Some federal cases are sealed away from public view
Monday, May 23, 2005
By BRENDAN KIRBY
A lawyer representing a man arrested with millions of
dollars' worth of
methamphetamines in his sport utility vehicle recently filed a motion to
subpoena a witness in federal court in Mobile.
Don't ask who the witness is, though.
It's a secret.
And don't ask why Mobile's federal prosecutors wanted a
judge to give a
break to a pair of Nigerian nationals who pleaded guilty in a bank fraud
case last month.
That's a secret, too.
They are among the thousands of official secrets, large
safeguarded by the U.S. District Court clerk's office in Mobile.
Sometimes, the public never learns a criminal case even exists.
According to the clerk's office, since 1993, 30 criminal
cases have been
sealed entirely -- from indictment through resolution. Eight of those,
involving charges against juveniles, are required by law to be closed. The
rest, according to court officials, have been sealed to protect ongoing
More common is the practice of sealing certain documents
in cases that
otherwise are open to the public. These include papers that might reveal
national or corporate secrets, psychiatric or other medical information,
information that could jeopardize a criminal investigation or personal
Dating to 1991 for civil lawsuits and 1993 for criminal
to federal court officials, the clerk's office has 5,629 "sealed"
documents that are unavailable for public inspection. Closed documents
that pre-date the court's computer system are housed in a pair of locked
filing cabinets and in a vault in the federal courthouse in Mobile.
Although less than 2 percent of all documents filed in federal court still
are sealed, legal experts said far more information is unavailable about
federal cases than those in state courts.
"I always thought of it as ripe for abuse," said Mobile
lawyer Dom Soto,
who nonetheless added that it is appropriate to keep some information
secret. "It seems to be wide open as to what can be done under seal."
Lucy Dalglish, executive director of The Reporters Committee for Freedom
of the Press, said prosecutors generally seek to close cases in drug and
terrorism matters where they want co-defendants to turn on each other.
Allowing defendants to plead guilty behind closed doors might protect them
from retribution, she said.
"There may be some merit to that. However, it's creating a
secret system of justice," Dalglish said. "That means that there are
people sitting in prisons and there is no public track record of how they
got there. I find that appalling."
Federal judges in Mobile said the vast majority of cases
remain open. The closed federal cases represent less than 1 percent of the
3,557 criminal cases filed since 1993. Hidden civil cases are even more
unusual. The clerk's office said five out of 22,970 since 1991 have been
"On very rare occasions, you will have a request by the
government to file
an indictment under seal and keep it under seal even after a defendant has
been arrested," Chief U.S. District Judge Ginny Granade said. "It's so
rare. It's such an exception."
Soto represents Juan Perez-Oliveros in the meth case.
Police in January
pulled over a 2002 Chevrolet Avalanche that they testified was weaving on
Interstate 10 and found 85 pounds of methamphetamines inside.
Perez-Oliveros, who was driving the vehicle, faces federal
along with passenger Juvenal Espinoza.
Soto said attorneys routinely filed subpoena requests
under seal so as not
to tip off the other side. Lawyers like to play their cards close to the
vest until it is time to exchange witness lists, he said.
In the bank fraud case, Adrian Chike Okakpu and Okwudili
pleaded guilty to stealing commercial checks, altering the payee lines,
then recruiting people in the Mobile area to cash the checks.
Assistant U.S. Attorney Michel Nicrosi told Senior U.S.
Charles Butler Jr. that the men have cooperated with investigators and
therefore deserved shorter prison sentences than called for under advisory
sentencing guidelines. Butler allowed her to detail her recommendation
outside of the earshot of courtroom spectators.
Willie James Ellison, a law professor at Samford
School of Law in Birmingham, said the danger of closed proceedings and
sealed documents lies in the fact that the public cannot object to what it
does not know about. He said judges have wide discretion to determine what
is in public view and what is not, especially when neither side challenges
a ruling to keep information out of view.
"That is my concern," he said.
Still, Ellison said, much information could have damaging
released publicly. For instance, civil suits could destroy companies if
proprietary information got out, he said.
"You think Coca-Cola's going to reveal its formula? They
may have to
compare formulas, but they're going to do it in the judge's chambers," he
Soto has fought his own battles with sealed documents in
federal cases. In
1989, he and law partner Arthur Madden represented a Bolivian man who was
brought up on cocaine conspiracy charges.
Soto said two men claiming to be cousins of their client,
contacted them and offered substantial payments to represent him -- but
only if they agreed not to report it. That would have been a crime, Soto
said, since the federal government had paid them a fee to represent the
man as an indigent defendant.
Soto said he and Madden became suspicious when Garcia told
them he did not
have a cousin. He said he was even more suspicious after prosecutors and
the FBI seemed uninterested in the incident.
The lawyers took up the issue with the judge, who revealed
of sealed documents and secret tape recordings. Butler agreed to open the
records, and the lawyers learned the men who had contacted them actually
were an undercover FBI agent and a confidential informant.
