Memorandum and Order — Summary
Factual and Procedural Background
Defendant Olsen Key (referred to in the opinion as "Key") moved to seal all documents related to his federal criminal case, specifically "any and all information" relating to his cooperation with the government. Judge Edward R. Korman referred Key's application to the magistrate judge. Key had waived indictment and pled guilty in federal court on May 14, 1998, pursuant to a cooperation agreement. He was released on an unsecured bond on August 17, 1999. In March 2003 Key pled guilty in state court to crimes arising from the kidnapping and stabbing of his then-girlfriend and was sentenced to eighteen years; he was returned to federal custody and was sentenced on the 1998 federal charges on July 31, 2007 (receiving time served on the drug charge and a consecutive five-year term on the gun count). The Second Circuit affirmed his federal sentence on July 29, 2009 (United States v. Key, 339 F. App'x 42 (2d Cir. 2009)). His 2003 state conviction was later reversed and remitted on technical grounds (People v. Key, 884 N.Y.S.2d 106 (2d Dep't 2009)); Key re-pled guilty in state court on April 23, 2010, and was sentenced on June 30, 2010, to a seventeen-year term. Because Key violated the terms of his 1998 cooperation agreement by committing another crime, the government declined to submit a § 5K1.1 letter on his behalf.
Key requested sealing of his plea and sentencing minutes, defense counsel's sentencing memorandum, and any documents relating to his cooperation, asserting that public disclosure would endanger him and his family. He asserted that individuals in possession of his case file had communicated death threats to him. Judge Korman denied Key's request for a telephone conference and referred the sealing application to the magistrate judge, who issued the Memorandum and Order denying the motion to seal.
Legal Issues Presented
- Whether Key met his burden to show that disclosure of documents referencing his cooperation with the government would create a substantial probability of prejudice to a compelling interest (e.g., safety) sufficient to overcome the presumptive First Amendment and common-law right of public access to plea agreements and plea/sentencing proceedings.
- If such a substantial probability of prejudice exists, whether there are reasonable alternatives to sealing that adequately protect the interest and, if not, whether sealing can be narrowly tailored to serve that interest.
Arguments of the Parties
Defendant's Arguments
- Disclosure of plea and sentencing minutes, defense sentencing memoranda, and documents relating to his cooperation would pose a safety risk to Key and his family.
- Family members were associated with individuals about whom Key provided information to the government; releasing documents could endanger those family members because some of those individuals have been released from prison.
- Individuals in possession of his entire case file have communicated death threats to him.
- At various times Key asked broadly to seal "the entire case file" though he did not provide reasons for sealing the entire file.
The opinion does not set out in detail a separate, adversarial presentation of the government's counterarguments in the record beyond reference to AUSA letters and the government's decision not to file a § 5K1.1 letter due to Key's violation of the cooperation agreement.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| United States v. Zazi, Nos. 09-CR-663 (RJD), 10-CR-0019 (RJD), 2010 WL 2710605, at *2 (E.D.N.Y. June 30, 2010) |
Sets out competing concerns and a four-prong test for sealing: (1) whether substantial probability of prejudice to a compelling interest exists; (2) whether reasonable alternatives exist; (3) whether the prejudice overrides the right of access; (4) whether sealing can be narrowly tailored. |
The court adopted Zazi's framework to analyze Key's motion and relied on Zazi for the proposition that the right of access is presumptive but not absolute; it also cited Zazi for the conclusion that sealing is rare and only appropriate where necessary to preserve higher values, and for guidance in denying sealing where publicity already existed and no enhanced risk was shown. |
| United States v. Alcantara, 396 F.3d 189, 196 (2d Cir. 2005) |
Recognizes the qualified First Amendment (and common-law) right of access to plea agreements and plea/sentencing proceedings in criminal cases. |
The court cited Alcantara to support the proposition that the press and public have a qualified right of access to plea agreements and related proceedings, establishing a presumption of openness that Key must overcome. |
| United States v. Haller, 837 F.2d 84, 86-87 (2d Cir. 1988) |
Supports the principle that plea and sentencing proceedings are subject to public access. |
Used to reinforce the presumption of public access to plea and sentencing materials that must be overcome by specific, on-the-record findings to justify sealing. |
| Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 n. 4 (2d Cir. 2004) |
Referenced for the scope of public access rights in the context of judicial proceedings. |
Referenced as part of the body of Second Circuit precedent recognizing public access rights to transactional or court materials related to criminal matters. |
| Matter of New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987) |
