Washington Post

§FI`LE D
JAN ? ‘~ 2010
UNITED srATEs 1)1sTR1cT couRT ge k U 5 Dismct and
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FoR THE I)ls RIC 0 BlA @@ékfuptcy courts
UNITED sTArEs oF AMERICA
Misc. A¢ti@n N@.; 10-0005 (RMU)
V.
PAUL A. SLOUGH et al.,
Defendants.
MEMORANDUM ORDER
ORDERING THE IMMED!ATE DlscLosukE oF REI)ACTEI) VERSIoNS oF THE PARTIES’ PRE- ANI)
PosT-HEAR!NG MEMoRANDA ANI) ALL OTHER BR!EFS SUBMITTED 1N CoNNEcrloN w1TH THE
KAST!GAR HEARING; DIRECT!NG THE CLERK oF THE CoURT T0 UNSEAL ALL MATER!ALS
RELAHNG To THE KASHGAR HEARING oN FEBRUARY 2, 2010
Beginning on October 14, 20()9, the court held a Kastigar hearing to explore whether the
government had impermissibly used the defendants’ compelled, immunized statements in the
course of its prosecution In connection with this hearing, the parties drafted extensive pre- and
post-hearing memoranda, submitted into evidence hundreds of exhibits and offered the testimony
of twenty-five witnesses.
Upon the joint request of the defendants and the government, these proceedings and all
related filings have been maintained under seal pursuant to an order issued from the bench on
October 14, 2009.1 The court explained the necessity of sealing the Kastigar hearing as follows:
[T]he danger [attendant] to media coverage of the instant Kasligar hearing [is] far
more specific and severe than the generalized risk of jury taint. This hearing will
explore whether or not any immunized testimony was improperly used in
connection with this prosecution. If . . . as the defendants contend, such
immunized testimony was given by the defendants, media coverage of the hearing
will surely expose potential jurors and witnesses to this testimony, greatly
diminishing defendants’ prospects of a fair trial [free] from such taint.
‘ The court order issued this order after reviewing a written submission from the Washz'ngton Post
and hearing oral argument from an attorney representing the Washz'ngton Posl regarding its right
to access these proceedings. See Hr’ g Tr., Oct. 14, 2009 at 5-1 l.
Hr’ g Tr., Oct. 14, 2009 at l2. The court also noted that the Kastigar hearing would likely
involve a detailed examination of grand jury proceedings, which are generally kept secret. Ia'. at
13. Lastly, the court concluded that "[g] iven the centrality of purportedly immunized testimony
and grand jury minutes to this hearing, the Court . . . found no practical way to permit the public
partial access to the hearing." Id. at 14.
On December 31, 2009, the court issued a memorandum opinion dismissing the
indictment in its entirety based on the govemment’s failure to prove that it did not use the
defendants’ compelled, immunized statements in the course of the prosecution. See generally
Mem. Op. (Dec. 31, 2009). The court’s memorandum opinion cited portions of the hearing
transcript, exhibits, pre- and post-hearing memoranda and other sealed materials in explanation
of its holding. See generally ia'.
On January 4, 20l0, the Washington Post submitted a request for access to the sealed
materials, including all memoranda and briefs, hearing transcripts and exhibits. See Letter from
J ames McLaughlin, dated Jan. 4, 2010, at l. In its request, the Washington Post asserts that
"[t]he public’s interest in these matters . . . is even greater since the Kastigar issue has become
dispositive of the government’s entire case." Id.
On January 5, 20lO, the Associatea' Press joined in the Washington Post’s request. See
Letter from Jeanette Bead, dated Jan. 5, 2010 at l-3. Noting that the court’s December 31, 2009
memorandum opinion places on the public record facts disclosed during the closed hearing, the
Associaled Press asserts that "[i]f no compelling interest requires the Court’s summary of the
testimony and evidence to be sealed, it is difficult to understand the reason for continuing to keep
secret the evidence, transcripts and arguments of counsel upon which the Court’s decision is
bas@d."z 1a at 3.
Both the government and the defendants respond that the court should refrain from
unsealing the Kastigar materials prior to the expiration of the government’s time to appeal the
court’s December 31, 2009 ruling.3 See generally Govt’s Response to Court’s Order Conceming
Potential Unsealing of Kastigar Record ("Govt’s Opp’n"); Defs.’ Obj ection to Present
Disclosure of Kastigar Record ("Defs.’ Opp’n"). The parties note that until the govemment
exhausts its appeal rights, the possibility of a trial remains. Govt’s Opp’n at 3-4; Defs.’ Opp’n at
l. Given this possibility, the parties argue, the same considerations that led the court to seal the
Kastigar record in the first instance support keeping these materials under seal.l Govt’s Opp’n at
3-4; Defs.’ Opp’n at l.
