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United States v. Gordon

United States District Court, D. Maine

November 18, 2019




         The 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.

         I. BACKGROUND

         From 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.


         The 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.

         A. The Government's Caselaw

         The 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.

         In 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 sealing. Id.

         United 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.

         The 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 wholesale sealing.

         B. The Law on Public Access

         As the 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))).

         The 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 ...

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