Date: 03-28-2016

Case Style: STATE OF CONNECTICUT v. HAIDAR MUSTAFA ABUSHAQRA

Case Number: AC 152069

Judge: Alexandra Davis DiPentima

Court: Connecticut Appellate Court

Plaintiff's Attorney: Christopher Malany, Benjamin C. Mizer, Diedre M. Daly, Mark B. Stern,
Charles W. Scarborough, Jv ohn B.Hughes

Defendant's Attorney: Michael J. Dyer, Ryan P. Barry

Description: In this petition for review, brought pursuant to Practice Book § 77-1 and General Statutes § 51-164x (c), we are called upon to determine whether the trial court improperly (1) prohibited the petitioner, CapitalBailBonds,LLC,fromdisseminating,disclosing, orotherwiseusingareportoftheNationalCrimeInformation Center (NCIC report) and a Federal Bureau of Investigation (FBI) rap sheet in bond forfeiture proceedings, and (2) ordered the petitioner to lodge all copies of said documents with the court under seal. Thepetitionerclaimsthatthecourtlackedtheauthority to enter such an order. We disagree and conclude that thecourthadtheinherentauthoritybothtoprohibitthe dissemination, disclosure, and use of these documents, andtoorderthepetitionertolodgethemwiththecourt under seal. The following facts and procedural history are relevant to our analysis. The defendant, Haidar Mustafa Abushaqra, was arrested on June 28, 2011, and charged with two counts of larceny in the first degree. He was released on separate surety bonds that were executed by the petitioner. On February 1, 2012, the defendant failed to appear in court as ordered, and the court, Taylor, J., ordered the bonds forfeited and raised the bail in each pending case to $1 million. On September 3, 2014, the petitioner filed a motion to release its obligations under the bonds. In support of those requests, the petitioner also filed a motion to file a record under seal, requesting that the memorandum of law appended to the motion to release, as well as certain other documents, be filed under seal with the court pursuant to Practice Book § 11-20A.1 In its memorandum of law in support of its motion to file record under seal, the petitioner represented to the court that ‘‘[t]here are certain statements and documents [referenced] within said motion that are highly privileged and it is undersigned counsel’s belief that if they were released to the public, their release could jeopardize the health, safety and/or reputation of certainpartiesinvolved.’’Therespondentstatefiledawritten objection on September 22, 2014. The state was unaware of the content of both the petitioner’s memorandum of law and the documents themselves at that time because it was not served with copies. The parties appeared for argument before the court, Baldini, J., on September 22, 2014. At that hearing, the petitioner’s counsel elaborated on the nature of the documents it sought to be sealed: ‘‘First, there is a document that I’ve attached . . . that is generated by the FBI and that contains information that is relevant andmaterialtothecaseathand.Andforconfidentiality purposes I would like to refer to that document as document number one. And secondly there is a docu
ment generated by the chief state’s attorney’s office under the [division] of criminal justice addressed to myself indicating that the FBI—in fact, a division of the FBI dealing with internal or international relations considersthatdocumentnumberoneasanationalsecurity sensitive document and is not to be disclosed outside of law enforcement. The FBI also told the chief [state’s attorney’s] office that document number one is also law enforcement sensitive and is to be used for internal purposes only.’’ Thepetitioner’scounselrepeatedlystatedduringthis hearing that these documents are ‘‘national security sensitive’’and‘‘nottobedistributed—disseminatedoutside of law enforcement.’’ The court inquired how the petitioner came into possession of these materials. The petitioner’s counsel represented that ‘‘they were inadvertently given to me.’’ The state objected to the petitioner’s motions, arguing that the petitioner had failed both to demonstrate that it was entitled to have its obligations released and that it was entitled to have the documents sealed. The state also contended that it was ‘‘arguing this motion at a significant disadvantage’’ because, at that time, it had not seen any of the documents. At the conclusion of the hearing, the court continued the matter until October 20, 2014, to afford itself an opportunity to conduct an in camera review of the content of these documents. At the October 20, 2014 hearing, the court issued an interim order prohibiting any disclosure, dissemination, or use of the documents by the petitioner’s counsel, including to the petitioner, but it did not order the documents to be lodged with the court at that time. The court afforded the petitioner additional time to conduct research concerning the court’s authority to issue such an order and to prepare an objection to the court’s interim order. The parties returned on March 11,2015,atwhichtimethepetitionerandthestatewere heard, and the matter was taken under advisement. On July 13, 2015, the court issued a memorandum of decision addressing the petitioner’s motion to seal and its objection to the court’s interim order. The court identified the documents the petitioner sought to have sealed as the defendant’s FBI rap sheet and an NCIC reportconcerningthedefendant.2 Thecourtalsoidentifiedanumberofreasonswhyasealingorderwasappropriate, found that these reasons overrode the public’s interestinviewingthedocuments,andfoundthatthere were no reasonable alternatives to a sealing order. The court ordered the petitioner to place all copies of the defendant’s FBI rap sheet and NCIC report in a sealed envelope and to lodge said envelope with the court. The court further ordered that ‘‘[t]he parties are precludedfromdisseminating,publishingorotherwisedisclosing the contents of this [o]rder and the court’s memorandum of decision . . . for seventy-two (72)