Soto said he remains convinced that the entire effort was
attempt against him and his partner. But he said he never would have known
about it if Butler had not opened up the sealed records.
"A lot of this relies on the good faith of the court and
the person that's
making the motions," he said. "It's a whole shadow government out there a
lot of times."
The practice of secret court cases has come under fire
across the country, particularly after the Sept. 11, 2001, terrorist
In one high-profile case, authorities a month after the
attacks detained a
waiter in Florida named Mohamed K. Bellahouel, who had ties to two of the
hijackers and whose student visa had expired. But the federal court in
Miami kept all details about Bellahouel's case secret -- including that it
It only became public, according to news accounts, when
someone in the
clerk's office of the 11th Circuit Court of Appeals in Atlanta
accidentally posted information about the case online and the Miami Daily
Business Review picked up the story. Bellahouel had appealed the district
judge's decision to seal the case.
The court also kept secret nearly all information about
separate attempts to open the case, including his name and the names of
the lawyers involved.
The appeals court reviewed the case and issued a "sealed
judgment" in 2003.
Bellahouel appealed the case to the U.S. Supreme Court,
last year to hear it and refused an attempt by a coalition of media
organizations and public interest groups to join the case.
The justices heavily edited the publicly released version
of the legal
brief submitted to the high court, blanking out entire pages. In an
unprecedented move, the court also allowed the federal government to file
a completely secret response, accord ing to news accounts.
Lawyers and advocates have identified other sealed cases suggesting that
the practice has been used relatively frequently in the Miami-based
federal court, including a case in which drug defendant Nicholas
Bergonzoli was convicted, sentenced and imprisoned last year in total
Dalglish, whose reporters committee fought in court to
open up the
Bellahouel case, said secrecy in court proceedings "conjures images of
people disappearing in Argentina in the 1970s."
In Mobile, federal judges and prosecutors said they can
recall few cases
that have been shut entirely.
"I can only think of one case where significant portions
would be deemed
sealed," said U.S. Attorney David York, who cited ongoing investigations
and the safety of witnesses as the reasons for closing criminal cases to
He said his office asks for information to be withheld
from the public
only to protect an informant or cooperating witness or keep personal
information from becoming public.
Granade and other judges said lawyers must meet a high
removing records from public view, especially in civil suits.
"I can't recall anything in civil cases since I've been a judge that's
been allowed to be sealed, except in cases where there's a parallel
criminal case," she said.
U.S. Magistrate Judge Sonja Bivins said she has denied
requests to seal
documents that merely would be embarrassing to one party or another. She
said she always holds hearings to determine if she will seal information.
"Without seeing the document, without knowing the reasons why it should be
sealed, I'm not going to give my blessing to it," she said.
Different in state court
Ellison, the Samford law professor, said federal criminal
probes often are
wide-ranging, involving multiple suspects and different locations --
sometimes even in other countries. Publicizing an indictment in such cases
could not only hurt the chances of arresting co-conspirators but endanger
people's lives as well, he said.
"Crime is taking on a completely different posture today
as opposed to 40
years ago, when the feds were basically chasing moonshiners," he said.
But Soto said many of those same issues exist in state courts, which do
not close hearings of defendants to protect ongoing investigations.
"If you tried that in state courts, they'd look at you and say, 'Well,
then don't start the prosecution,'" he said.
Added Robert Kendall, the presiding Mobile County Circuit
"Nobody has had the temerity to suggest that to me."
Kendall said state judges have no authority to close
criminal cases. While
sympathizing with the plight of prosecutors wanting to protect ongoing
investigations, he said a citizen's constitutional rights are paramount.
"If they had their druthers, they would try everyone at (the federal
government's detention facility in) Guantanamo Bay rather than in open
court," he said. "It's my belief that every defendant has a constitutional
right to an open trial."
Kendall also took a dim view of withholding information in
civil cases. He
said lawyers must meet a high threshold before he agrees to that.
"It seems to me to be becoming a more and more common practice where
lawyers seek to have files or portions of files closed," he said. "I deny
most of them."
Once the rationale for sealing a document has passed, it
responsibility of the party that requested it to be removed from public
view to ask the judge to unseal it. But judges acknowledged that lawyers
do not always follow through.
"There's no prompt unless the government realized it's
still sealed and
wants it unsealed," said U.S. District Judge William Steele.
Federal courts cannot destroy sealed files or send them to
archiving centers. But the courts have different policies regarding how to
handle documents once they have been sealed. Some, for instance, set a
deadline for opening up a sealed file and then send the document to the
person who asked that it be sealed.
The federal court in Mobile, however, has no such policy.
Unless it adopts
one, court officials acknowledged, closed files will sit in locked drawers
forever -- long after everyone involved in the case is dead.
DOM SOTO'S HOMEPAGE