New York Federal Criminal Practice Blog
April 27, 2009

WDNY Judge Denies Motion to Seal Marital Information in Defendant’s Sentencing Memorandum

Guest contributor Megan Logsdon, Esq., writes:

Should a judge seal portions of a defendant’s sentencing memorandum that paint a co-defendant as a wife-abuser?  No, WDNY Judge Larimer, holds in United States v. Roeder, 2009 WL 385448 (W.D.N.Y. February 13, 2009).  In support of her request for a sentence of probation – well below the applicable guideline range of 41-51 months – Constance Roeder's sentencing memorandum portrayed her relationship with co-defendant husband John Nicolo as abusive, and attached several letters from Roeder’s siblings describing Roeder’s relationship with Nicolo, as well as private letters from Nicolo to Roeder, which apparently demonstrated the disintegration of the relationship.  Judge Larimer concluded that sealing the memorandum would unfairly disadvantage Nicolo, pointing out that Roeder undoubtedly wanted to prevent Nicolo from gaining access to, and thereby disputing, the information that made him look bad.

While access to Nicolo could have been permitted by means of a limited sealing order, the court ordered that all this information would be publicly filed.  Since Roeder was seeking leniency, the public had a right to know “the basis upon which counsel seeks a reduced sentence.” 

The court, however, granted Ms. Roeder’s motion to seal confidential medical and mental health information: “Such documents involving patient/client privileges and confidential medical and psychological information should be sealed. Such letters are often submitted directly to the probation officer and if that had been the case, the documents clearly would have been shielded from public access. To protect the confidentiality of this relationship between physician and patient, I believe it is important that such material be sealed.”

Lawyers: Jennifer Zegarelli, Derohannesian & Derohannesian (defendant); AUSAs Richard Resnick, Frank Sherman

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