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maintaining under seal an ex parte letter regarding potential Giglio material because the subject matter was embarrassing with no public ramifications
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02 Cr. 1237-01 (SWK).
March 24, 2009
OPINION AND ORDER
On July 12, 2005, a jury convicted Angelo DiPietro ("DiPietro") of various counts of extortion, attempted extortion, conspiracy to commit extortion, using and carrying a firearm with respect to a crime of violence, conspiracy to commit robbery, and loan-sharking. United States v. Angelo DiPietro, 02 Cr. 1237-01 (SWK), Dkt. No. 263. For his crimes, he was sentenced to 324 months' plus a consecutive term of 384 months' imprisonment.DiPietro, 02 Cr. 1237-01 (SWK), Dkt. No. 204. All documents pertaining to the case were originally filed under seal. DiPietro now petitions the Court to (1) docket all documents in his case, (Angelo DiPietro's Letter, December 13, 2008 ("DiPietro's Reply"), 2), (2) make available all previously sealed submissions in his own case, (3) docket the submissions and transcripts inUnited States v. Sanginiti, 02 Cr. 1237-03 (SWK), and (4) docket any documents, proceedings and Government applications relevant to the sealing of the original indictment in Sanginiti. (Angelo DiPietro's Letter, August 18, 2008 ("DiPietro's Mot."), 1.)
I. BACKGROUND
II. DISCUSSION
DiPietro DiPietro A. Legal Standard
DiPietro was allowed access to the sealed trial transcripts and other sealed portions of his case file in order to perfect post-conviction motions. DiPietro, 02 Cr. 1237-01 (SWK), Dkt. No. 227.
Both the common law and the First Amendment of the Constitution provide a right of access to judicial documents. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006).
1. Common Law Right of Access
The common law leaves the question of access to judicial documents "'to the sound discretion of the trial court, . . . to be exercised in light of the relevant facts and circumstances of the particular case.'" United States v. Amodeo, 44 F.3d 141, 146 (2d Cir. 1995) ("Amodeo I") (quoting Nixon v. Warner Cmmc'ns, 435 U.S. 589, 599 (1978)) (alteration added). The court must "weigh the interests advanced by the parties in light of the public interest and the duty of the courts." Amodeo I, 44 F.3d at 146 (internal quotation marks, citation, and alteration omitted).
Nonetheless, the presumption of a right of access applies only to documents "relevant to the performance of the judicial function and useful in the judicial process." Amodeo I, 44 F.3d at 145. "Documents that play no role in the performance of Article III functions . . . lie entirely beyond the presumption's reach." United States v. Amodeo, 71 F.3d 1044, 1050 (2d Cir. 1995) ("Amodeo II") (internal citations omitted). Moreover, the presumption of access attaches not only to documents actually considered but also to those that "should have been considered or relied upon" by the court "for purposes of adjudication." United States v. Sattar, 471 F. Supp. 2d 380, 386 (S.D.N.Y. 2006) (internal citation and quotation marks omitted) (emphasis in original).
The court determines the weight of the presumption of access attached to each document by assessing the document's role in the discharge of Article III powers, as well as its oversight value to the public. See Amodeo II, 71 F.3d at 1049. Documents that impact a litigant's substantive rights receive strong weight, whereas documents typically filed under seal receive less weight.See Amodeo II, 71 F.3d at 1049-50.
Finally, judicial records should only be kept sealed if the factors mitigating against disclosure outweigh the presumption of public access. See Amodeo II, 71 F.3d at 1050-51. The privacy interests of those resisting disclosure, see In re New York Times Co., 828 F.2d at 110, 116 (2d Cir. 1987), and the danger of impairing law enforcement or judicial efficiency, see Amodeo II, 71 F.3d at 1050, are among the factors that mitigate against disclosure.
2. First Amendment Right of Access
The First Amendment presumption of access exists whenever the common law presumption attaches. See Lugosch, 435 F.3d at 124 ("Having concluded that the common law presumption of access exists in this context, we may not avoid the question of whether a First Amendment presumption of access also exists."). The right of access to judicial documents stems from the right of access to criminal trials. Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (no majority opinion)). Criminal trials have historically been open to the public, whose scrutiny "enhances the quality and safeguards the integrity" of judicial decision making. Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 606 (1982). This right has been extended to other facets of a criminal proceeding including to docket sheets, see Hartford Courant Co., 380 F.3d at 102, and to "written documents submitted in connection with judicial proceedings that themselves implicate the right of access[,]" In re New York Times Co., 828 F.2d. at 114. Where the First Amendment provides a right of access, "continued, sealing of the documents may be justified only with specific, on-the-record findings that sealing is necessary to preserve higher values and only if the sealing order is narrowly tailored to achieve that aim."
