___________________________
[Revised letter]
[By hand] Unsealed
U.S. Department of JusticeUnited States Attorney
Southern District of New York
The Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
July 23, 2002
BY HAND
The Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
Room 1340
New York, New York 10007
Re: Letter Request from Benjamin Weiser
Dear Judge Rakoff:
The Government respectfully submits this letter in response to The New York Times's request, set forth in a one-page letter from Benjamin Weiser, a staff writer, that the Court "unseal all letters, transcripts, and other documents pertaining to the inquiry [the Court is] conducting (or considering) concerning Abdallah Higazy." Mr. Weiser further requests that "if the court considers certain aspects of [Higazy's] case to be confidential because [Higazy] was first detained as a material witness, that materials pertaining specifically to the confession inquiry be released . . ." While Mr. Weiser's letter does not set forth the specific basis for his request that any sealed materials relating to the Higazy matter be disclosed, general principles governing the First Amendment right of access to court proceedings counsel against granting Weiser's request.
The Supreple Court has recognized a First Amendment right of access to most criminal proceedings. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980). At the same time, however, the Supreme Court also "has implicitly recognized that the public has no right of access to a particular proceeding without first establishing that the benefits of opening the proceedings outweigh the costs to the public." Times Mirror Company v. United States, 873 F.2d 1210, 1213 (9th Cir. 1989). "The Supreme Court has established a two-part inquiry for determining whether a particular proceeding is one to which the First Amendment right of access attaches. This test requires a court to consider both 'experience' and 'logic.'" United States v. Smith, 123 F.3d 140, 146 (3d Cir. 1997) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986) ("Press-Enterprise II")). Thus, "[c]ourts are required to examine whether 1) historical experience counsels in favor of recognizing a qualified First Amendment right of access to the proceeding and 2) whether public access would play a 'significant positive role in the functioning of the particular process in question.' " Times Mirror Company, 873 F.2d at 1213 (quoting Press-Enterprise II, 478 U.S. at 8); see also In Re Grand Jury Subpoena, (Doe No. 4 v. Doe No._1), 103 F. 3d 234, 242 (2d Cir. 1996) (adopting Press-Enterprise II test). Further, "even if experience and logic favor a presumption of access, a court may still seal a proceeding if closure is justified by overriding principles." In re Newark Morning Ledger Co., 260 F. 3d 217, 221 n. 7 (3rd Cir. 2001).
In applying these principles, courts have found that "experience" does not dictate a First Amendment right of access to certain types of pretrial proceedings, including:
(a) grand jury proceedings, see In re Newark Morning Ledger Co., 260 F. 3d at 221 (noting that "among the few limitations to the First Amendment right of access in criminal hearings, none is more important than protecting grand jury secrecy."); In re Motions of Dow Jones & Co., Inc., 142 F.3d 496, 499 (D.C. Cir. 1998) ("there is no First Amendment right of access to grand jury proceedings");
(b) proceedings ancillary to or relating to grand jury proceedings, see In re Newark Morning Ledger Co., 260 F.3d at 222 ("not only are grand jury materials themselves to be kept secret, but so are all materials that relate to grand jury proceedings") (quoting United States v. Smith 123 F. 3d 140, 149 (3d Cir. 1997)); In Re Grand Jury Subpoena, 103 F. 3d at 237 ("[t]he plain language of the Rule shows that Congress intended for its confidentiality provisions to cover matters beyond those actually occurring before the grand jury: Rule 6(e)(6) provides that all records, orders, and subpoenas relating to (emphasis in original) grand jury proceedings be sealed, not only actual grand jury materials; similarly, Rule 6(e)(5) refers to matters affecting a grand jury proceeding, not only the proceedings themselves."), such as contempt proceedings arising out of alleged violations of grand jury secrecy rules, see In re Newark Morning Ledger Co., 260 F.3d at 224-28 (district court properly sealed matter related to motion by Senator to find prosecutors in contempt for alleged leak of grand jury information to the media), or litigation relating to grand jury subpoenas, see In re Motions of Dow Jones & Co., Inc., 142 F.3d 496, 503-04 (D.C. Cir. 1998) (press did not have First Amendment right of access to district court proceedings ancillary to the ongoing grand jury investigation of alleged violations of federal law by witnesses and others associated with civil case against President Clinton, even if the matter was of utmost public concern and interest); and
(c) applications that are preliminary to grand jury investigations or intended to gather evidence to be presented to a grand jury, such as search warrant applications, see Times Mirror Company, 873 F.2d at 1215-16 ("If proceedings before and related to evidence presented to a grand jury . . . can be kept secret, a fortiori, matters relating to a criminal investigation leading to the development of evidence to be presented to a grand jury may be kept secret.") (quotation omitted)1, or proceedings relating to material witness warrants issued for grand jury witnesses, see In Re Application of, the United States for a Material Witness Warrant, Pursuant to 18 U.S.C. § 3144, for John Doe, Opinion and order at 1 (S.D.N.Y. July 11, 2002),(Mukasey, Chief Judge) ("[t]he witness who has filed the current motion was taken into custody pursuant to a warrant issued in aid of a grand jury subpoena, and the docket and the record of all appearances in this matter have been sealed as proceedings ancillary to grand jury proceedings. See Fed. R. Crim. P. 6(e)(2), (5) and (6) (setting forth general rule of secrecy and rules for closing of hearings and sealing of records).").
