U.S.A v. Bernardino
| Decision Date | 28 January 2011 |
| Docket Number | Case No. 3:10-cr-23-J-32TEM |
| Parties | UNITED STATES OF AMERICA v. TONY DEVAUGHN NELSON FRANK S. BERNARDINO |
| Court | U.S. District Court — Middle District of Florida |
On October 27, 2010, the Court entered an Order permitting Morris Publishing Group, LLC, d/b/a The Florida Times Union, to intervene in this case for the purpose of moving the Court to unseal certain filings. See Order, Doc. 109. Thereafter, the Court directed that the previously sealed motion to suppress and response be unsealed (with very minor redactions), but deferred ruling on the unsealing of other papers. This Order explains why the Court has determined that those other papers should remain under seal.
First, Exhibit B to Nelson's Motion to Suppress is a transcript prepared by the defense of a recorded conversation between Nelson and Lance Young obtained by the government pursuant to a wiretap. Although neither Nelson nor the government objects to this transcript being unsealed, 1 Lance Young does. See Objection, Doc. 121 (and Florida Times-Union response, Doc. 128). The contents of wiretap communications generally remain sealed unless they are disclosed in the course of giving testimony under oath. See 18 U.S.C. § 2517. Thus, with limited exceptions for disclosure to law enforcement agencies and thosewhose conversations have been intercepted, 2 wiretap communications remain beyond the public access unless they are disclosed through testimony during a Court proceeding. See United States v. Dorfman, 690 F.2d 1230, 1232-35 (7th Cir. 1982) (); see also, United States v. Rosenthal, 763 F.2d 1291, 1293 (11th Cir. 1985) (). Here, the wiretap communication was filed under seal as an attachment to a motion to suppress, which the Court has now denied. While the Court could speculate as to whether any portion of this particular communication will be admitted during the course of the trial, given the objection to its disclosure by one of the parties to the conversation, the Court finds the transcript should remain under seal at this time.
The second matter to be addressed is the continued sealing of the wiretap applications and Orders themselves, 3 materials which the government argues should remain under seal (Nelson supports their disclosure and Bernardino (who was not a listed target of the wiretap and was not overheard on any intercepted conversations) takes no position). See Docs. 61, 70, 71, 72, 95, 96, 115, 124, 129 and S-8. The applications and Ordersidentify various non-parties who are potentially involved in suspected criminal conduct as well as others whose privacy interests could be implicated by disclosure. Moreover, the extension request incorporates the content of several intercepted conversations, which are to remain under seal as explained above. Additionally, the government has identified an open investigation which could be compromised by disclosure of the extension affidavit and Order.
The wiretap statute permits disclosure of these materials "only upon a showing of good cause." 18 U.S.C. § 2518(8)(b). The Second Circuit recently rejected efforts by the media to access wiretap applications and orders in a high-profile case, finding that only someone who was a party to an intercepted conversation (an "aggrieved person") would be in a position to make the statute's good cause showing necessary to warrant disclosure. In re New York Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401 (2d Cir. 2009). See also, United States v. Blagojevich, 662 F.Supp. 2d 998 (N.D. Ill. 2009) (). Even if the Court were to find that the Times-Union was an aggrieved party, its interests would still have to be balanced against those of the government and the third-parties identified in the applications and Orders. See United States v. Gerena, 869 F.2d 82, 86 (2d Cir. 1989). On this scale, the balance tips in favor of continued sealing.
Likewise, any challenge based on a First Amendment right of access (assuming such right would attach to...
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