B. Documents at Issue in the DiPietro Case
DiPietro moves the Court to docket, (DiPietro's Response 2), and unseal, (DiPietro's Mot. 1), all documents in his case. The Government makes no response to DiPietro's request to docket all documents and opposes the unsealing of only three documents: documents 139, 145, 152. (Govt's Surreply 1.) For the following reasons, the Court concludes that all documents and submissions in DiPietro should be docketed, and that documents 139, 145, and 152 should remain under seal.
The documents are identified by the docket number on the outside of their respective sealed envelopes.
1. Docket
The Second Circuit has held that "docket sheets enjoy a presumption of openness" that is "rebuttable upon demonstration that suppression is essential to preserve higher values and is narrowly tailored to serve that interest." Hartford Courant Co., 380 F.3d at 96 (internal quotation marks and citation omitted). The Court cannot discern, and the Government does not identify, any higher value that is served by keeping documents and submissions off the public docket. Therefore, all submissions and documents in DiPietro should be docketed.
2. Document 139
i. The the Judicial Interest in Efficiency and Privacy Interests Outweigh the Common Law Right of Access
Document 139 is an endorsed ex parte letter regarding potentialGiglio material. Useful in the judicial process, it qualifies as a judicial document. See Amodeo I, 44 F.3d at 145-46. As a type of document typically filed under seal, however, only a weak presumption of access attaches to document 139.Amodeo II, 71 F.3d at 1049-50.
The Supreme Court's holding in Giglio v. United States, 405 U.S. 150, 153-54 (1972), requires the prosecution to disclose any material impeachment evidence of a witness whose testimony may determine guilt or innocence.
There are two factors mitigating against disclosure of document 139. First, the judicial system derives substantial benefit from in camera review of potential Giglio material. The Government avers that post-trial disclosure of impeachment evidence unrelated to the case at hand would discourage the use of this practice, which helps ensure that examination of a witness relates only to pertinent facts and events. (Govt's Surreply 3.)
The Court also considers the privacy interest of the individual mentioned in document 139. See In re New York Times Co., 828 F.2d at 116 ("[T]he privacy interests of innocent third parties . . . that may be harmed by disclosure . . . should weigh heavily in a court's balancing equation. . . ."). To assess the weight of the privacy interest at stake, the Court considers the "degree to which the subject matter is traditionally considered private rather than public" and "the nature and degree of injury" that would result should the subject matter become public. See Amodeo II, 71 F.3d at 1051. Here, the subject matter of the document at issue constitutes "embarrassing conduct with no public ramifications," cited in Amodeo II as an example of conduct that "weigh[s] . . . heavily against access." Id. The degree of injury that the individual would suffer is unknown, but presumably non-zero. Therefore, the weak presumption of access is outweighed by the countervailing interests in judicial efficiency and individual privacy. Document 139 will therefore remain sealed.
ii. Sealing of Document 139 is Necessary to Protect Higher Values
Document 139 carries a First Amendment presumption of public access. The document is judicial, and, as the Lugosch Court stated, "access to written documents filed in connection with pretrial motions is particularly important in the situation where no hearing is held and the court's ruling is based solely on the motion papers." Lugosch, 435 F.3d at 124 (quoting In re New York Times Co., 828 F.2d at 114 (alterations and ellipsis omitted)). The same considerations as above, however, justify the continued sealing of the document. See supra Part II.B.2.i. Furthermore, the Court concludes that the narrowest way to preserve the interests in privacy and judicial efficiency articulated above is to seal Document 139.
3. Documents 145 and 152 (the "Perazzo Letters")
DiPietro strongly implies that the original sealing of the Perazzo Letters by the Court was improper. (DiPietro's Response 2-3.) He argues that the Court was required to make an independent determination regarding the propriety of sealing the letters. (DiPietro's Response 3.) The Perazzo Letters, however, were not filed by either party or introduced as evidence during trial. Rather, the letters reached the Court via United States Mail under a pseudonym. Therefore, the Court's sealing of the letters without reading them was not in error. Because the letters are wholly unrelated to any criminal proceeding, they do not "implicate the right of access." In re New York Times Co., 828 F.2d. at 114.