____________________
1 In In re Application of Newsday, 895 F.2d 74 (2d Cir. 1990), without deciding whether it agreed with the Ninth Circuit's holding in Times Mirror, the Second Circuit declined to apply a rule of secrecy to a request to unseal wiretap applications during the post-conviction stage of a criminal case, at a time when "the government admits that its need for secrecy is over, and the time has arrived for filing the application with the clerk." Id. at 79.
In finding that "logic" also does not support a finding of a First Amendment right of access in these sorts of proceedings, courts have considered the traditional interests cited in support of grand jury secrecy, including encouraging prospective witnesses "to come forward voluntarily," and "testify fully and frankly," and "assur[ing] that persons who are accused but exonerated by the grand jury will not be held up to public ridicule." Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979); see Times Mirror Co., 873 F.3d at 1215 (noting that "secrecy is no less important to the process of investigating crime for the purpose of obtaining evidence to present to the grand jury."); In re Newark Morning Ledger Co., 260 F.3d at 221; In re Smith, 656 F.2d at 1106 ("[N]o legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights.").
Because matters relating to the Higazy matter are currently (and properly) under seal, the Government cannot detail the specific reasons why a correct application of these precedents would support continued sealing. But suffice it to say that all of the sealed proceedings relating to the Higazy matter fall comfortably within these categories of proceedings that "experience" has found to fall outside the First Amendment right of access and that the interests considered under the "logic" inquiry which traditionally counsel against finding a First Amendment right of access compel a similar result here.
For the foregoing reasons, the Government respectfully submits that all of the proceedings before the Court in the Higazy matter should remain under seal.
Respectfully submitted,JAMES B. COMEY
United States AttorneyBy: [Signature]
Edward C. O'Callaghan
Assistant United States Attorney
Telephone: (212) 637-2634
cc: Robert Dunn, Esq.
UNITED STATES DISTRICT COURT
UNITED STATES COURTHOUSE
500 PEARL STREET
NEW YORK, NEW YORK 10007
JED S. RAKOFF
UNITED STATES DISTRICT JUDGE
Ben Weiser
The New York Times
229 West 43rd Street
New York, NY 10036
July 24, 2002
Dear Mr. Weiser:
By letter of July 15, 2002, on which you were copied, the Court requested counsel in the Higazy matter to respond to your letter of July 12, 2002 requesting unsealing of materials pertaining thereto. In response, a letter dated July 18, 2002 was received from Higazy's counsel, a copy of which is here enclosed, supportive of your position. A letter dated July 19, 2002 was also received from the Government, opposing your position, but it included references to matter that the Government argues should remain sealed. Accordingly, the Court ordered the Government to prepare a revised version of their letter, excising the references as to which sealing was requested, so that, if you wished, you could respond to the arguments therein. A copy of that letter, dated July 23, 2002, is here enclosed.
Counsel for Mr. Higazy has been given until 5 P.M. next Monday to respond to the Government's letter, if he so wishes. If you (or counsel on your behalf) also wish to respond to the Government's letter, such response, in letter form and not to exceed the length of the Government's letter, must be delivered to the Court by no later than 5 p.m. next Monday, July 29, 2002. A copy should also be delivered at the same time by hand to counsel for the Government (as well as to Higazy's counsel by mail) so that, if it so wishes, the Government may respond in turn by no later than Thursday, August 1 (with copy to you and counsel for Mr. Higazy) to any letter from you and/or counsel for Mr. Higzay. The Court is anxious not to delay this matter further and will rule promptly after August 1.
