New York Federal Criminal Practice Blog

Recently in the First Amendment category:


At sentencing, a defendant's most personal and intimate experiences may be discussed and analyzed.  The public has a presumptive right of access to these proceedings, and where, as in United States v. Doe, 2009 WL 4823001 (2d Cir. December 14, 2009), the defendant "seeks to seal the record of the criminal proceedings totally and permanently, the burden [to overcome that presumption] is heavy indeed."

In fact in Doe, both the defendant and the government sought the permanent sealing order based on the existence of an undisclosed "compelling interest subject to a substantial risk of prejudice."  The Court accordingly appointed amicus curiae to defend the district court's order denying the application.

Although it held that total and permanent sealing was unjustified, the Court noted that "it may be possible to protect the 'compelling interest' at issue here by sealing the sentencing transcipt in a way that is less than total and permanent.  It therefore remanded the case "to afford the parties an opportunity to apply for a sealing of the sentencing transcript that is partial, non-permanent, or both."

Lawyers:  Lee Dunst, Anne Chamption, Daniel Chirlin, Brian Mogck, Aaron Simowitz, Gibson Dunn & Crutcher LLP (amicus curiae); AUSAs Elizabeth Kramer, Peter Norling, Jo Ann Navickas

Does a newspaper have a right of access to wiretap applications that led to the downfall of New York’s governor?  SDNY Judge Rakoff had said yes (see here), but the Second Circuit disagreed in In the Matter of the Application of The New York Times Company to Unseal Wiretap & Search Warrant Materials, 2009 WL 2526486 (2d Cir., August 20, 2009) (Spitzer II).  Presenting a stark contrast to Judge Rakoff’s pro-disclosure decision, the Court reversed his unsealing order, holding that the newspaper was not an “aggrieved person” in order to satisfy Title III’s “good cause” requirement for disclosure, and that it had no First Amendment right of access to the records.  The case is an important (and unfortunately restrictive) one on the right of the press to scrutinize judicial documents, and thus judicial and prosecutorial processes.  It is also an important precedent for those defendants who may want to shield some of the more salacious details of their alleged wrongdoing from public voyeurism.


In lines that beg a key chicken and egg question, the Court states:  “In March 2008, the government charged four people with running a prostitution ring called the ‘Emperor’s Club.’  Soon after, the news media identified Governor Spitzer as a client of the ring; Spitzer resigned his office within days.”  The New York Times sought access to the applications underlying wiretap surveillance in the case, which, may have revealed the origins and motivations behind this unusual federal probe of a high-end escort service involving consenting adults and personal money.  SDNY Judge Rakoff granted the Times’ motion to unseal the applications, concluding that the Times had a common law First Amendment right of access to judicial records that was coextensive with Title III’s good cause requirement for disclosure.  The government appealed, and Elliot Spitzer was permitted to file an amicus brief.  

Title III’s Good Cause Requirement

Under Title III, wiretap applications may only be disclosed “upon a showing of good cause.”  Neither the statute nor the Supreme Court have defined the term or who may invoke it, but in NBC v. DOJ, 735 F.2d 51 (2d Cir. 1984), a case where NBC sought wiretap applications to assist its defense in a libel action, the Court held that the applicant seeking to unseal wiretap applications must be an “aggrieved person.”  It reached this conclusion in part based on a statement in Title III’s legislative history, which gave as an example of “good cause” an aggrieved person’s right to suppress wiretap contents.  In Spitzer II, the Court saw no reason to depart from its analysis in the NBC case.  “It is irrelevant for the purposes of Title III that the Times is a newspaper investigating a matter of public importance.  Like NBC, the Times does not suggest, much less show, that it is an ‘aggrieved person’ within the express terms of the statute – that is, like NBC, the Times does not claim to be a ‘party to any intercepted wire or oral communication or a person against whom the interception was directed.’”

