United States v. Nojay

• Decision Date: 19 December 2016
• Docket Number: 16–MC–6008,16–MR–6101L,16–MJ–600
• Citation: 224 F.Supp.3d 208
• Parties: UNITED STATES of America, Plaintiff, v. William R. NOJAY, Defendant.
• Court: U.S. District Court — Western District of New York

224 F.Supp.3d 208

UNITED STATES of America, Plaintiff,

v.William R. NOJAY, Defendant.

16–MR–6101L

16–MJ–600

16–MC–6008

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

Signed December 19, 2016

John J. Field, U.S. Attorney's Office, Rochester, NY, for Plaintiff.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge

Scores of papers are filed daily in federal courts, across the land. The vast majority of them are routine, and of little interest to anyone but the litigants.

Some cases, and some filings, are of more interest to the public. That is especially so in cases that relate to public officials accused of wrongdoing.

Under our system of justice, judicial proceedings are generally conducted openly, with all filings disclosed to the public. It is not for a judge to inspect filings and quash or seal them if the judge feels they are too harsh, in poor taste, self-serving, embarrassing, etc., to be in the public record. There may, under very limited circumstances, be sufficient reasons to seal a document or a case record, but the reasons to do so must be truly compelling. To do otherwise would be tantamount to judicial censorship.

This case is before the Court on an appeal from a Decision and Order of United States Magistrate Judge Jonathan W. Feldman, entered November 17, 2016. The appeal to this Court is brought pursuant to 28 U.S.C. § 636(b)(1)(A).

On September 8, 2016, a sealed criminal complaint was filed against William R. Nojay (hereinafter "defendant" or "Nojay"). Defendant, a well-known public official and attorney, was allowed to self-surrender the following morning, September 9, 2016, with his attorney, Donald M. Thompson, Esq., for presentation on the complaint. As is the normal practice, it was anticipated that the complaint would be unsealed at the time of the defendant's appearance. (16–MJ–600, Dkt. # 2.)¹

Nojay did not appear in court. Instead, after advising his attorney of his intent to do so, he committed suicide on the grounds of a local cemetery, on the morning of September 9. That event has been widely reported in detail in the press and other news media.

Soon after Nojay's death, the Government moved before the magistrate judge to unseal the complaint. (MJ # 4.) Magistrate Judge Feldman set a schedule for briefing by both sides. (MJ # 5). Detailed affidavits and memoranda were filed by Attorney Thompson, Nojay's former counsel, opposing the request to unseal the complaint. (MJ # 6, # 8, # 10.) The Government filed papers in response, in further support of its motion to unseal. (MJ # 7, # 9.) Pursuant to the original sealing order (MJ # 2), which remained in effect, all papers on the proceeding were filed under seal.

On September 19, 2016, while the Government's motion to unseal was pending, a local newspaper, the Democrat & Chronicle ("D & C"), by counsel, filed a motion to intervene, and to unseal the records in the criminal case. The D & C's motion was opened in a separate case, which was given a Miscellaneous Civil designation. (MC # 1.) The Government has filed a response (MC # 4), stating, in short, that it does not object to the relief sought by the D & C.²

On November 17, 2016, Magistrate Judge Feldman issued a sixteen-page Decision and Order in the criminal case, granting the Government's motion to unseal the complaint. (MJ # 14.) He also directed the unsealing of all the papers filed by the Government and Nojay's attorney in the criminal case, except for four pages contained in the Government's reply brief ("Reply") (MJ # 9). The magistrate judge stayed the effect of the unsealing order to give both sides time to seek review of his Decision and Order should they choose to do so. He further directed that if an appeal were timely filed, the complaint and all other documents in the criminal case would remain sealed until the appeal was decided or until further order of this Court. (MJ # 14 at 16.)

Both attorney Thompson and the Government did file timely appeals in this Court. Thompson has appealed from the magistrate judge's decision unsealing the complaint. (MR # 1.)³ The Government has appealed that part of the decision sealing a portion of the Government's Reply. (MR # 2.) This Court set a briefing schedule on the appeals.

After due consideration, this Court affirms the magistrate judge's decision ordering the release of the criminal complaint filed September 8, 2016, as well as his decision to release all of the papers filed by the parties relative to the Government's motion to unseal. This Court, however, reverses the magistrate judge's decision to continue sealing a portion of the Government's Reply. The Court directs that those pages be publicly released, along with the rest of the record.

DISCUSSION

In one respect, this case present a unique factual situation. But, in another respect, the issues presented here are not particularly unusual.

