United States District Court, D. Maine
ORDER ON UNOPPOSED MOTION OF THE UNITED STATES TO
SEAL GOVERNMENT EXHIBIT NUMBERS 49, 54, 217A, 218, AND
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Government moves belatedly to seal exhibits that were
admitted without sealing or redaction during a public trial.
The Court concludes that the Government's motion to seal
admitted exhibits is flawed under First Circuit precedent
regarding the presumption of public access to criminal
proceedings and the Court gives the Government two weeks to
present a more detailed explanation and to make a more
compelling case for its motion to seal.
October 21, 2019, through October 29, 2019, the Court
presided over a jury trial in this case, which resulted in
guilty verdicts on October 29, 2019. Min. Entry (ECF
No. 159); Jury Verdict Form (ECF No. 162). During
trial, the Government moved for the admission of Government
Exhibits 54, 217A, 218, and 220; the Court admitted each
exhibit into evidence. Jury Trial Ex. List at 4, 12
(ECF No. 160). The Government referred to, but did not move
the admission of, Government Exhibit 49. Id. at 3.
On November 12, 2019, the Government filed an unopposed
motion to seal each of the exhibits listed above, both those
admitted and the one only referred to. Unopposed Mot. of
the United States to Seal Gov't Ex. Numbers 49, 54,
217A, 218, and 220 (ECF No. 165)
(Gov't's Mot.). In its motion, the
Government states that the Government exhibits are
“incapable of redaction, ” id. at 1, as
they contain “the names, home addresses and other
information pertaining to thousands of victims of the
Defendant's crimes.” Id. at 2. The
Government cites caselaw supporting the sealing of such
information. Id. The Government notes that Douglas
Gordon has no objection to the sealing. Id. at 2-3.
Court has the impression that the United States
Attorney's Office in the District of Maine does not take
the right of public access to criminal proceedings as
seriously as the Court does.
The Government's Caselaw
caselaw the Government cited in support of its wholesale
sealing of admitted exhibits is unhelpful.
Gov't's Mot. at 2. In Vincent v. Hughes
Air West, Inc., 557 F.2d 759 (9th Cir. 1977), the Ninth
Circuit merely noted that the district judge sealed the names
and addresses of victims and did not address the propriety of
the sealing. Id. at 762. Vincent provides
scant authority for the Government's motion here.
Vincent involved a mass tort that arose out of an
airplane crash. Id. After a complaint was filed
purporting to be a class action, the district judge ordered
that Hughes Air West file a sealed list of the names and
addresses of the crash victims and their survivors.
Id. Hughes complied, and the Court used the list to
send notice of the class action to the survivors.
Id. Unlike the Gordon case,
Vincent never went to trial and the list of victims
was never formally admitted into evidence. Moreover, the
privacy rights of the victims in Vincent were much
more significant than the privacy rights of the victims here.
Pan American World Airways, Inc. v. United States
District Court for the Central District of California,
523 F.2d 1073 (9th Cir. 1975), the Ninth Circuit again
addressed lawsuits that followed plane crashes and noted in
passing that the names of the victims had been sealed.
Id. at 1081. Again, however, the names and addresses
of the victims had not been admitted into evidence at trial
and the Ninth Circuit did not address the propriety of the
States v. Moore, Nos. 09-cr-881-1 (TPG), 12-cv-1600
(TPG), 2015 U.S. Dist. LEXIS 70261, 2015 WL 3457242 (S.D.N.Y.
May 29, 2015) is closer. Unlike Vincent and Pan
American, Moore is a criminal case involving
victims of a crime. In Moore, the defendant pleaded
guilty to engaging in a Ponzi scheme through which he
defrauded fourteen persons of $58, 364, 489.91, the amount
the district court ordered in restitution. Id., 2015
U.S. Dist. LEXIS 70261 at *17-18. It is true that the
district court sealed the list of persons receiving
restitution and the individual amounts the district court
ordered for each victim. Id. at *17. However, the
Moore case never went to trial and the names of the
victims were not formally admitted into evidence.
Furthermore, the district court was not asked to address
whether the names and amounts payable to the victims should
have been sealed.
final case that the Government cited in support of its motion
is United States v. Bello, No. 3:12CR84 (AWT), 2013
WL 11330644 (D. Conn. Aug. 21, 2013). Bello
addressed a restitution order and in the order, the district
court actually listed the names and amounts of the ordered
restitution for the victims but redacted their addresses.
Id. at *1. Though the list was also filed under
seal, the redactions in the restitution order in
Bello do not support the Government's motion for
The Law on Public Access
Government recognized, the leading case on public access to
federal court proceedings in the First Circuit is United
States v. Kravetz, 706 F.3d 47 (1st Cir. 2013). In
Kravtez, the First Circuit reiterated “that
public monitoring of the judicial system fosters the
important values of quality, honesty and respect for our
legal system.” Id. at 52 (quoting In re
Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002)
(quoting Siedle v. Putnam Invs., Inc., 147 F.3d 7,
10 (1st Cir. 1998))). The Kravetz Court defined
“judicial records” as “materials on which a
court relies in determining the litigants' substantive
rights.” Id. at 54 (quoting In re
Providence, 293 F.3d at 9-10 (quoting Anderson v.
Cryovac, Inc., 805 F.2d 1, 13 (1st Cir. 1986))). Once a
document is deemed a judicial record, a common law right of
public access attaches and the document is presumptively
public. Id. at 52-54. Here, all but one of the
exhibits that the Government seeks to seal were admitted as
exhibits in a public trial without a motion to seal or
redaction. They are therefore unquestionably judicial records
to which the presumption of public access applies. The
Kravetz Court recognized that “[t]hough the
public's right of access is vibrant, it is not
unfettered.” Id. (quoting Siedle, 147
F.3d at 10). Nevertheless, “‘only the most
compelling reasons can justify non-disclosure of judicial
records' that come within the scope of the common-law
right of access.” Id. (quoting In re
Providence, 293 F.3d at 10 (quoting FTC v. Standard
Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987))).
Court turns to the more difficult question: whether a court
may seal a document admitted unsealed into evidence in a
criminal trial. There is little direct authority. In
United States v. Robinson, No. 08-10309-MLW, 2009
U.S. Dist. LEXIS 3345, 2009 WL 137319 (D. Mass. Jan. 20,
2009), a district judge addressed whether the name of a
victim of extortion, described as a “prominent
businessman in the Boston area, ” who was involved in a
“sex-for-fee relationship, ” must be revealed to
a local newspaper. Id., 2009 U.S. Dist. LEXIS 3345
at *1. The ...