DiPietro requests that the Court unseal the Perazzo Letters. Neither document was ever read or considered by the Court at any time. The question then becomes whether the Court should have considered these documents in the execution of Article III duties.
The Perazzo Letters potentially implicate Article III duties in one of two ways. The Court might have had to make an evidentiary ruling as to the letters and the Court could have used the letters during sentencing. The Court, however, had no obligation to use the letters during sentencing. Courts retain "broad discretion," United States v. Booker, 553 U.S. 220, 233 (2005), to impose sentences within a statutory range and to "take into account any relevant information to which it has access." United States v. Finkelstein, 229 F.3d 90, 96 (2d Cir. 2000). This only indicates that the Court could have, not that it should have, used the letters in its sentencing decision. Additionally, according to Booker, any facts used to impose a sentence exceeding the range set by the Guidelines must be established beyond a reasonable doubt by a jury or admitted by the defendant. 553 U.S. at 233 ("Accordingly, we reaffirm our holding in Apprendi: Any fact (other than a prior conviction which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."). Any facts contained in the Perazzo Letters could not have been established beyond a reasonable doubt because they were never presented to the jury as evidence. Finally, the letters do not contain any exculpatory evidence.
Therefore, while the Court could have considered the Perazzo Letters during sentencing, it was under no obligation to do so. The Perazzo Letters were neither relevant nor useful in the judicial process, and no presumption of access attaches to them. These documents will remain sealed.
C. Docketing and Unsealing in the Sanginiti Case
DiPietro also asks the Court to docket all submissions and transcripts in Sanginiti, and to unseal all documents relevant to the sealing of Sanginiti's indictment. (DiPietro's Mot. 1.)
1. Docket
The Court first addresses the issue of docketing and holds that all documents and submissions in Sanginiti should be docketed. As in DiPietro's request for docketing in his own case, there is no evident higher value that is served by keeping documents and submissions off the public docket.
The Government first argues that DiPietro's request lacks specificity. (Govt's Opp'n 1.) This argument is irrelevant. Docket sheets enjoy a presumption of openness; it is the Government's burden, not DiPietro's, to identify which documents should not be docketed. Alternatively, the Government argues that a sealed docket sheet is necessary to ensure Sanginiti's safety. It does not, however, indicate how information listed on a docket sheet could compromise Sanginiti's safety. Finally, the Government turns to the Southern District of New York's ECF Privacy Policy and Privacy Policy of the Judicial Conference of the United States in support of maintaining all documents under seal. (Govt's Opp'n 2.) Both policies, despite relating to the circumstances under which the public should be entitled to access certain documents in a criminal case, do not provide a higher value supporting the sealing of the docket in Sanginiti. Moreover, both speak to policies regarding the sealing of individual documents, not the sealing of an entire docket.
The Government asks the Court to apply the standard articulated in its November 2006 order requiring DiPietro to identify with specificity the documents he wanted unsealed. DiPietro, 02 Cr. 1237-01 (SWK), Dkt. No. 227. Their argument is inapposite and unavailing. The November 2006 order was not made pursuant to the First Amendment or common law right to access judicial documents. Rather, it was issued to permit DiPietro to perfect appellate motions. The present situation requires the Court to apply the standard required by common law and the First Amendment of the Constitution.
2. Indictment
It is unclear to which documents DiPietro is referring when he moves the Court to unseal "all proceedings, government applications, and documents" relating to the sealing of Sanginiti's indictment. (DiPietro's Mot. 1.) Sanginiti's indictment is not under seal, see 02 Cr. 1237 (SWK) Dkt. No. 5, and Rule 6, with few exceptions, prohibits the disclosure of Grand Jury materials. Fed.R.Civ.P. 6(e)(2). Examination of the Court's file reveals no submissions relating to the sealing of the indictment.
III. CONCLUSION
For the reasons discussed above, DiPietro's Motion is granted in part and denied in part. The Court hereby orders that all documents and submissions in United States v. DiPietro, 02 Cr. 1237-01 (SWK), and United States v. Sanginiti, 02 Cr. 1237-03 (SWK), be docketed. The documents in United States v. DiPietro, 02 Cr. 1237-01 (SWK), are hereby unsealed, with the exception of documents 139, 145, and 152. All sealed documents in Sanginiti shall remain under seal.
SO ORDERED.