brief and appendix for interested-party … for interested-party appellant 1050 17th street, nw,...

10-0301

United States Court of Appeals for the

Second Circuit

UNITED STATES OF AMERICA, Appellee,

– v. –

JERRY CAPECI,

Interested-Party Appellant,

MILANA MURCIA, Defendant.

_______________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF AND APPENDIX FOR INTERESTED-PARTY APPELLANT

NATHAN SIEGELLEVINE SULLIVAN KOCH & SCHULZ, L.L.P. Attorneys for Interested-Party Appellant 1050 17th Street, NW, Suite 800 Washington, DC 20036 (202) 508-1100 – and – STEPHEN GIKOW MEDIA FREEDOM & INFORMATION ACCESS PRACTICUM Yale Law School 127 Wall Street New Haven, Connecticut 06511 Under the supervision of Nathan Siegel, Esq.

Case: 10-301 Document: 58 Page: 1 11/03/2010 139386 60

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TABLE OF CONTENTS

TABLE OF CONTENTS…………………………………………………………...i TABLE OF AUTHORITIES……………………………………………………...iii JURISDICTIONAL STATEMENT………………………………………………..1 STATEMENT OF ISSUES PRESENTED……………………..………………….1 STATEMENT OF THE CASE…………………………………………………….1 STATEMENT OF THE FACTS…………………………………………………...2 SUMMARY OF THE ARGUMENT………………………………………………4 ARGUMENT I. THE PUBLIC HAS A QUALIFIED RIGHT OF ACCESS

UNDER THE FIRST AMENDMENT TO TRANSCRIPTS OF PRETRIAL PROCEEDINGS THAT CAN ONLY BE OVERCOME UNDER EXTREMELY LIMITED CIRCUMSTANCES...………………………………………………………6

A. The First Amendment Right Of Access Guards The Public’s

Interest In The Legitimacy And Accountability Of The Judicial Process………………………………………………………………..6

B. The First Amendment Right Of Access Extends To Curcio

Hearings.……………………………..……………………………….9

C. The Qualified First Amendment Right Of Access Places A Heavy Burden On The Party Seeking To Limit Access And That Burden Could Not Have Been Met At The Time The District Court Declined To Unseal The Transcript………………….14

II. THE PASSAGE OF TIME LIKELY WEIGHS HEAVILY

IN FAVOR OF UNSEALING, BOTH AT THE TIME OF APPELLANT’S REQUEST AND NOW………………………………….21


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A. Where Sealing Is Ordered To Protect A Compelling Government Interest That May Be Limited In Duration, Indefinite Sealing Violates The First Amendment………………….22

B. As The Underlying Case Has Ended And There Is No

Objective Evidence Of A Need For Continued Sealing, Any Compelling Governmental Interests Have Likely Expired………….24

C. Alternatively, If A Compelling Governmental Interest Persists,

The Court Should Remand The Case For The District Court To Consider Imposing A “Sunlight Date,” At Which Time The Continued Sealing Order Will Presumptively Expire……………….26

III. THE SEALING ORDER ITSELF SHOULD ALSO

BE UNSEALED…………………………………………………………....30 CONCLUSION…………………………………………………………………...30


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TABLE OF AUTHORITIES

ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. 2004)……..…………………………..10 Application of National Broadcasting Co. v. Presser,

828 F.2d 340 (6th Cir. 1987)……………………………………………….13 Associated Press v. United States Dist. Court for Cent. Dist.,

705 F.2d 1143 (9th Cir. 1983)……..……………………………………….11 Brown v. Hartlage, 456 U.S. 45 (1982)……………..…………………………….22 Centauri Shipping Ltd. v. Western Bulk Carriers KS,

528 F. Supp. 2d 197 (S.D.N.Y. 2007)……………………………………...18 Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541 (1949)……………………..1 Elrod v. Burns, 427 U.S. 347 (1976)……………………………………………...26 Gamble v. Deutsche Bank AG, 377 F.3d 133 (2d Cir. 2004)…………………28, 29 Garcia v. Teitler, 443 F.3d 202 (2d Cir. 2006)…………………………………...11 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982)……………...passim Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004)………………...11 In re Globe Newspaper Co., 729 F.2d 47 (1st Cir. 1983)………..……………….11 In re Herald Co., 734 F.2d 93 (2d Cir. 1984)…………..…………………..1, 10, 25 In re NBC Universal, Inc., 426 F.Supp.2d 49 (E.D.N.Y. 2006)….……….13, 19, 25 In re New York Times Co. v. Biaggi, 828 F.2d 110 (2d Cir. 1987)...………...passim In re San Francisco Chronicle, 36 Media L. Rep. 1093,

2007 U.S. Dist. LEXIS 68322 (E.D.N.Y. 2007)………….………………..20

In re Sealed Search Warrant, Nos. 04-M-370 (DRH),04-M-388 (DRH), 2006 WL 3690639 (N.D.N.Y. 2006)…………………………………..20, 25


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In re Time Inc., 182 F.3d 270 (4th Cir. 1999)…………………………………….11 Lugosch v. Pyramid Co., 435 F.3d 110 (2d Cir. 2006)……………….......10, 15, 26 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976)………………………….7, 26 Poliquin v. Garden Way, Inc., 989 F.2d 527 (1st Cir. 1993)……………………...28 Press-Enter. Co. v. Superior Court,

464 U.S. 501 (1984) (“Press-Enterprise I”)………….……………..7, 10, 15 Press-Enter. Co. v. Superior Court,

478 U.S. 1 (1986) (“Press-Enterprise II”)………...…………………..passim Publicker Indus. v. Cohen, 733 F.2d 1059 (3d Cir. 1984)………………………...11 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)………………passim Sony Ericsson Mobile Communications v. Delta Electronics Public Co.,

No. 09 Civ. 995, 2009 U.S. Dist. LEXIS 30009 (S.D.N.Y. 2009)………....18 United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995)………………………...16, 22 United States v. Antar, 38 F.3d 1348 (3d Cir. 1994)………………………….23, 29 United States v. Aref, 533 F.3d 72 (2d Cir. 2008)………………………...17, 20, 22 United States v. Brooklier, 685 F.2d 1162 (9th Cir. 1982)………………………..11 United States v. Curcio, 680 F.2d 881 (2d Cir. 1982)……………………………...9 United States v. Danovaro, 877 F.2d 583 (7th Cir. 1989)………………………...11 United States v. Doe, 63 F.3d 121 (2d Cir. 1995)………………………………...23 United States v. Doe, 356 Fed. App’x 488 (2d Cir. 2009)………………………..23 United States v. Haller, 837 F.2d 84 (2d Cir. 1988)………………………………17


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United States v. King, 140 F.3d 76 (2d Cir. 1998)……………………………23, 28 United States v. Moten, 582 F.2d 654 (2d Cir. 1978)……………………..23, 27, 29 United States v. Okun, 12 Fed. Appx. 83 (2d Cir. 2001)………………………….11 United States v. Perez, 325 F.3d 115 (2d Cir. 2003)……………………………...11 United States v. Pizzonia, 415 F. Supp. 2d 168 (E.D.N.Y. 2006)……………..18,19 United States v. Salvagno, 344 Fed. Appx. 660 (2d Cir. 2009)…………………..12 United States v. Sattar, 471 F. Supp. 2d 380 (S.D.N.Y. 2006)…………………...18 United States v. Schwarz, 283 F.3d 76 (2d Cir. 2002)……………………………11 United States v. Strevell, No. 05-CR-477 (GLS),

2009 WL 577910 (N.D.N.Y. 2009)……………………………………29, 30 United States v. Suarez, 880 F.2d 626 (2d Cir. 1989)………………………...11, 12 Waller v. Georgia, 467 US 39 (1984)…………………………………………….23 Westmoreland v. Columbia Broadcasting Sys.,

752 F.2d 16 (2d Cir. 1984)………………………………………………8, 10 Statutes: 28 U.S.C. § 1291…………………………………………………………………...1


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JURISDICTIONAL STATEMENT

Jurisdiction over this appeal is conferred by 28 U.S.C. § 1291 and the

“collateral order” doctrine of Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541

(1949). See In re Herald Co., 734 F.2d 93, 96 (2d Cir. 1984).

This appeal is timely because the district court entered its order on January

6, 2010, and the appellant filed his Notice of Appeal on January 19, 2010.

STATEMENT OF ISSUES PRESENTED

I. Does the qualified First Amendment right of access extend to transcripts of

the pretrial proceedings in this case, and, if so, did the court rightly deny the appellant’s pro se letter asking that the transcript be unsealed, despite the heavy burden placed by the First Amendment on the party seeking closure?

II. Have any interests that might have initially justified sealing expired, either as of the time Appellant moved to unseal the transcript or now?

III. Did the District Court’s perpetual sealing order, which was itself sealed, satisfy the First Amendment’s heightened standard that the sealing be narrowly tailored to a compelling government interest?

STATEMENT OF THE CASE

This appeal implicates the public’s right to access the transcripts of judicial

proceedings. On July 23, 2009, District Judge Kenneth M. Karas held a

proceeding in United States v. Murcia, Docket No. 08-CR-761. (A-7). The court


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immediately sealed at least part of the record. (Id.) On December 8, 2009—

several months later—Mr. Capeci sent a pro se letter to the district court asking

that the court unseal the transcript of pre-trial proceedings from July 23, 2009 (A-

12). The district court required that the parties respond by December 11, 2009.

(A-8). On January 6, 2010, District Court Judge Karas denied in writing Mr.

Capeci’s pro se letter to unseal the transcript in its entirety. (A-18). In the same

response, the court sealed the responses to the motions to unseal and the opinion

denying the motion to unseal. (Id.) On January 19, 2010, Mr. Capeci filed a notice

of appeal to the district court’s sealing orders. (A-19).

STATEMENT OF THE FACTS

Appellant Jerry Capeci has covered federal court proceedings and related

law enforcement activities for over thirty-five years. (A-12). For the past twenty

years, he has written a weekly column about organized crime called “Gang Land,”

which continues to be published online at www.ganglandnews.com. (Id.) On

August 13, 2009, Mr. Capeci published an article about criminal proceedings

against Milana Murcia. (A-15-A-17). To do so, he relied in part on court

documents, including the arrest complaint. (A-15). He was covering the case

because it related directly to his beat and would presumably be of interest to his

readers: Milana Murcia, the mother of a top FBI organized crime supervisor, had

been charged in a multi-million dollar fraud scheme. (A-15). Murcia plead guilty


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on August 7, 2009. (A-7). Because it was a topic of interest to his public, Mr.

