business entity with a separate address, namely Semtex/NY at 76 Commercial Street.
The government contends that Semtex/NY is not an independent entity because of the following facts: 1) its records are commingled with the three businesses owned by Henrietta Rivman; 2) all four businesses in question have common employees; 3) on the day of the search and on prior occasions Jerome Rivman led agents from 64 Commercial Street to his office at 76 Commercial street; and 4) there is no indication from the inside of the building that a separate business existed or was located at another street address.
The government also notes that the similarity in the names of the Petitioners' corporations caused some confusion. The government points out that although they heard mention of Semtex/NY before the search warrant was prepared, they believed that the petitioners were distinguishing Semtex located in New York from Semtex-Dayton, Ohio, not referring to a separate entity.
I. Motion to unseal the warrant documents
In determining whether there is a guaranteed a right of access to judicial records and documents, The United States Court of Appeals for the Second Circuit based its opinion on the common law, rather than the Constitution. Application of Newsday, 895 F.2d 74 (2d Cir.), cert. denied, 496 U.S. 931 (1990). The Newsday Court premised its finding of a general right to inspect judicial records and documents on the Supreme Court's holding in Nixon v. Warner Communications, Inc., 435 U.S. 589, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978). However, that right is not absolute. In the Matter of New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987), cert. denied, 485 U.S. 977 (1988).
The propriety of sealing search warrant documents turns on the government's need for secrecy and lies within the discretion of the court. See Newsday, supra. It is clear that when the government admits that the need for secrecy is over, the time for filing warrant documents with the clerk has arrived. Id. at 78-79. However, "the need for sealing affidavits may remain after execution and in some instances even after indictment." Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989) (discussed with approval by the Second Circuit in Newsday, supra).
If there is a request for access to inspect sealed documents, that request must be heard by the Court. See Newsday, supra. But the Court may deny access when sealing is narrowly tailored to preserve higher values. New York Times, supra, at 116; Baltimore Sun, 886 F.2d 60 at 65-66 (quoting Press Enterprise Co. v. Superior Court, 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819 (1984)). If access is denied the Court should consider alternatives, such as partial disclosure of documents or disclosure of redacted versions. Baltimore Sun, 886 F.2d 60 at 65-66. The reasons supporting the Court's denial should be set forth with specificity to permit appellate review. Id.
In this Court's view it is reasonable to believe that the need for secrecy continues in a complex, multi-state investigation prior to indictment. This is especially true where, as here, the government seeks to protect the identities of undercover agents and persons cooperating with the investigation.
However, disclosure should not be postponed indefinitely. Accordingly, the Court directs that if no indictment issues on or before April 1, 1995, all warrant documents are to be unsealed except as to information regarding under cover agents or cooperators. The government is granted leave to inform the Court in camera why other information should not be unsealed on April 1, 1995.
II. Motion for a more detailed inventory of seized items
Fed R. Crim. P. 41(d) requires the government to promptly prepare an inventory of items seized. The Petitioners contend that the inventory prepared by the government is not sufficiently specific to allow them to: 1) identify property taken from Semtex/NY from that which was seized from the other corporations; 2) determine the dates of the documents or files taken; and 3) safeguard against specific exculpatory and/or valuable items being lost.
The Rules do not dictate a requisite level of specificity for inventories of seized items. While there is very little case law discussing this topic, it has been held that the following description is "exceedingly broad:"
Six (6) cardboard cartons containing files, records and information relevant to appended sheet of search warrant and numbered consecutively Carton Number One (1) to Carton Number Six (6) inclusive. Also one (1) strongbox locked.
United States v. Birrell, 269 F. Supp. 716, 718 n.1 (S.D.N.Y. 1967). The Birrell Court also observed that a detailed description of each item seized, in light of the prompt filing requirement, "would not seem to be called for even under an extreme construction of Rule 41(d)." Id. at 722.
Whether the inventory provided by the government is sufficiently specific is an issue of fact. The government annexed as an exhibit to their papers one sample of an inventory entry, which reads as follows: "Accounts Receivable A-O. Semtex Thru 92 Filing Cabinet Against Wall." The government describes the identification process as follows:
1) an agent identifies a record or group of record as seizable under the warrant;