The opinion of the court was delivered by: David G. Larimer United States District Judge
Sentencing for defendant Constance Roeder ("Roeder") is scheduled for February 19, 2009. Roeder's counsel has submitted an extensive Sentencing Memorandum and Motion for Sentence Outside Guideline Range. This document, which was not filed but has been provided to the Court and the Government on or about January 21, 2009, is forty-five pages in length and contains twenty-two exhibits annexed thereto.
By motion filed February 10, 2009, Roeder seeks an order for leave to file portions of the Sentencing Memorandum under seal and to seal twelve of the twenty-two exhibits.
The Court entered an Order, on the public docket, on February 11, 2009, providing notice that the motion to seal had been filed. The parties and third-parties were given until February 13, 2009 within which to respond. On February 12, 2009, a reporter for the local Rochester newspaper, The Democrat & Chronicle, filed a letter, via facsimile, objecting to the sealing request. On February 13, 2009, the Government filed its Response to Roeder's motion for sealing, and it also objected to sealing, except for Exhibits 7 and 9, the letters from Roeder's medical providers.
The motion to seal portions of the Sentencing Memorandum seeks sealing of Parts II, III, and VIII. This includes virtually all of the personal history and characteristics of Roeder and highlights her relationship with co-defendant John Nicolo ("Nicolo"), her husband.
The twelve exhibits fall into three categories. Two of the Exhibits, 7 and 9, are medical reports of Roeder's psychotherapist and psychiatrist. The second group of exhibits consist of letters from Roeder's siblings describing her life and relationship with defendant Nicolo. The third group consists of two letters written by defendant Nicolo to Roeder in December 2008.
Especially in the Second Circuit, the Presentence Report ("PSR"), prepared by the Probation Office and provided to the Court and counsel, is not generally accessible to the public. See United States v. Charmer Indus., Inc., 711 F.2d 1164, 1175 (2d Cir. 1983). The reason for that policy is well established. As the court said in United States v. Boesky, 674 F.Supp. 1128, 1130 (S.D.N.Y. 1987), the purpose of such a rule is to protect the confidentiality of those providing information to the probation officer, thereby "encouraging the frankness of informants, and the availability of such information."
Disclosure of the PSR is not at issue here. Although, at least four of the exhibits that Roeder now seeks to seal were sent to the Probation Officer, they were also sent directly to the Court and are attached as exhibits to the defendant's Sentencing Memorandum.
The issue raised by Roeder's motion to seal involves public access to sentencing memoranda and sentencing letters. The right to inspect such material, if it exists, is based on the well-established common law right of the public to have available for review and inspection judicial records.
Certain principles have emerged from the cases discussing the issue. Several district court cases within the Second Circuit recognize that sentencing memoranda and letters attached to or specifically referenced in a sentencing memorandum filed with the court are generally accessible to the public. See United States v. Lawrence, 167 F. Supp. 2d 504, 506 (N.D.N.Y. 2001); see also United States v. Kushner, 349 F. Supp. 2d 892, 902 (D.N.J. 2005). As the Kushner court noted, 349 F. Supp. 2d at 905, "a strong presumption of access attaches to sentencing memoranda." Also, sentencing memoranda and exhibits attached to it, may bear directly on the Court's Article III duties, "perhaps the most important of judicial duties." United States v. Kushner, 349 F. Supp. 2d at 905.
The Court has determined the Guideline range in this case to be a range of 41-51 months. Roeder requests a non-Guideline sentence of probation. The letters submitted by Roeder's siblings chronicle their view of the abuse of Roeder by her husband Nicolo. The two letters from Nicolo to Roeder, written recently, demonstrate, to some degree, the present relationship between the two.
Those matters have been submitted to the Court in the hope that they might impact the Court's decision as to what an appropriate sentence should be in this case.
It is clear from Roeder's motion to seal that she also wishes to prevent co-defendant Nicolo from having access to the exhibits and those portions of the Sentencing Memorandum that she wishes to seal. The stated reason is that Nicolo may continue to harass the authors and seek some sort of retribution for their letters in support of Roeder.
It is probably no secret to Nicolo that Roeder's family members are not supportive of him in any way, especially since Roeder has now commenced divorce proceedings. The letters do paint Nicolo in an unfavorable light concerning his relationship with Roeder. Since this Court must also sentence Nicolo, it does not seem appropriate to prevent Nicolo and his counsel from ...