Very truly yours,
[Signature]
Jennifer Daskal
Law Clerk to Judge Jed S. Rakoff
enc. cc (w/o enc.): Edward C. O'Callaghan, AUSA
Robert S. Dunn, Esq.
The New York Times
Company
David McCraw
Counsel
229 West 43rd Street
New York, NY 10036
tel 212-556-4031
fax
212-556-4634
mccrad@nytimes.com
July 26, 2002
BY HAND
The Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States District Court
500 Pearl Street, Room 1340
New York New York 10007
Re: United States v. Higazy (02 M 53)
Dear Judge Rakoff,
On behalf of The New York Times and its reporter, Ben Weiser, we respectfully submit this letter in response to the Government's letter of July 23, 2002 (the "Letter") opposing our request that materials pertaining to Mr. Higazy be unsealed.
As The Times has reported, the Court is considering an inquiry into how the F.B.I. obtained a confession from Mr. Higazy, who, it is now conceded, was innocent. The Government contends that the unsealing of materials pertaining to Mr. Higazy would violate grand jury secrecy. We of course are not privy to the underlying facts, and the Government did not address the facts because the matter is under seal. Nonetheless, we believe the Government misconstrues the relevant law and that under the very precedents cited in the Letter the documents pertaining to Mr. Higazy's case generally -- and to the circumstances of his confession specifically -- should be made public.
The Government correctly notes that there is a First Amendment right of access and sets forth the two-prong test for when a First Amendment right attaches to a proceeding. (Letter, pp. 1-2.) We would note that there is also a common law right of access, the application of which is left to "the sound discretion of the trial court, a discretion to be exercised "in light of the relevant facts and circumstances of the particular case." Nixon v. Warner Communications, Inc., 435 U.S. 589, 599 (1978), United States v. Eastern Air Lines, Inc., 923 F.2d 241, 245 (2d Cir. 1991).
Concededly, as tile Government notes, no right of access attaches to grand jury proceedings, and courts have extended grand jury secrecy to collateral proceedings that "affect" or "relate to" grand jury proceedings. In re Newark Morning Ledger Co., 260 F.3d 217, 223 (3d Cir. 2001), United States v. Smith, 123 F.3d 140, 149 (3d Cir. 1997); In re Grand Jury Subpoena (Doe No. 4 v. Doe No. 1), 103 F.3d 234, 237 (2d Cir. 1996). However, the Government completely ignores the operative question that must be addressed in a case like this where access is sought to a collateral proceeding: When does a collateral proceeding "affect" or "relate to" a grand jury proceeding?
The courts have answered that question. In In re Grand Jury Matter (Catania), 682 F.2d 61, 63 (3d Cir. 1982), the Third Circuit held, "The policy of secrecy is designed to protect from disclosure only the essence of what takes place in the grand jury room, in order to preserve the freedom and integrity of the deliberative process [internal citation and quotation omitted]." The Catania Court found that no violation of grand jury secrecy had occurred when materials developed during an FBI investigation were disclosed to a district attorney even though the FBI's investigation paralleled a grand jury investigation into the same conduct. "The information developed by the FBI, although perhaps developed with an eye toward ultimate use in a grand jury proceeding, exists apart from and was developed independently of grand Jury processes." Catania, 682 F.2d at 64.
Other Circuits, including the Second Circuit, have followed the Catania approach in distinguishing between protected and unprotected material. In Eastern Air Lines, 923 F.2d at 244, the Second Circuit held that information developed in an investigation independently of a grand jury could be disclosed even though the information might later be presented to a grand jury. Cf. Doe No. 4, 103 F.3d at 238. Similarly, the Tenth Circuit held in Anaya v. United States, 8 15 F.2d 1373, 1379-80 (10`11 Cir. 1987):
When documents or other material will not reveal what actually has transpired before a grand jury, their disclosure is not an invasion of the protective secrecy of its proceedings, nor is it an interference with the grand jury as a principal tool of criminal accusation.
See also In re Grand Jury Subpoena (United States v. Under Seal), 920 F.2d 235, 242-43 (4th Cir. 1990); Larson v. United States, 833 F.2d 758, 759 (8th Cir. 1987), cert. denied, 486 U.S. 1008 (1988).
