United States v. Konrad

Decision Date19 April 2011
Docket NumberNO. 11,NO. 15,11,15
PartiesUNITED STATES v. JOSEPH KONRAD
CourtU.S. District Court — Eastern District of Pennsylvania

UNITED STATES
v.
JOSEPH KONRAD

NO. 11
NO. 15

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Dated: April 19, 2011


MEMORANDUM RE REDACTION OF INFORMATION IN CRIMINAL CASE

Baylson, J.

The issue presented is whether a defendant named in a Criminal Information can secure redaction of facts he asserts arc not necessary and will cause him great embarrassment.

I. Background

On January 6, 2011, the Government filed an Information charging Defendant with one count of knowingly and willingly making "materially false, fictitious, and fraudulent statements and representations" to the Federal Aviation Administration ("FAA") in violation of 18 U.S.C. § 1001. ECF No. 1, at 1-2. The Information alleged that, on three occasions between October 2007 and November 2009, Defendant represented "on FAA Form 8500-8, titled Medical Certificate Second Class and Student Pilot Certificate, that he had not visited a health professional within the previous 3 years and that he had not been diagnosed with a mental disorder or substance dependence or substance abuse[.]" Id. at 1. The Information alleged Defendant's statement to be false as Defendant "knew, on or about July 24, 2007, [he] was examined by a medical doctor and diagnosed by that medical doctor with opioid abuse and bipolar disorder." Id. (emphasis added).

Page 2

A. Defendant's Motion

On January 28, 2011, Defendant filed a Sealed Motion to Redact Information pursuant to Fed. R. Crim. P. 49.1 (ECF No. 6). Defendant asked the Court to order "the details of [Defendant's| prior mental health and substance abuse dependance diagnoses" be redacted from the Information. Def.'s Mot. at 4. Defendant argued that disclosure of his medical diagnoses was "not necessary to state the charge against him," but will subject him to unfair prejudice. Id. at 2. Defendant contended that exposure of his "sensitive mental health and substance dependence history to the public" would subject him to humiliation and that the reference in the Information to his "opioid addiction" will lead the public to mistakenly believe that Defendant is a heroin addict, which he is not. Id. at 1 n.l;2. As the Government refused Defendant's request to omit the details about "specific, confidential medical diagnoses" from the Information, Defendant argued that protection of his privacy and reputation provided good cause for the Court to order the Government to do so. Id. at 2-3.

At the time Defendant filed his motion, he had not, yet, pleaded to the charge in questiou. Thus, the Court credited Defendant's claim of unfair prejudice and granted the motion, without waiting for the Government's response. The Court entered a sealed order to that effect on January 28, 2011 (ECF No. 7)

B. The Government's Response

On February 2, 2011, the Government filed a Response to Defendant's Motion to Redact Information as a Motion for Reconsideration and requested that the Court now deny Defendant's Motion (ECF No. 9). Defendant submitted a reply on February 3, 2011.

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C. The Guilty Plea Hearing

On February 22, 2011, Defendant entered a guilty plea in open court. At the hearing, Defendant agreed to waive prosecution by indictment and consented to allow prosecution to proceed by way of the above-mentioned Information (ECF No, 12). The Government then referred in open court to a Guilty Plea Memorandum, which included the Government's factual Basis for Plea and details of Defendant's medical history contaiued within the Information (ECF No. 13).

The Guilty Plea Memorandum stated that Defendant, a registered nurse, had obtained his private pilot license on August 10, 2002, and his commercial pilot license on October 31, 2007. ECF No. at 2. The Memorandum further stated that Defendant's private pilot license required Defendant to hold a medical certificate, which the FAA required Defendant renew every two years by submitting FAA Form 8500-8. Id. Defendant's commercial license required Defendant to obtain the certificate annually. Id. To obtain the certificate, it was necessary that Defendant meet the requirements of "no established medical history or clinical diagnosis of, among other things, bipolar disorder or substance dependancc, including opioid dependence, and no substance abuse within the preceding 2 years." Id. at 3.

