Court Allows Sealing of Filings Related to Alleged Federal Prosecutor Misconduct

"There is no question that inaccurate statements were made by the government as part of these proceedings—to both Judge Schroeder and the undersigned"—but it appears that the details of this alleged misconduct remain sealed.

From yesterday's decision by Chief Judge Elizabeth Wolford in U.S. v. Giacobbe (W.D.N.Y.):

Transparency and public access to judicial proceedings are of paramount importance. However, those interests are not without reasonable and narrowly tailored limits. "Judicial documents are subject at common law to a potent and fundamental presumptive right of public access that predates even the U.S. Constitution." …

[As to these papers], the Court finds that the presumption of public access is low. The Second Circuit has explained that the presumption of public access is at its peak where "applied to documents that play a central role in determining litigants' substantive rights— conduct at the heart of Article III." Conversely, "[w]here testimony or documents play only a negligible role in the performance of Article III duties, the weight of the presumption is low and amounts to little more than a prediction of public access absent a countervailing reason."

Here, the submission at issue is unrelated to the Court's resolution of the parties' substantive rights but is instead addressed to the collateral matter of the Court's inherent authority to supervise the conduct of members of its bar. Indeed, the submission was prompted not by any action taken by the parties, but by the Court's sua sponte Order. Under the circumstances, the common law presumption of public access is not strong.

Bernstein v. Bernstein Litowitz Berger & Grossmann LLP (2d Cir. 2016) … is inapposite. The document at issue in Bernstein was the complaint itself, which the Second Circuit explained "is among the most likely to affect judicial proceedings. It is the complaint that invokes the powers of the court, states the causes of action, and prays for relief." Similarly, in United States v. Nojay (W.D.N.Y. 2016), … the sealing request implicated the criminal complaint itself. Here, the document at issue will have no impact on the resolution of the criminal proceedings against any defendant. {In the event that the sentencings do not go forward as planned (for instance, if the Court declines to accept the plea agreements), this analysis could change. Should that occur, the Court will revisit its sealing determination.} …

The Court notes that documents regarding alleged attorney misconduct are routinely maintained under seal unless they are ultimately substantiated and some form of public discipline is ordered. For example, Second Circuit Local Rule 46.2, which governs attorney discipline, provides that, with some exceptions, "[a]ll matters referred to, all proceedings conducted by, and all records possessed by" the Second Circuit Committee on Admissions and Grievances shall "remain confidential[.]" …

[T]here are [also] countervailing interests that oppose the relatively weak presumption of public access and finds that there are and any right to access is outweighed by those interests. Disclosing all of those interests would necessarily reveal the details of the government's submissions and thus defeat, at least in part, the whole purpose of sealing. However, based on its careful review of the relevant circumstances and balancing of the interests at issue, the Court is satisfied that sealing is warranted in order to allow the interests documented in the government's sealing motion to be protected, including the robust and candid functioning of the Department of Justice's internal processes. While under certain circumstances it might be more appropriate to articulate those interests in greater detail to the public, under these circumstances where the presumption of public access is not strong, the Court concludes that any more detailed disclosure of those interests is not warranted….

After giving a great deal of thought to the matter, the Court declines to conduct any further investigation sua sponte as to whether attorney misconduct occurred in this case. Consistent with the terms of their plea agreements, defendants Robert Morgan, Todd Morgan, Michael Tremiti, and Frank Giacobbe have now all withdrawn the pending motions for reconsideration that were filed in this matter, seeking to have the Court dismiss the indictment with prejudice.

The withdrawal of the motions, of course, does not change the fact that extremely serious allegations have been leveled against members of the United States Attorney's Office involved in the handling of this matter, and that the Court determined that there was a sufficient basis to those allegations to justify an evidentiary hearing in connection with the defendants' now withdrawn motions for reconsideration. Indeed, the Court gave the government an opportunity to attempt to address those allegations through written submissions, including affidavits, and oral arguments before the undersigned, and ultimately concluded that the government had failed to resolve the concerns and an evidentiary hearing was necessary.

