Metropolitan News-Enterprise


Monday, June 11, 2001


Page 1


Ninth Circuit Says Convicted Mass Killer Can Use Subpoena In State Court to Get Informants’ Identities From FBI


By KENNETH OFGANG, Staff Writer/Appellate Courts


Convicted mass murderer Kwan Fai Mak may seek a state court subpoena for FBI documents identifying two confidential informants who helped build the case that resulted in his being sentenced to death, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The panel, in an opinion by Judge Stephen Reinhardt, affirmed a district judge’s order denying Mak’s bid to obtain the documents under the Freedom of Information Act or the Administrative Procedure Act. But it said the bureau could be forced to produce the documents under subpoena.

“While principles of sovereign immunity preclude actions to enforce state-court subpoenas against the United States,” Reinhardt wrote, “...those principles do not preclude issuance of such subpoenas, and the [FBI disclosure] regulations, authorizing responses to demands for information from state courts, clearly contemplate that subpoenas may issue.”

While a state court cannot enforce a subpoena directed to a federal agency, the party seeking compliance may initiate an enforcement action in U.S. District Court under the APA, Reinhardt said.

Mak and Benjamin Ng were convicted in the deaths of 13 patrons and employees who were hogtied, robbed, and then shot to death execution-style at the Wah Mee gambling club in Seattle’s Chinatown in 1983.

Ng was sentenced to life imprisonment without possibility of parole. Mak received the death penalty, but a federal judge granted him a new penalty trial, saying his defense attorneys were given inadequate time to prepare for the penalty phase.

In seeking discovery for the new trial, Mak’s lawyer requested that the FBI—which assisted Seattle police in the investigation—turn over all of the information in its files. Some disclosures were made, but the bureau would not identify two informants and asserted procedural reasons.

Mak’s counsel asked the deputy U.S. attorney general to overrule the FBI, in accord with Justice Department regulations. The deputy attorney general rejected the request on the ground that no court had ruled Mak was entitled to the information.

A Superior Court judge in Seattle, following procedures suggested by the FBI,  rendered an advisory opinion that one of the informants, called C-1,  should be identified, and that the other, called C-3, should be produced for deposition. But the judge said she was not ruling on defenses to disclosure that could be uniquely claimed by the FBI.

The deputy attorney general then reviewed the matter on the merits and denied disclosure, saying that C-1’s identity was classified and that C-3 could not, under the regulations, be produced or identified without a “demand” from the state court.

Reinhardt Friday rejected the argument that the bureau could be compelled under the APA to provide discovery for a state court proceeding, even in the absence of a subpoena.  He noted that judicial review under the act is limited to agency rulings that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

An agency does not act arbitrarily or capriciously, Reinhardt said, be enforcing reasonable and lawful regulations.

Under the regulations, the appellate jurist explained, information will be produced to a state court on “demand” unless specific grounds for non-disclosure exist. “Such a demand would ordinarily take the form of a subpoena,” Reinhardt said.

In the absence of a “demand,” the judge said, there was no obligation on the part of the bureau to disclose the informants’ identities. If a subpoena were requested, he added, it would be up to the state court judge to consider whether the “classified” nature of an informant’s identity furnishes adequate grounds for refusing disclosure.

The case is Mak v. Federal Bureau of Investigation, 99-35516.


Copyright 2001, Metropolitan News Company