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In re Petition of Nichter

United States District Court, District Circuit

May 13, 2013



ROYCE C. LAMBERTH, Chief Judge United States District Court

Now before the Court is the petitioner's Motion [1] to unseal records associated with United States v. Liddy, District Court docket number 1827-72. Upon consideration of the Motion [1], the government's opposition [10], petitioner's reply [11], the government's ex parte Surreply [notice of submission at docket entry 14], [1] the applicable law and for the reasons set forth below, the petition will be granted in part and denied in part.


Petitioner Luke Nichter, a professor at Texas A&M University, submitted a letter asking the Court to unseal certain records associated with the Watergate scandal. Prof. Nichter would like to determine "why the Watergate break-in occurred, who ordered it, and what the burglars were looking for, " and he believes the Court's files would resolve this historical mystery. Nichter Ltr. 1, Sep. 6, 2010, ECF No. 1.[2] He originally sought only documents at issue in United States v. Liddy, 354 F.Supp. 208 (D.D.C. 1972), specifically records disclosing what Alfred C. Baldwin, III, the individual tasked with monitoring the wiretap of the Democratic National Committee, overheard. See Nichter Ltr. 1, May 1, 2009, ECF No. 1. Later, Prof. Nichter requested that the Court to unseal the entire file in United States v. Liddy, criminal docket number 1827-72.[3] Nichter Email to Jeremy Baron, Nov. 22, 2011, EFC No. 1.

The Department of Justice filed a Response to Prof. Nichter's petition agreeing that certain files should be unsealed but objecting to the unsealing of documents in three specific categories: (1) presentence reports and other documents implicating the privacy of living individuals; (2) documents reflecting the content of illegally obtained wiretaps; and (3) grand jury information. Prof. Nichter filed a Reply asking the Court to (a) immediately unseal all uncontested materials and order the National Archives and Records Administration ("NARA") to expeditiously review and release those records; to (b) hold in abeyance ruling on those documents whose unsealing and release the government objected to; and to (c) order an investigation into the extent of the breach of grand jury secrecy by Washington Post reporters during the Watergate era. Nichter Reply 1-2, ECF No. 11.

On November 2, 2012, the undersigned Judge granted in part and denied in part Prof. Nichter's request. In re Petition of Luke Nichter, Misc. No. 12-74 (RCL), 2012 WL 5382733, at *1 (D.D.C. Nov. 2, 2012). The Court's order unsealed all District Court records that the government did not object to unsealing. Id. The Court also ordered the Department of Justice to submit, ex parte and under seal, copies of all District Court records it believed should remain sealed. Prof. Nichter's request that the Court order an investigation into the breach of grand jury secrecy during the Watergate era was denied. Id.

In accordance with that order, on November 30, 2012, the NARA released and made available online approximately 950 pages of documents. On December 10, 2012, the Justice Department submitted the requested surreply along with copies of documents it believes should remain under seal. The government argues that 15 sets of documents, marked as exhibits "A" thru "O, " should remain sealed—in whole or in part—because they disclose private, personal information, would constitute a breach of grand jury secrecy, or would reveal information obtained by an illegal wiretap.


A. Presentence Investigative Reports and Other Documents Containing Personal Information of Living Individuals

After a defendant has pleaded guilty or been convicted, the Probation Office conducts a presentence investigation and creates a Presentence Investigative Report ("PSR")[4] to aid the sentencing court in carrying out its function. See Fed. R. Crim. P. 32(c)-(d). The PSR must contain, inter alia, an overview of the defendant's personal history and characteristics, including any prior criminal record, the defendant's financial background, and family or personal circumstances that might have affected the defendant's behavior. Id. 32(d)(2). In practice, PSRs generally contain a summary of the facts and circumstances giving rise to the offense, an assessment of the defendant's mental and physical health, and other background information including the defendant's educational attainment, military service record, work history, history of substance abuse, and a statement regarding the defendant's cooperation with authorities and acceptance of responsibility. However, the PSR may not contain any confidential sources of information, any information that, if disclosed, might result in physical or other harm to the defendant or others, or any diagnoses that, if disclosed, might seriously disrupt a rehabilitation program. Id. at 32(d)(3).

PSRs are presumptively confidential and the Court is only required to disclose them to the defendant, his attorney, and the government.[5] Id. 32(e)(2). However, PSRs are court documents, and the district court may release them at its discretion. See, e.g., United States v. Gomez, 323 F.3d 1305, 1307-08 (11th Cir. 2003) (per curiam). Because PSRs contain sensitive information and because they do not have to conform to the rules of evidence and may contain errors, [6] courts are cautious about disclosing them to third parties. They are generally disclosed only under limited circumstances, typically when the third-party shows a special need. See U.S. Dep't of Justice v. Julian, 486 U.S. 1, 12 (1988). This reluctance is rooted in common sense and policy—courts fear that making PSRs publicly available may have a chilling effect on individuals whose information is contained in the reports, that errors and information about uncharged crimes contained in PSRs may needlessly harm a defendant's reputation, that PSRs may contain information gathered by the grand jury that is otherwise secret, and that PSRs might include facts obtained from confidential informants. United States v. Huckaby, 43 F.3d 135, 138 (5th Cir. 1995); see also United States v. Iqbal, 684 F.3d 507, 510 (5th Cir. 2012) (discussing policy considerations).

The D.C. Circuit, in an unpublished opinion, adopted a "compelling need" balancing test to determine when third-party release is appropriate. See United States v. Colwell, 304 Fed.App'x 885, 886 (D.C. Cir. 2008) (citing United States v. Charmer Indus., Inc., 711 F.2d 1164, 1175 (2d Cir. 1983)); see also Huckaby, 43 F.3d at 138-39 (adopting the compelling need test and noting that the district court had "clearly balanced the desirability of publication over the need for confidentiality"); United States v. Corbitt, 879 F.2d 224, 239 (7th Cir. 1989) (holding that PSRs should only be released where a "compelling particularlized need for disclosure is shown"). This test requires the party seeking disclosure to show a "compelling need for disclosure to meet the ends of justice" that outweighs the privacy interests of the defendant and the policy interests of the court. Colwell, 304 Fed.App'x at 886.

The Fifth Circuit in Huckaby determined that clarifying the public record justified releasing a defendant's PSR. Huckaby, a state district judge in Louisiana, came under investigation for tax evasion. Huckaby, 43 F.3d at 136. His case received considerable local publicity and the community was deeply divided over whether he should have been prosecuted at all. Id. at 137. Some in the community, including civic leaders, felt that Huckaby was being prosecuted because he was African-American. See Id . After reading a portion of the PSR into the record, Huckaby's sentencing judge concluded: "Because of the widespread misconceptions about this case, I'm going to take the unusual step of filing the presentence report, together with your objections, into the record, for anyone who is interested in the truth." Id. Notably, the PSR included information related to uncharged crimes. Id. at 136 (although Huckaby was only charged with one misdemeanor tax evasion count, his PSR stated that he failed to file federal and state income tax returns for at least twelve years). Calling the district judge's actions "bold" and "extraordinary, " the Fifth Circuit blessed the district court's balancing of the competing interests and noted that the district court acted in the best interest of the community. Id. at 139-40.

In the present case, the government argues that Prof. Nichter "has not demonstrated why disclosure of. . . [the PSRs in Liddy are] required to meet the ends of justice, or provided any other reason why the public interest requires unsealing." Gov't's Resp. 8-10, ECF No. 10. The Court disagrees. Prof. Nichter stated that his interest in the documents emanates from the fact that he is "an ...

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