U.S. v. Park
| Decision Date | 01 June 2009 |
| Docket Number | No. 05 Crim. 59(DC).,05 Crim. 59(DC). |
| Parties | UNITED STATES of America v. Tongsun PARK, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Lev L. Dassin, Acting United States Attorney for the Southern District of New York, by Pablo Quinones, Assistant United States Attorney, Attorney for the United States of America, Kobre & Kim LLP, by Michael S. Kim, Esq., Francisco J. Navarro, Esq., New York, NY, for Defendant.
David E. McCraw, Esq., Vice President and Assistant General Counsel, New York, NY, for the New York Times Company.
In this case, I initially sentenced defendant Tongsun Park to sixty months' imprisonment. The Government thereafter moved pursuant to Fed.R.Crim.P. 35(b)(1) for Park to be re-sentenced, on the grounds that after his initial sentencing, he provided substantial assistance to the Government in its investigation of others. On February 7, 2008, I re-sentenced Park, reducing his sentence to thirty-seven months' imprisonment.
During the course of the re-sentencing proceedings, the parties discussed the nature and extent of Park's assistance to the Government. At the request of the parties, I sealed certain letters connected with the re-sentencing and transcripts of the proceedings. Subsequently, the New York Times (the "Times") requested that the letters and transcripts be unsealed. After the parties conferred, the Government consented to the public filing of the letters and transcripts, either entirely or in partially redacted form. The Times thereafter moved to intervene and sought the unsealing of certain of the redacted materials.
The Times's motion to intervene is granted. The information redacted from the sentencing letters and transcripts, however, shall remain under seal in the interest of the Government's ongoing investigation.
On July 13, 2006, following a jury trial, Park was convicted of participating in a conspiracy to violate federal law. The evidence showed, and the jury found, that Park and at least one other individual had acted in the United States as agents of the Government of Iraq, without prior notification to the Attorney General of the United States. The evidence also showed that Park was paid more than $2.5 million by the Iraqi government for his efforts.
After his conviction but before sentencing, Park agreed to cooperate with the Government in the investigation of others. In exchange for Park's cooperation, the Government agreed it would move, within one year of sentencing, for a reduction of Park's sentence pursuant to Rule 35(b)(1). On February 22, 2007, I sentenced Park principally to sixty months' imprisonment (the statutory maximum). I also imposed a forfeiture order of $1.2 million.
Eleven months later, on January 24, 2008, the Government submitted a letter— under seal—to the Court, pursuant to Rule 35(b)(1), requesting that the Court re-sentence Park in light of his substantial assistance to the Government. On January 29, 2008, Park's counsel submitted a letter, also under seal, requesting that the Court re-sentence Park to time-served based on his advanced age and deteriorating health. On February 1, 2008, the Court held a resentencing proceeding. The Court questioned the level of assistance Park had provided to the Government and asked whether "anyone want[ed] to supplement the government's letter." (2/1/08 Tr. at 9). The Government endeavored to do so orally, but the Court requested additional briefing on the extent of Park's assistance to the Government. (Id. at 22). Also, the parties disputed whether the Court could consider other sentencing factors, such as Park's age and declining health, in addition to Park's assistance to the Government in reducing his sentence. The Court adjourned Park's sentencing to allow the parties time to submit letters detailing their respective arguments. Before adjourning the proceeding, the Court granted defense counsel's request to seal the transcript of the proceeding. (Id. at 24).
On February 6, 2008, the Government submitted, under seal, its response to the Court's request for additional information on the scope of Rule 35. On February 7 2008, the Government submitted a letter to the Court, also under seal, detailing Park's assistance. That same day, the Court continued Park's re-sentencing proceeding. At the outset, the Court granted defense counsel's request to seal the Courtroom. After discussing Park's assistance to the Government, the Court granted the Government's Rule 35 motion and determined that it was proper to consider the Section 3553(a) sentencing factors in addition to Park's assistance to the Government. See United States v. Park, 533 F.Supp.2d 474 (S.D.N.Y.2008). The Court re-sentenced Park to thirty-seven months' imprisonment. (2/7/08 Tr. at 14).
