United States District Court, D. Connecticut
ORDER TO SEAL VOIR DIRE TRANSCRIPT
Hon.
Vanessa L. Bryant, United States District Judge.
On
March 16, 2017, a grand jury returned an indictment charging
Defendant Ivan Rosario (“Defendant”) with (1)
conspiracy to distribute and to possess with intent to
distribute 1 kilogram or more of a mixture or substance
containing 1 kilogram or more of heroin, in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A)(i); (2) unlawful
possession of a firearm by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2); and (3)
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i)
and 924(c)(2). See United States v.
Rosario, No. 17-cr-00055 (VLB) (“Rosario
I”). As the case progressed to trial, Defendant was
indicted on new charges. He was charged with two counts in
United States v. Rosario, No. 18-cr-00007 (VLB)
(“Rosario II”): (1) witness tampering with intent
to influence or prevent testimony and to cause or induce any
person to withhold testimony, in violation of 18 U.S.C.
§§ 1512(b)(1), (b)(2)(A), (j); and (2) causing or
inducing any person to destroy evidence, in violation of 18
U.S.C. §§ 1512(b)(2)(B) and (j) (“Count
Two”). The two cases were tried in April 2018 and the
jury convicted Defendant in Rosario II of Count Two causing
or inducing any person to destroy evidence, in violation of
18 U.S.C. §§ 1512(b)(2)(B), (j). The jury could not
agree on the conspiracy charge and it acquitted him of all
other charges. A retrial on the charge for conspiracy to
distribute and to possess with intent to distribute heroin is
scheduled for June 2019. See Rosario I at Dkt. 413.
On
January 16, 2019, the Court entered an order in both cases
providing that the “names, addresses, employers, and
occupations of all jurors and their family members shall be
redacted from all records on the public docket and all
records disclosed to the public.” See Rosario
I at Dkt. 421 and Rosario II at Dkt. 101. The Court also
stated that it would further articulate its ruling. The
Court's order was prompted by a request from
Defendant's mother, Ivelisse Rosario, for an expedited
transcript of voir dire. As explained in detail
below, the Court finds that the jurors' right to privacy
outweighs the public's right to access unredacted
voir dire transcripts. Further, the Court finds that
redacting the limited personal information described above is
narrowly tailored to preserve the interest of juror privacy.
As the parties have not had an opportunity to be heard on the
question of whether the voir dire transcript should
be sealed as ordered herein, this order is without prejudice
to either party filing a motion to vacate this order and to
unseal the transcript accompanied by a memorandum of law in
support of its position.
Criminal
trials have been historically open to the public.
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
573 (1980). The right is implicit in the First Amendment.
Id. at 580. This guarantee of openness includes
voir dire examinations of potential jurors.
Press-Enter. Co. v. Superior Court of California,
464 U.S. 501, 505, 508 (1984). “The value of openness
lies in the fact that people not actually attending trials
can have confidence that standards of fairness are being
observed; the sure knowledge that anyone is free to
attend gives assurance that established procedures are being
followed and that deviations will become known.”
Id. at 508. However, the open nature of criminal
trials is not absolute. “The presumption of openness
may be overcome only by an overriding interest based on
findings that closure is essential to preserve higher values
and is narrowly tailored to serve that interest.”
Id. at 510. In Press-Enterprise, the
Supreme Court recognized that the voir dire process
may give rise to a compelling interest of a prospective juror
in certain circumstances, but “[t]he privacy interests
of such a prospective juror must be balanced against . . .
the need for openness of the process.” Id. at
512. The identities of federal jurors are routinely withheld.
The Guide to Judiciary Policy, as determined by the Judicial
Conference of the United States or the Director of the
Administrative Office of the U.S. Courts, directs court
reporters to redact juror identities from trial transcripts
and directs judges to “make efforts to limit references
on the record to potential jurors' names by assigning and
using numbers for each juror” during voir dire
proceedings. See 10 Admin. Office of U.S. Courts,
Guide to Judiciary Policy §§ 330.10.10,
330.20(c)(2)(A)(ii) (2016).
The
Second Circuit has also repeatedly recognized a district
court's broad discretion to use anonymous or sequestered
juries. Anonymous juries do not infringe a defendant's
constitutional rights if the jury needs protection and
reasonable precautions are taken to minimize the effect that
the decision will have on the jurors' opinions of the
defendant. See United States v. Vario, 943 F.2d 236,
239 (2d Cir. 1991) (collecting cases). The first element may
be satisfied by “a demonstrable history or likelihood
of obstruction of justice on the part of the defendant or
others acting on his behalf.” Id. at 241;
See United States v. Pica, 692 F.3d 79, 88 (2d. Cir
2012) (finding that district court “acted well within
its discretion when it determined, based on [defendant's]
history of jury tampering and other factors, that the
additional protection provided by jury anonymity was
warranted.”). Similarly, the “decision to
sequester the jury to avoid exposure to publicity is
committed to the discretion of the court, and failure to
sequester can rarely be grounds for reversal.”
United States v. Salerno, 868 F.2d 524, 540 (2d Cir.
