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Two SDNY Decisions Address the Confidentiality of Sentencing Materials

As this blog has noted in the past, see here and here, presentence reports and sentencing materials can contain very sensitive information that both the government and the defense may want to keep under seal.  The right of third parties, including representatives of news organizations, to have access to these materials is the issue in two notable cases, one relating to the disclosure of possibly inaccurate financial information provided by the defendant during the sentencing process, and the other relating to the disclosure of a high-profile defendant?s cooperation efforts.

Disclosure of PSR Section Dealing with Finances  

In United States v. Watkins, 2009 WL 1598406 (S.D.N.Y. June 9, 2009) - a study in stupidity or audacity - the third-party petitioner, a defendant in a civil suit commenced by Watkins, sought access to the portions of Watkins? presentence report dealing with his financial situation.  In his criminal case, Watkins had pleaded poverty, received an appointed lawyer and escaped the imposition of any fine; in his civil case, he claimed that he had invested $600,000 in a real estate venture after his sentencing.  Citing the ?ends of justice? and the ?well-established doctrine of judicial estoppel,? SDNY Judge Rakoff held that ?where, as here, the accuracy of information relied upon by this and other courts is called into question, the otherwise unflagging confidentiality of presentence reports and probation records must bend.?

Sealing of Sentencing Documents Relating to Defendant's Cooperation

In United States v. Park, 2009 WL 1515660 (S.D.N.Y. June 1, 2009), SDNY Judge Chin denied the New York Times? motion to unseal redacted portions of letters and transcripts relating to the sentencing of Tongsun Park, who had been convicted after trial of being an unregistered foreign agent for Iraq in the U.N. oil-for-food scandal.  Weighing the public?s right of access against the countervailing factors of ?the danger of impairing law-enforcement, judicial efficiency, and privacy interests,? the court found that here, the balance tipped in favor of maintaining the materials under seal, since they related to Park?s cooperation in an on-going investigation ? though not before the Times? motion had resulted in some significant additional disclosures (which just underlines the wisdom of litigating like Joe ?throw the ball? Nameth).  

Lawyers: Michael Kim, Francisco Navarro, Kobre & Kim LLP (defendant); David McCraw (New York Times Company); AUSA Pablo Quińones

Full post as published by New York Federal Criminal Practice on June 24, 2009 (boomark / email).