hours from the date of this [o]rder. . . . Should any appeal be taken of this [o]rder within the seventy-two (72)hourperiodasprovidedbythePracticeBook,such appeal shall operate as a further stay of the [o]rders set forth . . . above.’’ The petitioner subsequently filed the present petition for review on July 16, 2015, requestingthatthiscourt‘‘reversethetrialcourt’sorder precluding [it] from disseminating, publishing or otherwise disclosing the contents of the [documents] and remand the case to the trial court for further proceedings.’’ The parties appeared for oral argument before this court on July 23, 2015. On July 24, 2015, this court, sua sponte, ordered the parties to file briefs addressing the trial court’s authority to preclude use of and reference to the defendant’s FBI rap sheet and NCIC report, as well as the court’s authority to require the petitioner toplaceallcopiesofthesedocumentsinthepossession of the court. Subsequently, on September 16, 2015, this court invited the UnitedStates Attorney for the District of Connecticut to file a brief on behalf of the United States of America as amicus curiae. The amicus brief was filed on December 16, 2015. This petition presents an unusual circumstance. The petitioner initially sought, by way of its September 3, 2014 motion to file record under seal, a sealing order of, among other things, the defendant’s FBI rap sheet and NCIC report. The court ultimately ordered these documents to be sealed. In other words, the petitioner appears at first blush to have received the relief it requested. Nevertheless, it now claims that the court lacked the authority to order a blanket prohibition on any use and dissemination of these documents. The petitioner further claims that the court exceeded its authority when it ordered that these documents be turned over to the court. The petitioner argues that the Superior Court, as a constitutional court of general jurisdiction, may only act pursuant to explicit constitutional, statutory, or common-law authority. It contends that no such authority supports the court’s orders in the present case. The state objects, arguing that use of thedefendant’sFBIrapsheetandNCICreportisstrictly limited by federal law, namely, 28 U.S.C. § 5343 and 42 U.S.C. § 14616,4 and that the court, in recognition of these limitations, properly precluded the parties from usingthem.Thestatealsoarguesthatthecourtproperly utilized its broad inherent authority to restrict the use of sensitive evidence. We agree with the state. Webeginwiththestandardofreview.Theonlyclaim advanced by the petitioner is that the trial court completely lacked the authority to issue the order that it issued, not that it improperly exercised its authority. ‘‘Whether the trial court had the power to issue [an] order, as distinct from the question of whether the trial court properly exercised that power, is a question
involving the scope of the trial court’s inherent powers and, as such, is a question of law. See, e.g., Millbrook Owners Assn., Inc. v. Hamilton Standard, 257 Conn. 1, 14, 776 A.2d 1115 (2001) . . . . Accordingly, our review is plenary.’’ AvalonBay Communities, Inc. v. Planning & Zoning Commission, 260 Conn. 232, 239– 40, 796 A.2d 1164 (2002). The petitioner claims that, in the absence of explicit authorization, the court was powerless both to order a blanket prohibition on dissemination, disclosure, and use of the documents, and to lodge all copies of the documents with the court under seal. We disagree. The trial court’s authority is not limited by the rules of practice.5 ‘‘The power of a court to manage its own affairs so as to achieve an orderly and expeditious disposition of cases exists independently of the power recognized by rule or statute.’’ (Emphasis added.) Talit v. Northwest Airlines, Inc., 58 Conn. App. 102, 107, 752 A.2d 1131 (2000). The appellate courts of this state consistently have recognized that the trial court has broad inherent authority to manage judicial proceedings in a variety of circumstances. See State v. Jones, 314 Conn. 410, 420, 102 A.3d 694 (2014) (‘‘The case managementauthorityisaninherentpowernecessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases. . . . The ability of trial judges to manage cases is essential to judicial economy and justice. . . . This authority extends to determining the means by which the jury examines submitted exhibits.’’ [Citation omitted; internal quotation marks omitted.]); ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 591 n.13, 923 A.2d 697 (2007) (‘‘a trial court in this state has the inherent authority to impose sanctions against an attorney and his client for a course of claimed dilatory, bad faith and harassing litigation conduct, even in the absence of a specific rule or order of the court that is claimed to have been violated’’ [internal quotationmarksomitted]);Maris v. McGrath,269Conn.834, 844, 850 A.2d 133 (2004) (‘‘the court has the inherent authoritytoassessattorney’sfeeswhenthelosingparty has acted in bad faith, vexatiously, wantonly or for oppressive reasons’’ [internal quotation marks omitted]); Fattibene v. Kealey, 18 Conn. App. 344, 359–60, 558 A.2d 677 (1989) (in absence of rule of practice on point, trial court may rely on its inherent authority to manage proceedings). ‘‘Simply stated, [t]he inherent powers of . . . courts are those which are necessary to the exercise of all others.’’ (Internal quotation marks omitted.) Srager v. Koenig, 42 Conn. App. 617, 620, 681 A.2d 323, certs. denied, 239 Conn. 935, 936, 684 A.2d 709 (1996). After reviewing the record, briefs, and the court’s memorandum of decision, we conclude that the court’s inherent authority is broad enough to allow it to preclude use of the defendant’s FBI rap sheet and NCIC
report, and to order these documents to be placed in the custody of the court. This case presents unique circumstances involving, by the petitioner’s own statements, highly sensitive documents that are intended only for use by law enforcement professionals. See CommissionerofPublicSafetyv.FreedomofInformation Commission, 144Conn. App. 821, 828,76 A.3d 185 (2013) (‘‘28 U.S.C. § 534 makes clear that . . . NCIC informationisnottobedisseminatedoutsidethereceivingdepartmentorrelatedagencies’’).Thesedocuments, the petitioner acknowledges, were inadvertently disclosedandneitherthestatenorthefederalgovernment6 intended to disseminate them to anyone outside of law enforcement.Weconcludethatthecourthadtheinherent authority to enter appropriate orders to halt any further unintended dissemination of these highly sensitive documents.

Outcome: We therefore deny the petitioner’s request for relief. The petition for review is granted but the relief requested is denied.

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