Capeci had plans to write follow-up pieces. (A-12).

In the course of covering the case, Mr. Capeci learned that the court had

sealed a transcript of a proceeding held on July 23, 2009. (A-12). On December 8,

2009, and after speaking with the court’s law clerk and an individual at the

Southern District Court Reporters, Mr. Capeci, sent a pro se letter to the district

court asking that the court unseal the transcript of a pre-trial proceeding from July

23, 2009. (A-12).1 Mr. Capeci requested the transcript because he believed that

the substance of the proceeding would be of interest to the public and his readers

and that it was important to ensure the proper functioning of the courts. (A-13-

A14).

In the letter, Mr. Capeci, upon information and belief, stated that he believed

the transcript pertained to a pre-trial conference that evaluated possible conflicts of

interests between the defendant and her attorney, identified by Mr. Capeci as

pertaining to “Curcio matters.” (A-13). More specifically, Mr. Capeci upon

information and belief averred that the proceeding surrounded “the circumstances

of the federal government’s investigation of alleged wrongdoing involving an

attorney in the case.” (Id.). Mr. Capeci noted that the public—and readers of

ganglandnews.com in particular—had a right to know the contents of the

1 Mr. Capeci himself was not present at the July 23, 2009 proceeding.


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proceeding, and, upon information and belief, that “the federal government’s

criminal investigation of alleged wrongdoing by an attorney(s) who represents a

defendant in a major criminal case i[s] information that deserves to see the light of

day.” (A-13-A-14).

The court denied the motion to unseal the entire transcript and sealed the

responses to the motion as well as the opinion explaining the outcome. (A-18).

On January 27, 2010, Murcia was sentenced. (A-10).

SUMMARY OF THE ARGUMENT

The public’s First Amendment right of access to judicial proceedings and

transcripts is essential to the healthy functioning of our democracy. Courts

routinely recognize that this right of access helps guarantee the proper functioning

of the courts and ensures their legitimacy and accountability. The First

Amendment right of access applies to numerous and differing judicial proceedings.

The right itself is not absolute, but because the right is both constitutional and

fundamental, the Supreme Court has announced rigid requirements for when a

judicial proceeding may be closed to the public. Courts may close proceedings

only when a compelling interest or a higher value outweighs the First Amendment

right. Even then, closure must be as narrow as possible, and courts must support

closure with specific findings.


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In light of the strict standards developed by the Supreme Court and this

Circuit, the public has a First Amendment right of access to the transcript of the

July 23, 2009, proceeding. Specifically, the public likely had a right at the time of

Mr. Capeci’s pro se letter to unseal the transcript. Mr. Capeci made his request to

unseal after significant time had elapsed, and even if there were sufficient reasons

for initially temporarily sealing the transcript, those reasons may well have

expired. On appeal, even more time has passed: the underlying proceeding has

long been concluded, and no other proceedings have been brought against any of

the trial participants. Thus, it is even more likely that any interests requiring

closure have expired. In light of these circumstances, Mr. Capeci asks that this

Court direct that the transcript and other sealed court documents at issue be

unsealed. If this Court finds that the interests justifying sealing persist, he asks that

the Court remand the case to the district court to place as much as possible from

the sealed documents in the public record and set a date or event upon which the

records will be presumptively unsealed, absent further action from the parties.

In denying Mr. Capeci’s pro se letter to unseal the July 23, 2009 proceeding,

the district court sealed the findings supporting closure, as well as the parties’

responses. (A-18). Although courts may seal the reasons justifying closure when

truly necessary, it makes for a uniquely difficult appeal on the merits, and the


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wholesale sealing of the rationales for a sealing order is unusual. Thus, the sealing

order should be unsealed with the rest of the transcript, in whole or in part.

ARGUMENT

Since the district court provided no information on the public record

explaining its basis for sealing the transcript, it is very difficult for Appellant to

adequately address the merits of this appeal. Therefore, the argument proceeds

based on Mr. Capeci’s limited understanding of what may have transpired, as well

as a reliance on the general and well-founded principles of the First Amendment

access right—principles that we ask this Court to apply to the sealed record.

I. THE PUBLIC HAS A QUALIFIED RIGHT OF ACCESS UNDER THE FIRST AMENDMENT TO TRANSCRIPTS OF PRETRIAL PROCEEDINGS THAT CAN ONLY BE OVERCOME UNDER EXTREMELY LIMITED CIRCUMSTANCES.

A. The First Amendment Right Of Access Guards The Public’s Interest In The Legitimacy And Accountability Of The Judicial Process.

The First Amendment protects the public’s powerful interest in supervising

the judicial system by providing a qualified right of access to pretrial proceedings

and transcripts. Indeed, this case presents the most serious potential invasion of

First Amendment rights of access because it involves what is effectively the

permanent closure of an actual court proceeding, rather than related portions of the

court file. The United States Supreme Court first articulated the public’s

independent First Amendment right of access to a criminal trial in Richmond


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Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980). Among the central rationales

behind the recognition of the constitutional access right in Richmond Newspapers

is the need to ensure the transparency and legitimacy of the judicial process. Id. at

570-71. “People in an open society do not demand infallibility from their

institutions, but it is difficult for them to accept what they are prohibited from

observing.” Id. at 572. The Court identified the press as particularly important in

conveying the judicial process to the public: “Instead of acquiring information

about trials by firsthand observation or by word of mouth from those who attended,

people now acquire it chiefly through the print and electronic media. . . . This

‘contribute[s] to public understanding of the rule of law and to comprehension of

the functioning of the entire criminal justice system . . . .’” Id. at 572-573 (quoting

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 587 (1976) (Brennan, J., concurring

in the judgment). “Openness thus enhances both the basic fairness of the criminal

trial and the appearance of fairness so essential to public confidence in the

system.” Press-Enter. Co. v. Superior Court of California, 464 U.S. 501, 508

(1984) (“Press-Enterprise I”) (citing Richmond Newspapers, 448 U.S. at 569-571).

Related to the legitimacy of the judicial process is the notion that the

constitutional right of access also promotes the effective functioning of the courts.

In discussing the history of open proceedings, the Richmond Newspapers Court

noted that through openness, society was better able to ensure “the proper


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functioning of a trial; it gave assurance that the proceedings were conducted fairly

to all concerned, and it discouraged perjury, the misconduct of participants, and

decisions based on secret bias or partiality.” 448 U.S. at 569. Similarly, this Court

has explained that the First Amendment access right extends to civil lawsuits

“because public access to civil trials ‘enhances the quality and safeguards the

integrity of the fact-finding process,’ ‘fosters an appearance of fairness,’ and

heightens ‘public respect for the judicial process,’ while permitting ‘the public to

participate in and serve as a check upon the judicial process—an essential

component in our structure of self government.’” Westmoreland v. Columbia

Broadcasting Sys., 752 F.2d 16, 23 (2d Cir. 1984) (quoting Globe Newspaper Co.

v. Superior Court, 457 U.S. 596, 606 (1982)).

Finally, the Court has emphasized that the First Amendment protects the free

discussion of government affairs in order to allow democratic oversight of our

institutions of government—to ensure that citizens can effectively “participate in

and contribute to” democratic self-governance. Globe Newspaper, 457 U.S. at

604. That the health of our democracy relies upon an informed citizenry, capable

of reasoned deliberation about the organs and instruments of their governance, is

the central premise that supports the constitutional access right. These important

democratic and institutional values are the foundation for the constitutional right of

access; any attempt to limit this right must be viewed in a critical light.


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B. The First Amendment Right Of Access Extends To Curcio Hearings. Although it is unclear exactly what type of proceeding was held in the

district court, Mr. Capeci, upon information and belief, understands that the

proceeding may have related to an investigation by the government concerning the

defendant’s attorney, or some other matter implicating a potential conflict of

interest. (A-17). In United States v. Curcio, this Circuit held that courts were

required to

advise the defendant of his right to separate and conflict-free representation, instruct the defendant as to problems inherent in being represented by an attorney with divided loyalties, allow the defendant to confer with his chosen counsel, encourage the defendant to seek advice from independent counsel, and allow a reasonable time for the defendant to make his decision.

United States v. Curcio, 680 F.2d 881, 890 (2d Cir. 1982). Generally, given

Supreme Court precedent and this Circuit’s extension of the doctrine, the First

Amendment right of access must attach to these Curcio hearings, including in this

case, if that is what the proceeding at issue involved. As important, however, both

the Supreme Court and this Circuit have stressed the importance of openness in the

broader context of criminal proceedings; thus, regardless of its subject matter, the

proceeding in this case should likely be subject to a higher level of scrutiny.

In order to determine what official proceedings and records are subject to the

constitutional access right, the Supreme Court developed a two-pronged test that

evaluates both historic practices and policy objectives. See Globe Newspaper, 457


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U.S. at 605-07; Press-Enter. Co. v. Superior Court., 478 U.S. 1, 8-9 (1986)

(“Press-Enterprise II”); ABC, Inc. v. Stewart, 360 F.3d 90, 98 (2d Cir. 2004).

Applying the “experience and logic” analysis, the Supreme Court and this Circuit

have extended the constitutional right of access to virtually all judicial

proceedings, including both civil and criminal trials, the jury selection process, and

pretrial hearings. See, e.g., Richmond Newspapers, 448 U.S. 555 (right of access

attaches to criminal trials); Press-Enterprise I, 464 U.S. 501 (jury voir dire

proceedings); Press-Enterprise II, 478 U.S. 1 (pretrial hearings in a criminal trial);

In re Herald Co., 734 F.2d 93 (2d Cir. 1984) (suppression hearings);

Westmoreland v. Columbia Broadcasting Sys. Inc., 752 F.2d 16 (2d Cir. 1984)

(civil proceedings).

Furthermore, this constitutional right of access extends not just to judicial

proceedings but also to most documents submitted or filed in connection with

substantive matters raised in judicial proceedings. See In re New York Times Co.,

828 F.2d 110, 114 (2d Cir. 1987) (holding that a constitutional right of access

extends to “written documents submitted in connection with judicial proceedings

that themselves implicate the right of access” and thus that the right attached to a

motion to suppress evidence); Lugosch v. Pyramid Co., 435 F.3d 110, 124 (2d Cir.