In the cases relied upon by the Government, the courts found that allowing access to collateral proceedings and material would disclose matters occurring before a grand jury. In Doe No. 4, 103 F.3d at 239, the Second Circuit found that a hearing on potentially illegal surveillance activities might collaterally reveal the "naines of other witnesses and targets of the grand jury investigation." In Newark Morning Ledger, 260 F.3d at 224, the Third Circuit said an inquiry into whether grand jury material had been improperly disclosed could not be conducted without disclosing what material had in fact been presented to the grand jury. Likewise, in Smith, 123 F.3d at 151, the court's hearing on whether a prosecutor had disclosed grand jury material was closed because the government needed to reveal information about the grand jury to mount its defense.
The facts presented in those cases are dramatically different from the facts here. First, as Mr. Higazy's lawyer states in his letter of July 18, 2002 to the Court, "this case has never actually been [the] subject matter of any grand jury proceedings." Moreover, the issue presented here -- the circumstances under which federal agents were able to obtain a confession from an individual with no connections to any criminal act or conspiracy -- does not present the problems encountered in Doe No. 4, Newark Morning Ledger, and Smith, where the evidence to be presented in the collateral proceeding was intertwined with matters actually before the grand jury. The treatment of Mr. Higazy by investigators is separable -- logically, legally, and factually -- from any grand jury proceeding.
Significantly, Smith and Doe No. 4 acknowledge that cases involving allegations of governmental misconduct are precisely the kind of cases where the right to access should attach, but for the grand jury concern. "[W]e agree with the newspapers that there is a significant public interest in gaining access to proceedings that investigate allegations of government misconduct." Smith, 123 F.3d at 150. Likewise, in Doe No. 4, 103 F.3d at 242, the Second Circuit said: "We believe that the presence of the press in a hearing on a motion to disclose electronic surveillance often can play a significant positive role for society and the legal system for society and the legal system.... [P]ublic scrutiny of the legal process ... serves as a check on potential governmental abuse in both the fact-finding and trial stages of a case." Here, unlike those cases, there is no grand jury secrecy to prevent the right of access from attaching.
Where the qualified right of access attaches, public access call be denied only where the court's findings meet the four-part test derived from Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 8-10 (1986). United States v. Doe, 63 F.3d 121, 128 (2d Cir. 1995). As set forth in Doe, 63 F.3d at 128, the district Court must: (1) "determine, in specific findings made on the record, if there is a substantial probability of prejudice to a compelling interest", (2) if a substantial probability of prejudice to a compelling interest is found, consider reasonable alternatives to closure" (3) if reasonable alternatives to closure are not available, determine whether the prejudice to the compelling interest overrides the qualified First Aniendinent right; and (4) if closure is warranted, devise a closure order that is narrowly tailored to its purposes.
Because grand jury secrecy is not implicated here, there is no compelling interest to support the Government's efforts to keep the public from knowing what happened to Mr. Higazy. To the contrary, the First Amendment interests are particularly powerful. This is the kind of case that shakes the public's confidence in the criminal justice system. Access assures the public that questions entailing governmental conduct are thoroughly and aggressively investigated and that, if wrongdoing is found, those responsible are made accountable.
We appreciate the Court's consideration of this matter.
Respectfully submitted,
[Signature]
David E. McCraw (DM7708)
cc: Edward C. O'Callahan, AUSA (by hand)
Robert S. Dunn, Esq. (by facsimile and first class mail)
29331
[By hand] Redacted and Unsealed
U.S. Department of JusticeUnited States Attorney
Southern District of New York
The Silvio J. Moll Building
One Saint Andrew's Plaza
New York, New York 10007
August 1, 2002
TO BE FILED UNDER SEAL
BY HAND
The Honorable Jed S. Rakoff
United States District Judge
Southern District of New York
United States Courthouse
500 Pearl Street
Room 1340
New York, New York 10007
Re: Material Witness Abdallah Higazy
01 M 1750-38
Dear Judge Rakoff:
The Government writes in response to the July 26, 2002 letter from The New York Times ("The Times"), in which The Times argues that this Court should unseal the record of the "confession inquiry" in the above-referenced proceeding. Because a complete response to The Times' letter requires reference to the sealed matters pending before the Court, the Government does not feel that it can adequately counter The Times' arguments in an unsealed letter. Accordingly, the Government has provided the Court and The Times with a separate letter addressing generally some of the arguments raised by The Times, and is filing this letter under seal, with a copy to Higazy's counsel, to provide a fuller explanation of the reasons why continued sealing is required under the circumstances.
