U.S. v. Ketner
| Decision Date | 28 May 2008 |
| Docket Number | No. EP-06-CR-1369-FM.,EP-06-CR-1369-FM. |
| Citation | 566 F.Supp.2d 568 |
| Parties | UNITED STATES of America, Plaintiff, v. John Travis KETNER, et al., Defendants. |
| Court | U.S. District Court — Western District of Texas |
Debra P. Kanof, William Franklin Lewis, Jr., United States Attorney's Office, El Paso, TX, for Plaintiff.
Before the Court is Carl Starr's ("Starr") pro se "Motion for Leave to File Motion to Intervene for the Limited Purpose of Being Heard in Connection with Access to Certain Portions of the Record and Hearings and Memorandum in Support" ("Motion for Leave to Intervene") [Rec. No. 57], filed in the above-captioned cause on March 26, 2008. Attached to his Motion for Leave to Intervene is Starr's proposed "Motion to Intervene for the Limited Purpose of Being Heard in Connection with Access to Certain Portions of the Record and Hearings and Memorandum in Support" ("Proposed Motion to Intervene"). Therein, Starr asks the Court to: (1) unseal all presently-sealed plea agreements filed in this cause; (2) unseal any other sealed papers filed in this cause; and (3) open all hearings convened in this cause to the public. Implicitly, Starr also asks the Court to unseal the transcripts for any closed hearings which occurred before he filed his Motion for Leave to Intervene, as well as to make any future hearings open to the public. Starr additionally seeks access to affidavits underlying search warrants associated with the Government's ongoing public corruption investigation. If the Court determines compelling interests require the sealing of all or a portion of the previously listed documents or the closing of hearings to the public, Starr asks the Court to issue a written order stating its findings of fact and conclusions of law which support its decision.
In a motion [Rec. No. 58] filed on April 7, 2008, Starr also asks the Court to set an oral hearing on his Motion for Leave to Intervene. On April 29, 2008, Starr filed another motion [Rec. No. 59] seeking leave to supplement his original Motion for Leave to Intervene with summaries of two additional cases which he believes support his request for access.
For the reasons discussed below, the Court finds it should deny Starr's motion for an oral hearing; grant his motion to supplement his original Motion for Leave to Intervene; and deny Starr's Motion for Leave to Intervene with the exceptions set forth in Part VI of the Memorandum Opinion.
Before it may consider the merits of Starr's filing, the Court must determine the legal basis for it. Starr has invoked the First Amendment and titled the motion he wishes to file as a motion to "intervene." No such procedural vehicle exists in criminal cases. Rather, a motion to intervene is a procedural vehicle used in civil actions.1 Further, in the context of determining whether an appeal is properly before it, the Fifth Circuit has indicated certain misgivings regarding the procedural propriety of such self-described "motions to intervene" filed in cases challenging lack of media access to trial proceedings.2
The courts differ on whether the media, though not parties to a case, may [directly] appeal closure orders or must seek other avenues of review. Some, including ours, have allowed such [direct] appeals. Others allow an appeal after one of the media has "intervened" in the underlying action for the purpose of challenging the closure order.3
In addition, the Fifth Circuit has stated that "third parties lack standing in criminal proceedings."4
The direct, distinct and palpable injury in a criminal sentencing proceeding plainly falls only on the defendant who is being sentenced. It is the defendant and he alone that suffers the direct consequences of a criminal conviction and sentence. Collateral individuals to the proceeding ... have not suffered an Article III direct injury sufficient to invoke a federal court's jurisdiction to rule on their claim. For this reason, a private citizen generally lacks standing "to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution."5
Be that as it may, courts, including courts of this Circuit, have implicitly recognized the ability of the press or public to object, on First Amendment or common law grounds, to a judicial decision closing hearings and sealing documents in criminal cases by way of a motion or petition filed in the appropriate district court.6 Thus mindful of Starr's pro se status, the Court will interpret his Motion for Leave to Intervene as an objection to the undersigned's decisions to close certain hearings and seal various documents filed in this cause. The Court will also interpret his Motion for Leave to Intervene as a request for it to: (1) inform the public and press of upcoming hearings in this cause, if any, by posting notice of such hearings on the Court's public calendar and the electronic case docket for this cause; and (2) keep any such proceedings open to the press and general public.