2006) (recognizing a constitutional right of access to “documents submitted to the

court in connection with a summary judgment motion”). The right also applies to


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other categories of court records where “experience and logic” demonstrate that a

public right to inspect records should apply. See, e.g., Hartford Courant Co. v.

Pellegrino, 380 F.3d 83 (2d Cir. 2004) (constitutional right of access extends to

docket sheets); United States v. Suarez, 880 F.2d 626 (2d Cir. 1989) (constitutional

right of access to Criminal Justice Act forms).2 In any event, what is at issue here

is the core right of access to a proceeding itself, through a transcript, rather than to

judicial records that were related to otherwise open proceedings.

It is clear that the First Amendment right of access attaches to a Curcio

hearing, if that is what occurred here. First and foremost, Curcio hearings are

typically held on the record, a record that is often discussed and quoted on appeal.

See, e.g., Garcia v. Teitler, 443 F.3d 202, 206 (2d Cir. 2006) (discussing the

Curcio hearing in detail and quoting from the hearing transcript); United States v.

Perez, 325 F.3d 115, 120-21 (2d Cir. 2003) (same); United States v. Schwarz, 283

F.3d 76, 83 (2d Cir. 2002) (same); United States v. Okun, 12 Fed. Appx. 83, 84-85

2 Other circuits have also extended the First Amendment right of access to numerous judicial proceedings and documents. See, e.g., In re Time Inc., 182 F.3d 270, 271 (4th Cir. 1999) (First Amendment right of access attaches to pretrial motions); United States v. Danovaro, 877 F.2d 583, 589 (7th Cir. 1989) (right of access extends to guilty plea hearings); Publicker Indus. v. Cohen, 733 F.2d 1059 (3d Cir. 1984) (right extends to civil proceedings); In re Globe Newspaper Co., 729 F.2d 47, 52 (1st Cir. 1983) (right attaches to pretrial bail proceedings); Associated Press v. United States Dist. Court for Cent. Dist., 705 F.2d 1143, 1145 (9th Cir. 1983) (right attaches to pretrial documents in general); United States v. Brooklier, 685 F.2d 1162, 1170 (9th Cir. 1982) (right attaches to pretrial proceedings such as suppression hearings).


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(2d Cir. 2001) (same). In fact, this Circuit recently stated that “an otherwise well-

conducted [Curcio] hearing can be undermined if the record does not reflect the

ultimate waiver as coming from the defendant himself.” United States v. Salvagno,

344 Fed. Appx. 660, 662 (2d Cir. 2009).3

In addition to a tradition of openness, these hearings also implicate

significant public concerns, including the integrity of prosecutions, the adequacy of

defense, the defendant’s Sixth Amendment right to a fair trial, and the public’s

general interest in the oversight of the judicial process. This interest is particularly

acute in “the absence of a jury, long recognized as an inestimable safeguard against

the corrupt or overzealous prosecutor and against the compliant, biased, or

eccentric judge, [which] makes the importance of public access to a preliminary

hearing even more significant.” Press-Enterprise II, 478 U.S. 1, 12-13 (1986)

(internal quotation marks and citations omitted).

3 Because Curcio hearings are relatively recent phenomena, there is admittedly no long, uninterrupted history of access to the proceeding. The Second Circuit, however, has expressly held that a long tradition of access is not necessary for procedures of recent vintage. See United States v. Suarez, 880 F.2d 626, 631 (2d Cir. 1989) (“The lack of ‘tradition’ with respect to the [recently created fee] forms does not detract from the public's strong interest in how its funds are being spent in the administration of criminal justice and what amounts of public funds are paid to particular private attorneys or firms. Because there is no persuasive reason to ignore the presumption of openness that applies to documents submitted in connection with a criminal proceeding, we conclude that the public has a qualified First Amendment right of access to the CJA forms after payment has been approved.”). As in Suarez, the public interest in observing and monitoring Curcio hearings justify the extension of the constitutional right of access with or without a long, uninterrupted history.


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Unsurprisingly, at least one court in this Circuit has held the First

Amendment right of access attaches to disqualification hearings. See In re NBC

Universal, Inc., 426 F.Supp.2d 49, 57 (E.D.N.Y. 2006) (holding that “[t]he First

Amendment right of access ha[d] been satisfied” by disclosure transcripts of both

the disqualification proceedings and recordings played at the proceedings).

Similarly, the Sixth Circuit has held that both judge disqualification hearings and

“proceedings inquiring into conflicts of interest by attorneys meet and satisfy the

requirements of a qualified First Amendment right of access.” Application of

National Broadcasting Co. v. Presser, 828 F.2d 340, 345 (6th Cir. 1987). In so

holding, the court noted that “both proceedings . . . require the court to make

factual determinations and to apply settled legal principles in order to rule. In

addition, resolution of the issues presented in both types of proceedings, has a

significant bearing on all subsequent proceedings in a case, particularly on the trial

itself.” Id. Furthermore, the public’s interest in monitoring a defendant’s Sixth

Amendment rights are ensured by openness: “From such proceedings the public is

informed of the seriousness with which the Sixth Amendment right to counsel is

treated and of the meticulous inquiries that are undertaken by the court to be

certain that defendants understand their right to independent counsel with

undivided loyalty to the client's cause.” Id.


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These same essential rationales apply if a Curcio hearing was conducted in

this matter: the public has an interest in ensuring that the defendant and

government have acted with due care in this and other disqualification

proceedings. Thus, if a Curcio hearing occurred, this Court should extend the First

Amendment right of access to these attorney conflict hearings. But it is significant

that these same principles apply to other types of pretrial proceedings, particularly

in the context of criminal matters. As the Supreme Court has noted, for centuries

“people [have] sensed from experience and observation that, especially in the

administration of criminal justice, the means used to achieve justice must have the

support derived from public acceptance of both the process and its results.”

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 571 (1980). Because of the

public’s heightened interest in the context of criminal proceedings, this Circuit and

others have rightfully extended the First Amendment right of access to numerous

pretrial hearings. Given the likelihood that the First Amendment attaches to this

proceeding, whatever it may have been, this Court must critically and thoroughly

examine the district court’s reasons for sealing the transcript.

C. The Qualified First Amendment Right Of Access Places A Heavy Burden On The Party Seeking To Limit Access And That Burden Could Not Have Been Met At The Time The District Court Declined To Unseal The Transcript.

The First Amendment access right is not absolute, but it imposes a heavy

burden on those who seek to limit public access to justify the restriction. See


15

Press-Enterprise II, 478 U.S. 1, 13-14 (1986); Globe Newspaper Co. v. Superior

Court, 457 U.S. 596, 606 (1982) (“[T]he State’s justification in denying access

must be a weighty one.”); Lugosch, 435 F.3d at 126 (noting that the First

Amendment “gives rise to a higher burden on the party seeking to prevent

disclosure than does the common law presumption”). As the Supreme Court

explained in Globe Newspaper, the standard to be met is a strict one: “Where . . .

the State attempts to deny the right of access in order to inhibit the disclosure of

sensitive information, it must be shown that the denial is necessitated by a

compelling governmental interest, and is narrowly tailored to serve that interest.”

457 U.S. at 606-607.

To ensure this constitutional standard is met, the U.S. Supreme Court has

imposed strict procedural requirements. Court proceedings cannot constitutionally

be sealed from public view unless “specific, on the record findings are made

demonstrating that closure is essential to preserve higher values and is narrowly

tailored to serve that interest.” Press-Enterprise II, 478 U.S. 1, 13-14 (1986)

(internal quotation marks omitted); In re New York Times Co., 828 F.2d at 116

(“Broad and general findings . . . are not sufficient to justify closure.”). Before

sealing an entire record, a court should consider less restrictive alternatives. See,

e.g., Press-Enterprise I, 464 U.S. 501, 512-13 (1984) (discussing alternatives to

complete closure or sealing of the jury voir dire process and noting that “[t]he trial


16

judge should seal only such parts of the transcript as necessary to preserve the

anonymity of the individuals sought to be protected”); Richmond Newspapers, Inc.

v. Virginia, 448 U.S. 555, 581 (1980) (noting that there were viable alternatives to

closure, including sequestration of jurors); In re New York Times Co., 828 F.2d at

116 (stating that “the wholesale sealing of the motion papers was more extensive

than necessary to protect defendants' [rights]” and that these rights could “certainly

be adequately protected by sequestration”); United States v. Amodeo, 44 F.3d 141,

147 (2d Cir. 1995) (noting that “it is proper for a district court, after weighing

competing interests, to edit and redact a judicial document in order to allow access

to appropriate portions” as opposed to sealing the entire document).

Although it is difficult to address the issue more specifically, the district

court’s reasons and methods in denying Mr. Capeci access to what may have been

a Curcio hearing transcript seem unlikely to meet the heightened Supreme Court

standard requiring both a compelling interest and narrow tailoring. As has been

shown, Curcio hearings are typically open to the public and done on the record,

and thus do not inherently contain sensitive and protected information.

On rare occasions courts have found higher or compelling interests that may

outweigh the qualified First Amendment right of access, although most often such

interests have been deemed sufficient to seal discrete portions of documents, rather

than entire proceedings. In United States v. Aref, this Court of Appeals held that


17

the district court properly sealed an order and the sealing order because “the

Government made a sufficient showing that disclosure of the information sought

would impair identified national interests in substantial ways” and “that closure

here was narrowly tailored to protect national security.” 533 F.3d 72, 82 (2d Cir.

2008). Similarly, this Circuit has held “that preservation of grand jury secrecy and

the sensitivity of an ongoing criminal investigation were “higher values” justifying

the sealing and redaction of one paragraph of a plea agreement. United States v.

Haller, 837 F.2d 84, 88 (2d Cir. 1988) (quoting Press-Enterprise II, 478 U.S. 1,

13-14 (1986)). Where privacy interests may be implicated, closure of criminal

proceedings has typically only been permitted in severe circumstances, such as the

testimony of minor victims of sexual assault—and even there, categorical rules

requiring closure sweep too broadly. Globe Newspaper, 457 U.S. at 606.

An entire Curcio hearing—or any other type of proceeding in this case—is

highly unlikely to warrant sealing on these grounds, especially five months after

the hearing took place. National security interests have not been raised in any way

by the facts of the case. Other compelling interests, such as a privacy interest or an

ongoing criminal investigation, seem unlikely to justify the blanket sealing

undertaken by the district court in response to Mr. Capeci’s pro se letter to unseal,

and in any event would almost certainly expire at some point.

