The Volokh Conspiracy
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Interesting Unsealing Decision in NXIVM Sex Cult Case
Supportive letters submitted by the defendant at sentencing can’t remain secret.
From U.S. v. Rainiere, decided Monday by Judge Nicholas Garaufis (E.D.N.Y.) (for more on the substance of the case, see here):
Defendant Nancy Saltzman [also referred to as Nancy Salzman -EV] pleaded guilty to one count of racketeering conspiracy and was sentenced to 42 months imprisonment to be followed by three years of supervised release. Prior to sentencing, Saltzman filed a partially redacted sentencing memorandum, with annexed exhibits under seal, in support of her request for a downward variance from the applicable sentencing guidelines range. After sentencing, nonparty newspaper the Albany Times Union submitted a letter to the court seeking public disclosure of her sentencing submission, subject to reasonably tailored redactions….
Saltzman explains that [certain exhibits] contain supportive letters, and contends that disclosure of their identities that could harm the authors and have a chilling effect in future litigation…. Saltzman argues that the presumption of public access that attaches to her sentencing submission is outweighed by her own and by third parties' compelling privacy concerns. She contends that disclosure will have a chilling effect on individuals who wish to speak in support of defendants in other high-profile prosecutions and that her supporters will be targeted if their identities are publicly known….
"[T]he weight to be given the presumption of access must be governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts." The presumption is strongest where, as here, the documents at issue have been "used to determine litigants' substantive rights." The materials expressly relied on by defendants are submitted as part and parcel of their legal arguments for a particular sentence to influence the court's sentencing decision. {Motions to compel disclosure of presentence reports, as opposed to the parties' sentencing submissions, are viewed differently given the distinct function performed by the probation department as "neutral information gatherers for the sentencing judge."} …
Saltzman argues that disclosure would have a "chilling effect on those who wish to assist other defendants and courts in future high-profile cases." The court is not persuaded. This is not a case in which a party seeks to seal identities of cooperating witnesses, where unsealing would present a public safety risk and could discourage witnesses from cooperating in other cases. She submitted her supporters' letters as exhibits to her own memorandum, incorporating them into her legal arguments.
Saltzman also argues that significant privacy interests are at stake because the authors of supportive letters may face retribution if their identities are publicly known, given the public attention that has been paid to this case. Specifically, she asserts that "[r]evealing the identities and supportive views memorialized in letters to the court will add little to the record that has not already been stated publicly by the Court and counsel, and will potentially result in harm to those whose aim was to furnish the Court with firsthand information about Saltzman to facilitate a fully informed sentencing proceeding." …
The court understands that Saltzman's supporters may have a genuine interest in assisting sentencing while remaining out of the public eye themselves. The content at issue, however, does not involve traditionally private matters [such as] … "[f]inancial records …, family affairs, illnesses, [and] embarrassing conduct with no public ramifications" as historically private matters …. Nor does the potential newsworthiness of the letters' content or of the authors' relationships with Saltzman establish that publication would inappropriately "gratify private spite or promote public scandal … [or] libel[]." Accordingly, the court holds that the privacy interests identified by Saltzman, while important, do not outweigh the presumption of open access to materials submitted by the defendant in support of her sentencing arguments….