The Times rests its argument in support of unsealing the record on its narrow interpretation of what the courts have considered to be "collateral proceedings that 'affect' or 'relate to, grand jury proceedings." Relying principally on the Third Circuit holding in In re Grand Jury Matter (Catania), 682 F.2d 61, 63 2d Cir. 1982), The Times argues that courts have answered the question narrowly by interpreting Rule 6(e)'s secrecy provisions as covering "only the essence of what takes place in the grand jury room." (Times Letter at 2 (citing In re Grand Jury Matter (Catania), 682 F.3d at 63). According to The Times, the matters that are the subject of this Court's inquiry (of which The Times presumably should not be fully aware since the proceeding is still under seal) do not implicate grand jury secrecy at all because they are not "intertwined with," and are "separable" from, matters occurring before the grand jury. (Times Letter at 3). But The Times's view of what matters relate to, or are intertwined with, the grand jury is simply too narrow, both as matter of law and on facts presented here.
In In re Grand Jury Subpoena (Doe No. 4), 103 F.3d 234 (2d Cir. 1996) ("Doe No. 4"), the Second Circuit found that "a proceeding is related to or affects a grand jury investigation [and falls within the secrecy provisions of Fed. R. Crim. P. 6(e)(5)] if it would reveal matters actually or potentially occurring before the grand jury." It thus held that a hearing challenging the propriety of electronic surveillance should be sealed until the grand jury investigation was completed, because the hearing posed "a significant risk of disclosing information which has occurred or which may occur before the grand jury," including "the names of other witnesses and targets of the grand jury investigation."' Id. at 238-39. Similarly, in The Times Mirror Company v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989), the Ninth Circuit held that "the First Amendment does not establish a qualified right of access to search warrant proceedings and materials while a preindictment investigation is still ongoing." The Court noted that "[i]f proceedings before and related to evidence presented to a grand jury can be kept secret, a fortiori, matters relating to a criminal investigation leading to the development of evidence to be presented to a grand jury may also be kept secret." Id. at 1215-16 (quotations and citations omitted).
In each of these situations, the courts recognized that the concerns underlying disclosure of grand jury information that have resulted in the universal recognition of the need for grand jury secrecy -- such as (a) the need to "prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at trial of those indicted by it," Doe No. 4, 103 F.3d at 237 (quoting United States v. Moten, 582 F.2d 654, 662 (2d Cir. 1978); (b) the danger that "persons identified as being under suspicion of criminal activity might destroy evidence, coordinate their stories before testifying, or even flee the jurisdiction," Times Mirror, 873 F.2d at 1215; (c) the fact that "if preindictment proceedings were made pubiic, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they would testify would be aware of that testimony," Times Mirror, 873 F.2d at 1215 (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 219 (1979); and (d) the danger that an open process would expose "persons who are accused but exonerated by the grand jury . . . to public ridicule," Times Mirror, 873 F.2d at 1216 (quoting Douglas Oil, 441 U.S. at 219) -- are implicated by disclosure of matters that are either preliminary to, or intertwined with, the grand jury proceedings, even if the actual grand jury proceedings themselves were not disclosed. Indeed, in Doe No. 4, the Court expressly rejected the press's argument that proceedings related to a grand jury investigation "should be closed only if the government can show a specific risk of disclosure of actual matters occurring before the grand jury" as interpreting Fed. R. Crim. P. 6(e)(5) and (6) "too narrowly." Doe No. 4, 103 F.3d at 240.
