United States District Court, S.D. West Virginia, Bluefield Division
SEALED MEMORANDUM OPINION AND ORDER
J. Aboulhosn, United States Magistrate Judge.
court has filed under seal today a target letter directed to
the above-named individual. It is ORDERED
that the CJA Supervising Attorney appoint Richard Gunnoe, CJA
Panel Attorney, as counsel for the targeted individual and
provide them with a copy of (1) the target letter, and (2)
this sealed memorandum opinion and order.
a right of public access to the target letter, the affidavit,
or this order derives from the common law or the First
Amendment, and assuming further that these documents qualify
as "judicial records" as that term is used in our
court of appeals' precedent, there are compelling reasons
to seal the case. Foremost, the targeted individual has not
been charged with a crime. The disclosure of the targeted
individual's identity at this point would be akin to the
disclosure of matters occurring before the grand jury.
See United States v. Sells Engineering, Inc., 463
U.S. 418, 424-25 (1983) ("'[B]y preserving the
secrecy of the proceedings, we assure that persons who are
accused but exonerated by the grand jury will not be held up
to public ridicule.' Grand jury secrecy, then, is 'as
important for the protection of the innocent as for the
pursuit of the guilty.'") (citations omitted);
United States v. E-Gold, Ltd., 521 F.3d 411, 420
(D.C. Cir. 2008)(same). Indeed, the target letter indicates
that this matter is being presented to the grand jury.
the court is not privy to the details of the ongoing
investigation involving the targeted individual. Depending
upon the nature of that inquiry, public disclosure of the
targeted individual's name might also compromise the
investigation of others and possibly endanger the targeted
individual, whether or not that individual ultimately chooses
to cooperate in the investigation. Apart from that
consideration, however, is a further justification for
sealing. The sole reason that this matter is presently of
record is to reflect the appointment of counsel given the
targeted individual's lack of sufficient funds to hire a
lawyer. If a targeted individual is not indigent, he or she
would simply retain private counsel without having to seek a
court appointed lawyer, and without the attendant risk of it
becoming publicized that the individual has fallen under
suspicion by law enforcement. Fair process suggests that
similarly situated individuals should be treated alike
without regard to their station in life. A sealing order
achieves that end.
required by controlling precedent, the court has considered
other alternatives short of an absolute seal. Indeed, it
would be the court's preference to seal only the targeted
individual's identity and identifying information. Court
personnel have submitted an Emergency Modification Request
(EMR) that would permit the CM/ECF software to allow the
sealing of a targeted individual's identity alone instead
of requiring that the entire case be sealed.
court is aware of the obligation to provide public notice of
a sealing order and a reasonable opportunity to challenge the
decision. See, e.g., Virginia Dept. of
State Police v. Washington Post 386 F.3d 567, 576 (4th
Cir. 2004). The court understands that the public may use the
PACER system to generate a report of criminal cases for a
given period. If an interested person runs the report, sealed
actions do not appear among the numerically sequenced cases.
If, however, the interested party simply keys in a case
number missing from the sequenced cases, he or she will
receive a message stating "This case is SEALED."
The court deems this device sufficient to provide notice to
interested members of the public that a case has been sealed.
Should an interested party object to continued sealing, he or
she may then request an opportunity to be heard. Cf.
Media General Operations, Inc. v. Buchanan, 417 F.3d
424, 430 (4th Cir. 2005) ("We agree that members of the
press and the public must ordinarily be given notice and
opportunity to object to sealing of public documents. But, in
the context of search warrant documents, the opportunity to
object does not arise prior to the entry of a sealing order
when a search warrant has not been executed. . . . Because
the sealing order was made public upon the execution of the
search warrant and petitioners were then given an opportunity
to object to the sealing of the affidavits, the notice
requirement was satisfied.").
the court ORDERS the Clerk to seal this
action provisionally until such time, if ever, that (1) an
interested party demonstrates that continued sealing is
unwarranted, or (2) the grand jury returns an indictment, or
the United States Attorney files an information, naming the
Court DIRECTS the Clerk to provide a copy of
this Sealed Memorandum Opinion and Order to the targeted
individual, the CJA Supervising Attorney, Richard Gunnoe, CJA
Panel Attorney, and the United States Attorney's Office.
In Buchanan for example, the
court of appeals noted that there was no right to view or
object to sealing orders relating to search warrants prior to
the time of their execution. The bases for that decision
included the fact that pre-search publication of the matter
might tip off the person subject to the warrant, resulting in
the destruction or removal ...