We note, for example, that courts often reject the reputational interests of


18

trial participants as a sufficient justification for sealing of judicial documents in the

much less stringent context of the common law right of access. See, e.g., Sony

Ericsson Mobile Communications v. Delta Electronics Public Co., No. 09 Civ.

995, 2009 U.S. Dist. LEXIS 30009 at *6 (S.D.N.Y. 2009) (“Delta's primary

concern appears to be that the documents contain information damaging to its

reputation, a concern that, without more, does not warrant judicial protection”);

Centauri Shipping Ltd. v. Western Bulk Carriers KS, 528 F. Supp. 2d 197, 205

(S.D.N.Y. 2007) (rejecting a party’s “interest in avoiding the negative publicity,

and the concomitant risk of injury to his firm's business” as the grounds for sealing

common law judicial documents). When courts do find a compelling privacy

interest, it is typically in the context of documents submitted to the court—not

proceedings themselves—and standard practice is still to perform the necessary

redactions. See, e.g., United States v. Sattar, 471 F. Supp. 2d 380, 389 (S.D.N.Y.

2006) (“The Court has carefully redacted the documents to assure that the

redactions are narrowly tailored to redact only the matters as to which there is a

sufficiently compelling interest in personal privacy.”).

In a case that may well be analogous to the instant matter, the government

moved to disqualify several attorneys for various conflicts of interest. United

States v. Pizzonia, 415 F. Supp. 2d 168 (E.D.N.Y. 2006). The district court openly

discussed a Curcio hearing where “the government presented the testimony of


19

Michael DiLeonardo, a former officer of the Gambino crime family and a key

cooperating witness in the instant case who claimed to have retained defense

counsel in a prior prosecution.” Id. at 174-75. The court proceeded to make

explicit findings of fact, including that the defense counsel received financial

support from organized crime figures during law school and after he was admitted

to practice in New York. Id. at 175. Despite possible reputational harms to the

defense counsel, the hearing was discussed in detail in an unsealed opinion. The

court did temporarily limit the right to copy and distribute audio-visual recordings

that showed defense counsel meeting with a notorious organized crime figure, but

only until after the trial was concluded. In re NBC Universal, Inc., 426 F.Supp.2d

49, 58 (E.D.N.Y. 2006). The court also provided full transcripts of the

disqualification proceedings to anyone not present. Whereas these thoughtful

measures may preserve the public’s constitutional right of access, the court in Mr.

Capeci’s case has made no such provisions: rather, the court simply sealed the

relevant transcript in its entirety and then sealed the reasons for sealing the

transcript as well.

Even if there were valid rationales that command less extensive access than

was provided in In re NBC Universal, Inc., less restrictive means were available to

the court, including redaction. Indeed, the Aref court itself noted that such extreme

measures such as sealing a transcript in its entirety should be undertaken only in


20

the rarest of instances: “Although we affirm the district court in this case, we

reinforce the requirement that district courts avoid sealing judicial documents in

their entirety unless necessary. Transparency is pivotal to public perception of the

judiciary's legitimacy and independence.” 533 F.3d at 83. The district court should

not have sealed any portions of the transcript—or sealing order itself—that did not

implicate compelling governmental interests. Instead, the district court should have

redacted any portions of the sealing order that implicated compelling governmental

interests, and for which closure was necessary in order to preserve “higher values,”

In re New York Times, 828 F.2d at 116, while leaving open those portions that did

not compromise such interests and values. District courts in this jurisdiction, and

indeed in jurisdictions across the nation, perform such redactions routinely in

transcripts and other court documents that may contain sensitive material. See,

e.g., In re San Francisco Chronicle, 36 Media L. Rep. 1093, 2007 U.S. Dist.

LEXIS 68322 at *8 (E.D.N.Y. 2007) (noting that the redaction of the names and

addresses satisfied both the substantial privacy and ongoing law enforcement

interests and the First Amendment right of access); In re Sealed Search Warrant,

Nos. 04-M-370 (DRH), 04-M-388 (DRH), 2006 WL 3690639 at *4 (N.D.N.Y.

2006) (“Here, the need to preserve that confidentiality [of confidential informants]

may easily be accommodated with public access to the affidavits by redacting the

limited information in the affidavits which might serve to identify those sources.”).


21

Put simply, it is highly unlikely that complete and total sealing can meet the

narrow tailoring standard as required by law.

II. THE PASSAGE OF TIME LIKELY WEIGHS HEAVILY IN FAVOR OF UNSEALING, BOTH AT THE TIME OF APPELLANT’S REQUEST AND NOW

It is important to emphasize that because Appellant sought to unseal the

transcript about five months after the hearing had taken place, the fundamental

question presented on appeal is not whether closure of the hearing at issue was

justified when it was originally entered. Whether or not closure was originally

justified, the question presented here is whether it was still justified five months

later when the district court entered its order and sealed findings declining Mr.

Capeci’s letter-motion to unseal the transcript. The First Amendment requires that

a sealing order be narrowly tailored, and this includes a requirement that the

sealing order end once the compelling government interest originally justifying it

has expired. Thus, if the government interest expired in the five months between

the time sealing was ordered and Mr. Capeci sought access to the records, the

district court should have granted Mr. Capeci’s motion. Furthermore, to the extent

that compelling government interests in secrecy persisted when Mr. Capeci sought

access, those have likely expired by now since the underlying criminal case ended

more than nine months ago.


22

A. Where Sealing Is Ordered To Protect A Compelling Government Interest That May Be Limited In Duration, Indefinite Sealing Violates The First Amendment.

When sealing is ordered to protect a higher value that may have a limited

duration, the sealing cannot persist indefinitely without offending the Constitution.

In such cases, indefinite sealing is not sufficiently narrowly tailored to satisfy the

requirements of the First Amendment. The Supreme Court has long maintained

that “where . . . the State attempts to deny the right of access in order to inhibit the

disclosure of sensitive information, it must be shown that the denial is necessitated

by a compelling government interest, and is narrowly tailored to serve that interest.

Press-Enterprise II, 464 U.S. 501, 510 (1986) (quoting Globe Newspaper Co. v.

Super. Ct., 457 U.S. 596, 606-607 (1982)); In re New York Times Co, 828 F.2d

110, 116 (2d Cir. 1987) (holding that the same standard must be applied when

denying public access to judicial documents). Narrow tailoring guarantees that

“the restriction operate[s] without unnecessarily circumscribing protected” access.

Brown v. Hartlage, 456 U.S. 45, 54 (1982).

The concept of narrow tailoring includes limitations on both the duration and

substantive scope of a sealing order. As to scope, judicial documents should be

sealed in their entirely “only if necessary,” United States v. Aref, 533 F.3d 72, 82

(2d Cir. 2008), and redaction may provide a means of narrowing. See, e.g.,

Amodeo, 44 F.3d 141, 147 (2d Cir. 1995). Where the governmental interest may


23

expire over time, courts should also restrict the duration of a sealing order to

achieve narrowness. In United States v. King, this Court upheld a district court

order sealing jury questionnaires and the transcripts of follow-up questioning. 140

F.3d 76 (2d Cir. 1998). In doing so, this Court emphasized that the district judge

“imposed his limitations only for the brief duration of time necessary to impanel

the jury . . . as contemplated by Press-Enterprise I.” Id. at 82. Similarly, this

Court recently held that the burden to show a compelling interest is heaviest when

seeking to seal a record “totally and permanently.” United States v. Doe, 356 Fed.

App’x 488, 490 (2d Cir. 2009).4 These decisions recognize that narrow tailoring

under the Press-Enterprise I standard requires that restrictions on the public’s First

Amendment access rights can endure only while the governmental interest in

secrecy remains compelling. C.f. United States v. Moten, 582 F.2d 654, 661 (2d

Cir. 1978) (noting that “[t]here comes a time when the government’s interest . . .

can no longer be said to be sufficiently ‘compelling’”). The Third Circuit has

reached a similar conclusion, holding that “once an overriding interest initially

necessitating closure has passed, the restrictions must be lifted.” United States v.

Antar, 38 F.3d 1348, 1362 (3d Cir. 1994).

4 This case was decided in the context of a defendant’s motion for closure to secure his Sixth Amendment rights, but “the same test applies whether a closure motion is made by the government over the defendant’s Sixth Amendment objection or made by the defendant over the First Amendment objection of the government or press.” United States v. Doe, 63 F.3d 121, 128 (2d Cir. 1995) (citing Waller v. Georgia, 467 US 39, 47 (1984).


24

Because restrictions on the public’s First Amendment rights must last only

as long as the governmental interest in closure is compelling, indefinite sealing

orders are unconstitutional where there is any chance that the government’s interest

might diminish over time. Consequently, some kind of limit on the duration of a

sealing order is required in most cases. Where the compelling interest relates to

ongoing litigation, courts should revisit the sealing order once a judgment or

verdict is entered. If other compelling interests are involved, the court must find

another solution. See discussion infra Part II.C (discussing a court-imposed

sunlight date as a solution in the instant case). In the absence of such a time limit,

the public is continually deprived of information that it has a constitutional right to

access. Here, given that the original sealing order was entered in July 2009, it is at

best unclear why continued sealing would have been justified as of the date of the

district court’s order.

B. As The Underlying Case Has Ended And There Is No Objective Evidence Of A Need For Continued Sealing, Any Compelling Governmental Interests Have Likely Expired.

Even if sealing was justified at the time of the district court’s order, the

interests warranting secrecy likely expired shortly thereafter. Second Circuit

precedent states that closure “should be invoked only upon a showing of a

significant risk of prejudice to the defendant's right to a fair trial or of danger to

persons, property, or the integrity of significant activities entitled to confidentiality,


25

such as ongoing undercover investigations or detection devices.” In re Herald,

734 F.2d 93, 100 (2d Cir. 1984). Given that the Murcia case came to an end in

January, 2010, no change in her representation appears to have occurred, and to

our knowledge no other related proceedings have been initiated, any compelling

government interest that may have existed at the time of a Curcio hearing, or any

other proceeding that may have been conducted in this case, has likely expired.

Similarly, if some other issue or investigation was at issue, those interests have

likely expired over time. As a district court has stated, “[o]nce the trial is over,

there is no reason why the balance should not be swiftly reconsidered.” In re NBC

Universal, 426 F.Supp.2d 49, 58 (E.D.N.Y. 2006). Here, in the absence of clear,

enduring, compelling interests, the transcript and sealing order should be unsealed.