When the criminal complaint naming Nojay was filed on September 8, 2016, the Government moved that the complaint be sealed until Nojay appeared in court the next day for his initial appearance. That is the normal practice and the complaint was duly sealed. There is no rule requiring sealing, but it is often done until the defendant either is brought before the Court on a warrant or appears voluntarily.

As we now know, Nojay did not appear because, tragically, he committed suicide. That is normal practice, and the Government then promptly moved to unseal the complaint, which almost certainly would have occurred upon defendant's initial appearance. The sealing order itself (MJ # 2) provided that the complaint would remain sealed until the defendant was "brought before this court for an initial appearance, or until further order of the Court...."⁴

The parties seem to agree that no reported case is on "all fours" with the circumstances of this case: a defendant who dies after a sealed complaint has been filed against him, but before his initial appearance. The magistrate judge agreed with the parties as to the paucity of authority on the matter. In that sense, then, the case is unique.

But as stated, in another sense, this case is not particularly unique. This case deals with disclosure of, and public access to, court documents filed in a criminal case. The legal principles relating to that issue are well established.

Generally, court documents are openly filed and available to the public. Sealing of documents is the exception, not the rule. See Union Oil Co. of California v. Leavell , 220 F.3d 562, 567 (7th Cir. 2000) ("the tradition that litigation is open to the public is very long standing").

The Court of Appeals for the Second Circuit has stated that "[t]he public has a common law presumptive right of access to judicial documents, and likely a constitutional one as well." Gambale v. Deutsche Bank AG , 377 F.3d 133, 140 (2d Cir. 2004) (citation and footnote omitted). See also Lugosch v. Pyramid Co. of Onondaga , 435 F.3d 110, 119 (2d Cir. 2006) (explaining common-law and First Amendment rights of access to judicial documents).

Consistent with that general principle, the party seeking to seal a document, or a record, bears the burden of overcoming that presumption of openness. See Newsday LLC v. County of Nassau , 730 F.3d 156, 167 n.15 (2d Cir. 2013) (a "[f]inding that a document is a ‘judicial document’ triggers a presumption of public access, and requires a court to make specific, rigorous findings before sealing the document or otherwise denying public access"). See also DiRussa v. Dean Witter Reynolds Inc. , 121 F.3d 818, 826 (2d Cir. 1997) ("The burden of demonstrating that a document submitted to a court should be sealed rests on the party seeking such action"); Annunziato v. Collecto, Inc. , 207 F.Supp.3d 249, 268, 2016 WL 5407871, at *16 (E.D.N.Y. Sept. 19, 2016) ("A party seeking to maintain judicial documents under seal bears the burden ‘of demonstrating what "higher values" overcome the presumption of public access and justify sealing’ ") (quoting E.E.O.C. v. Kelley Drye & Warren LLP , No. 10 CIV. 655, 2012 WL 691545, at *3 (S.D.N.Y. Mar. 2, 2012) ). Simply put, judicial documents, as a matter of course, should be openly filed and accessible to the public, absent some particular and justifiable reason for doing otherwise.

Again, neither this Court nor the parties have discovered a case quite like this one, factually, but some reported cases are illustrative of the principles involved.

There are a number of cases addressing the propriety of sealing an indictment, or other parts of the record in a criminal case.⁵ In line with other courts of appeals, the Second Circuit has held that "there are various legitimate prosecutorial objectives ... that will justify the sealing of an indictment." United States v. Srulowitz , 819 F.2d 37, 40 (2d Cir. 1987). Such objectives might include, for example, the facilitation of a defendant's arrest, see United States v. Cherico , 769 F.Supp.2d 560, 567 (S.D.N.Y. 2011), avoiding prejudicial pretrial publicity with respect to a codefendant, see United States v. DiSalvo , 34 F.3d 1204, 1218 (3d Cir. 1994), preventing the premature disclosure of the identity of a key witness, see United States v. Ramey , 791 F.2d 317, 321 (4th Cir. 1986), and avoiding "tipping off" codefendants who were out of the country and would likely not return if they knew that they had been indicted, see United States v. Bergfeld , 280 F.3d 486, 487 (5th Cir. 2002).

In a similar vein, courts have held that parts of an affidavit filed in support of a criminal complaint should be redacted, prior to public filing, to protect the defendant's right to a fair trial, Application of Kansas City Star Co. , 143 F.R.D. 223, 225–26 (W.D. Mo. 1992), that a sentencing memorandum should be redacted prior to public filing to protect the identity of persons assisting law enforcement, United States v. Harris , 204 F.Supp. 10, 15–16, 2016 WL 4543983, at *3 (D.D.C. Aug. 31, 2016), and that certain documents relating to a habeas corpus petition should be...