First Amendment Right of Access

There is a qualified First Amendment right of access to judicial records in two situations.  One is the “history and logic” situation, where the records have been traditionally open to the press and public, and public access helps the functioning of the process in question.  The other is where the documents have been filed in connection with a judicial proceeding that can be publicly attended.  In Spitzer II, the Court concluded that neither situation applied here.  Wiretap applications have not been historically open to the press and public since their inception in Title III, and “the Times does not present a good reason why its preferred public policy (‘logic’) – monitoring the government’s use of wiretaps and potential prosecutions of public officials – is more compelling than Congress’s concern for confidentiality and privacy.”  As for the “attendance at proceedings” approach, the press and public are not allowed to attend the ex parte, in camera proceedings where wiretap applications are presented to a district judge, and therefore can have no corollory First Amendment right of access to the sealed applications.


This case sets a very high bar for media access to wiretap applications.  It’s hard not to imagine a more compelling reason for public disclosure of the submissions to a judge in support of surveillance than a now closed investigation that led to the resignation of a state governor.  While one can certainly empathize with Mr. Spitzer’s desire to put this humiliating episode behind him, media scrutiny is an important check on the exercise of prosecutorial power, especially the decisions to engage in the kind of highly intrusive surveillance at issue here.  But if access to wiretap applications is limited to “aggrieved persons,” it puts the fox in charge of the proverbial henhouse.  As the Court has acknowledged more than once, prosecutors’ bargaining power is “awesome.”   While there is no indication that their bargaining power was in any way abused in this case, prosecutors nonetheless can use this power, along with their charging discretion, to silence all the people “aggrieved” by wiretapping.

Lawyers: David McCraw and Itai Maytal of The New York Times Company; AUSAs Daniel Stein and Jesse Furman; James Brochin, Marc Falcone and Michelle Hirshman of Paul, Weiss, Rifkind, Wharton & Garrison LLP (Elliot Spitzer)
It’s bad enough to have been an investor with Bernie Madoff, but to have that investment decision ridiculed in the press adds insult to injury.  And there’s the rub – or at least one of them – for Madoff’s victims: how to achieve some catharsis through Madoff’s sentence, while avoiding any uncomfortable and embarrassing public scrutiny.  S.D.N.Y. Judge Chin’s response has been clear.  If Madoff’s victims want to have their say on his sentence, they must do so in public.  In an order dated May 20, 2009, Judge Chin advised victims that they may submit “written statements” as part of their right to be “reasonably heard” at sentencing and may email the government if they wish to be heard orally at sentencing, but they should  know that these letters and emails “will be made part of the public record.”  His order reflects the tension between the public’s right of access to judicial documents (which include victims’ emails solicited by the court) and the victims’ right to privacy, something which must be “respect[ed]” under the Justice for All Act of 2004.  

Victims’ Privacy vs. Public’s Right of Access

The intersection of these competing issues is the subject of a notable decision by Judge Chin on the disclosure of victims’ emails he received prior to Madoff’s guilty plea, United States v. Madoff, 2009 WL 1678097 (S.D.N.Y. June 17, 2009).  Prior to that plea, the court had issued an order advising victims how they “could express their desire to be heard on the issues raised in this case.”  Subsequently, several news organizations sought access to the emails sent in response to this order, including all identifying information on the emails.  Since he had not previously warned the authors that their communication may be disclosed, Judge Chin directed the government to canvas the authors’ views on disclosure.  Some wanted to maintain their privacy, some were happy to go public, and most didn’t respond at all.  Reviewing the law on access to judicial documents and the right to privacy, the court concluded that identifying information would be sealed as to emails where their authors asserted their right to privacy, but where the authors didn’t bother to respond, the entirety of the email, including identifying information, would be disclosed.  “Given the victims’ opportunity to object, the very public nature of the case, and the sentiments expressed in many of the emails, I conclude that the presumption of access outweighs the privacy interests of the victims who did not object to the unsealing of their correspondence.”  In the same decision, Judge Chin ruled that other documents would remain under seal where disclosure could jeopardize the government’s efforts to recover assets for victims.  