As explained, because what is at issue in this case is de facto access to a

proceeding through a transcript, the public has a clear First Amendment right to

access the transcript and sealing order. Yet even if the Court were to apply the

common law right of access, the result would likely be the same because of the

passage of time. Again, to the extent that the government’s countervailing interest

related to judicial efficiency, the ongoing trial, or an ongoing investigation, that

interest likely ended with Murcia’s sentencing and the passage of time. See In re

Sealed Search Warrant, Nos. 04-M-370 (DRH), 04-M-388 (DRH), 2006 WL

3690639 at *4-5 (N.D.N.Y. Dec. 11, 2006) (holding that the weight accorded to


26

countervailing factors diminishes after indictment or a decision not to prosecute).

Of course, the higher First Amendment burden must still be met in this case. See

Lugosch, 435 F.3d at 126 (requiring the party seeking disclosure to meet the

“higher burden” of the First Amendment where both it and the common law right

attach).

As the underlying criminal action and investigation ended more than nine

months ago, interests that may have warranted sealing on January 6, 2010 have

likely expired. If no compelling governmental interest exists, the transcript and

sealing order must be unsealed.

C. Alternatively, If A Compelling Governmental Interest Persists, The Court Should Remand The Case For The District Court To Consider Imposing A “Sunlight Date,” At Which Time The Continued Sealing Order Will Presumptively Expire.

Given the long passage of time and the journalistic interests involved, this

Court should unseal the transcript now if either it should have been unsealed in

response to Mr. Capeci’s letter motion, or if any compelling government interests

have since expired. Alternatively, we recognize that the Court could remand the

case to the district court to reconsider the continued necessity for sealing, although

this process will further delay access to the transcript and consequently extend the

harm to Mr. Capeci’s First Amendment rights. Given how much time has passed,

Mr. Capeci respectfully requests that this Court resolve the issue itself, on this

appeal, because the more time passes, the less practically relevant the information


27

at issue may be to the public. “The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v.

Burns, 427 U.S. 347, 373 (1976). However, if the Court does decide to remand,

Mr. Capeci would urge that it also consider instructing the district court that,

should it determine that continued sealing is justified, it impose a deadline or event

upon which the transcript will be unsealed absent further action from the parties.

To the extent that some government interest may justify continued sealing,

the public must gain access when the interest expires. If there are any law

enforcement or other interests that could still justify sealing at this date, those

interests are sure to expire at some point. For example, if there are continued law

enforcement interests in a confidential investigation, “the government’s interest in

its ongoing investigation does not go on [sic] forever.” United States v. Moten, 582

F.2d 654, 661 (2d Cir. 1978). This Circuit has held that when in camera

proceedings are justified by the need to protect an ongoing investigation, the

secrecy may be maintained “only so long as is necessary to protect the

investigation.” Id. This is equally true here, where restrictions on access must be

narrowly tailored to satisfy the First Amendment. Thus, if the district court

decides that government interests warrant continued sealing, that sealing may

endure only as long as the government interests persist.


28

To ensure that the secrecy ends as soon as the governmental interest expires,

this Court should instruct the district court to fix a “sunlight date,” at which time

any continued sealing order would expire unless the government shows that sealing

is still justified. The courts retain the power to alter their ongoing directives,

providing “a safety valve for public interest concerns, changed circumstances or

any other basis that may reasonably be offered for later adjustment.” Gamble v.

Deutsche Bank AG, 377 F.3d 133, 141 (2d Cir. 2004) (quoting Poliquin v. Garden

Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993)). In the First Amendment context,

this power becomes a duty to end a sealing order when a compelling governmental

interest in secrecy no longer persists. See United States v. King, 140 F.3d 76, 82

(2d Cir. 1998). A sunlight provision would provide a set time for re-evaluation and

ensure that the government does not fail to alert the court of the expiration of its

interest in secrecy. The provision could tie re-evaluation to the termination of the

event motivating closure, such as the closing of an investigation. Such a provision

would narrowly tailor the continued sealing, ensuring that limitations on the

public’s First Amendment rights persist “only for the brief duration of time

necessary” to complete the investigation. King, 140 F.3d at 82.

Once that date is reached or that event occurs, continued sealing would

depend upon a renewed motion from the government or another party, as the party

seeking closure has a “continuing burden of justifying the need for secrecy.”


29

Moten, 582 F.2d at 661; see also Gamble, 377 F.3d at 142 (holding that because

the party seeking sealing made no effort to establish that there was a continuing

compelling reason to require continued sealing, the district court was within its

discretion to unseal judicial documents). As sealing orders operate against a

“presumption of openness,” this burden flows directly from the framework

established by Press-Enterprise I. Other courts have reached the same conclusion.

See, e.g., Antar, 38 F.3d at 1362 (holding that the proponent of closure bears the

burden of rebutting the presumption of access when the press seeks to unseal

documents); United States v. Strevell, No. 05-CR-477 (GLS), 2009 WL 577910 at

*7 (N.D.N.Y. 2009) (noting that the burden of continued sealing is “properly

placed” on the party seeking an exception to the presumption of access).

At least one court in this circuit has endorsed the use of such provisions.

Following a finding that certain documents should remain sealed, the District

Court for the Northern District of New York grafted a one-year deadline on the

sealing orders, absent a timely motion for further sealing. Strevell, 2009 WL

577910 at *6-7. In doing so, the court noted that the provision would “help[] to

ensure that the sealing . . . is narrowly tailored.” Id. at *7. The same reasoning

applies in this case. In the event that a compelling governmental interest persists

despite the end of the underlying criminal matter, the court should set a future date

or event upon which the sealing would presumptively expire, thereby guaranteeing


30

that the sealing order does not “endure indefinitely.” Id. at *7. Such a provision is

necessary to prevent unconstitutional limitations on the public’s First Amendment

right to access judicial documents.

III. THE SEALING ORDER ITSELF SHOULD ALSO BE UNSEALED.

The same analysis applicable to the hearing transcript applies to the sealing

order itself. While sealing orders may be sealed in some circumstances, see In re

New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987), by sealing the sealing

order itself, the district court imposed a very difficult burden on any party that

seeks to obtain access. Given the circumstances of the present case—namely that

the reasons for sealing have likely expired—the court should review the sealing

order, and either order it to be unsealed, or if compelling interests exist to justify

only some continued sealing, remand to ask the district court to place as much as

possible on the public record. Similarly, if the court decides that the reasons for

sealing the sealing order have not expired, but are likely to expire in the future, it

may remand the case to the district court with instructions to establish a

presumptive date or event by which the order will be unsealed, absent further

action by the parties.

CONCLUSION For the foregoing reasons, Appellant respectfully requests that the district

court’s order of January 6, 2010 denying his letter-motion to unseal a transcript be


31

reversed.

Dated: November 1, 2010

Respectfully submitted,

s/ Stephen Gikow Stephen Gikow Media Freedom & Information Access Practicum Yale Law School 127 Wall Street New Haven, CT 06511

Under the Supervision of Nathan Siegel, Esq.

s/ Nathan Siegel Nathan Siegel LEVINE SULLIVAN KOCH & SCHULZ, LLP 1050 17th St., N.W., Suite 800 Washington, D.C. 20036 202-508-1100

Attorney for Appellant


CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION

1. I certify that this brief complies with the type-volume limitation of

Rules 29(d) and 32(a)(7)(B) of the Federal Rules of Appellate Procedure because it

contains 7,568 words, excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii).

Dated: November 1, 2010

Respectfully submitted,

s/ Nathan Siegel Nathan Siegel LEVINE SULLIVAN KOCH & SCHULZ, LLP 1050 17th St., N.W., Suite 800 Washington, D.C. 20036 202-508-1100

Attorneys for Appellant


APPENDIX


i

TABLE OF CONTENTS

Page

Memo Endorsed of the Honorable Lewis A. Kaplan, dated December 7, 2009 ........................................ AA-1

Letter from Anne C. LeVasseur to the Honorable Lewis A. Kaplan, dated December 7, 2009 ........... AA-2

Order of the Honorable Lewis A. Kaplan, dated December 10, 2009 ................................................ AA-4


ECF, INTAPP

U.S. District CourtSouthern District of New York (White Plains)

CRIMINAL DOCKET FOR CASE #: 7:08-cr-00761-KMK-1

Case title: USA v. MurciaMagistrate judge case number: 7:08-mj-00001-UA

Date Filed: 08/15/2008

Assigned to: Judge Kenneth M. Karas

Defendant (1)Milana Murcia represented by Ronald P. Fischetti

Ronald P. Fischetti, 747 Third Avenue, 32nd Floor New York, NY 10017 (212) 593-7100 Fax: (212)-758-2809 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED Designation: Retained

Theodore Samuel Green Green & Willstatter 200 Mamaroneck Avenue Suite 605 White Plains, NY 10601 914-948-5656 Fax: 914-948-8730 Email: [email protected] TERMINATED: 12/21/2009 LEAD ATTORNEY Designation: CJA Appointment

Eric P. Franz Eric Franz, PLLC 747 Third Avenue 20th Flr New York, NY 10017 (212) 935-2200 Fax: (212) 937-2217 Email: [email protected] ATTORNEY TO BE NOTICED

Pending Counts DispositionIMPRISONMENT 37 MONTHS. 36

A-1D Case: 10-301 Document: 58 Page: 41 11/03/2010 139386 60

FRAUD BY WIRE, RADIO, ORTELEVISION(1ss)

IMPRISONMENT 37 MONTHS. 36MONTHS SUPERVISE RELEASE.ASSESSMENT $100.00.RESTITUTION $4,692,000.00.

Highest Offense Level (Opening)Felony

Terminated Counts DispositionFRAUDS AND SWINDLES(1-2) DISMISSED.

CONSPIRACY TO DEFRAUD THEUNITED STATES(1s)

DISMISSED.

MANIPULATIVE AND DECEPTIVEDEVICES(2s)

DISMISSED.

FRAUDS AND SWINDLES(3s) DISMISSED.

FRAUD BY WIRE, RADIO, ORTELEVISION(4s)

DISMISSED.