[20 lines redacted] In response to the Court's request for information relating to the Higazy matter, the Government has disclosed to the Court numerous facts relating to Higazy's confession, including information relating to the Higazy matter, the Government has disclosed to the Court numerous facts relating to Higazy's confession, including certain statements by the FBI agent who took the confession. [16 lines redacted]
That one article specifically referring to the sealed inquiry being conducted by this Court appeared in The Times on June 29, 2002 is not a sufficient basis upon which to conclude that the matters before the Court are already in the public domain, thereby supporting further disclosure. In United States v. Smith, 123 F.3d 140 (3d Cir. 1997), the Third Circuit held that even though many newspapers had already published portions of a sentencing memorandum which gontained information obtained during a grand jury investigation and which had been inappropriately disclosed by the prosecutor, the Court was not powerless to attempt to limit further dissemination of the materials. The Court held, "it is clear to us that a court is simply not powerless, in the face of an unlawful disclosure of grand jury secrets, to prevent all further disclosures by the Government of those same grand jury secrets. In other words, even if the grand jury secrets are publicly discloed, they may still be entitled to at least some protection from disclosure." Id. at 154. See, also In Re North, 16 F.3d 1234, 1245 (D.C.Cir. 1994) ("Rule 6(e) does not create a type of secrecy which is waived once public disclosure occurs," however, when information is sufficiently widely-known . . . it has lost its character as Rule 6(e) material"); United States v. Cojab, 996 F.2d 1404 (2d Cir. 1993)(affirming district court's sealing of pretrial hearing even after over twenty news articles related to the defendant had appeared in local papers during period surrounding trial). The Court should not be complicit in what seemingly was an unauthorized disclosure of information regarding sealed matters to The Times, by further unsealing the record to allow for widespread, premature distribution of even further details of the proceedIngs before the Court.
In its letter, The Times cites several cases that it claims uphold its argument that information developed in the course of an investigation independent of the grand jury that does not directly implicate matters that took place inside the grand jury room can be disclosed without violating the dictates of Rule 6(e). However, each of these cases involved an investigation that had either progressed to a stage where disclosure would not undermine the investigation or where the investigation had already been concluded. For example, in In re Grand Jury Matter (Catania), the Third Circuit held that a U.S. Attorney's Office did not violate Rule 6 (e) when they turned over to a District Attorney's office materials that had been developed in the federal investigation after such time as the federal grand jury investigation was concluded. Id. at 62. In United States v. Eastern Airlines, 923 F.2d 241 (2d Cir. 1991), the Second Circuit found that there was no violation of Rule 6(e) in the unsealing of an agent's affidavit in support of a search warrant that was filed after an indictment had already been returned and unsealed against Eastern. Id. at 243. The Court found that much of the information contained in the affidavit was already made public when the indictment was unsealed, and the additional information contained statements from confidential informants who had not testified before the grand jury that had returned the indictment and which were not obtained through the use of grand jury subpoenas from that grand jury. Id. at 244. The Court held that since the information contained in the affidavit did not implicate matters that had occurred before the already concluded grand jury, and since the Government did not seek to keep the affidavit under seal, there was no reason under Rule 6(e) to continue to seal the affidavit. Id. at 244-45.
[By hand] Proposed redaction not approved JSR [for the following sentence] Indeed, an important theme running through the cases cited by The Times and the Government is the, deference accorded to the effect that premature disclosure would have on the Government or grand jury investigation. For example, in Times Mirror, the Court noted that it had "necessarily been highly deferential to the government's determination that a given investigation requires secrecy and that warrant materials be kept under seal." 873 F.2d at 1214. Similarly, in Eastern Airlines, in deciding that disclosure of a search warrant affidavit did not violate Rule G(e), the Court highlighted the importance of the fact that "the government has taken the position that the confidentiality of the [search warrant) affidavit, which was essential until the search warrant was executed, is no lonqer needed." 923 F.2d at 245. [5 lines redacted]
Finally, even if the First Amendment qualified right of access attaches to these proceedings, it may be overcome "by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Doe 4, 103 F.3d at 242. Certainly, as noted above, there are overriding investigatory reasons for maintaining this matter under seal. Further, as the Government has previously argued, the rights of uncharged third parties would be infringed by premature public disclosure of this matter. As has been described in the context of Freedom of Information Act requests, even where the individual is a public figure, release of the fact that an individual has been investigated "represents a severe intrusion on [his or her] privacy interests" that should not ordinarily be "overridden by a general public curiosity." Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 866 (D.C. Cir. 1981).
Contrary to the assertions of Robert Dunn, Esq., in his July 29, 2002 letter to the Court, the appropriate inquiry here is not whether he or his client wish to unseal the record before the Court, [11 lines redacted]
Conclusion
For all the foregoing reasons, the record in this case should remain sealed. If the Court decides that it is inclined to grant an order unsealing any part'of the record in this case, the Government respectfully requests that the Court stay that order for a period of ten days to enable the Government the oppoftunity to appeal such an order.
Respectfully submitted,JAMES B. COMEY
United States AttorneyBy: [Signature]
DAVID N. KELLEY
Deputy United States Attorney
Telephone: (212) 637-1025
cc: Robert Dunn, Esq. (by fax)