United States v. Sittenfeld

UNITED STATES OF AMERICA Plaintiff, v. ALEXANDER SITTENFELD, a/k/a "P.G. Sittenfeld," Defendant.

Case No. 1:20-cr-142

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

April 15, 2021

JUDGE DOUGLAS R. COLE

OPINION AND ORDER

This Opinion and Order addresses the government's Sealed Motion for a Protective Order (Doc. 33). For the reasons stated below, the Court GRANTS the government's Motion. Accordingly, going forward, both parties are directed to file under seal any references, whether in briefing or exhibits, to allegations regarding [Redacted] To accomplish this, the parties shall file any such documents on the sealed docket in unredacted form. The parties shall then have twenty-four hours to file on the public docket a version of any such filing in which all references to such allegations are redacted. The parties are directed to work together to determine the specific redactions necessary pursuant to this Opinion and Order, and to contact the Court if they cannot agree. In addition, because the government's Motion (Doc. 33) and Sittenfeld's Response Brief (Doc. 50) are both currently under seal, the parties are directed to (1) redact references to the allegations in those documents consistent with this Opinion and Order, and (2) file the redacted documents on the public docket.

BACKGROUND

While preparing for trial in this case, Sittenfeld compiled a list of potential witnesses who might have information that is helpful to him. [Redacted]

Sittenfeld thought these allegations raised issues of potential government misconduct and called into question [Redacted] So Sittenfeld informed the government of these allegations and asked for further discovery material relating to them. The defense wanted, for example, [Redacted] Upon learning of the allegations, the government notified its liaison with the FBI who is responsible for handling Giglio inquiries. That prompted the FBI to begin an investigation into the matter. (According to the government, the FBI is expected to respond formally to the allegations at some future time.) Later, the defense notified the government of allegations relating to [Redacted] As it did with the earlier allegations, the government notified its liaison responsible for handling Giglio claims, and the FBI broadened the scope of its original investigation to include these new allegations. The investigation was still ongoing as of the time that the government filed the instant Motion. (Doc. 33).

As for the discovery requests, the government and the defense appear to have reached an impasse. The government believes that "some of the Defendant's requests seek information that is not discoverable under the law." (Gov't Mot., Doc. 33, #267). The defense disagrees. At a January 22, 2021, status conference, the government notified the Court of the agent-misconduct allegations and asked for a temporary seal on any reference to the allegations that might be submitted to the Court. The Court granted the government's request. The government now seeks a permanent seal on such allegations.

Unfortunately, the government is not exactly clear about the relief it is requesting. For example, at the start of its Motion, the government "requests that the Court order any references to the Defendant's claims of misconduct [Redacted] be filed under seal and protected from dissemination at this time." (Gov't Mot., Doc. 33, #266 (emphasis added)). That suggests the government is only requesting a seal regarding the specific allegations of misconduct that give rise to the instant motion—allegations relating to [Redacted]

But at the end of its Motion, the government says it is requesting an order requiring "that all discovery filings related to allegations of misconduct [Redacted] be filed and kept under seal." (Id. at #271 (emphasis added)). Read literally, the government's request could be understood as relating to every conceivable allegation of government misconduct that might be made, however unrelated to the specific allegations of misconduct giving rise to the instant Motion. But it seems unlikely that the government is seeking such relief. The government's reasons for seeking a protective order are tied to the nature of the specific allegations at issue here. And it has not explained why an order regarding all conceivable allegations of misconduct is supported by good cause. The Court therefore construes the government's request as limited to the specific allegations giving rise to the instant Motion. That said, if the government wishes to request a protective order relating to other allegations of misconduct that may arise, it is of course free to file such a motion whenever it thinks appropriate.²

The government is also not completely clear about (1) whether it is seeking a seal on just "references to the Defendant's claims of misconduct" that might be included in discovery filings that largely contain other information that doesn't need to be sealed, (id. at #266 (emphasis added)); or (2) whether, instead, it is seeking a seal on "all discovery filings related to allegations of misconduct involving undercover," (id. at #271 (emphasis added)). A seal on the former would just require redactions of portions of a filing that reference the allegations but would not necessarily require that the entire filing be placed under seal (unless specific redactions were unfeasible for whatever reason). A seal on the latter suggests that the entire filing would be placed under seal, even if the filing is largely unobjectionable and contains just a few discrete references to the allegations.