Highest Offense Level (Terminated)Felony

Complaints Disposition18:1341.F

Interested PartyJerry Capeci

PlaintiffUSA represented by Nicholas Lloyd McQuaid

U.S. Attorney's Office, White Plains 300 Quarropas Street White Plains, NY 10601 (914)-993-1936 Fax: (914)-993-9036 Email: [email protected] LEAD ATTORNEY ATTORNEY TO BE NOTICED


Date Filed # Docket Text

01/02/2008 1 SEALED COMPLAINT as to Philippe Murcia (1), Milana Murcia (2). (Signed byJudge Magistrate Judge Lisa Margaret Smith) (jma) [7:08-mj-00001-UA] (Entered:01/11/2008)

01/08/2008 4 Order to Unseal (Complaint) Case as to Philippe Murcia, Milana Murcia.. (Signed byMagistrate Judge George A. Yanthis on 01/08/2008) The Clerk's Office Has MailedCopies.(jma) [7:08-mj-00001-UA] (Entered: 01/11/2008)

01/08/2008 COMPLAINT UNSEALED as to Philippe Murcia, Milana Murcia (jma) [7:08-mj-00001-UA] (Entered: 01/11/2008)

01/08/2008 6 Arrest Warrant Returned Executed on 01/08/2008 as to Milana Murcia. (jma) [7:08-mj-00001-UA] (Entered: 01/11/2008)

01/08/2008 Arrest of Milana Murcia. (jma) [7:08-mj-00001-UA] (Entered: 01/11/2008)

01/08/2008 Minute Entry for proceedings held before Magistrate Judge George A. Yanthis:InitialAppearance as to Milana Murcia held on 1/8/2008 with deft. atty. Paul Rinaldo andgov. atty. Brent Wible present. Bail set at $200,000 to be co-signed by 2 FRP's and$10,000 cash posted. Surrender travel documents and no new applications. Strict pre-trial supervision. Finanial affidavit to be filed in 1 week. (1/15/08). All cond's. to bemet by 5pm 1/9/08. ASAP. (jma) [7:08-mj-00001-UA] (Entered: 01/11/2008)

01/08/2008 Set/Reset Hearings as to Milana Murcia: Preliminary Examination set for 2/6/2008 at09:00 AM before Judge Unassigned. (jma) [7:08-mj-00001-UA] (Entered:01/11/2008)

01/08/2008 9 PRB Bond Entered as to Milana Murcia in amount of $ $200,000 WITH $10,000POSTED. TRAVEL RESTRICTED TO THE SDNY/EDNY AND DCT. (jma)[7:08-mj-00001-UA] (Entered: 01/11/2008)

01/08/2008 10 ORDER Setting Conditions of Release as to Milana Murcia (2) $200,000.ANDADVISED OF PENALTIES AND SANCTIONS ATTACHED..... (Signed byMagistrate Judge George A. Yanthis on 01/08/2008)(jma) [7:08-mj-00001-UA](Entered: 01/11/2008)

01/09/2008 Payment of Bail for Milana Murcia in the amount of $10,000.00. Receipt # 633785.Date Received: 1/9/2008. (sj) [7:08-mj-00001-UA] (Entered: 01/14/2008)

01/10/2008 Minute Entry for proceedings held before Magistrate Judge George A. Yanthis:BondHearing as to Philippe Murcia, Milana Murcia held on 1/10/2008 with deft. PhilippeMurcia Susanne Brody present and gov. atty. Brent Wible. Both deft's. 2nd co-signeris stricken. Confession of judgment substituted in the Amof $280,000. Papers be filed1 week (1/17/08). All other conditions remain. (jma) [7:08-mj-00001-UA] (Entered:01/11/2008)

01/16/2008 Minute Entry for proceedings held before Magistrate Judge George A. Yanthis:BondHearing as to Philippe Murcia, Milana Murcia held on 1/16/2008. Modification of bailas to Milana Mercia, $200,000 PRB secured by 1 FRP secured by $20,000 cash.Time to file financial affidavit has been exteneded to 1/30/08. (jma) [7:08-mj-00001-UA] (Entered: 01/18/2008)


01/25/2008 11 ENDORSED LETTER as to Milana Murcia addressed to Magistrate George A.Yanthis from Paul Rinaldo dated 1/23/2008 re: Request a temporary modiification ofclients bail condition in the above matter....Endorsement: Application Granted. SoOrdered... (Signed by Magistrate Judge George A. Yanthis on 1/24/2008) CopiesFaxed By Chambers.(cg) [7:08-mj-00001-UA] (Entered: 01/29/2008)

02/06/2008 12 ORDER TO CONTINUE IN THE INTEREST OF JUSTICE as to Milana Murcia.Time excluded from 2/6/2008 until 3/5/2008.. (Signed by Magistrate Judge Mark D.Fox on 2/6/2008)(cg) [7:08-mj-00001-UA] (Entered: 02/08/2008)

03/05/2008 14 AFFIRMATION of Nicholas L. McQuaid by USA as to Milana Murcia re: anextension of time. (jma) [7:08-mj-00001-UA] (Entered: 03/06/2008)

03/05/2008 ORDER TO CONTINUE IN THE INTEREST OF JUSTICE as to Milana Murciare: 14 Affirmation filed by USA. Time excluded from 3/5/2008 until 4/2/2008.(Signed by Magistrate Judge Lisa Margaret Smith on 03/5/2008)(jma) [7:08-mj-00001-UA] (Entered: 03/06/2008)

04/02/2008 15 AFFIRMATION of AUSA Nicholas L. McQuaid by USA as to Milana Murciaregarding order to continue in the interest of justice. (cg) [7:08-mj-00001-UA](Entered: 04/04/2008)

04/02/2008 16 ORDER TO CONTINUE IN THE INTEREST OF JUSTICE as to Milana Murciare: 15 Affirmation filed by USA. Time excluded from 4/2/2008 until 4/30/2008..(Signed by Magistrate Judge George A. Yanthis on 4/2/2008)(cg) [7:08-mj-00001-UA] (Entered: 04/04/2008)

04/30/2008 17 AFFIRMATION of AUSA Nicholas L. McQuaid by USA as to Milana Murciaregarding order to continue in the interest of justice. (cg) [7:08-mj-00001-UA](Entered: 05/02/2008)

04/30/2008 ORDER TO CONTINUE IN THE INTEREST OF JUSTICE as to Milana Murciare: 17 Affirmation filed by USA. Time excluded from 4/30/2008 until 5/28/2008..(Signed by Magistrate Judge Mark D. Fox on 4/30/2008)(cg) [7:08-mj-00001-UA](Entered: 05/02/2008)

05/28/2008 18 AFFIRMATION of Nicholas L. McQuaid by Milana Murcia re: an extension of time.(jma) [7:08-mj-00001-UA] (Entered: 05/28/2008)

05/28/2008 ORDER TO CONTINUE IN THE INTEREST OF JUSTICE as to Milana Murcia.Time excluded from 05/28/2008 until 06/25/2008.. (Signed by Magistrate Judge LisaMargaret Smith on 05/28/2008)(jma) [7:08-mj-00001-UA] (Entered: 05/28/2008)

06/25/2008 19 AFFIRMATION of AUSA Nicholas McQuaid by USA as to Milana Murciaregarding order to continue in the interest of justice. (cg) [7:08-mj-00001-UA](Entered: 06/25/2008)

06/25/2008 20 ORDER TO CONTINUE IN THE INTEREST OF JUSTICE as to Milana Murciare: 19 Affirmation filed by USA. Time excluded from 6/25/2008 until 7/23/2008..(Signed by Magistrate Judge George A. Yanthis on 6/25/2008)(cg) [7:08-mj-00001-UA] (Entered: 06/25/2008)

07/23/2008 21 AFFIRMATION of AUSA Nicholas McQuaid by USA as to Milana Murciaregarding order to continue in the interest of justice. (cg) [7:08-mj-00001-UA](Entered: 07/25/2008)


07/23/2008 ORDER TO CONTINUE IN THE INTEREST OF JUSTICE as to Milana Murciare: 21 Affirmation filed by USA. Time excluded from 7/23/2008 until 8/20/2008..(Signed by Magistrate Judge Lisa Margaret Smith on 7/23/2008)(cg) [7:08-mj-00001-UA] (Entered: 07/25/2008)

07/23/2008 22 CJA 20 as to Milana Murcia: Appointment of Attorney Theodore Samuel Green forMilana Murcia. (Signed by Magistrate Judge Lisa Margaret Smith on 7/23/08) CJAOffice has mailed the original and sent a copy to the file.(sac) [7:08-mj-00001-UA](Entered: 07/25/2008)

08/15/2008 23 INDICTMENT FILED as to Milana Murcia (1) count(s) 1-2. (cg) (Entered:08/18/2008)

08/15/2008 Case Designated ECF as to Milana Murcia. (cg) (Entered: 08/18/2008)

08/20/2008 Minute Entry for proceedings held before Magistrate Judge George A.Yanthis:Arraignment as to Milana Murcia (1) Count 1-2 held on 8/20/2008.Defendant present with attorney Ted Green, AUSA Nicholas McQuaid. Defendantenters a not guilty plea. Case assigned to Judge Karas. Time excluded from todayuntil the 1st ptc before Judge Karas in the interests of justice. Bail continued aspreviously set. (cg) (Entered: 08/22/2008)

08/20/2008 Minute Entry for proceedings held before Magistrate Judge George A. Yanthis: Pleaentered by Milana Murcia (1) Count 1-2 Not Guilty. (cg) (Entered: 08/22/2008)

08/20/2008 Case as to Milana Murcia ASSIGNED to Judge Kenneth M. Karas. JudgeUnassigned no longer assigned to the case.. (cg) (Entered: 08/22/2008)

09/04/2008 Minute Entry for proceedings held before Judge Kenneth M. Karas:PretrialConference as to Milana Murcia held on 9/4/2008 with deft. atty. Theodore S. Greenand gov. atty. Sarah Krissoff, FBI Agent Francis Gasper present. Time is excludedfrom today thru October 15, 2008 in the interest of justice. Next status conferencescheduled for October 15, 2008 at 10:00am. Bail continued. (Court Reporter AlbiGorn) (jma) (Entered: 10/15/2008)

10/15/2008 Minute Entry for proceedings held before Judge Kenneth M. Karas:Status Conferenceas to Milana Murcia held on 10/15/2008 with deft. atty. Theodore S. Green andAUSA Nicholas McQuaid, FBI Agent Francis Gasper. Governments response to Mr.Green's letter of October 8, 2008 is due 10/29/2008, Mr. Green's reply due11/12/2008. Time is excluded from today thru December 5, 2008 in the interest ofjustice. Next status conference scheduled for December 5, 2008 at 2:00pm. Bailcontinued. (Court Reporter Christina Arends-Dieck) (jma) (Entered: 10/21/2008)

