EFTA00017109.pdf

(In open court)
THE COURT: All right. So the first thing that I
think we should address, sounds like it might be a brief
conversation, is the Curcio issue I had alerted the government
that there is -- a Curcio issue has arisen. I had appointed
Ms. Sternheim to be Curcio counsel. She's here.
MS. STERNHEIM: Yes.
THE COURT: But my understanding -- Ms. Sternheim,
you'll let me know if I'm wrong about this -- that we're not
yet ready to address all the issues. I know you've been
working diligently on it, but we're not quite done; is that
right?
MS. STERNHEIM: That is correct, Judge. And I can
contact the parties and your Honor as to a schedule if that is
helpful, but I do not have that in place.
THE COURT: Okay. That's fine. That sounds like a
good suggestion, and we can go from there. So I'll thank you
again for taking on this assignment. I thank you for being
here today and for the update.
The next issue, I think it makes sense to address, is
this question of sealing the correspondence with regard to
prison conditions, prison designation and then I think we have
to resolve the issue of Mr. Tartaglione's housing. So I've
read all the letters.
I don't know, Ms. [REDACTED] if you want to add anything.

MS. [REDACTED] No, your Honor. I have nothing to add.
We'll rest on our papers.
THE COURT: Okay.
And I take it that counsel for Mr. Tartaglione remain
agnostic on this issue; is that right?
MR. BARKET: Yes.
THE COURT: Okay. All right. So what we're talking
about here is the government's request to seal letters that
have been docketed. There have been redacted versions filed,
but we're talking about Docket Numbers 150 and 153.
And the background of this is that back on
August 21st there was a conference where we discussed, among
other things, issues related to Mr. Tartaglione's housing in
the MCC, and what I had asked the government to do is inquire
about options for housing Mr. Tartaglione at either the MCC or
MDC because those are the only two Bureau of Prisons facilities
in the New York metropolitan area. Because it turns out that
the other facilities, whether they were in Nassau County or
here in Westchester County or in other counties, those are not
federal facilities and those facilities either didn't have
contracts with the Southern District Marshals, or otherwise had
advised that they were not going to house Mr. Tartaglione. So
the particular question was whether or not MDC would be willing
to take Mr. Tartaglione back, and we had had a pretty fulsome
discussion about the issues that had led to Mr. Tartaglione's
transfer from MDC to MCC.
The government followed up, as I had asked it to,
with a letter dated August 23rd, and that's the letter, the
first letter the government ask be placed under seal that
addressed the issue about housing Mr. Tartaglione at MDC and
MCC, and the government, as I said, asked that the letter be
sealed. The Court, on August 26th, temporarily filed it under
seal, but then asked the government to further explain its
reasons for permanently sealing that letter.
On August 28th, counsel for Mr. Tartaglione filed a
letter which addressed the merits of the government's housing
options as presented in the August 23rd letter and counsel had
asked that that letter be filed under seal because it was
responsive to the government's letter which had been filed
under seal.
On August 29th, the government filed a letter arguing
that its August 23rd letter or at least a portion of it should
be filed under seal because it addressed Bureau of Prisons'
reasoning for either why it was that certain things had been
considered and certain steps that the Bureau of Prisons thought
would be necessary to house Mr. Tartaglione, and also the
government filed a letter stating that the August 28th letter
should remain under seal, that is, counsel for Mr. Tartaglione.
On September 5th, the New York Post and the New York
Daily News filed a letter arguing for the unsealing of the
letters. They were joined by the New York Times on
September 10th.
The government, as the Court had previously asked,
had submitted a response to I guess the first letter from The
Post and the Daily News explaining why and really reiterating
its argument for sealing and that's when counsel for
Mr. Tartaglione announced their agnosticism on the issue.
So the question actually has a couple of layers to
it. So the first question is whether or not the government's
letters are considered judicial documents. And a judicial
document is an item that is, "relevant to the performance of
the judicial function and useful in the judicial process," and
that's from the Second Circuit's decision in Bernstein v
Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139,
quoting from an earlier Second Circuit's decision in a case
called Lugosch v Pyramid Company of Onondaga, 435 F.3d 110,
119. The mere filing, however, of anything, whether it's some
kind of a document or a letter with the court by itself doesn't
render such a document a judicial document. That's from the
Second Circuit's decision in US versus Amodeo, 44 F.3d 141,
145. But if an item is a judicial document, then the public
has a presumptive right of access to it under both the common
law and the First Amendment. Also from Amodeo. The purpose of
this right is to ensure that courts are held accountable and
that the public has "confidence in the administration of
justice." Also from Amodeo.
Under the common law analysis, the Court is to
determine the weight of the presumption of access. "Generally,
the information will fall somewhere on a continuum from matters
that directly affect an adjudication to matters that come
within the court's purview solely to ensure their irrelevance."
That's from the second Amodeo case, 731 F.3d at 1049.
"Finally, after determining the weight of the
presumption of access, the Court must 'balance competing
considerations against it.'" Lugosch at page 120.
