security clearance. With this fact in hand, the district court thought
it could balance the government’s and Asgari’s interests in a more refined way. It ordered the
government to disclose to defense counsel the material it had previously declared irrelevant. The
government filed a notice of appeal and an emergency motion for a stay. We granted the stay
and now consider the appeal (as required by statute) on an expedited basis. 18 U.S.C. app.3
§ 7(b).

          Asgari claims that we lack jurisdiction to hear this interlocutory appeal. The Classified
Information Procedures Act says otherwise. Id.

          The Act sets forth a series of rules for preserving the confidentiality of classified
information, for allowing discrete use of classified information, and for reviewing district court
orders disclosing such information. One rule permits the government to seek an interlocutory
appeal of a district court order “authorizing the disclosure of classified information.” Id. § 7(a).
No one disputes that the information at issue is “classified.” Only the meaning of “disclosure” is
at stake. The Act does not define the term, but “disclose” conventionally means “to bring into
view by uncovering, to expose, to make known, to reveal to knowledge, to free from secrecy or
ignorance, or make known.” Black’s Law Dictionary 417 (5th ed. 1979); see Webster’s Third
New International Dictionary 645 (1981). An order that makes classified information known to
someone without access to it counts as a disclosure.
 Nos. 19-3648/3657                      United States v. Asgari                              Page 3


       United States v. Smith supports this interpretation. 899 F.2d 564 (6th Cir. 1990). At
issue was a district court’s order that permitted judicial staff and a law clerk to review classified
information. The government challenged the disclosure in an interlocutory appeal. Because the
district court’s order “is said to have the effect of permitting the disclosure of classified
information to putatively unauthorized persons,” we reasoned, “appellate jurisdiction” existed
“under § 7(a).” Id. at 566–67. It made no difference in the case that the disclosure was to a law
clerk or judicial staff, as opposed to the public in general.

       The same was true in United States v. Clegg. 740 F.2d 16, 18 (9th Cir. 1984). There,
too, the court permitted interlocutory review of a disclosure order. In that case, as in this one, the
order released classified information to the defendant’s counsel, as opposed to the public in
general. It is “clear,” the Ninth Circuit reasoned, “that [the Act] is as concerned with controlling
disclosures to the defendant as it is with controlling disclosures to the public.” Id.

       Asgari counters that the “common law [of] privilege” permits the sharing of this
information with defense counsel. Mot. to Dismiss at 8. For that reason, he claims, the court’s
order would not lead to a cognizable “disclosure” and thus no jurisdiction exists for our review
of the permissibility of the order under the Act.         Id. Resort to common law background
principles, however, comes into play when construing ambiguous terms. See Cmty. for Creative
Non-Violence v. Reid, 490 U.S. 730, 739–40 (1989). This part of the Act speaks with admirable
clarity. Before the court issued its order, defense counsel for Asgari did not have access to this
classified information. That indeed was the point of the order. After the order, defense counsel
would have had access to these national security secrets. All in all, that counts as an order
authorizing the disclosure of classified information.

       Confirming the point are the cases invoked by Asgari. Two of the cases do not mention
the Act, and none of them purports to establish a universal meaning of disclosure. Roviaro v.
United States, 353 U.S. 53, 60 (1957); United States v. Sierra-Villegas, 774 F.3d 1093, 1098–99
(6th Cir. 2014).

       United States v. Moussaoui does not alter this conclusion. 333 F.3d 509 (4th Cir. 2003).
In that case, it is true, the Fourth Circuit ruled that it lacked jurisdiction under § 7 to review the
 Nos. 19-3648/3657                     United States v. Asgari                              Page 4


appeal. But the case arose in a materially different setting. It did not involve an order to disclose
classified information, as here; it involved an order permitting the defendant to depose an enemy
combatant witness. Id. at 514–15. That’s why the court ruled that the Act applied “only by
analogy.” Id. The Fourth Circuit’s decision may or may not be right. See United States v.
Moussaoui, 336 F.3d 279, 282–86 (4th Cir. 2003) (Wilkinson, J., dissenting from denial of
rehearing en banc); id. at 286–93 (Luttig, J., dissenting from denial of rehearing en banc). For
now, the key reality is that it did not involve a disclosure order like this one. Confirming the
point is the en banc concurrence by the author of the panel decision, in which he makes clear that
an order like Asgari’s would be immediately reviewable. Id. at 280 (“[T]here is no question that
CIPA § 7 authorizes the government to take an interlocutory appeal from an order of the district
court that authorizes the disclosure of classified information to the defendant.”) (citing Clegg,
740 F.2d at 18).

