The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Before this court is a motion by the government requesting an order prohibiting the defendants' attorneys from making statements to the press in violation of Eastern District of New York Local Criminal Rule 23.1 ("Rule 23.1" or the "Rule"). Because the court finds that defense counsel Robert Simels ("Simels") made statements at a press conference that violate Rule 23.1 and, as a direct result, likely put numerous people and their families and friends in danger, the government's motion is granted. The text of the court's prohibition, which extends beyond Rule 23.1 and applies to all counsel, is set forth herein.
Both parties also request to file their respective submissions concerning the instant matter under seal. The government's request is granted in part and denied in part, and Simels' request is denied.
Defendant Shaheed Khan ("Khan" or "Defendant") is a Guyanese national charged with multiple counts of distribution, importation, and possession of cocaine and engaging as a principal administrator, organizer, and leader of a continuing criminal enterprise in the Eastern District of New York and elsewhere. Defendant allegedly headed a powerful cocaine trafficking organization out of Georgetown, Guyana. The government alleges that many of Defendant's co-conspirators still reside in Guyana.
On April 25, 2007, Simels held a press conference concerning this case in Georgetown, Guyana. The press conference was reported in Guyanese print newspapers, one of which, the government alleges, is available in New York City. (See Gov't. Letter 6.) These newspapers also disseminated the reports of the press conference on their Internet web sites, which are available in the Eastern District of New York. (See Gov't. Exs. A & B.) The government has provided the court with a redacted and unredacted transcript of the press conference, as well as a compact disc recording of the conference. (See Gov't. Exs. C & D.)
The government alleges that Simels' remarks made at the press conference violate Rule 23.1's prohibition against statements by counsel that interfere with a fair trial or otherwise prejudice the due administration of justice. Accordingly, the government requests that this court issue an order, pursuant to Rule 23.1(h), prohibiting the defendant's attorneys in this case from making statements to the press in violation of the Rule. Simels objects to the government's motion, asserting that "[a]t no point was there an intended violation of Rule 23.1" and that he had "absolutely no intent to impact on a prospective jury pool in the Eastern District of New York." (Simels' Letter 1.) He further states that it "strain[s] credulity" to assert that the jury pool in this district could be tainted by comments he makes to the press in Guyana. (Simels' Letter 1.)
To protect the identities of the individuals named therein, the government requests that its submission be filed under seal. Simels also requests that his submission be filed under seal.
II. Statements to the Press
A. Local Criminal Rule 23.1
Rule 23.1(a) states, in pertinent part that [i]t is the duty of the lawyer or law firm. . . not to release or authorize the release of non-public information or opinion which a reasonable person would expect to be disseminated by means of public communication, in connection with pending or imminent criminal litigation with which they are associated, if there is a substantial likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.
Rule 23.1 prohibits only those statements that are "reasonably likely" to interfere with a fair trial or prejudice the due administration of justice. U.S. v. Cutler, 58 F.3d 825, 835 (2d Cir. 1995). Subsection (d) of the Rule outlines subject matters that "presumptively involve a substantial likelihood that their public dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice within the meaning of this rule," including statements concerning (4) [t]he identity, testimony or credibility of prospective witnesses, except that the lawyer or law firm may announce the identity of the victim if the announcement is not otherwise prohibited by law. . . (6) Information the lawyer or law firm knows is likely to be inadmissible at trial and would if disclosed create a substantial likelihood of prejudicing an impartial trial; and (7) Any opinion as to the accused's guilt or innocence or as to the merits of the case or the evidence in the case.
Speech falling into the aforementioned categories presumptively violate Rule 23.1, although the presumption is rebuttable. Cutler, 58 F.3d at 836.
The court has authority, under Rule 23.1(h), to prevent violations of the Rule. Subsection (h) states that "[t]he court, on motion of either party or on its own motion, may issue a special order governing such matters as extra-judicial statements by parties and witnesses likely to interfere with the rights of the accused to a fair trial by an impartial jury. . . and any other matters which the court may deem appropriate for inclusion in such order." Moreover, ...