DOJ-OGR-00010757.jpg

Case 20-20003-BPAJND Document 683 Filed 06/29/22 Page 40 of 5353

serve that interest” under the First Amendment. Bernstein, 814 F.3d at 143–45; see also Press-Enterprise II, 478 U.S. at 13–14.

Defendant’s Motion for New Trial. Parties’ motions, briefs, and accompanying exhibits related to post-trial proceedings have regularly been found to be subject to the constitutional right of access, especially when they involve allegations of jury misconduct. See, e.g., United States v. Simone, 14 F.3d 833, 840 (3d Cir. 1994); United States v. Gonzalez, 927 F. Supp. 768, 782 (D. Del. 1996); see also CBS, Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 765 F.2d 823, 825 (9th Cir. 1985). As with the common law right, the constitutional right guarantees “immediate access where a right of access has been found.” Lugosch, 435 F.3d at 126. “[E]ach passing day may constitute a separate and cognizable infringement of the First Amendment” and “unquestionably constitutes irreparable injury.” Id. (internal citations omitted). For the reasons above, Defendant’s motion should be unsealed immediately.

Juror Questionnaires. Juror questionnaires have also regularly been found to be subject to the First Amendment right of access. See United States v. King, 140 F.3d 76, 80, 84 (2d Cir. 1998); United States v. Simone, 14 F.3d 833, 840 (2d Cir. 1994); United States v. McDade, 929 F. Supp. 815, 817 n.4 (E.D. Pa. 1996); In re Newsday, Inc., 159 A.D.2d 667, 669 (N.Y. App. Div. 1990). As explained above, neither party has proposed on the record that there is any interest of any sort to overcome the presumption. Because the First Amendment’s standards for sealing are even more stringent, the lack of justification for sealing under the common law standard necessarily means that the First Amendment standard has not been met.

It also bears mentioning that the public interest in unsealing these documents is significant. The question immediately before the Court— whether a new trial should be granted to a high-profile defendant in light of statements made by a juror that Defendant alleges are evidence of juror misconduct—is serious and goes to the heart of this Court’s Article III judicial power. The documents bear directly on not only “the manner in which criminal trials are conducted,” the aspect of government of highest concern and importance, Richmond Newspaper, Inc. v. Virginia, 448 U.S. 555, 575 (1980), but also specifically voir dire, a central component of a criminal trial—both “to the adversaries [and] to the criminal justice system,” Press-Enter. Co. v. Superior Ct. of Cal. (“Press-Enterprise I”),

4

DOJ-OGR-00010757