1989). To succeed on appeal for failure to sequester, a
defendant must show that he suffered actual prejudice from
publicity surrounding trial. Id.
Several
other sources recognize the privacy interests of jurors and
support the Court's authority to use narrowly tailored
means to protect it. First, the statute requiring each
district court to create a plan for random jury selection
provides that such plans may “permit the chief judge of
the district court, or such other district court judge as the
plan may provide, to keep these names confidential in any
case where the interests of justice so require.” 28
U.S.C. §1863(b)(7). Indeed, it is the practice of this
Court to avoid the use of juror names during voir
dire and refer to jurors by their assigned number.
Second, Federal Rule of Criminal Procedure 49.1 provides for
redaction where a filing contains an individual's social
security number, birth date or home address. Fed. R. Crim. P.
49.1. Third, this District's Local Rule authorizes
sealing when it is supported by clear and compelling reasons
and is narrowly tailored to serve those reasons:
Every document used by parties moving for or opposing an
adjudication by the Court, other than trial or hearing
exhibits, shall be filed with the Court. No. judicial
document shall be filed under seal, except upon entry of an
order of the Court either acting sua sponte or
specifically granting a request to seal that document. Any
such order sealing a judicial document shall include
particularized findings demonstrating that sealing is
supported by clear and compelling reasons and is narrowly
tailored to serve those reasons. A statute mandating or
permitting the non-disclosure of a class of documents (e.g.,
personnel files, health care records, or records of
administrative proceedings) provides sufficient authority to
support an order sealing such documents. A judge may seal a
Court order, including an order to seal documents and the
related findings, when sealing a Court order meets the
standard for sealing a judicial document.
D. Conn. L. Cr. R. 57(b)(3)(b). These statutes and rules help
ensure the important interests of juror safety and privacy
while encouraging candor. See United States v. King,
140 F.3d 76, 83 (2d Cir. 1998).
The
Court finds United States v. Bruno highly
persuasive. 700 F.Supp.2d 175 (N.D.N.Y. 2010). In that case,
a newspaper intervened and sought disclosure of juror
identities, addresses, and questionnaires in addition to an
order directing court reporters to file unredacted
transcripts of voir dire in a high-profile criminal
case against a former New York State Senator. Id. at
177. The court ordered disclosure of juror names because it
had publicly announced their names on multiple occasions
during voir dire which was open to the press.
Id. at 183-84. The court declined to disclose juror
addresses and questionnaires on the grounds that “the
presumption of access [was] outweighed by each juror's
countervailing right to privacy.” Id. at 184.
In so concluding, the court noted that “[t]he potential
that this jury would become the subject of relentless public
scrutiny simply because they honored their constitutional
duty is too great a price to be endured.” Id.
Here,
the public right of access to the names, addresses,
employers, and occupations of jurors and their family members
is also outweighed by each juror's countervailing right
to privacy, specifically because disclosure may undermine the
judicial process and lead to threats and intimidation.
However, unlike in Bruno, where the court was
primarily concerned with disclosure of “extraordinarily
personal and sensitive information” and subjecting the
jury to public scrutiny, this Court is primarily concerned
with juror security.[1] Defendant was convicted of causing or
inducing any person to destroy evidence, in violation of 18
U.S.C. §§ 1512(b)(2)(B) and (j), by inducing a
witness to destroy evidence through threats and other acts of
intimidation. The Government submitted evidence that during
recorded prison telephone calls, Defendant enticed his
girlfriend to destroy damaging evidence against him and
threatened to hurt her if she did not. In addition, the
evidence of recorded telephone calls made by Defendant to his
mother, Ivelisse Rosario, showed the Defendant enlisted his
mother to help him force his girlfriend to destroy
incriminating evidence. In those recorded conversations, Mrs.
Rosario is heard agreeing to conspire in the destruction of
evidence. Defendant's girlfriend testified at trial to
succumbing to this pressure and destroying incriminating
evidence.
Defendant
was acquitted of witness tampering with intent to influence
or prevent testimony and to cause or induce any person to
withhold testimony, in violation of 18 U.S.C. §§
1512(b)(1), (b)(2)(A), (j), but credible evidence was
introduced against him. The evidence showed that Defendant
wrote a letter directing others to post material for the
express purpose of dissuading through intimidation another
cooperating witness from testifying against him. The letter
was found in his jail cell and it specified that the
intimidation should be initiated at a future time in close
proximity to his trial, but Defendant had not mailed it.
Although Defendant was acquitted of witness tampering, the
fact that this letter was found in his jail cell is further
evidence of Defendant's propensity to threaten,
intimidate and harm the jurors who convicted him.
Accordingly,
the Court orders that the names, address, employers and
occupations of the jurors and their family members be
redacted from all material docketed or released to the
public, including any transcripts of all court
proceedings.[2] The Court finds that redaction of this
information is the least restrictive means of achieving this
end and will not interfere with the public interest in the
openness of criminal trials.
Conclusion
For the
reasons set forth above, the Court orders that the names,
address, employers and occupations of the jurors and their
family members be redacted from all material docketed or
released to the public, including any transcripts of court
proceedings. This order is without prejudice to either party
filing a motion to vacate this order ...