10/15/2008 Minute Entry for proceedings held before Judge Kenneth M. Karas: as to MilanaMurcia Mr. Green's Replies due by 11/12/2008. Government's Responses due by10/29/2008 Status Conference set for 12/5/2008 at 02:00 PM before Judge KennethM. Karas. (Court Reporter Christina Arends-Dieck) (jma) (Entered: 10/21/2008)

12/01/2008 25 ENDORSED LETTER as to Milana Murcia addressed to Judge Kenneth M. Karasfrom Nicholas McQuaid dated 11/24/08 re: Request for adjournment of conferencefrom 12/5/08 to 12/10/08 at 10:00 am and exclusion of time. ENDORSEMENT:Granted. So Ordered.. (Signed by Judge Kenneth M. Karas on 11/24/08)(fk)(Entered: 12/02/2008)

12/10/2008 Minute Entry for proceedings held before Judge Kenneth M. Karas:Status Conference


as to Milana Murcia held on 12/10/2008. Deft pres with atty Theodore Green. AUSAMcQuaid pres. FBI Agent Francis Gasper pres. The Government has until February5, 2009 to file a superseding indictment. Bail conditions are revised as follows: travelto include Massachusetts provided the defendant provides at least 24 hour notice toPretrial Services. The defendant is also required to notify Pretrial Services when and ifshe plans to return. Time is excluded from today through February13, 2009 in theinterest of justice. Next status conference scheduled for February 13, 2009 at 3:30 pm.Bail continued. (Court Reporter Christina Arends-Dieck) (fk) (Entered: 12/16/2008)

12/15/2008 27 ENDORSED LETTER as to Milana Murcia addressed to Dear Judge Karas fromTheordore S. Green dated 12/11/2008 re: This letter is an application to modify thetravel restrictions that are a condition of Ms. Murcia's bail so as to permit her to travelto Masseachesetts.......We request that the application be granted.....ENDORSED,Granted. (Signed by Judge Kenneth M. Karas on 12/12/2008)(jma) (Entered:12/15/2008)

01/06/2009 28 ORDER as to Milana Murcia.....Deft. seeks to require the Government to furnish, in abill of particulars, (1) the identities of all co-conspirators, (2) the specific uses of themails, including the date, place, and contents of each mailing, (3)details concerningeach of the fraudulent representations and promises made to investors who werevictims of deft's. fraud, including the date, speaker, words uttered, listener, and actsdone in reliance on the representation, and (4) the identities of the victims, as well asthe dates and amounts they invested.........Accordingly, Deft's. motion for a bill ofparticulars is denied. (Signed by Judge Kenneth M. Karas on 01/06/2009)(jma)(Entered: 01/07/2009)

02/05/2009 30 (S1) SUPERSEDING INDICTMENT FILED as to Milana Murcia (1) count(s) 1s,2s, 3s, 4s. (jma) (Entered: 02/10/2009)

02/06/2009 29 SEALED DOCUMENT placed in vault. (jma) (Entered: 02/10/2009)

02/11/2009 Minute Entry for proceedings held before Judge Kenneth M. Karas:Status Conferenceas to Milana Murcia held on 2/11/2009. Deft pres with atty Tehodore Green. AUSAMcQuaid pres. FBI Agent Francis Gasper pres. Governmant will writ a letter onproposed other-acts / 404(b) evidence due April 17, 2009. Deft need not respondprior to the next conference. Next conference scheduled for May 15, 2009 at 3:00 pm.Exclude time until May 15 to allow Deft to review discovery material. Bail continued.(Court Reporter Albi Gorn) (fk) (Entered: 02/17/2009)

04/13/2009 31 ENDORSED LETTER as to Milana Murcia addressed to Judge Kenneth M. Karasfrom 4/8/09 dated 4/8/09 re: Request for an extension of time until 4/22/09 to submitletter detailing evidence. ENDORSEMENT: Granted. So Ordered. (Signed by JudgeKenneth M. Karas on 4/8/09)(fk) (Entered: 04/13/2009)

05/15/2009 32 SCHEDULING ORDER as to Milana Murcia. Jury selection and trial on Nov. 16,2009 at 09:30am...The Court will hold a Final Pre-Trial Conference on Nov. 10,2009 at 10:00am......All pre-trial motions by deft. no later than June 19,2009....Opposition papers by the Gov. no later than July 10, 2009...Deft's. replypapers no later than July 17, 2009.....Time excluded from 05/15/2009 until07/23/2009. (Signed by Judge Kenneth M. Karas on 5/15/2009)(jma) (Entered:05/15/2009)



06/19/2009 34 MOTION for Bill of Particulars. Document filed by Milana Murcia. Return Date setfor 7/23/2009 at 10:00 AM. (Attachments: # 1 Affidavit Affirmation in support ofmotion)(Green, Theodore) (Entered: 06/19/2009)

06/19/2009 35 MEMORANDUM in Support by Milana Murcia re 34 MOTION for Bill ofParticulars.. (Green, Theodore) (Entered: 06/19/2009)

07/07/2009 36 NOTICE of Substitution of Counsel as to Milana Murcia (Fischetti, Ronald) (Entered:07/07/2009)

07/07/2009 37 NOTICE OF ATTORNEY APPEARANCE: Eric P. Franz appearing for MilanaMurcia. (Franz, Eric) (Entered: 07/07/2009)

07/09/2009 38 ENDORSED LETTER as to Milana Murcia addressed to Dear Judge Karas fromNicholas L. McQuaid dated 07/08/2009 re:.....request a status conference with allcounsel in the......matter.....ENDORSED, The Court will hold a status conference,instead of oral argument, on the July 23rd date previously scheduled. the briefingscheduled is suspended until then. Time is excluded in the interests of justice to allowfor the transition of counsel for Ms. Murcia... (Signed by Judge Kenneth M. Karas on7/8/2009)(jma) (Entered: 07/09/2009)

07/23/2009 Minute Entry for proceedings held before Judge Kenneth M. Karas:PretrialConference as to Milana Murcia held on 7/23/2009 with deft. atty. Ronald Fischettiand Eric Franz, and AUSA Nicholas McQuaid and Jason Halperin. Conference andtranscript partially sealed. Deft. will submit letter to the Court with respect to pendingmotion for bill of particulars and any other proposed motions. On motion of Gov. andwith consent of deft., the court excludes time from July 23, 2009 until Nov. 10, 2009,the date of the Final Pre-trial conference, in the interests of justice. (Court ReporterAlbi Gorn) (jma) (Entered: 07/27/2009)

08/07/2009 39 (S2) SUPERSEDING INFORMATION FILED as to Milana Murcia (1) count(s)1ss. (jma) (Entered: 08/14/2009)

08/07/2009 Minute Entry for proceedings held before Judge Kenneth M. Karas:Change of PleaHearing as to Milana Murcia held on 8/7/2009 with deft. atty. Ronald Fischetti andAUSA Nicholas McQuaid and AUSA Jason Halperin, FBI Agent Francis Gasper.Deft. Milana Murcia withdraws her previously entered plea of not guilty and nowenters a plea of guilty to a one count Superceding Felony Information. PSI ordered.Sentencing is scheduled for Nov. 24, 2009 at 11:00 before Judge Karas. Bailcontinued. (Court Reporter Christina Arends-Dieck) (jma) (Entered: 08/14/2009)

08/07/2009 Minute Entry for proceedings held before Judge Kenneth M. Karas: Plea entered byMilana Murcia (1) Guilty as to Count 1ss with deft. (Court Reporter ChristinaArends-Dieck) (jma) (Entered: 08/14/2009)

08/07/2009 Oral Order of Referral to Probation for Presentence Investigation and Report as toMilana Murcia (jma) (Entered: 08/14/2009)

08/07/2009 Set/Reset Hearings as to Milana Murcia: Sentencing set for 11/24/2009 at 11:00 AMbefore Judge Kenneth M. Karas.. (jma) (Entered: 08/14/2009)

08/14/2009 40 WAIVER OF INDICTMENT by Milana Murcia. (jma) (Entered: 08/14/2009)

09/04/2009 41 SEALED DOCUMENT placed in vault. (mml) (Entered: 09/09/2009)

09/10/2009 42 TRANSCRIPT of Proceedings as to Milana Murcia held on 08/07/2009 before Judge


Kenneth M. Karas. Court Reporter: Christina M. Arends-Dieck. (jma) (Entered:09/11/2009)


11/16/2009 44 ENDORSED LETTER as to Milana Murcia addressed to Judge Kenneth M. Karasfrom Ronald Fischetti dated 11/13/09 re: Request for an adjournment of thesentencing date. ENDORSEMENT: The new sentence date is Hanuary 27, 2010 at2:00 and the above schedule is adopted. So Ordered. (Signed by Judge Kenneth M.Karas on 11/16/09)(fk) (Entered: 11/18/2009)

11/17/2009 Set/Reset Hearings as to Milana Murcia: Sentencing set for 1/27/2010 at 02:00 PMbefore Judge Kenneth M. Karas.. (fk) (Entered: 11/18/2009)

12/09/2009 45 ENDORSED LETTER as to Milana Murcia addressed to Hon. Kenneth Karas fromJerry Capeci dated 12/8/2009 re:.......I am a news reporter who has been writing aweekly column about organized crime called "Gang Land" for 20years.........ENDORSED, Counsel for the parties are directed to respond to this letterby Dec. 11, 2009... (Signed by Judge Kenneth M. Karas on 12/9/2009)(jma)(Entered: 12/09/2009)

12/21/2009 46 STIPULATION AND ORDER FOR SUBSTITUTION OF COUNSEL as toMilana Murcia. IT IS HEREBY STIPULATED AND CONSENTED, by andbetween the undersigned, that the Law Ofiices of Ronald P, Pkchetti, by Ronald P,Fischetti, Esq., be and they hereby are substituted as counsel of record for defendant,Milana Murcia, in the above captioned matter in place of and stead of Theodore S,Green, Esq. So Ordered. (Signed by Judge Kenneth M. Karas on 12/18/09)(fk)(Entered: 12/21/2009)

12/21/2009 Attorney update in case as to Milana Murcia. Attorney Ronald P. Fischetti for MilanaMurcia added. Attorney Theodore Samuel Green terminated. (fk) (Entered:12/21/2009)