This is an important case on a victim’s right to privacy and to advance notice of public disclosure of communications with the court.  It is also an important case for defendants, since there is no suggestion in Judge Chin’s decision that victims’ letters submitted to him in connection with the actual sentencing should be anything but publicly disclosed in their entirety, along with all identifying information.  Victims’ letters can have a searing impact at sentencing.  At least if subject to the crucible of public scrutiny, the authors may temper some of their (understandable) raw emotion and desire for revenge.

Lawyers: Indira Satyendra (ABC, Inc.); Hilary Lane (NBC Universal, Inc.); Carlotta Cassidy, Esq.(Fox News Network, LLC); AUSAs Lisa Baroni, Sharon Frase.

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

Guest Contributor Lynn Goodman, Esq., writes:

In June 2006, reporter Charles Forelle of The Wall Street Journal wrote an article questioning the options award practices of executives at Monster Worldwide, Inc., the operator of the web site  It earned him a Pulitzer, and now, a seat in the witness box of a criminal trial.  In his piece, Forelle had included several quotes from James Treacy, a former Monster executive, who had apparently benefited from the company’s options timing practices.  Two years later, Treacy was indicted in the SDNY for securities fraud in the backdating of options – in part because of the Journal’s investigative reporting on the issue.  The government subpoenaed Forelle to testify about the questions posed to defendant Treacy and his responses in the preparation of the Journal article.  The Journal moved to quash.  In another notable decision on the grey area separating the interests of a free press and those of law enforcement, United States v. Treacy, 2009 WL 738848 (S.D.N.Y. March 23, 2009), SDNY Judge Rakoff – in his third decision on this topic in the space of a month, see here – denied the newspaper’s request.  The case underlines the risks of defendants or potential defendants talking to the media (if such an elementary point needs underlining). 

The Court’s Decision

Judge Rakoff begins by pointing out that a reporter’s First Amendment privilege to protect information obtained in the newsgathering process is limited by the countervailing public interest in the administration of justice.  In the Second Circuit, the reporter’s privilege can be overcome by a showing that the information sought is critical to the maintenance of the claim and not obtainable from other available sources. The privilege is more narrowly circumscribed when nonconfidential information is sought, such as in the instant case, in which a journalist is called upon to confirm the accuracy of statements published in a media story.  In such a case, Judge Rakoff notes, federal courts routinely permit the testimony of journalists to confirm that statements published in a news article were, in fact, made by the defendant and accurately reported.  Since a defendant has a right not to testify at his own trial, such out-of-court statements may be the only source of information indicating the defendant’s state of mind and other elements of the claim.  The court said it would limit the Government’s questions to those which were necessary to confirm the context and veracity of the defendant’s statements.


Even the most seemingly innocuous statements made to the media may come back to haunt a defendant years later. The Wall Street Journal article in question contains just a few quotes from defendant Treacy, but the government argued that these statements were evidence of the defendant’s role in the alleged conspiracy and consciousness of guilt, and the court found the claim plausible.  This is not a new problem.  In a 1990 case out of the Northern District of New York, statements made to the media were included in an indictment as overt acts in furtherance of a conspiracy to incite violence (United States v. Markiewicz, 732 F. Supp. 316 (N.D.N.Y. 1990).  And given the ubiquity of the Internet now, attorneys and clients should be aware that statements made to the media or in public fora are fair game as proof in criminal proceedings.  
Lawyers: David Fragale, Evan Barr, Sandra Cavazos, Steptoe & Johnson LLP (defendant); AUSAs Deirdre McEvoy, Joshua Goldberg.

