US v. Martin, Crim. No. 88-85-T.
| Decision Date | 03 May 1988 |
| Docket Number | Crim. No. 88-85-T. |
| Citation | 684 F. Supp. 341 |
| Parties | UNITED STATES of America v. David R. MARTIN, John M. Morway, Jeffrey Barry, George Vasiliades, et al. |
| Court | U.S. District Court — District of Massachusetts |
Mitchell Dembin, Boston, Mass., for U.S.
Anthony Traini, Leppo & Traini, Randolph, Mass., for David R. Martin.
James Lawson, Martin Weinberg, Oteri, Weinberg & Lawson, Boston, Mass., for John M. Morway.
John McBride, Boston, Mass., for Jeffrey Barry.
Barry Haight, Buckley, Haight, Muldoon, Milton, Mass., for William Gorgeau.
Judith H. Mizner, Boston, Mass., Louis Vernell, North Miami Beach, Fla., for Nicholas Defrancesca.
Karnig Boyajian, Boston, Mass., for Randy Ray.
George Gormley, William D. Crowe, Boston, Mass., for Donald H. Gagnon.
Charles F. Dalton, Andover, Mass., for Jody Yameen.
Gerard R. Laflamme, Haverhill, Mass., for Michael Fasulo.
Elliot Weinstein, Boston, Mass., for George J. Vasiliades.
George O. Gregson, Saugus, Mass., Ira Feinberg, Boston, Mass., for Mark W. Borgesi.
Steven M. Gordon, Concord, N.H., for James M. Kattar.
Frank Mondano, Balliro, Mondano & Balliro, Boston, Mass., for Scott Rosenfeld.
John H. Lachance, Framingham, Mass., for Randy Martin.
George F. Gormley, Boston, Mass., Brian Gilligan, Milton, Mass., for Vernard Hester.
John A. Macoul, Salem, N.H., for Dennis Reidy.
Robert J. Wheeler, Boston, Mass., for Robert A. Murabito.
Carmine W. DiAdamo, Lawrence, Mass., for David M. Nardone.
Stephen P. Colella, Haverhill, Mass., for Patrick J. Nolan.
Hector deJesus, Everett, Mass., Vincent J. Nardi, Manchester, N.H., for Brenda Soares.
Ronald I. Segal, Everett, Mass., for Scott Jaskoka.
Carmine W. DiAdamo, Lawrence, Mass., for Michael R. McCafferty.
Alfred Daniels, Andover, Mass., for Michael Neve.
No appearance for James Hajjar.
Robert Richman, Federal Defender's Office, Boston, Mass., for Kathryn St. Jean.
A ten-count indictment charges defendants David Martin, John Morway, Jeffrey Barry, George Vasiliades, and twenty-one others, with various offenses relating to the possession and distribution of cocaine. On April 1, 1988, Magistrate Saris ordered Martin, Morway, Barry and Vasiliades detained prior to trial. All four moved for this court to review and revoke the magistrate's order. After an independent consideration of the evidence, this court denied the motions of Martin, Morway, and Barry, but ordered Vasiliades released on bond, subject to certain strict conditions.
In considering these pretrial detention orders, this court relied upon (1) tapes and transcripts of oral and wire communications intercepted under Title III, 18 U.S.C. § 2510 et seq.; and (2) an affidavit submitted by Herbert J. Lemon, Jr., special agent of the Drug Enforcement Administration, in support of the government's Title III request.
The tapes, transcripts and the affidavit have been sealed, pursuant to Title III, 18 U.S.C. § 2518(8)(b), which states:
Applications made and orders granted under this chapter shall be sealed by the judge. Custody of the applications and orders shall be wherever the judge directs. Such applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction, and shall not be destroyed except on order of the issuing or denying judge, and in any event shall be kept for ten years.
Representatives of various news media have moved for access to these materials. On April 4, Magistrate Saris heard arguments from counsel for WBZ-TV4, the Boston Globe, the Boston Herald, the Lawrence Eagle-Tribune, and defendants. On April 8, the magistrate issued an order, and a report and recommendation. The magistrate's order denied the motion for press access to the tapes and transcripts. She recommended, however, that Agent Lemon's affidavit be released to the press, in redacted form.
Defendant Vasiliades filed a timely objection to the magistrate's recommendation, in which defendants Martin and Morway joined.1 This court heard arguments of counsel on April 29.
The public, and the press as its representative, have a First Amendment right of access to criminal proceedings. See Richmond Newspapers v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) (Press-Enterprise I); and Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (Press-Enterprise II). This right applies, in particular, "to pretrial proceedings setting and modifying bail, and to the documents on which the bail decisions are based." In re Globe Newspaper Company, 729 F.2d 47, 52 (1st Cir.1984).
