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In re Application of Herald Co.

March 3, 2006


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



On September 16, 2005, John J. Gosek, then-Mayor of the City of Oswego, New York was arrested on a criminal complaint charging him with a violation of 18 U.S.C. § 2422(b).*fn1 See Crim. Compl. [dkt. # 1 in United States v. Gosek, 5:05-CR-512]. The Criminal Complaint was supported by an affidavit from Federal Bureau of Investigation ("FBI") Special Agent Frederick F. Bragg. See Bragg Supp. Aff. [dkt. # 1 in United States v. Gosek, 5:05-MJ-341]. Bragg's affidavit provides extensive details underlying the allegation in the criminal complaint, and indicates that on July 28, 2005, the Court issued an order authorizing the interception of Gosek's wire communications over a cellular telephone provided to Gosek by the City of Oswego. Id. ¶ 6. The wiretap order was reissued for an additional 30 day period on September 2, 2005. Id. The papers filed in support of the wiretap order, and its extension, were sealed by the Court.

On September 22, 2005, the Herald Company, Inc. ("the Herald" or "Petitioner"), moved by Order to Show Cause to unseal the affidavits filed by the United States Government in support of eavesdropping warrants filed July 28, 2005 and September 2, 2005 in the investigation of John J. Gosek. See Order to Show Cause,[dkt. # 1];*fn2 Pet. Mem. L., p. 2 [dkt. #2]. Both the Government and Gosek opposed the application.*fn3 By Decision and Order dated October 17, 2005, the Court denied the Herald's application because, inter alia, "[t]he affidavits provide sensitive information about the Government's investigation into Gosek and others that, if revealed, would severely hamper, if not effectively end, the Government's on-going investigation. The significant value to the public of unhampered criminal investigations outweighs the public's interest in the sought after documents." See 10/17/05 Decision and Order [dkt. # 13], p. 6 (citations omitted). The denial of the application was without prejudice to renewal at a later date. Id. p. 11. In this regard, the Court noted that "the Herald is free to renew its application at some later date, such as after Gosek has been indicted or it is clear that Government's investigation has ended." Id.

On November 3, 2005, Gosek was indicted on two counts of violating 18 U.S.C. § 2422(b). See Indictment [dkt. # 8 in United States v. Gosek, 5:05-CR-512]. On November 9, 2005, the Herald renewed its application to unseal the affidavits, citing the recent indictment as a change in circumstances. See Letter Motion dated 11/8/05 [dkt. # 14]. The Government opposed the renewed application, contending that

[t]he defendant's arrest and subsequent indictment by no means signaled the end of the investigation into the defendant and others. The investigation is ongoing, indeed it has broadened in the last month, and it is expected to continue for the foreseeable future. As we have previously noted, the investigation would be severely prejudiced by disclosure of these documents because possible crimes and targets would be identified. Lastly, the concerns previously raised about the privacy interests of numerous non-targets mentioned in the sealed papers would also be infringed by disclosure, thereby causing some considerable public embarrassment, among other things.

Govt.'s 12/2/05 Response in Opp. to 2nd Appl. [dkt. # 17]. The Government further argued:

In this case, the concerns heretofore enunciated by both the defense and the government far outweigh the public's right to access at this stage of the proceedings.

There will likely come a point in the future upon completion of the investigation when some type of disclosure would be appropriate. But now is not that time.

Id. Gosek joined the Government in opposing the Herald's second application, contending only that there was no change in circumstances warranting public disclosure of the sealed affidavits. See Gosek's 12/2/05 Response in Opp. to 2nd Appl. [dkt. # 18].

On January 10, 2006, the Court learned through a newspaper article that "prosecutors turned over to Gosek's lawyers ... secretly tape-recorded phone conversations, transcripts of the conversations and the eavesdropping warrants that allowed state and federal investigators to tap Gosek's phone." Gosek Defense gets Tapes, Papers, The Post-Standard, Jan. 6, 2005, http://www.syracuse .com/search/index.ssf?/base/news-1/1136540437194580.xml?syrnegosw.

Inasmuch as the Government's disclosure of the sealed affidavits to Gosek could arguably have constituted a change in circumstances with regard to the Government's position that it needed to maintain the secrecy of the information in the eavesdropping warrant affidavits to protect on-going investigations, the Court ordered the Government to file a supplemental response to the Petitioner's renewed application and "explain why the purported disclosure of the above-cited information to the defendant does not diminish, if not defeat, a large portion of the Government's opposition to the [Herald's second] application." January 10, 2006 Order [dkt. # 20].

On January 23, 2006, the Government submitted an ex parte response to the Court's January 10, 2006 Order, and asked that the response be sealed. See dkt. entry # 21. The Court reviewed the ex parte submission and, finding that the submission divulged sensitive information regarding the Government's on-going investigation into Gosek and others, granted the Government's application to sealed the ex parte submission. See dkt. entry # 22. The Herald objected to the ex parte submission and the sealing order, arguing, inter alia, that the Court should require a redacted version of the January 23, 2006 submission. See Petitioner's 1/31/06 Objections, dkt. # 23. Attached to the Herald's objections is a letter dated January 26, 2006 from Assistant United States Attorney Katko to the Herald's counsel. Id., Ex. A. The letter explains that "[t]he ex parte submission provides significant non-public details to the Court which prove that despite the discovery disclosures to Gosek, the investigation into Gosek and others remains ongoing. The submission also argues that granting public access to the wiretap documents at this time would jeopardize that investigation." Id.

On February 27, 2006, the Court received a letter from Assistant United Attorney Katko in ...

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