Guest contributor Megan Logsdon, Esq., writes:

In two cases that pit privacy interests over the public’s right to know (including the right to know too much), In the Matter of the New York Times Company to Unseal Wiretap and Search Warrant Materials in United States v. Brener, Suwal and Lewis, 2009 WL 424383 (S.D.N.Y. February 19, 2009) (“Spitzer I”)and 2009 WL 724944 (S.D.N.Y. March 19, 2009) (“Spitzer II”), SDNY Judge Rakoff has issued important rulings on the public’s right to “keep a watchful eye on the workings of public agencies” through access to judicial documents. These cases involve the infamous (and curiously convenient) wiretaps of two cellphones and an email address associated with the Emperor’s Club, a prostitution and money-laundering ring whose most famous client was former New York governor Eliot Spitzer. The cases are an important milestone in the jurisprudence governing the public’s right of access to wiretap applications, and, in the process, scrutiny of politically motivated criminal prosecutions.


The initial wiretap applications, their supporting materials, and the authorization order were placed under seal by the issuing judges, as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That statute requires that the applications be sealed, and only “disclosed only upon a showing of good cause.” Of the 67 individuals mentioned in the application as customers of the ring, only one moved to intervene to oppose the motion. No doubt the other 66 partly wanted to keep a low profile, but they also relied on the government’s agreement with the Times that the government would redact the names and indentifying information of all individuals except Spitzer, who has already been identified publicly.


“[T]hree basic principles” governed Judge Rakoff’s decision: first, that the materials at issue are “judicial records;” second, that judicial documents are presumptively subject to public access, particularly where they relate directly to the exercise of a court’s judicial power; and third, that this presumption of access must be weighed against government’s law enforcement interests and the privacy interests of affected parties.

Here, these materials were clearly “judicial documents” because they are plainly “relevant to the performance of the judicial function . . . of approving or disapproving wiretap applications and their extensions.” As such, there was a presumption in favor of access. As to the third factor, there were no “sensitive law-enforcment techniques” at stake, the government had conceded that there was no more need for confidentiality in the already concluded investigation, and the privacy concerns of the individuals named had been rendered largely moot by the government’s redaction agreement with the Times or, in Spitzer’s case, by previous public disclosure. Judge Rakoff therefore ruled that the public interest in judicial records outweighed any opposing interests and granted the motion to unseal, noting, perhaps pointedly: “there is an obvious interest in obtaining information about the origins of an investigation that led, ultimately, to the resignation of the Governor of New York.”

Notably, in reaching his conclusion, Judge Rakoff rejected the government’s assertion that “good cause” meant anything other than a balancing test: “there is no reason to believe that Congress intended “good cause” to be anything other than a synonym for the balancing dictated by the aforementioned constitutional and common law principles.”

The government has appealed his decision . . .

Coda – He Who Snoozes Loses

One month after granting the New York Times’ motion to unseal the wiretap applications at issue in Spitzer 1, Judge Rakoff denied a motion by Spitzer’s attorneys to intervene in order to seek further redactions of wiretap materials in the case (Spitzer II).

Judge Rakoff denied the motion, pointing out first that because the case had been appealed, his court no longer had jurisdiction over most aspects of the case, including Spitzer’s motion. Judge Rakoff also concluded that, even if his court had retained control over the case, Spitzer’s motion would have been untimely because Spitzer had been aware all along that the government would not redact his name, and there was therefore no excuse for Spitzer’s delay in filing.

He notes “the Times, from the moment it filed its original motion, had made it clear that it sought the wiretap materials in order to obtain further information about the Emperor’s Club investigation as it pertained to Mr. Spitzer; and the Court’s Opinion and Order of February 19, 2009, in recognition of this fact, explicitly confirmed that Mr. Spitzer’s name would not be redacted.” In light of these facts, there was “no reasonable excuse for Spitzer’s delay” and any additional delay would “prejudice the Times’ desire to expedite the appeal so as to obtain disclosure of the materials as promptly as possible.”

See Archives for all posts since September 2007.