On September 26, 2008, the Times requested that the Court unseal the letters and transcripts under seal in this case. On September 29, 2008, the Court ordered the Government, the Times, and Park's counsel to discuss the unsealing request and endeavor to reach an agreement to make the documents public in partially redacted or unredacted form.1 The Court directed the Times to file a formal motion if a satisfactory agreement could not be reached. Subsequent to the parties' discussions, the Government, with the consent of the Times and Park's counsel, requested that the Court unseal certain documents in their entirety and others in redacted form. The documents were made public as follows:
(1) Government's January 24, 2008 Rule 35 motion (partially redacted);
(2) Defense counsel's January 29, 2008 response to the Government's motion (partially redacted);
(3) February 1, 2008 Court transcript (partially redacted);
(4) Government's February 6, 2008 letter responding to the Court's request for additional information on the scope of Rule 35 (entirely unsealed);
(5) Government's February 7, 2008 letter responding to the Court's request for additional information on Park's assistance (partially redacted);
(6) Defense counsel's letter dated February 6, 2008 regarding the proper scope of a Rule 35 motion (entirely unsealed);
(7) Defense counsel's February 7, 2008 letter responding to the Government's letter regarding the proper scope of a Rule 35 motion (entirely unsealed);. and
(8) February 7, 2008 Court transcript (partially redacted).
On January 5, 2009, the Times moved to intervene in this case to assert the public's right of access to the redacted information under seal. The Times does not seek the unsealing of information pertaining to Park's health and medical condition. Accordingly, the sealed information at issue includes:
(1) the redactions on page 2 of the Government's January 24, 2008 letter;
(2) the redactions on pages 9-11 of the February 1, 2008 transcript;
(3) the redactions on pages 1-3 of the Government's February 7, 2008 letter; and
(4) the redactions on pages 9-13 of the February 7, 2008 transcript.
The Government opposes the motion to unseal the information. In addition to its memorandum of law in opposition to the Times's motion, the Government has submitted the declaration of Assistant United States Attorney Pablo Quinones for the Court's in camera review. The four documents listed above are attached in unredacted form to the declaration. The declaration specifies the redactions made and the basis for the redactions. Park, through his counsel, also opposes the Times's motion.
A motion to intervene is appropriate to assert the public's right of access to criminal proceedings. United States v. Aref, 533 F.3d 72, 81 (2d Cir.2008); In re Herald Co., 734 F.2d 93, 102 (2d Cir.1984). Accordingly, the Times's motion to intervene in this case to assert the public's right of access to the sealed information is granted.
Pursuant to the First Amendment, the public has a "qualified ... right to attend judicial proceedings and to access certain judicial documents." Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir.2004); see also Press-Enterprise Co. v. Superior Court of Cal., 478 U.S. 1, 9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986); In re New York Times Co., 828 F.2d 110, 114 (2d Cir.1987). Similarly, under common law, the public has a "general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Comms, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). "Transparency is pivotal to public perception of the judiciary's legitimacy and independence." Aref, 533 F.3d at 83.
The Second Circuit has held that "a qualified First Amendment right of public access attaches to sentencing proceedings." United States v. Alcantara, 396 F.3d 189, 199 (2d Cir.2005). The applicability of the First Amendment, however, is not dispositive. If the right of access applies, the proceedings or documents are not automatically made public. "Proceedings may be closed and ... documents may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." In re New York Times, 828 F.2d at 116 (internal quotations omitted); see also United States v. Raybould, 130 F.Supp.2d 829, 833 (N.D.Tex.2000) (). When appropriate, the Court's findings may be entered under, seal. In re New York Times, 828 F.2d at 116.
Under common law, judicial documents carry a presumption of access measured by how relevant the document is to the exercise of judicial power "and the resultant value...
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