As a form of compromise, the government proposes that the parties submit redacted
versions of their post-hearing memoranda for public release. Govt’s Opp’n at 4. This proposal,
the government suggests, would address the First Amendment concems raised by the
Washington Post and the Associated Press while limiting the dissemination of tainted
inforrnation. Id.
The Supreme Court has recognized that a qualified First Amendment right of access
applies to many pretrial hearings in criminal matters. See Press-Enterprise Co. v. Superior
Court, 478 U.S. l, 13 (1986). This right of access extends to documents and other materials
2 On January 5, 201 0, the court ordered any party objecting to the media’s request for access to
promptly file a written opposition. See Order (Jan. 5, 2010).
The government must file a notice of appeal on or before February l, 20l0. See 18 U.S.C. §
3731; FED. R. APP. P. 4(b).
4 The defendants also assert that if the court orders disclosure, they should be given an opportunity
to review the record and remove any information implicating privacy concerns pursuant to
Federal Rule of Criminal Procedure 49.l. Defs.’ Opp’n at 2.
submitted in connection with such hearings. See In re N. Y. Times Co., 828 F.2d 1 10, 113 (2d
Cir. 1987); Associated Press v. US. Dist. Courtfor the Cent. Dist. 0fCal., 705 F.2d ll43, 1145
(9th Cir. l983). The Supreme Court has noted, however, that
[w]hile open criminal proceedings give assurances of fairness to both the public
and the accused, there are some limited circumstances in which the right of the
accused to a fair trial might be undermined by publicity. In such cases, the trial
court must determine whether the situation is such that the rights of the accused
override the qualified First Amendment right of access.
Ia'. at 9; see also Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979) (noting that "[t]o
safeguard the due process rights of the accused, a trial judge has an affirmative constitutional
duty to minimize the effects of prejudicial pretrial publicity").
To overcome the public’s qualified First Amendment right of access, the court must
make specific, on-the-record findings that "closure is essential to preserve higher values and is
narrowly tailored to serve that interest." Press-Enterprise, 478 U.S. at 13-14. The Supreme
Court has remarked that special publicity considerations exist for hearings concerning potentially
inadmissible, tainted evidence:
Publicity concerning pretrial suppression hearings . . . poses special risks of
unfaimess. The whole purpose of such hearings is to screen out unreliable or
illegally obtained evidence and insure that this evidence does not become known
to the jury. Publicity concerning the proceedings at a pretrial hearing, however,
could influence public opinion against a defendant and inform potential jurors of
inculpatory information wholly inadmissible at the actual trial.
Gannett Co., 443 U.S. at 378. lndeed, this Circuit has expressly observed that a district court
may conduct a closed Kastigar hearing to limit the dissemination of tainted materials, Unitea'
States v. De Diego, 511 F.2d 818, 824 (D.C. Cir. 1975).
Although the court’s December 31, 2009 memorandum opinion discloses some sealed
material, including portions of some of the defendants’ compelled statements, disclosure of the
entire Kastigar record will reveal significantly more information regarding these compelled
statements. As the court explained in its October 14, 2009 ruling, the dissemination of such
information would materially increase the likelihood of prejudicial juror and witness taint. Thus,
the court concludes that so long as a future trial following appellate review remains a possibility,
maintaining the Kastigar materials under seal and limiting the dissemination of additional tainted
material serve the important purpose of preserving the effectiveness of appellate review by
ensuring that a fair trial remains possible.
At the same time, the court sees no reason to maintain these documents under seal
indefinitely. Indeed, neither party has offered any justification for withholding these documents
from the public beyond the expiration of the government’s time to lodge an appeal of the court’s
December 3l, 2009 decision. See generally Govt’s Opp’n; Defs.’ Opp’n.
ln addition, if the parties were to redact all references to tainted information contained in
the memoranda and briefs they submitted in connection with the Kastigar hearing, these
materials could be disclosed promptly without any fear of exacerbating witness or juror taint.
The court expects that the preparation of these redactions will entail a minimal burden, as only
information that specifically implicates the concems addressed in the court’s October 14, 2009
sealing order should be redacted.§
Thus, to balance the public’s First Amendment right of access with the defendants’ right
against prejudicial pretrial publicity, it is this 7th day of January, 2010, hereby
ORDERED that on or before January 11, 2010 at 12:00 p.m., the govemment and the
defendants shall submit redacted versions of their pre- and post-hearing memoranda, as well as
all memoranda and briefs submitted in connection with the Kastigar hearing, under seal for the
court’s review; and it is
5 Indeed, the court advised the parties in mid-November 2009 that the court intended to order the
parties to produce redacted versions of their pre- and post-hearing memoranda.
FURTHER ORDERED that the Clerk of the Court shall unseal all materials relating to
the Kastigar hearing on February 2, 2010.6
SO ORDERED.
RICARDO l\/l. URBINA
United States District Judge
Because the government’s filing of a notice of appeal would remove this court’s jurisdiction over
the case, any application to maintain these materials under seal after the filing of a notice of
appeal would have to be made to the Circuit.