          The government and Asgari also join debate about a distinct question: May we review a
set of orders about this disclosure that the district court issued after the government appealed the
July 8th order? The answer is no. But this answer turns not on the Act but on the reality that the
government’s notice of appeal was “an event of jurisdictional significance” over this issue.
Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). When the government
appealed the district court’s July 8th order, it deprived the district court of jurisdiction to do
anything else on this disclosure point. See Manrique v. United States, 137 S. Ct. 1266, 1271
(2017).

          As for the merits, the district court’s order receives abuse-of-discretion review, United
States v. Amawi, 695 F.3d 457, 470 (6th Cir. 2012), and a material mistake of law generally
amounts to just that, Koon v. United States, 518 U.S. 81, 100 (1996).

          When the government possesses classified information that it wishes to withhold from a
defendant, it may do so upon a “sufficient showing” to the district court. 18 U.S.C. app.3 § 4.
What counts as a “sufficient showing?” We have read § 4 to say that a court should balance the
government’s interests in keeping the information secret against the defendant’s interest in
information that is “relevant and helpful” to his defense. Amawi, 695 F.3d at 469–70. The court
steps into “the shoes of defense counsel, the very ones that cannot see the classified record, and
 Nos. 19-3648/3657                     United States v. Asgari                             Page 5


act[s] with a view to their interests.” Id. at 471. In doing so, the court keeps three factors in
mind: whether (1) the information is “relevant”; (2) the government’s privilege claim for secrecy
is “colorable”; and (3) the information is “helpful” to the defense. Id. at 470.

       The district court initially applied the correct standard. It reviewed the information “ex
parte” just as the statute contemplates. 18 U.S.C. app.3 § 4. It determined the government had a
colorable privilege claim. And it found the material not “relevant and helpful” to Asgari’s
defense. R.150 at 2. That looked like the end of the debate. The district court used the correct
the legal standard, and it applied the standard in a reasonable way.

       But at Asgari’s urging, the district court reconsidered its decision in light of defense
counsel’s superior understanding of Asgari’s defense strategy and counsel’s purported security
clearance. We have no problem with the first point—that defense counsel in general, and this
counsel in particular, knows more about how to defend his client than the district court would.
But the existence of a security clearance by itself does not change the equation or offer a
legitimate basis for changing course, and above all it does not alter the directive of the Act that
the district court make these decisions on an ex parte basis.

       Section 4 is a procedural safeguard. If the government wants to keep discoverable
information classified, it has to show that in concealing the information it has taken into account
the defendant’s ability to prepare his defense before trial. At the same time, the Act recognizes
the government’s interest in preserving the secrecy of national security confidences. That’s why
the statute vests the district court, a confidential arbiter, with responsibility to evaluate the
information’s relevance. Defense counsel’s security clearance becomes relevant if and only if
the court determines the material should be disclosed. Just because the defendant has a need to
see the information doesn’t mean the information gets declassified or given to one person for
review. Security clearances simply are one way for the district court to make sure that the
government’s privilege is preserved to the maximum extent possible. See 18 U.S.C. app.3 § 3.

       Nothing in § 4 suggests that defense counsel has a role to play when the district court
assesses the relevance or helpfulness of the classified information. Just the opposite. The statute
refers to the district court’s assessment of these factors through an ex parte hearing (“a written
 Nos. 19-3648/3657                     United States v. Asgari                              Page 6


statement to be inspected by the court alone”) that occurs without the defendant’s knowledge (“If
the court [grants relief] following such an ex parte showing, the entire text of the statement of the
United States shall be sealed.”). Id. § 4.

       Asgari makes much of the fact that the district court expressed it had trouble, on
reconsideration, deciding whether the information was relevant to Asgari’s defense.              We
appreciate the point. But the text vests the district court alone with responsibility to make the
decision.   Section 4 certainly does not tell the district court to outsource its statutory
responsibility to defense counsel any time it has trouble deciding whether information is
relevant. It will be the rare defense counsel who doubts his superior position to gauge the needs
of his clients. And it thus will be the rare case in which, if defense counsel’s perspective counts,
that the court could deny that input on the relevance and helpfulness questions.

       Asgari adds that the government’s privilege is not in jeopardy if the disclosure is made to
a defense counsel like this one, who has a high security clearance and an extensive background
using classified information. But this argument does not move the needle either. Section 4
expresses a clear view of what measures are necessary to protect against improper disclosure.
Whether defense counsel has a security clearance or not, top secret or not, are considerations that
do not explain why we can read defense counsel’s involvement into the § 4 relevance inquiry.

       The clear rule established by § 4 also makes sense. Even the most competent and ethical
lawyers make mistakes. That risk goes up in view of defense counsel’s obligation to represent
his client ardently. See Ohio Rules of Prof’l Conduct 1.3. An ex parte approach to the relevance
inquiry mitigates that risk.

       We reverse and remand the case for further proceedings consistent with this opinion.