Starr's Motion for Leave to Intervene concerns issues of law which are adequately briefed in his written pleadings. It does not involve any disputed issues of fact which would require determination by the undersigned. When a motion raises only issues of law instead of law and disputed facts, it is standard procedure for federal district courts to decide the motion based on the parties' written submissions. The Local Court Rules for the Western District of Texas reflect this procedure: "A movant or respondent may specifically request an oral hearing, but the allowance of an oral hearing shall be within the sole discretion of the judge to whom the motion is assigned."7
The Court finds it has sufficient facts and legal authority before it to make an informed decision on the merits of Starr's Motion for Leave to Intervene, rendering it unnecessary to hear live argument. The Court will accordingly rule on Starr's Motion for Leave to Intervene based on the pleadings on file.
Having disposed of these preliminary procedural issues, the Court now sets forth the relevant factual and procedural history of this case.
The above-captioned cause arises from a lengthy and still ongoing criminal investigation conducted by the Federal Bureau of Investigation, El Paso Division, into allegations of public corruption by El Paso County officials and their associates. The investigation began in the summer of 2004 and has allegedly uncovered systemic and wide-spread public corruption and other fraudulent activities directed by individuals within the greater El Paso community.
The initial Cooperating Witness engaged in over 350 consensually monitored conversations. The United States Attorney applied for an electronic surveillance warrant (i.e., a wiretap) pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1996, codified at 18 U.S.C. §§ 2510-2520 ("Title III"). The wiretap began on July 13, 2005, on three separate telephone lines. The wiretap on Line 2 concluded during December 2005. The wiretap on Line 1 concluded in May 2006. The wiretap on Line 3 concluded in June 2006. All told, the Government conducted twenty-five months' worth of surveillance on the three lines, during which the Government intercepted thousands of conversations and text messages. On May 15, 2007, pursuant to this Court's Order, the United States Attorney mailed or hand delivered notifications to 154 persons whose. conversations were intercepted.
Over eighty "persons of interest" have been linked to the investigation. A "person of interest" is someone with personal knowledge of the conduct under investigation, but who is not necessarily suspected of criminal conduct. Of these individuals, thirty-five are past or current public officials, either elected or appointed, thirteen are attorneys and three are or were judges. These individuals represent a wide cross-section of the greater El Paso area, and in many cases, are prominent community figures.
To date, the FBI has executed twenty-one searches, including two consent searches, and eight civil seizure warrants. The FBI executed the first search warrant at Hospice El Paso ("HEP") on April 21, 2006. At HEP, the authorities seized 554 boxes of evidence.
The FBI executed a second series of search warrants on three sites located at the National Center for the Employment of the Disabled's ("NCED") premises on May 9, 2006. The FBI conducted a consent search at the offices of NCED's contracted accounting firm on the same date. Agents seized 1,332 boxes of evidence from NCED and NCED's accounting firm.
The FBI executed the third search warrant on the residence of Marc Schwartz ("Schwartz") on June 15, 2006. Agents seized nineteen boxes of evidence at Schwartz's residence.
The fourth series of search warrants were executed on Access Administrators (a third party administrator for self-insured employee healthcare benefit plans) ("Access"); Access subsidiaries Advantage Care Network and Physicians Healthcare Management; the residence of Access President Frank Apodaca ("Apodaca"); and the office/residence of local attorney Luther Jones ("Jones") on September 7, 2006. At Access and its two subsidiaries, 251 boxes of evidence were seized. At Apodaca's residence and from one vehicle and another consensually searched vehicle, thirty boxes of evidence were seized. At Jones's office/residence, eight boxes of evidence were seized.
On December 15, 2006, the FBI executed a fifth series of search warrants on Salvador Marcos ("Sal") Mena, Jr.'s ("Mena") residence and business, the Sal Mena, Jr. Insurance Agency. Mena was then an El Paso Independent School District ("EPISD") Trustee. The FBI seized...
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