Competing considerations include both "the danger of
impairing law enforcement or judicial efficiency," or "the
privacy of interests of those resisting disclosure."
The first Amendment analysis requires two different
approaches. The first considers "experience and logic," that
is, "whether the documents have historically been open to the
press and general public" and "whether public access plays a
significant and positive role in the function of the particular
process in question." That's from Bernstein at page 141.
The second approach which applies when the judicial
proceedings themselves are covered by the First Amendment
considers whether the documents are "derived from or a
necessary corollary of the capacity to attend the relevant
proceedings." That's from Lugosch at 120.
Under either approach, the moving party has to
demonstrate that sealing is "essential to preserve higher
values and is narrowly tailored to serve that interest."
Bernstein at 134. Further, the Court has to make "specific,
on-the-record findings...demonstrating that closure is
essential to preserve higher values and is narrowly tailored to
serve that interest." Lugosch at 120.
So the Government's argument is that the August 23rd
letter, in the first instance, is that the August 23rd letter
doesn't qualify as a judicial document because it has no
bearing on the charges contained in the pending indictment" and
"the location where [Mr. Tartaglione] is to be detained pending
trial is ancillary to this criminal prosecution." So in the
Government's view, its August 23rd letter is status report
about the BOP's "internal deliberations."
The government argues in the alternative that even if
it is a judicial document, that redacting certain information,
including most specifically BOP's explanation of
Mr. Tartaglione's housing options, is appropriate. And that's
because, according to the government "the BOP maintains that
the public filing of those paragraphs would jeopardize its law
enforcement functions and inappropriately hamper its interim
deliberative processes." I guess the BOP is arguing that any
presumption of access is overcome because the letter also, to
the extent it's even a judicial document, it still addresses
what BOP considers an ancillary matter. And so a public filing
would "hinder the internal deliberative process of the MDC and
thereby jeopardies the BOP's ability to carry out its function
of securing pretrial defendants," because the letter provides
details that were "taken into account to make an appropriate
housing decision for a defendant charged with multiple
murders." Also, the assertion is the public filing of the
document, the letter, would "risk circumvention of the law"
because "the public revelation of internal deliberations" would
"enable all inmates to alter their behavior and manipulate
their housing assignments to cause harm to others or engage in
illicit behavior."
The aforementioned media organizations argue that the
letter, the letter of August 23rd, is a judicial document
because it was submitted to the Court for purposes seeking or
opposing an adjudication, and also that there's significant
public interest in the conditions in BOP facilities, and
finally the conditions of Mr. Tartaglione's confinement are
relative to his case and his rights.
So addressing the threshold question about whether
the August 23rd and August 28th letters are judicial documents,
the Court concludes that they are. While the letters
themselves may not directly address the actual charges filed
against Mr. Tartaglione, that is not the governing standard.
The correct standard I've already mentioned is broader than
that, and therefore, in my view, the letters are "relevant to
the performance of a judicial function and useful in a judicial
process." First of all, the letters were filed in response to
a court order. So calling them a nonjudicial document seems
anomalous as they were directed as part of the judiciary's
overseeing of this case.
Second, the letter is related to an issue, that is,
Mr. Tartaglione's conditions of confinement, that could
substantially impact his ability to mount a defense and thus
are directly related to his trial rights, his constitutional
rights, among other things, to defend himself.
Indeed, the housing issue has been repeatedly raised
by counsel for Mr. Tartaglione precisely on that ground, and I
think understandably so, and so the relevance of the letters
follows from the relevance of Mr. Tartaglione's conditions, and
of course it's not irrelevant that this is a capital case.
The proof of that is that the issues that are
addressed in the letters have been addressed here in open court
really from the very first time that these issues have been
raised.
So put it in the language of the Second Circuit, the
specific contents of the letters are "relevant to the nature of
the proceeding," that is, how Mr. Tartaglione is being housed
in connection with his ability to defend himself in this
capital case. And I think it certainly is the case that
access, public access to the letters "would materially assist
in the public's understanding of these housing issues before
the Court in evaluating the fairness and integrity of the
Court's proceedings." That's from Second Circuit's decision in
Newsday LLC County of Nassau, 730 F.3d 156, 166-67. And of
course all this, in the Court's view, is consistent with
holding those of us in the criminal justice system accountable
for what it is we do.
So given the letters are judicial documents, the
Court proceeds to consider the weight of the presumption of
access and whether any competing interest overcomes the weight
of access such that portions of the letters may be redacted.
