United States District Court, D. Columbia.
For KEVIN A. RING, Defendant: Andrew Todd Wise, Richard A. Hibey, LEAD ATTORNEYS, Matthew Thomas Reinhard, Timothy Patrick O'Toole, MILLER & CHEVALIER, CHARTERED, Washington, DC.
For FAMILIES AGAINST MANDATORY MINIMUMS AND NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS, Amicus: Paul F. Enzinna, LEAD ATTORNEY, BROWN RUDNICK, LLP, Washington, DC.
For USA, Plaintiff: M. Kendall Day, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Public Integrity Section, Washington, DC; Michael Ferrara, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF NEW, New York, NY; Nathaniel B. Edmonds, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Criminal Division, Fraud Section, Washington, DC; Peter Koski, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC; William M. Welch, II, LEAD ATTORNEY, U.S. Department of Justice, Criminal Division, Washington, DC.
ELLEN SEGAL HUVELLE, United States District Judge.
Defendant Kevin A. Ring has moved to unseal portions of a government PowerPoint presentation provided to him during a preindictment reverse proffer session on February 15, 2008. (Def.'s Mot. to Unseal, Dec. 23, 2013 [ECF No. 314] (" Mot." ).) Defendant moves to unseal the document so that the public can obtain information about prosecutors' charging decisions and the plea bargaining process. For the reasons stated below, the Court denies defendant's motion.
The material facts and statutory framework relevant to this case were described in detail in the Court's prior opinion. United States v. Ring, 811 F.Supp.2d 359, 361-62 (D.D.C. 2011). Therefore, an abbreviated version will suffice. On September 5, 2008, a grand jury indicted Kevin Ring, a lobbyist who worked with Jack Abramoff, for payment of an illegal gratuity (Count II), honest services wire fraud (Counts III, IV, V, VI, VII, and VIII), and conspiracy (Count I). A jury trial commenced on September 1, 2009, resulting in
a hung jury on all counts. A second trial commenced on October 18, 2010. Following two weeks of trial and four days of deliberations, the jury returned a verdict of guilty on Counts I, II, III, VII, and VIII and a verdict of not guilty on Counts IV, V, and VI. Thereafter, the Court sentenced defendant to 20 months in prison. The D.C. Circuit affirmed the convictions. United States v. Kevin A. Ring, 706 F.3d 460, 403 U.S. App.D.C. 410 (D.C. Cir. 2013), cert. denied, 134 S.Ct. 175, 187 L.Ed.2d 43 (Oct. 7, 2013).
During the course of a preindictment reverse proffer session on February 15, 2008, defendant received a PowerPoint presentation provided by the government. (Mot. at 2.) The document was produced under the restrictions of various protective orders issued by the Court. (Order, Oct. 6, 2008 [ECF No. 19]; Order, Feb. 26, 2009 [ECF No. 40]; Order, May 12, 2009 [ECF No. 51].) The first of which provided that defendant " shall use discovery materials and their contents solely for the preparation, trial, and direct appeal of this matter and for no other purpose whatsoever." (Order, Oct. 6, 2008 [ECF No. 19] at 1.)
Defendant now moves to unseal parts of the PowerPoint presentation. Defendant seeks the unsealing " so that relevant portions of the PowerPoint can be provided to public interest groups, legal academics, and others in order to educate the public about how pleas and charging decisions can work and how prosecutors' actions can affect the criminal justice process." (Mot. at 1.) Defendant does not dispute that unsealing would contravene the terms of the protective orders issued by the Court. Rather, defendant contends that the presumption in favor of public access to judicial proceedings applies to the PowerPoint presentation and that unsealing is proper because the public's interest in this document outweighs the government's interest in keeping it sealed. ( See Mot. at 1-3.) The government argues that defendant's motion should be denied for three reasons. First, because the PowerPoint presentation was never filed with the Court, it is not a judicial record subject to a presumptive right of public access to judicial proceedings. Second, even if a right of access attached to this document, defendant lacks standing to assert this right on behalf of others. Third, unsealing would defeat the purpose of protective orders and result in an " incomplete and unbalanced view of the issue on which [defendant] hopes to 'educate the public.'" (U.S. Resp. to Mot. to Unseal, Jan. 6, 2014 [ECF No. 315] (" Resp." ) at 2.)
A district court has authority to seal and unseal documents as part of its " supervisory power over its own records and files." Nixon v. Warner Communications, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). A court exercises this authority on a discretionary basis " in light of the relevant facts and circumstances of the particular case." Id. at 599. In considering a request to unseal, a court weighs a party's ...