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In re Sealed Search Warrant

December 11, 2006


The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge


The two above-captioned matters involve the applications for and issuance of two search warrants.*fn1 The records of both matters were sealed. Presently pending is the motion of Brendan J. Lyons ("Lyons") pro se, a reporter for the Times Union newspaper and the Hearst Corporation, to unseal both matters.*fn2 The United States opposes Lyons' motion. For the reasons which follow, Lyons is granted leave to intervene in these matters for purposes of this motion and his motion is granted in part and denied in part.

I. Background

On August 19, 2004, Special Agent Gregory A. Hautau of the Federal Bureau of Investigation (FBI) applied for a search warrant for the premises of a business located in Albany, New York. Hautau's seventeen-page affidavit in support of the application alleged that Aaron Date ("Dare") and others had engaged in equity skimming in violation of 18 U.S.C. § 1341 and related federal laws. The search warrant was issued on the same date. See Docket No. 04-M-370. Upon the application of the United States, an order sealing the affidavit and application was also issued. No return on the search warrant was ever filed, see Fed. R. Crim. P. 41(f)(4), and, therefore, it is unclear whether this search warrant was ever executed.

On August 31, 2004, FBI Special Agent Frederick E. Bragg applied for a search warrant for the premises of Dare's new business located in Albany. Bragg's eighteen-page affidavit in support of the application was virtually identical to Hautau's except for the addition of certain information obtained since the issuance of the first warrant. The search warrant was issued on the same date. See Docket No. 04-M-388. Upon the application of the United States, a sealing order was also issued. According to the return on the warrant, the warrant was executed on September 1, 2004, resulting in the seizure of various items.

By letter dated October 23, 2006, Lyons requested that matters related to the second search warrant be unsealed, stating that he had obtained information that the second warrant had been issued and executed. Lyons' letter was forwarded to the United States Attorney's Office with a direction that the United States respond on or before November 22, 2006. On November 13, 2006, Dare waived indictment and pleaded guilty to three felony counts alleging fraud in violation of 18 U.S.C. § 1343 and related statutes. United States v. Dare, No. 06-CR-429 (LEK) (N.D.N.Y.). Sentencing was scheduled for March 6, 2007. On November 17, 2006, a grand jury returned an indictment against Berne A. Watkins ("Watkins") alleging conspiracy and fraud related to Dare's activities. United States v. Watkins, No. 06-CR-453 (LEK) (N.D.N.Y.). Watkins was arraigned on November 20, 2006, pleaded not guilty, and trial is scheduled for January 22, 2007. The United States now advises that "the government does not anticipate that additional federal charges will be brought against [Dare, Watkins] or others based upon [the] allegations" underlying the issuance of the two search warrants. Storch Letter dated Nov. 22, 2006 at 1-2.

II. Discussion

Lyons seeks the unsealing of the documents filed in connection with the two search warrants, asserting both a First Amendment and a common law right of access. In such circumstances, a court must first "look to the common law, for [a court] need not, and should not, reach the First Amendment issue if judgment can be rendered on some other basis." Gardner v. Newsday, Inc., 895 F.2d 74, 78 (2d Cir. 1990). As to Lyons' common law claim, the Second Circuit has explained that "[t]he common law right of public access to judicial documents is firmly rooted in our nation's history" and that there exists a presumption of access to such documents. Lugosch v. Pyramid Co., 435 F.3d 110, 119 (2d Cir. 2006).

The presumption of access is based on the need for federal courts . . . to have a measure of accountability and for the public to have confidence in the administration of justice. . . . [P]rofessional and public monitoring is an essential feature of democratic control. Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of [judicial] functions.

United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) (Amodeo II).

In evaluating a claim to access under the common law, a court must determine (1) whether the documents to which access is sought constitute "judicial documents" giving rise to a presumption of access; (2) if so, the weight accorded the presumption; (3) the existence of any countervailing factors militating against public access; and (4) whether the presumption of access outweighs the countervailing factors. Lugosch, 435 F.3d at 119-26. The central focus of the inquiry is the relationship of the documents to the judicial process, not the particular motivations of those seeking access. See Logusch, 435 F.3d at 123; Amodeo II, 71 F.3d at 1050.

A. Judicial Documents

The fact that a document is filed with a court does not, by itself, render that document a "judicial document." Lugosch, 435 F.3d at 119 (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995) (Amodeo I)). "In order to be designated a judicial document, 'the item filed must be relevant to the performance of the judicial function and useful in the judicial process.'" Id. (citation omitted). The documents contained in the files of the two search warrants consist of the two warrants, the affidavits of Hautau and Bragg, two sealing orders, a reassignment order, and one search warrant return. The warrants and orders are documents representing decisions by judges and are, therefore, quintessentially judicial documents. See U.S. Const. amend. IV (requiring that a search warrant issue only "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"); Fed. R. Crim. P. 41(d)(1) (same). The affidavits of Hautau and Bragg were also mandated by the Fourth Amendment and by a rule of criminal procedure, constitute the bases upon which the judges determined to issue ...

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