There is, I think, at the outset a waiver issue,
because a lot of even the deliberative process of the MDC has
been discussed before. So, for example, some of the
disciplinary issues that Mr. Tartaglione had they have been
discussed. There's been a great deal of discussion involving
conversation with counsel for MCC all the various things MCC
has had 20 do to accommodate Mr. Tartaglione's concerns, and
there's been a great deal of discussion, for example, about
conversations for Mr. Tartaglione and MCC officials and counsel
for the government and MCC officials, but in any event, the
weight of the presumptive right of access here is heavy. This
is a capital case. Given the obvious stakes involved, the
public has a deep interest in ensuring judicial accountability
in all aspects of the case, including adjudicating any
grievances related to pretrial confinement that might affect
Mr. Tartaglione's ability to defend himself in the case. Of
course that goes to the very fairness of the proceedings. Also
the public has an interest in the conditions of confinement in
BOP facilities in general. Anything that would suggest to the
contrary would be Kafkaesque. And Mr. Tartaglione's conditions
in particular, and in ensuring that BOP's decision-making on
inmate housing is reasonable seems to me precisely the kind of
thing that should be accessible to the public. So I think
BOP's argument in that regard falters.
To the extent BOP is arguing that its deliberative
process in this case satisfies the sort of compelling interest
that could justify sealing the portions of the letters that it
wants sealed, it bears noting that the parties seeking sealing
that wants to overcome this presumption has to show that
sealing will further a compelling interest, such as a law
enforcement concern, a national security concern, a public
safety concern. Obviously privilege is certainly a valid
concern, as are privacy interests. And the burden, of course,
is on BOP to make that showing. But I don't think BOP has done
that here. The deliberative processes that BOP is talking
about are not protocols, for example, that it never publicizes
as to how it is that it might secure inmates at a facility.
That would be different. That could very well be a situation
where disclosure of how BOP addresses specific security
concerns could alert people to then circumvent those concerns
and put not only BOP officials at risk but also other inmates
at risk. That's not what we're talking about here. We're
talking about the deliberative process that BOP says it engaged
in in evaluating where to house Mr. Tartaglione and how in
particular it would do so at MDC and MCC.
So, for example, to the extent that Bureau of Prisons
has some concerns about housing Mr. Tartaglione in the general
housing and explains why, a lot of the things that letters that
the BOP had the government put in its letter are things that
people know. So the fact that Mr. Tartaglione is facing the
death penalty, the fact that he used to be in law enforcement,
the fact that there's been this whole public scrutiny over what
happened with Mr. Epstein and Mr. Tartaglione being involved in
that, these are things that are commonly known. So to the
extent that the BOP took factors that were commonly known into
its so-called deliberative process in evaluating how it is that
he could be housed at the two facilities, including, by the
way, the fact that there have been prior disciplinary issues,
that's also been publically discussed here in Court, and it's
been the subject of letters. So the cellphone thing, for
example, and other prior disciplinary issues, that's all been
publicly discussed, and to the extent BOP took all those things
into consideration, I think it's hard for BOP to argue that
taking into consideration factors that were publicly known
about how it is best to house Mr. Tartaglione is the type of
discussion of security protocols that otherwise aren't public.
So I think it distinguishes between what BOP has done here and
what it maybe does in coming up with very specific protocols,
either as to a particular individual or as to how it is it
houses people generally at its facilities.
So I just don't see how unsealing the letters and
revealing the deliberative process is something that's going to
uniquely publicize certain things that are going to jeopardize
BOP officials or other inmates. For example, to the extent BOP
argues a disclosure could lead to bad behavior, that inmates
could manipulate their housing assignments, I just don't see
that here.
There are certain things about Mr. Tartaglione that
he has no control over. He has no control over the fact
that -- in terms of things he can change. He was a law
enforcement officer. The fact that BOP took that
consideration, I don't see how somebody can manipulate that to
somehow pretend that, for example, they weren't a law
enforcement officer. You can't change your history. So I just
don't understand how that's going to somehow lead to
circumvention of security protocols.
So I just don't think BOP has made the case that the
public disclosure is going to risk harming anybody, and so give
given the BOP'S, in my view, failure to establish a compelling
interest to overcome the presumption of public access, I'm
going to order the letters be unsealed.
If BOP wants to have you go to the Second Circuit,
can you let me know. I mean, I'll wait a day, Ms. [REDACTED] if
they're that concerned, but you'll let me know by the end of
business tomorrow?
MS. COMEY: Yes, your Honor.
the ocurt: Okay, thank you.
All right, any updates from the government?
MS. [REDACTED] Your Honor, we remain in the same place
we were last time, the government is ready for trial. We would
ask the Court to set a trial date.
THE COURT: Okay.
Mr. Barket.
MR. BARKET: Well, I mean, before I get to the trial
date part, we actually have something to say about that today.
THE COURT: Yes.
MR. BARKET: I'm curious about the issue concerning
the telephone which has been stewing for some while.
MS. [REDACTED] The government will not be seeking a
warrant for that phone.
THE COURT: Okay.
MR. BARKET: I guess, less work.
On the issue of the trial date, we have had some
discussions among counsel as to laying out what we think is a
reasonable schedule among us. We've had a preliminary
conversation about it with Mr. Tartaglione. We are still in
the process of kind of finalizing that. So what I'm going to
suggest to the Court is that you allow that process to continue
internally, and that before the next Court date we'll have
completed it, met with the government, proposed it to them and
hopefully gotten their agreement on it and then we can come
back with a joint scheduling order all the way through to the
trial.
(End of excerpt)