By Matthew Russell Lee, Patreon Maxwell Book
BBC - Guardian UK - Honduras - ESPN
SDNY MAG COURT EXCLUSIVE, July 21 - In the U.S. District Court for the Southern District of New York on July 21, a detention or release proceeding was held by Magistrate Judge Ona T. Wang on a defendant who was quickly released.
Then the Assistant US Attorney referred to an application under seal; it seemed it had been granted. ("Consent order sealed," was the phrase). Inner City Press was there.
The name given was Sanchez-Mercado. He was released on his own signature, and the courtroom was locked. Hours later, nothing about the case - nor a similar one last week, in which the defendant was detained - was in PACER.
Inner City Press reported on July 15 on "another defendant for whom the AUSA requested, and got, the entire proceeding and docket sealed, "to leave things open." Later on July 15, Inner City Press opposed this in writing:
"By that logic, any number of criminal cases could be sealed in their entirety. Here, no docket number was given; it was said there will be no transcript or docketing, with a control date six months out. People could simply disappear this way - hence this opposition.
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.
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