The Memorandum recounted proceedings conducted by the Pennsylvania Board of Nursing ("Board of Nursing") during which the Board of Nursing ordered Defendant to submit to a medical and physical examination by George Woody, M.D. Id. The July 24, 2007 examination resulted in a diagnosis of opioid abuse and bipolar II disorder and "put [Defendant's] nursing license on probation subject to certain conditions." Id. The Board ultimately suspended Defendant's license for 3 years as of March 24, 2009. Id. at 3. n.l.

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The Memorandum stated that Defendant had "failed to disclose his mental health and substance abuse issues to the FAA and, in fact, falsely represented that he did not have such issues." Id. The Memorandum went on to state that by submitting FAA Form 8500-8 to the FAA on October 17, 2007; October 30, 2008; and November 12, 2009, Defendant "falsely answered 'No' to questions 18m (regarding whether [Defendant] had ever been diagnosed with or had any mental disorders of any sort) and 18n (regarding whether he had ever been diagnosed with or had any substance dependancc or substance abuse or any use of illegal substance within the previous 2 years)." Id. at 3-4. In addition, Defendant "falsely answered 'No' to question 19 (regarding visits to health professionals within the last 3 years) and failed to list his examination by Dr. Woody." Id at 4.

Defendant did not make any effort to prevent this information from being read into the record or to request that the transcript of the hearing be sealed.

Before the close of the hearing, the Court heard argument on the Government's pending Motion for Reconsideration and requested the Government consider amending the Information. In a March 1, 2011 letter submitted to the Court, the Government declined to amend the Information.

Now that Defendant has pleaded guilty to the charge contained in the Information, the Court grants the Government's Motion for Reconsideration and concludes, in retrospect, that the Court erred in granting Defendant's Motion.

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II. Parties' Contentions

A. The Government's Contentions

In its Motion for Reconsideration, 1 the Government contends that Defendant's argument "would be more appropriately styled as a motion to strike surplusage," pursuant to Fed. R. Crim. P. 7(d). Def's Mot. at 8. The Government then argues that the Court's discretion to grant such a motion is severely limited and not appropriate here, since the details Defendant seeks to be redacted are relevant to the charge. Id.

The Government argues generally that Defendant may not rely on Rule 49.1 (a), as the privacy protections provided by that Rule docs not cover the information Defendant seeks to redact, nor the charging document in which the details are contained. Id. at 6.

As to the applicability of Rule 49.1(c), the Government contends that the information that Defendant seeks to redact is already a matter of public record, as a result of the Pennsylvania administrative process that led to the suspension of Defendant's nursing license. Thus, the Defendant cannot argue that the information is either "private" or "confidential." Id at 7. Finally, the Government argues that the nature of Defendant's false representation to the FAA created a "public safety issue that should not be further hidden from vicw[.]" Id. at 10.

B. Defendant's Response

Defendant responds that the diagnoses are "clearly relevant" to the charge, but "do not need to be stated for the charging document to accurately apprise [Defendant] and the public of

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the nature of the charge[.]" Def.'s Rcsp. at 1. Defendant responds, as well, that, while the details of Defendant's diagnoses are a matter of public record, they are available only by request and in person or from a "relatively obscure" website. Id. at 2. According to Defendant, accessability to both sources "pal[es] in comparison to the public's easy access to PACER and the federal court's Criminal Clerk's Office." Id. Finally, Defendant argues that the Government has not demonstrated a public interest in disseminating these details, particularly given the cooperation Defendant has shown federal authorities regarding the charge against him. Id. at 3.

III. Discussion

A. Federal Rule of Criminal Procedure 7(d)

Rule 7 governs "[t]he Indictment and the Information." In "contrast to an indictment," an "information... is not preceded by a grand jury proceeding." United States ex rel. Stinson. Lyons. Gerlin & Dustamante. P.A. v. Prudential Ins. Co.. 944 F.2d 1149, 1155 (3d Cir. 1991) (citing Fed. R. Crim. P. 7). Rule 7(b) allows the government to prosecute by information if "the defendant — in open court and after being advised of the nature of the charge and of the defendant's rights — waives prosecution by indictment." Whether proceeding by way of indictment or information, the government's charging document must consist of "a plain, concise, and definite written statement of the essential facts constituting the offense charged[.]" Pursuant lo Rule 7(d), "[u]pon the defendant's motion, the court may strike...

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