United States v. Cohen

• Decision Date: 07 February 2019
• Docket Number: 18cr602
• Citation: 366 F.Supp.3d 612
• Parties: UNITED STATES of America, v. Michael COHEN, Defendant.
• Court: U.S. District Court — Southern District of New York

366 F.Supp.3d 612

UNITED STATES of America,

v.Michael COHEN, Defendant.

18cr602

United States District Court, S.D. New York.

Signed February 7, 2019

Andrea Michelle Griswold, Nicolas Tyler Landsman Roos, Rachel Maimin, Thomas McKay, United States Attorney's Office, New York, NY, for United States of America.

Guy Petrillo, Amy Ruth Lester, Petrillo Klein & Boxer LLP, New York, NY, for Defendant.

OPINION & ORDER

WILLIAM H. PAULEY III, Senior United States District Judge:

Various media organizations seek an order unsealing documents relating to searches conducted by the Federal Bureau of Investigation on April 9, 2018 in connection with a grand jury investigation by the United States Attorney's Office for the Southern District of New York (the "Government") of Defendant Michael Cohen and others. The media organizations assert a right of access to these warrant materials under the common law and the First Amendment to the U.S. Constitution. For the reasons that follow, their applications are granted in part and denied in part.

BACKGROUND

These applications implicate the familiar tension between public access to judicial records and the integrity of law enforcement investigations—interests arguably magnified by the intense scrutiny of Cohen's criminal case by the media, the general public, and even the President of the United States. On April 9, 2018, the FBI executed searches of Cohen's residence, hotel room, office, safe deposit box, cell phones, and electronic communications pursuant to warrants authorized under Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703. These searches, according to the Government, represented the first public step in what was by then a months-long investigation into Cohen's business dealings and potential campaign finance violations. Following the searches, Cohen pled guilty on August 21, 2018 to five counts of tax evasion based on his failure to report over $ 4 million in taxable income to the Internal Revenue Service, one count of making false statements to financial institutions to obtain a $ 500,000 home equity line of credit, and two counts of campaign finance violations based on his involvement with hush payments to women who threatened to disclose details of their extra-marital affairs with a candidate for federal office.¹

Subsequently, The New York Times Company, the American Broadcasting Companies, Inc., the Associated Press, Cable News Network, Inc., Daily News, L.P., Dow Jones & Co., Inc., Newsday LLC, NYP Holdings, Inc., and CBS Broadcasting, Inc. (the "Media Organizations") filed letter applications to unseal documents relating to the April 9, 2018 searches. (See ECF No. 9 ("Times Letter") ; ECF No. 11 ("News Organizations Letter") ; ECF No. 19 ("CBS Letter").) In particular, the applications seek to unseal copies of the warrants, warrant applications, and supporting affidavits and riders in connection with these searches (the "Materials"). The Government opposed the applications on the basis that disclosure would jeopardize an ongoing investigation and prejudice the privacy rights of uncharged third parties. In addition to a publicly filed brief (ECF No. 14 ), the Government submitted a supplemental ex parte submission articulating the factual bases for its opposition and also provided the Materials for in camera review. Cohen did not submit any opposition papers.

DISCUSSION

The "notion that the public should have access to the proceedings and documents of courts is integral to our system of government." United States v. Erie Cty., 763 F.3d 235, 238-39 (2d Cir. 2014). This long-standing precept is embodied in two "related but distinct presumptions"—"a strong form rooted in the First Amendment and a slightly weaker form based in federal common law." Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 163 (2d Cir. 2013) ; accord Erie Cty., 763 F.3d at 239 (noting that "the First Amendment protection has been understood to be stronger than its common law ancestor and counterpart"). Each presumption implicates a separate framework governing when it attaches and when it may be overcome. Ultimately, the "decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978).

