United States v. Cohen

366 F. Supp. 3d 612
CourtDistrict Court, S.D. Illinois
DecidedFebruary 7, 2019
Docket18cr602
StatusPublished
Cited by6 cases

This text of 366 F. Supp. 3d 612 (United States v. Cohen) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Cohen, 366 F. Supp. 3d 612 (S.D. Ill. 2019).

Opinion

WILLIAM H. PAULEY III, Senior United States District Judge:

Various media organizations seek an order unsealing documents relating to searches conducted by the Federal Bureau of Investigation on April 9, 2018 in connection with a grand jury investigation by the United States Attorney's Office for the Southern District of New York (the "Government") of Defendant Michael Cohen and others. The media organizations assert a right of access to these warrant materials under the common law and the First Amendment to the U.S. Constitution. For the reasons that follow, their applications are granted in part and denied in part.

BACKGROUND

These applications implicate the familiar tension between public access to judicial *618records and the integrity of law enforcement investigations-interests arguably magnified by the intense scrutiny of Cohen's criminal case by the media, the general public, and even the President of the United States. On April 9, 2018, the FBI executed searches of Cohen's residence, hotel room, office, safe deposit box, cell phones, and electronic communications pursuant to warrants authorized under Rule 41 of the Federal Rules of Criminal Procedure and 18 U.S.C. § 2703. These searches, according to the Government, represented the first public step in what was by then a months-long investigation into Cohen's business dealings and potential campaign finance violations. Following the searches, Cohen pled guilty on August 21, 2018 to five counts of tax evasion based on his failure to report over $ 4 million in taxable income to the Internal Revenue Service, one count of making false statements to financial institutions to obtain a $ 500,000 home equity line of credit, and two counts of campaign finance violations based on his involvement with hush payments to women who threatened to disclose details of their extra-marital affairs with a candidate for federal office.1

Subsequently, The New York Times Company, the American Broadcasting Companies, Inc., the Associated Press, Cable News Network, Inc., Daily News, L.P., Dow Jones & Co., Inc., Newsday LLC, NYP Holdings, Inc., and CBS Broadcasting, Inc. (the "Media Organizations") filed letter applications to unseal documents relating to the April 9, 2018 searches. (See ECF No. 9 ("Times Letter") ; ECF No. 11 ("News Organizations Letter") ; ECF No. 19 ("CBS Letter").) In particular, the applications seek to unseal copies of the warrants, warrant applications, and supporting affidavits and riders in connection with these searches (the "Materials"). The Government opposed the applications on the basis that disclosure would jeopardize an ongoing investigation and prejudice the privacy rights of uncharged third parties. In addition to a publicly filed brief (ECF No. 14 ), the Government submitted a supplemental ex parte submission articulating the factual bases for its opposition and also provided the Materials for in camera review. Cohen did not submit any opposition papers.

DISCUSSION

The "notion that the public should have access to the proceedings and documents of courts is integral to our system of government." United States v. Erie Cty., 763 F.3d 235, 238-39 (2d Cir. 2014). This long-standing precept is embodied in two "related but distinct presumptions"-"a strong form rooted in the First Amendment and a slightly weaker form based in federal common law." Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 163 (2d Cir. 2013) ; accord Erie Cty., 763 F.3d at 239 (noting that "the First Amendment protection has been understood to be stronger than its common law ancestor and counterpart"). Each presumption implicates a separate framework governing when it attaches and when it may be overcome. Ultimately, the "decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances *619of the particular case." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 599, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978).

I. Common Law Right of Access

As a threshold matter, this Court must first examine whether the pertinent provisions of Title II of the Electronic Communications Privacy Act-commonly referred to as the Stored Communications Act ("SCA") and codified at 18 U.S.C. §§ 2701 - 2712 -supersede the common law right of access to § 2703 warrants, applications, and affidavits. In re N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401, 405-06 & n.3 (2d Cir. 2009) (instructing that where an applicable statute speaks to the accessibility of the documents in question, courts should begin with the statute). For instance, the Second Circuit has evaluated whether to unseal Title III wiretap applications by reference to the applicable statutory standard in 18 U.S.C. § 2518(8)(b) without engaging in a common law analysis, concluding that Title III "revealed a manifest congressional intent that ... clearly negated a presumption in favor of disclosure" of wiretap applications. In re N.Y. Times Co., 577 F.3d at 406-09 & n.3 ; see 18 U.S.C. § 2518(8)(b) (providing in relevant part that "[wiretap applications] made and orders granted ... shall be sealed by the judge" and that "[s]uch applications and orders shall be disclosed only upon a showing of good cause before a judge of competent jurisdiction" (emphasis added) ).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matthews v. Cuomo
N.D. New York, 2023
In re Granick
388 F. Supp. 3d 1107 (N.D. California, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
366 F. Supp. 3d 612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-cohen-ilsd-2019.