The Court ordered a hearing because there was credible evidence in the record supporting the defense position that, in fact, there were intentional misrepresentations by the government to the Court. The Court does not know how that evidentiary hearing would have been resolved.

There is no question that inaccurate statements were made by the government as part of these proceedings—to both Judge Schroeder and the undersigned. There is also no question that omissions were made by the government when it discussed the status of the discovery in this case during appearances before the undersigned and Judge Schroeder. What the Court does not know is the level of culpability that should be attributed to the government for making those inaccurate statements and omissions—were they intentional, reckless, grossly negligent, or simply negligent?

To be clear, there has not been any finding that representatives of the United States intentionally misrepresented information to the undersigned or Judge Schroeder—but similarly, there are unresolved facts in the record as to whether or not they did, which is not an optimal situation. The Court expects all attorneys who appear before it to conduct themselves with the utmost candor, but that expectation is particularly keen when it comes to attorneys representing the United States of America. As guardians of the public interest, government attorneys have a "heightened ethical obligation that extends beyond just representing the narrow interests of [their] most direct client"—they "also must endeavor to do justice."

On the other hand, while the Court unquestionably has the power to investigate allegations of misconduct by attorneys who appear before it, it is also important to keep in mind that "a federal court is not an investigative body charged with government oversight," particularly oversight of a different branch of government like the Department of Justice which has its own resources for ensuring its attorneys fulfill their ethical obligations.

Significant resources have been expended on this case—not only by the parties, but also by the Court—and the reality is that devoting additional judicial resources to pursue an inquiry into the issues that were to be explored at the scheduled evidentiary hearing would come at the expense of time that could and should be devoted to the hundreds of other cases pending before the undersigned. Moreover, while by no means insurmountable, there are practical hurdles to the Court going forward on its own with such an inquiry, which was originally intended to be conducted through the adversarial system so as to test the merits of the allegations.

Most importantly, based on the sealed submission from the government, the Court is confident that United States Attorney Ross and her leadership team are aware of and appreciate the seriousness of the allegations that have been made in this case. Moreover, the Court has every expectation that the Department of Justice will take the necessary steps to investigate the allegations and ensure that any necessary remedial actions are taken to address those issues. Accordingly, under the circumstances, the Court concludes that it would not be a prudent exercise of its discretion to investigate on its own the allegations that were to be the subject of the evidentiary hearing in this case. Cf. United States v. Nejad (S.D.N.Y. 2020) (finding "further response" by the court required where prosecutorial misconduct had been definitively shown and yet the United States Attorney's Office for the Southern District of New York refused to take appropriate action)….

Because of the sealing, it's hard to know exactly what the allegations were, but here's an excerpt from a February article by Gary Craig (Rochester Democrat & Chronicle):

U.S. District Judge Elizabeth Wolford has ordered an April 4 hearing, expected to last a week or more, into the government's handling of evidence in the criminal case. Throughout the pretrial phases, prosecutors have made evidentiary missteps, failing to turn over some proof to the defense.

At issue is whether those lapses were intentional, or instead the result of limited resources dedicated to the case. Defense attorneys contend that the mistakes are egregious and purposeful, and, they say, prosecutors have misled Wolford about the extent of the evidentiary problems.

And here's an excerpt from an April 22 order that discusses this, though again without much detail:

Defendants … have each entered into plea agreements … and withdrawn their previously filed motions for reconsideration in the above-captioned matter, all of which were premised on the allegation that the government made intentionally misleading statements and omissions to the Court during the prosecution of this matter. On January 25, 2022, the Court read a partial decision from the bench as to those motions, wherein it found that factual issues existed as to "whether or not the government … intentionally  misrepresented to [the undersigned] and/or Judge Schroeder information concerning the discovery in this case, either through affirmative statements that were false or omissions concerning material information that the government knew or should have known would have caused the Court to have an incorrect understanding as to the facts."