Holds that "broad and general findings" are insufficient to justify sealing; courts must make specific findings. |
The court relied on this precedent to require that Key make specific, on-the-record showings rather than broad assertions in order to justify sealing. |
| United States v. Cojab, 996 F.2d 1404, 1405 (2d Cir. 1993) |
States that the power to seal criminal records is to be "very seldom exercised" and only under urgent circumstances and for clear reasons. |
The court cited Cojab to emphasize the high threshold for sealing and to support the conclusion that sealing should be granted only in rare and exceptional cases. |
| United States v. Basciano, Nos. 03-CR-929, 05-CR-060, 2010 WL 1685810, at *4 (E.D.N.Y. Apr. 23, 2010) |
Holds that shielding third parties from unwanted attention arising from information already public is not a sufficiently compelling reason to withhold judicial documents from public scrutiny. |
The court used Basciano to support the proposition that preventing unwanted attention to third parties, when the information is already public, does not justify sealing Key's records. |
| United States v. Key, 339 F. App'x 42 (2d Cir. 2009) |
Appellate disposition affirming Key's federal sentence. |
Cited as the Second Circuit's affirmation of Key's federal sentence; part of the factual/procedural history the court considered when assessing the public record. |
| People v. Key, 884 N.Y.S.2d 106 (2d Dep't 2009) |
State-court disposition reversing and remitting Key's 2003 state conviction on technical grounds. |
Cited as part of the state-court history relevant to Key's procedural background; the opinion notes that Key re-pled guilty in state court after that reversal. |
Court's Reasoning and Analysis
The court applied the Second Circuit framework (as articulated in Zazi and related precedent) that the public and the press have a presumptive, qualified First Amendment and common-law right of access to plea agreements and plea/sentencing proceedings, and that sealing may be ordered only upon specific, on-the-record findings showing that sealing is essential to preserve a higher value and is narrowly tailored.
The court identified the applicable four-prong inquiry: (1) whether there is a substantial probability of prejudice to a compelling interest that sealing would prevent; (2) whether reasonable alternatives to sealing could adequately protect that interest; (3) whether the prejudice to the compelling interest outweighs the public's right of access; and (4) if sealing is warranted, whether it can be narrowly tailored.
Applying that test, the court acknowledged that Key's safety and his family's safety constitute compelling interests. However, the court found dispositive that much of Key's court file has been publicly available for years and the public record already contains substantial references to his cooperation (including sentencing transcripts that named individuals and described the scope and effect of his cooperation). The court noted that Key himself had publicly stated in 2007 that inmates were aware of his cooperation. Key presented no evidence that sealing now information that has been public for years would create an enhanced risk of substantial prejudice to his or his family's safety. The court also found aspects of Key's claims implausible and unsubstantiated (for example, alleged releases of information by local prosecutors or to support a political campaign that did not occur), which undermined the credibility of any claimed enhanced risk.
Given that the persons allegedly making threats allegedly already possessed his entire file, and that the public record already disclosed key cooperative activity, the court concluded that declining to seal the records was unlikely to further prejudice Key's safety interests. The court emphasized that sealing is "rare and exceptional" and that the movant bears the burden of demonstrating that sealing is warranted; Key did not meet that burden. Accordingly, the court held that the First Amendment right of access overrides Key's concerns and the documents should remain unsealed.
Holding and Implications
Holding: Defendant's motion to seal his court file is DENIED.
Implications:
- The plea and sentencing minutes, defense counsel's sentencing memorandum, and documents relating to Key's cooperation will remain part of the public record and will not be sealed pursuant to this order.
- The court determined that Key failed to carry the burden of showing a substantial probability of prejudice to a compelling interest that would justify overcoming the First Amendment presumption of access; no narrowly tailored sealing order was appropriate on the record presented.
- The opinion does not announce a new rule of law; it applies established Second Circuit principles that sealing is disfavored and requires specific on-the-record findings. The direct effect is limited to the denial of Key's sealing request; the order reiterates the high threshold for sealing and the presumption of public access to judicial records in criminal proceedings.
Additional Procedural Notes
Any objections to the ruling were to be filed with Judge Edward R. Korman on or before October 4, 2010. The Clerk was directed to enter the Memorandum and Order into the ECF system and to mail a copy to Key at his last known address at the Nassau County Correctional Center.
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