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United States v. Strevell

March 3, 2009

UNITED STATES OF AMERICA,
v.
J. FELIX STREVELL, DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

DECISION AND ORDER

I. Introduction

J. Felix Strevell plead guilty to devising a scheme and artifice to defraud New York's citizens of money and property and their right to his honest services. See 18 U.S.C. §§ 1341 and 1346. In anticipation of sentencing, he and the government filed sealed documents disclosing personal information about Strevell and details concerning his cooperation. On behalf of the Albany Times Union, the Hearst Corporation intervened and moved to unseal those documents and others that were filed later. The Times Union also asked the court to set a "sunshine date" - a date certain for unsealing any documents that the court decided should remain sealed. Both Strevell and the government oppose the motion, and Strevell seeks an in camera sentencing hearing and courtroom closure.

For the reasons that follow and as recited in a contemporaneously filed "Sealed Statement of Reasons," the court: partially grants the motion to unseal; declines to conduct an in camera sentencing hearing and order courtroom closure; and, sets a "sunshine date" for documents that remain sealed.

II. Background

By the terms of a publicly filed Plea and Cooperation Agreement, Strevell promised to cooperate with the government in the investigation and prosecution of others. (See Transcript of Proceedings regarding Order to Show Cause at 4-5, Dkt. No. 51 (hereinafter, "T"); see also Plea and Cooperation Agreement, Dkt. No. 28 (hereinafter, "Agreement").) He also promised not to reveal his cooperation to anyone - a promise immediately compromised when the government publicly filed the Agreement. (See T. 5.) The government publicly agreed that if his cooperation was substantial, "it would advise the Court of the nature and extent of Strevell's cooperation and assistance" and recommend a sentencing reduction ("departure motion"). Id. at 5-6 (citing Agreement at ¶ 8(j)).

Following Strevell's plea, the court issued a Uniform Presentence Order. (See T. 6; see also Uniform Presentence Order, Dkt. No. 29, (hereinafter, "Presentence Order").) According to the Presentence Order, the government had to notify the court before sentencing whether it would file a departure motion, and both parties had to file written sentencing submissions. (See T. 6.) As to the security of information in their submissions, the Presentence Order provided: "If, for any reason, the Government or defense counsel want any of their submissions sealed, they should prepare and submit an application to seal and provide the Court with a sealing order with the submission to be sealed." Presentence Order. Local Rule 13.1 and General Order #22 authorize the Presentence Order's sealing directive. See N.D.N.Y.L.R. CR. P. 13.1 (quoted at T. 6-7); General Order #22 (N.D.N.Y.).

Verbatim, Rule 13.1 provides:

The Court may seal cases in their entirety or only as to certain parties or documents when the cases are initiated or at various stages of the proceedings. The Court may, on its own motion, enter an order directing that a document, party or entire case be sealed. A party seeking to have a document, party or entire case sealed shall submit an application, under seal, setting forth the reasons why the Court should seal the document, party or entire case, together with a proposed order for the assigned Judge's approval. The proposed order shall include language in the ordered paragraph stating which documents are to be sealed and should include the phrase "including this sealing order." Upon the assigned Judge's approval of the sealing order, the clerk shall seal the documents and the sealing order. A complaint presented for filing with a motion to seal and a proposed sealing order shall be treated as a sealed case pending approval of the order. Once the Court orders a document or case sealed, it shall remain under seal until the Court enters a subsequent order, upon its own motion or in response to the motion of a party directing that the clerk unseal the document or case.

N.D.N.Y.L.R. CR. P. 13.1 (quoted at T. 6-7).

General Order #22 governs the Northern District's electronic case filing procedures, and provides that sealed documents shall be filed with the court traditionally, not electronically. (See T. 7-8 (citing General Order # 22).) At ¶ 12.2, the General Order provides:

If a party wishes to file... (sealed documents)..., the party must file a motion or an application to achieve the desired action. The motion or application, along with the documents the party is requesting to be sealed or lodged with the Court, shall be filed in a traditional manner in a sealed envelope marked "sealed." Unless the motion is being filed ex parte, the filing party shall conventionally serve all parties with the papers being filed with the Court. If the Court grants the motion or application, the assigned Judge will enter, electronically, the order authorizing filing of the documents in the appropriate manner. For example, under seal, lodged with the Court. The Clerk's office will then file the documents in the appropriate manner. If the Court denies the motion or application, the Court will issue an order that directs the parties to file the documents electronically."

T. 8 (quoting General Order #22 (N.D.N.Y.)).

As required, Strevell submitted his sentencing memorandum, an application to seal and a proposed sealing order. (See Sealing Order, Dkt. No. 38.) Contrary to Local Rule 13.1, however, his application did not seek to seal the proposed sealing order itself. Thus, when the court granted his application, the sealing order publicly disclosed that he filed a sentencing memorandum and sealing application. (See Sealing Order, Dkt. No. 38.) Additionally, his sealing application disclosed his cooperation although that disclosure was harmless since his cooperation was publicly disclosed when his Agreement was filed. Given these public disclosures, the court ordered his application unsealed during subsequent show cause proceedings. (See T. 9.) However, his sentencing memorandum and attachment remained sealed.

Before sentencing, the government publicly filed its sentencing memorandum. (See Govt. Sentencing Memorandum, Dkt. No. 40.) It disclosed Strevell's cooperation, and recommended that the court downwardly depart from the advisory sentencing guidelines because of his cooperation and substantial assistance. See id. at ¶ 4B. Simultaneously, the government filed a second sentencing document and a proposed sealing order, neither of which was accompanied by an application to seal as required by Rule 13.1 and General Order #22. Nonetheless, the sealing rationale was apparent from the face of the document, and the court executed the sealing order. (See Sealing Order, Dkt. No. 41.) Once again, the government's proposed order did not contain language requesting that the sealing order itself be sealed. Therefore, it was publicly disclosed that the sealed document was a "Letter dated March 12, 2008." Id.*fn1

A week later, Brendan Lyons, a Times Union reporter, submitted a letter asking that Strevell's sentencing memorandum and the government's March 12 Letter be unsealed. (See Lyons Ltr., Dkt. No. 43.) The court denied the request, with leave to renew by motion served upon the government and defense counsel. (See Min. Order, id. at p. 2.) By order to show cause, the Times Union filed a motion to intervene and unseal. (See Dkt. No. 44.) The court scheduled a hearing, and requested that the government, Strevell, and the Federal Public Defender (as amicus curiae) submit response papers. (See Order to Show Cause; Dkt. No. 46.)

At the hearing, the court granted the Times Union's motion to intervene. (See Minute Entry; Dkt. No. 50.) It deferred ruling on the motion to unseal, and invited further briefing. It also requested that the government and Strevell submit redacted versions of the sentencing memorandum.

Thereafter, the parties filed a host of documents, many under seal. The government and Strevell each filed a memorandum of law in opposition to the Motion to Intervene and Unseal (see Dkt. Nos. 52 & 56)*fn2, and the Times Union filed a memorandum of law requesting that any sealing order contain a so-called "sunshine provision" (See Dkt. No. 53.) The government and Strevell also filed redacted versions of Strevell's sentencing memorandum. (See Dkt. Nos. 63 & 57, respectively.) Finally, the government filed an "Ex Parte Statement" in support of its opposition to the motion to intervene and unseal. (See Dkt. No. 60.) At Strevell's request (see Dkt. No. 54), the court sealed all of his submissions. (See Sealing Order; Dkt. No. 55.) Similarly, at the ...


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