The Court again opts for the more limited construction. The government does not explain why an entire filing would need to be placed under seal when only discrete portions of it reference the allegations. And the Court suspects that good cause would not exist for placing an entire filing under seal, as opposed to simply redacting the protectable portions of the filing (when feasible).

Putting these limiting constructions together, the Court construes the government's Motion as follows: a request for an order from this Court requiring that any references to the specific allegations giving rise to the instant Motion be placed under seal if included in a discovery motion filed with the Court. So understood, the Court GRANTS the government's Motion for the reasons below.

LEGAL STANDARD

Federal Rule of Criminal Procedure 16(d)(1) permits a Court to issue a protective order regarding discovery material "for good cause." But what constitutes "good cause" under Rule 16(d)(1) remains an underdeveloped area of law in this Circuit. Fortunately, out-of-circuit precedent provides useful guidance. Courts have held that "good cause" under Rule 16(d)(1) "exists 'when a party shows that disclosure will result in a clearly defined specific and serious injury.'" United States v. Bundy, No. 2:16-cr-046-GMN-PAL, 2016 U.S. Dist. Lexis 166626, at *10 (D. Nev. Nov. 30, 2016) (quoting United States v. Smith, 985 F. Supp 2d 506, 523 (S.D.N.Y. 2013)); accord United States v. Wecht, 484 F.3d 194, 211 (3d Cir. 2007) ("Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity."). "Establishing such an injury ... requires 'a particular factual demonstration of potential harm, not [only] conclusory statements.'" Bundy, 2016 U.S. Dist. Lexis 166626, at *10 (second alteration original) (quoting Smith, 985 F. Supp. 2d at 523); see also Wecht, 484 F.3d at 211 ("Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing.") (quotation omitted). In addition, courts have considered the following factors in determining whether good cause exists: whether (1) disclosure of the materials in question would pose a hazard to others; (2) the defendant would be prejudiced by a protective order; and (3) the public's interest in disclosure outweighs the possible harm. United States v. Dixon, 355 F. Supp. 3d 1, 4 (D.D.C. 2019); see also Smith, 985 F. Supp. 2d at 522-23.

LAW AND ANALYSIS

A. The Government Has Shown Good Cause

1. The Government Has Articulated A Clearly Defined, Specific, and Serious Injury.

The Court first considers whether the government has articulated a clearly defined, specific injury that may result if the Court does not issue the requested order. The government has. That injury is this: without the protective order, the defense, through discovery filings, may publicly disseminate information about sensitive allegations that are currently being investigated, and that, depending on the results of the investigation, may be irrelevant or otherwise inadmissible at trial.

Recall that these allegations consist of claims of [Redacted] Given the salacious nature of these allegations, they risk prejudicing the government's case with the jury pool, even though the allegations may end up playing no role at trial in this case. "Intense publicity surrounding a criminal proceeding—what Justice Frankfurter referred to as 'trial by newspaper'—poses significant and well-known dangers to a fair trial." United States v. Brown, 218 F.3d 415, 423 (5th Cir. 2000) (quoting Pennekamp v. Florida, 328 U.S. 331, 359 (1946) (Frankfurter, J., concurring)). "Paramount among these dangers is the potential that pretrial publicity may taint the jury venire, resulting in a jury that is biased toward one party or another." Id. "Accordingly, trial courts have 'an affirmative constitutional duty to minimize the effects of prejudicial pretrial publicity.'" Id. (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 378 (1979)).

Here, the risk of prejudicial pretrial publicity is compounded by the strong media interest in this case. [Redacted] There is also the distinct risk that dissemination of these allegations will prejudicially taint the jury pool by exposing it to information that the Court rules is...