In Other Media-eg New Statesman, AJE, FP, Georgia, NYT,  Azerbaijan, CSM Click here to contact us     .

By Matthew Russell Lee, Patreon Maxwell Book
BBC - Guardian UK - Honduras - Court Order

SDNY MAG COURT EXCLUSIVE, July 28 -  In the U.S. District Court for the Southern District of New York on July 15, a detention or release proceeding was held by Magistrate Judge James L. Cott. Inner City Press was there.

  The defendant was brought in, and "US versus Hernandez" was read out loud. However, Assistant US Attorney Matthew Shahabian then said he was requesting the sealing of the case. When asked by Judge Cott if this was because the defendant is assisting the Government, he replied the basis for sealing was "to leave things open."  

   By that logic, any number of criminal cases could be sealed in their entirety. No docket number was given; a control date six months out was alluded to. People could simply disappear this way - so Inner City Press right after the proceeding filed opposition and requested at least partial unsealing, see below.

  Now two weeks later, any unsealing at all has been denied, see DocumentCloud here - in a order that is itself sealed:

"Matthew Lee, 'on behalf of Inner City Press and in [his] personal capacity," has emailed the Court opposing the sealing of a case, now denominated 'United States v. Doe." For the reasons set forth in an Order filed under seal today, Mr. Lee's application, which the Court construes as a motion to intervene on First Amendment grounds, is denied.

FN: As no docket for this case is publicly available, Mr. Lee could not file this application on ECF. A copy of this order is being emailed to Mr. Lee and to counsel for the parties."

But not the sealed order. Couldn't some of that, addressing why this precedent couldn't be misapplied to any and all defendants, be made public? Also, if and when this case is ever unsealed, they will be no way to track it, as this stage has no public docket number. Defendant and case disappeared. Watch this site.

 From Inner City Press' July 15 filing: The First Amendment to the U.S. Constitution guarantees to the public a right of access to court proceedings. U.S. CONST. AMEND. I; Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982). The public’s right of access is strongest when it comes to criminal proceedings such as these, which are matters of the “high[est] concern and importance to the people.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980) (plurality opinion).    This is a Press request that the filings be unsealed consistent with Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) and other applicable case law. This is a request that this opposition to sealing be docketed as, for example, took place in US v. Avenatti, 19-cr-374 (JMF), Dkt 85.... 

See also, US v. Cruciani, 21-cr-636 (JPC), Dkt No. 40 (Inner City Press request) and 41 (ruling to unseal).   Other SDNY Magistrate Judges have docketed and granted similar requests - not yet possible yet, since even the docket number is sealed. But consider, e.g., the case in May 2022 of Juan Carlos Bonilla Valladares. Magistrate Judge Katharine H. Parker in response to a similar Inner City Press request, unsealed information, certainly not taking "to leave things open" as a basis to seal.  See 20-mj-4462, Docket Number 7 (May 12, 2022) ""Juan Carlos Bonilla Valladares (“Defendant”) was arrested on a Complaint issued from  this District and presented before me on May 11, 2022. At the proceeding, I reviewed a Financial Affidavit submitted by the Defendant that purported to describe the Defendant’s financial circumstances. (ECF No. 4.)

Based on the Financial Affidavit, I determined that the  Defendant qualified for court-appointed counsel pursuant to the Criminal Justice Act (“CJA”), 18  U.S. Code § 3006A. (ECF No. 5.) The Financial Affidavit was filed under seal. On May 11, 2022, Matthew Russell Lee (“Lee”), a reporter with Inner City Press, filed a  letter intervening on behalf of the public and requesting that the Financial Affidavit be  unsealed. (ECF No. 6.)

 FN: As a public journalist, Lee has standing to intervene in this matter and assert the public’s First Amendment right  to access judicial documents. Id. at 44, n.2; see also United States v. Aref, 533 F.3d 72, 81 (2d Cir. 2008) (holding  that a motion to intervene to assert the public's First Amendment right of access to criminal proceedings is  proper).   Lee argued that the First Amendment to the United States Constitution  guarantees the public a right to access judicial documents such as the Financial Affidavit, and  that unsealing the Financial Affidavit is consistent with precedent in this Circuit. On May 12,  2022, I ordered the Defendant and the Government to file any responses to Lee’s request by  May 20, 2022. Neither party filed a response.  For the reasons that follow, I find that the Financial Affidavit should be unsealed.    DISCUSSION The First Amendment provides the public with a qualified right to access a wide variety  of judicial documents filed in connection with criminal proceedings. United States v. Avenatti,  550 F. Supp. 3d 36, 44 (S.D.N.Y. 2021) (collecting cases).1 That right applies to financial  affidavits such as the one at issue. Id. at 46 (finding that there is a “qualified First Amendment  right of access to [a] Financial Affidavit[]”submitted to assist the court in determining whether a  defendant is eligible for court-appointed counsel); see also United States v. Suarez, 880 F.2d  626, 629 (2d Cir. 1989) (finding that there is a First Amendment right to access “CJA forms on  which judicial officers have approved payments to attorneys”).  Where, as here, the “First Amendment framework applies, continued sealing of the  document[] 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.”  Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). As there are no “on-the-record findings that sealing is necessary,” and insofar as no objections to unsealing have been  made, continued sealing of the Financial Affidavit is not appropriate. Id.; see also Avenatti, 550  F. Supp. 3d at 46 (granting request to unseal defendant’s financial affidavit).   CONCLUSION For the reasons set forth above, Lee’s request to unseal the Financial Affidavit (ECF No.  6) is GRANTED. The clerk of the court is directed to unseal the document at issue (ECF No. 4)."  The same should happen here, forthwith."

But it hasn't yet. At the same time, some stalking defendants get Deferred Prosecution Agreements, in the same Court, with no prior notice in PACER or ECF. We'll have more on this.

***

Your support means a lot. As little as $5 a month helps keep us going and grants you access to exclusive bonus material on our Patreon page. Click here to become a patron.

Feedback: Editorial [at] innercitypress.com
SDNY Press Room 480, front cubicle
500 Pearl Street, NY NY 10007 USA

Mail: Box 20047, Dag Hammarskjold Station NY NY 10017

Reporter's mobile (and weekends): 718-716-3540

Other, earlier Inner City Press are listed here, and some are available in the ProQuest service, and now on Lexis-Nexis.

 Copyright 2006-2022 Inner City Press, Inc. To request reprint or other permission, e-contact Editorial [at] innercitypress.com