I. Common Law Right of Access

As a threshold matter, this Court must first examine whether the pertinent provisions of Title II of the Electronic Communications Privacy Act—commonly referred to as the Stored Communications Act ("SCA") and codified at 18 U.S.C. §§ 2701 - 2712 —supersede the common law right of access to § 2703 warrants, applications, and affidavits. In re N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401, 405-06 & n.3 (2d Cir. 2009) (instructing that where an applicable statute speaks to the accessibility of the documents in question, courts should begin with the statute). For instance, the Second Circuit has evaluated whether to unseal Title III wiretap applications by reference to the applicable statutory standard in 18 U.S.C. § 2518(8)(b) without engaging in a common law analysis, concluding that Title III "revealed a manifest congressional intent that ... clearly negated a presumption in favor of disclosure" of wiretap applications. In re N.Y. Times Co., 577 F.3d at 406-09 & n.3 ; see 18 U.S.C. § 2518(8)(b) (providing in relevant part that "[wiretap applications] made and orders granted ... shall be sealed by the judge" and that "[s]uch applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction" (emphasis added) ).

By contrast, the SCA contains no provision mandating the sealing of § 2703 warrants, applications, or supporting affidavits. See In re Application of Leopold to Unseal Certain Elec. Surveillance Applications & Orders, 300 F.Supp.3d 61, 85 (D.D.C. 2018). To be sure, the SCA "explicitly relieves the government of any obligation to notify a subscriber or customer about the compelled disclosure pursuant to an SCA warrant." In re Application of Leopold, 300 F.Supp.3d at 85 (citing 18 U.S.C. § 2703(b)(1)(A) ). It also permits the Government to apply for an order requiring a service provider in receipt of a § 2703 warrant "not to notify any other person" of the warrant's existence "for such period as the court deems appropriate." 18 U.S.C. § 2705(b). But these statutory provisions hardly evince a clear congressional intent against disclosure that would undermine a common law presumption of access to § 2703 warrants, applications, and supporting affidavits. See United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993) (expressing the longstanding principle that "[s]tatutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident" (alterations in original) ); cf. In re N.Y. Times Co., 577 F.3d at 407 n.3 (noting that "the plain language of the [wiretap statute] indicates that there is a categorical presumption against disclosure of sealed wiretap applications").

A. Legal Standards

Having found no statutory presumption against disclosure that obviates consideration of the common law for the Media Organizations' applications, this Court turns to whether a common law presumption applies to the Materials. The common law right of access to court records has a "long history" that has been said to "predate even the Constitution itself." Erie Cty., 763 F.3d at 239 (citing United States v. Amodeo ("Amodeo I"), 44 F.3d 141, 145 (2d Cir. 1995) ). This "presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice." United States v. Amodeo ("Amodeo II"), 71 F.3d 1044, 1048 (2d Cir. 1995) ; see also Erie Cty., 763 F.3d at 239 (explaining that the common law right of access stems from the need for the public to "have the ability to learn of, monitor, and respond to the actions of their representatives and representative institutions," including the courts).

In analyzing whether the common law right of access warrants the unsealing of court records, courts in this circuit first ask whether the document is a "judicial document" presumed to be accessible. Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). If the document is a judicial document to which the common law presumption of access applies, the court must then "determine the weight of that presumption." Lugosch, 435 F.3d at 119. Finally, a court must balance the weight of the presumption against countervailing considerations, such as "the danger of impairing law enforcement or judicial efficiency" and "the privacy interests of those resisting disclosure." Amodeo II, 71 F.3d at 1050. Access to judicial documents may only be denied when competing interests outweigh the presumption. Erie Cty., 763 F.3d at 239.

As a prefatory note, the Media Organizations seek to unseal materials in connection with warrants authorized pursuant to both Rule 41 and § 2703. But this Court discerns little meaningful distinction between Rule 41 warrants and § 2703 warrants for purposes of the common law right of access analysis. In particular, both types of warrants play largely the same role in the judicial process—that is, both ultimately reflect judicial determinations of probable cause for governmental intrusion on individual rights. It also follows that the value of such judicial determinations would be substantially the same to those monitoring the work of federal courts. Thus, this Court's discussion of the common law right of access does not distinguish between Rule 41 warrants and § 2703 warrants and refers collectively...