In a recent opinion, this court discussed at length the public's right of access to documents and records related to criminal proceedings. See Globe Newspaper Company v. Pokaski, 684 F.Supp. 1132 (D.Mass.1988). The court concluded that access to such documents may not be foreclosed without a particularized determination that, in the specific case under consideration, closure is the least restrictive way of protecting a compelling state interest. Globe Newspaper Company v. Pokaski, 684 F.Supp. 1132, 1134, 1135 (D.Mass.1988). Those urging that records be sealed must show that access will in fact threaten the state interests in question. Id., at 1137. Before denying access, the court must consider all alternatives to closure, even if they are cumbersome. Id., at 1137. The court's findings must be specific enough to permit appellate review. Id.
Magistrate Saris' report and recommendation is an example of the individualized attention required by the Supreme Court precedents, cited above and relied upon in Globe Newspaper Co. v. Pokaski. In addition, this court has independently examined the requested affidavit for the purpose of determining whether the public's First Amendment access right can be accommodated without jeopardizing defendants' Sixth Amendment right to a fair trial.
As a result of this particularized analysis, this court has determined that the Lemon affidavit may be released in redacted form without there being any prejudice to defendants' rights to a fair trial. Specifically, the Lemon Affidavit is redacted to eliminate all passages except those relied upon by this court in formulating its detention orders.2 Compared to the alternative of keeping the affidavit under seal, "careful redaction ... is clearly a less restrictive means of advancing the state interest," Globe Newspaper Co. v. Pokaski, at 1136 n. 4. Here, redaction will ensure that the public receives those portions of the affidavit in which it has a First Amendment interest. Material outside of the public's First Amendment interest will remain under seal.
The court has considered and is mindful of defendants' concern, expressed at hearing, that release of the Lemon affidavit will generate widespread publicity, thereby endangering defendants' right to a fair trial. But, the court is satisfied that, through careful and searching voir dire of prospective jurors, defense counsel and the court can ensure that no juror is influenced by adverse publicity resulting from the affidavit's release. See Press-Enterprise II, 106 S.Ct. at 2744 ( )
In sum, the public has a First Amendment right to view those portions of the Lemon affidavit relied upon in pretrial detention decisions, and defendants' Sixth Amendment rights may be protected by means short of sealing the entire affidavit. This court finds, therefore, that the relevant circumstances discussed above amount to "good cause," within the meaning of Title III,3 for release of the Lemon affidavit in redacted form.4
An order has issued.5
For the reasons stated in the accompanying memorandum, the court orders release of the requested affidavit in redacted form.
It is so ordered.
APPENDIX*
AFFIDAVIT OF SPECIAL AGENT HERBERT J. LEMON, JR.
SUFFOLK, ss.
I, Herbert J. Lemon, Jr., being duly sworn, depose and state as follows:
THE INVESTIGATION
8. On April 19, 1987, at Logan International Airport, Boston, Massachusetts, MSP officers seized $189,820 in cash from David R. Martin, John Morway and Alfio Lupo. The seizure was prompted by the discovery by security guards for Delta Air Lines of $64,820 concealed within a hollowed-out hard-cover book carried by Morway. The security guards notified the MSP. Morway voluntarily accompanied Staff Sergeant Carmen Tamarro to the MSP office. In response to questioning, Morway identified himself and said that the money was not his but belonged to three or four other guys who he declined to identify. Morway said that he was enroute to Fort Lauderdale, Florida, to purchase a condominium for $130,000. He stated that he did not know how much money he was carrying. Morway stated that he was unemployed.
9. While Sgt. Tamarro was interviewing Morway, Delta security notified the MSP that it had discovered another person travelling with a large amount of cash. At the security desk, Martin and Lupo agreed to accompany Trooper McCue to the Massachusetts State Police Airport Office. Martin was discovered to be carrying $125,000 in cash also concealed in a hollowed-out book. Martin was travelling under the name David Morway. Lupo was not carrying cash, but was travelling under the name Al Morway. All three tickets were one-way to Fort Lauderdale and were charged to John Morway's American Express account. All three persons possessed licenses to carry firearms.
10. Upon further questioning, Morway admitted that he was travelling...
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Grand Jury Subpoena, In re
...at issue. It is arguable whether motions to disclose have traditionally been open to the public. See, e.g., United States v. Martin, 684 F.Supp. 341 (D.Mass.1988). We believe that the presence of the press in a hearing on a motion to disclose electronic surveillance often can play a signifi......