The opinion of the court was delivered by: Garaufis, United States District Judge.
This Memorandum and Order addresses the Government's motion to empanel an anonymous and partially sequestered jury for the upcoming death penalty trial in this case. Jury selection is scheduled to begin on September 11, 2006. The Government requests (a) that the names, addresses and workplaces of members of both the venireand petit juries not be revealed; and (b) that the jurors take lunch together and be escorted to and from the courthouse each day in a manner to be arranged by the United States Marshals Service. It is the Government's position that the Defendant's history of violent activity, his ability to interfere improperly with the judicial process, and the likely publicity this trial will attract all warrant the utilization of an anonymous and semi-sequestered jury. The Defendant objects to the use of an anonymous jury, arguing that it would unfairly prejudice the Defendant and is not necessary on the facts of this case.
Because I find that empaneling an anonymous and partially sequestered jury is necessary to protect the interests of the public and the jurors, and that doing so will not prejudice the Defendant's interests in conducting a meaningful voir dire or in maintaining a presumption of innocence, the Government's motion is GRANTED.
The Second Circuit has upheld the use of an anonymous jury where "first, [there is] strong reason to believe that the jury needs protection and, second, reasonable precaution is taken to minimize the effect that such a decision might have on the jurors' opinions of the defendants." United States v. Amuso, 21 F.3d 1251, 1264 (2d Cir. 1994) (internal citations omitted). The Court of Appeals emphasizes that "the empaneling of an anonymous jury and its potential impact on the constitutionality of a trial must receive close judicial scrutiny and be evaluated in the light of reason, principle and common sense." United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991). Mere invocation of words such as "organized crime" will not warrant an anonymous jury. Rather "something more" must be shown, such as a "demonstrable history or likelihood of obstruction of justice on the part of the defendant or others acting on his behalf or a showing that trial evidence will depict a pattern of violence by the defendants and his associates such as would cause a juror to reasonably fear for his own safety." Id. at 241.
This court must also weigh several factors in determining whether to empanel an anonymous jury, including the following: (1) the dangerousness of the defendant, demonstrated by the seriousness of the charged crimes, including whether the defendant is charged with participating in a large-scale criminal enterprise, and the defendant's criminal history, see e.g., United States v. Paccione, 949 F.2d 1183, 1192 (2d Cir. 1991); United States v. Tutino, 883 F.2d 1125, 1132-33 (2d Cir. 1989); United States v. Thomas, 757 F.2d 1359, 1364-65 (2d Cir. 1985); United States v. Melendez, 743 F. Supp. 134, 137 (E.D.N.Y. 1990) (Spatt, J.); (2) whether the defendant or his associates have engaged in past attempts to interfere with the judicial process, for example through jury tampering, see e.g., Paccione, 949 F.2d at 1192; Tutino, 883 F.2d at 1132-33; Melendez, 743 F. Supp. at 137; (3) whether the defendant has access to means to harm the jury, see e.g., Melendez, 743 F. Supp. at 137; United States v. Coonan, 664 F. Supp. 861, 862 (S.D.N.Y. 1987); and (4) whether the trial is likely to attract media attention, as may be illustrated by the nature and degree of pretrial publicity, see e.g., Paccione, 949 F. 2d at 1192; Vario, 943 F.2d at 240; United States v. Persico, 832 F.2d 705, 717 (2d Cir. 1987); Melendez, 743 F. Supp. at 137.
I will address these factors in turn below.
A. The Affidavit of Thomas Shelton
In connection with its motion, the Government submitted the affidavit of Special Agent Thomas Shelton of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("Shelton Affidavit"). The Shelton Affidavit was initially filed ex parte and under seal, although the Government referenced its existence in its publicly filed Memorandum of Law in Support of its Motion for an Anonymous Jury ("Gov't Mem. L. Supp."), and asked this court to rely on its contents in reaching a decision on the motion. The Defendant, in an Affirmation ("Sharkey Aff.") attached his responsive Memorandum of Law Opposing Government's Motion for an Anonymous Jury ("Def. Mem. L. Opp'n"), objected to "the consideration of any information contained in Mr. Shelton's affidavit by the Court, unless it is disclosed to the defense and we have an opportunity to respond." (Sharkey Aff. ¶ 4). The Defendant also asked the court to admonish the Government for not having filed its entire motion under seal in light of the fact that its references to the sealed Shelton Affidavit and accusations of uncharged criminal misconduct made therein were accessible to the media and therefore could prejudice the Defendant's right to an impartial jury and fair trial. (See id.).
Indeed, following the parties' submissions on the anonymous jury motion, the Tribune Company, publisher of Newsday, Daily News L.P., publisher of the New York Daily News, NYP Holdings, Inc., publisher of the New York Post, and the New York Times Co., publisher of the New York Times (collectively "the Press") moved to intervene for the purpose of moving to unseal the Shelton Affidavit. (See Tribune Letter Mot. dated Aug. 11, 2006). The Press argued it has a First Amendment right to access the sealed affidavit absent a sufficient showing by the Government of the need to maintain its non-disclosure.
The Defendant's request that this court not consider the Shelton Affidavit, as well as the Press's motion to intervene to seek to unseal the document, were mooted as of August 14, 2006, at which time the Government agreed to publish the Shelton Affidavit with the redaction of a single paragraph. This court agreed that redaction of paragraph six of the Shelton Affidavit was necessary to protect witnesses in this trial, but that the remainder of the document should be disclosed, and therefore considered by the court in connection with this motion. The Shelton Affidavit (minus paragraph six) was published on the court's Electronic Case Filing system (ECF), providing access to it by the public, the Defendant and the Press. (See Docket Entry No. 136).*fn1 Accordingly, the Defendant's motion to remove the Shelton Affidavit from the court's consideration and the Press's motion to intervene are hereby denied as moot. The court has not considered the substance of paragraph six of the Shelton Affidavit in reaching a decision on this motion.
In this case, the Defendant is charged with intentionally murdering two police officers in an attempt to obstruct justice. These charges are of the utmost seriousness, indeed as serious as any charge can be, and demonstrate both the extreme dangerousness of the defendant and a willingness to obstruct justice. Based on these charges alone, I would seriously consider empaneling an anonymous jury. However, in addition to the charges of murdering Detectives Rodney Andrews and James Nemorin, the indictment also alleges that the Defendant is part of a criminal enterprise known as the "Stapleton Crew," a violent organization that engages in acts of robbery, murder and narcotics trafficking. Indeed, at the sentencing of Wilson's four co-defendants that took place before this court on August 2, 2006, the co-Defendants*fn2 confirmed, by way of their prior allocutions, the violent nature of the Stapleton Crew. In ...