01/06/2010 47 ORDER as to Milana Murcia: On July 23, 2009, the Court ordered the transcript ofcertain proceedings held before it sealed. By letter dated December 8,2009, Mr. JenyCapeci, a journalist, acting pro se, askedthat the transcript be unsealed because of hisand the public's First Amendment interests in the contents of the July 23 proceeding.Mr. Capeci also requested that the Court unseal a document sealed and filed onOctober 14,2009. (Dkt. No. 43.) That sealed document and the transcript are one andthe same. At the Court's request, the Parties responded, under seal, to Mr. Capeci'smotion. Mr. Capeci's motion to unseal the documents in their entirety is denied. Anorder giving reasons for the denial is being issued under seal simultaneously with thisOrder. The Court recognizes that it is unusual to seal a document, seal the responsesto the motion to unseal that document, and then issue an opinion explaining theoutcome which is, itself, sealed. Unfortunately there is no other option in this case.Mr. Capeci should be awarethat the full transcript, the full reasoning of this Court, andall other relevant documents have been docketed and are, therefore, available forappellate review.The Court has ordered that pages 1-2 and 28-33 of the transcript ofthe July 23 proceeding be unsealed. So Ordered. (Signed by Judge Kenneth M. Karason 1/6/10)(fk) (Entered: 01/07/2010)

01/06/2010 48 SEALED DOCUMENT placed in vault. (fk) (Entered: 01/08/2010)







01/11/2010 54 SENTENCING MEMORANDUM by Milana Murcia. (Attachments: # 1 Exhibit A,# 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 ExhibitG, # 8 Exhibit H, # 9 Exhibit I)(Fischetti, Ronald) (Entered: 01/11/2010)

01/19/2010 57 NOTICE OF APPEAL (Interlocutory) by Jerry Capeci as to Milana Murcia from 47Order,,,,,. (jma) (Entered: 01/25/2010)

01/19/2010 CASHIERS OFFICE REMARK as to Milana Murcia on 57 Notice of Appeal -Interlocutory...***($455.00 FEE DUE)*** (jma) (Entered: 01/25/2010)

01/19/2010 Transmission of Notice of Appeal to the District Judge re: 57 Notice of Appeal -Interlocutory. (jma) (Entered: 01/25/2010)

01/19/2010 Transmission of Notice of Appeal and Certified Copy of Docket Sheet as to MilanaMurcia to US Court of Appeals re: 57 Notice of Appeal - Interlocutory. (jma)(Entered: 01/25/2010)

01/20/2010 55 ENDORSED LETTER as to Milana Murcia addressed to Judge Kenneth M. Karasfrom Nick McQuaid dated 1/15/10 re: The Government respectfully submits thisletter, with the consent of defensecounsel, to request that the date by which theGovernment will submit its sentencing submission be extended from January 18,2010to January 20,2010. ENDORSEMENT: Granted. So Ordered.. (Signed by JudgeKenneth M. Karas on 1/19/10)(fk) (Entered: 01/20/2010)

01/21/2010 56 ENDORSED LETTER as to Milana Murcia addressed to Dear Judge Karas fromRonald P. Fischetti dated 1/21/2010 re:.....I represent Milana Murcia....I am writing torespectfully request an adjournment of the date of our Reply which is duetommorrow, Jan. 22, until Monday Jan. 25, 2010.....ENDORSED, SO ORDERED.(Signed by Judge Kenneth M. Karas on 1/21/2010)(jma) (Entered: 01/25/2010)

01/25/2010 58 REPLY by Milana Murcia re: 54 Sentencing Memorandum filed by Milana Murcia.(Fischetti, Ronald) (Entered: 01/25/2010)

01/26/2010 Appeal Record Sent to USCA (Electronic File). Certified Indexed record on AppealElectronic Files as to Milana Murcia re: 40 Waiver of Indictment, 30 Indictment, 37Notice of Attorney Appearance - Defendant, 28 Order,, 45 Endorsed Letter, 38Endorsed Letter,, 39 Indictment, 23 Indictment, 31 Endorsed Letter, 58 Reply, 32Scheduling Order, 46 Stipulation and Order, 44 Endorsed Letter, 25 Endorsed Letter,36 Notice (Other), 34 MOTION for Bill of Particulars., 56 Endorsed Letter, 27Endorsed Letter, 47 Order,,,,, 35 Memorandum in Support of Motion, 54 SentencingMemorandum, 55 Endorsed Letter, were transmitted to the U.S. Court of Appeals.(Tychyn, John) (Entered: 01/26/2010)

01/26/2010 59 Appeal Record Sent to USCA (Index). Notice that the Original index to the record onAppeal as to Milana Murcia re: 57 Notice of Appeal - Interlocutory 3 Copies of theindex, Certified Clerk Certificate and Certified Docket Sheet were transmitted to theU.S. Court of Appeals. (Tychyn, John) (Entered: 01/26/2010)


01/26/2010 Appeal Record Sent to USCA (File). Indexed record on Appeal as to Milana Murciare: 57 Notice of Appeal - Interlocutory were transmitted to the U.S. Court of Appeals.(Tychyn, John) (Entered: 01/26/2010)

01/27/2010 Minute Entry for proceedings held before Judge Kenneth M. Karas:Sentencing heldon 1/27/2010 for Milana Murcia (1) Count 1ss. Defendant present. with attorneyRonald Fischetti and Phyllis Malgieri, AUS A Nicholas McQuaid, FBI Agent,Francis Gasper. Court reporter, Angela O'Donnell. Defendant, Milana Murcia ishereby sentenced to 37 months on Count 1, followed by 3 years of supervised release.Special conditions entered on the record.$100.00 special assessment. Restitution inthe amount of $4,692,000.00. Defendant has been informed of her right to appeal.(jma) (Entered: 03/10/2010)

02/01/2010 60 MEMORANDUM from the Pro Se Clerk as to Milana Murcia dated 2/1/10 re:Appeal filing fee paid on 1/29/10 $455.00 receipt # 893329. (fk) (Entered:03/01/2010)

03/08/2010 DISMISSAL OF COUNTS on Government Motion as to Milana Murcia (1) Count1-2,1s,2s,3s,4s.. (jma) (Entered: 03/10/2010)

03/08/2010 62 JUDGMENT #10,0049 WP, as to Milana Murcia (1), Count(s) 1-2, 1s, 2s, 3s, 4s,DISMISSED.; Count(s) 1ss, IMPRISONMENT 37 MONTHS. 36 MONTHSSUPERVISE RELEASE. ASSESSMENT $100.00. RESTITUTION$4,692,000.00. (Signed by Judge Kenneth M. Karas on 3/8/2010) The Clerk's OfficeHas Mailed Copies.(jma) (Entered: 03/10/2010)

03/09/2010 61 ENDORSED LETTER as to Milana Murcia addressed to Judge Kenneth M. Karasfrom Ronald P. Fischetti dated 3/8/2010...We respectfully request that your honor soorder this letter hereby adjourning the surrender date of Ms. Murcia from Friday,March 12, 2010, until Tuesday, April 20,2010. ENDORSEMENT: Granted. SoOrdered. (Signed by Judge Kenneth M. Karas on 3/9/2010)(jty) (Entered:03/09/2010)

03/29/2010 63 PRELIMINARY ORDER OF FORFEITURE AS TO SPECIFIC PROPERTY....as to Milana Murcia......The Clerk of the Court shall forward three certified copies ofthis order to Assistant U.S. Atty. Sharon Cohen Levin, One St. Andrew's Plaza, NewYork, NY 10007. (Signed by Judge Kenneth M. Karas on 3/29/2010)(jma) (Entered:03/29/2010)

04/20/2010 64 TRANSCRIPT of Proceedings as to Milana Murcia held on 01/27/2010 before JudgeKenneth M. Karas. Court Reporter: Angela A. O' Donnell. (jma) (Entered:04/20/2010)

04/26/2010 65 ORDER as to Milana Murcia. ORDERED that bail be assigned to defendant'sattorney Ronald P. Fischetti and the firm of Fishetti & Malgieri, LLP, and that uponthe exoneration of bail with Ms. Mucia's scheduled surrender on April 20, 2010, theclerk shall issue a check in the amount of 20,000, payable to Fisehetti & Malgieri,LLP.. (Signed by Judge Kenneth M. Karas on 4/20/2010)(jty) (Entered: 04/26/2010)

05/07/2010 Payment of Fine from Milana Murcia in the amount of $100.00. Date Received:5/7/10. (mn) (Entered: 05/07/2010)

05/19/2010 CASH BAIL RETURNED as to Milana Murcia dated 04/20/2010, from Judge JudgeKenneth M. Karas, in the amount of $20,000.00, Check No. 00895539, Check Dated05/13/2010, payable to FISCHETTI & MALGIERI, LLP and SENT VIA FEDEX,

A-10Case: 10-301 Document: 58 Page: 50 11/03/2010 139386 60

05/13/2010, payable to FISCHETTI & MALGIERI, LLP and SENT VIA FEDEX,TRACKING # 8655 7112 6502 ON 05/13/2010. (jd) (Entered: 05/19/2010)

PACER Service CenterTransaction Receipt

10/28/2010 18:58:26PACERLogin: gl0399 Client Code: stephen.gikow

yale.edu

Description: DocketReport

SearchCriteria: 7:08-cr-00761-KMK

BillablePages: 8 Cost: 0.64

A-11Case: 10-301 Document: 58 Page: 51 11/03/2010 139386 60

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To Page 2 ofi 2009-12-0823: 18:12 (GMT) 12122140551 From: Jerr! Gapeci

Case 7:08-cr-00761-KMK Document 45 Filed 12/09/09 Page 1 of 6

Gang Land News Real Stuff about OrganiZed Crime

http:/www.ganglandnews.com capeci@ganglandrl&ws.com

MEMO ENDORSED

JERRY CAPECI webrnaster

USDSSDNY DOCUMENT ELECTRONICALLY FILED

DOC#: __ --

DATE FILED: J)ece1110er 8, 2()09

H(ll1o.ahle Kenneth Karas l:S Distrie.l. Courthouse :Hl1) (illarr()pa:; Street Whit:.: Plains,'~ Y 106(1I

Rt:; 1.:5. v. Murda: Di'lcket if 08CR761

Pru & Motion to DllSCikI trnRtcrint of ore-trill. pCt),=eeding of July B, 2009 hnrd to chllmben; permis;ion (rom Jo~h. Ccmies 10 partiC.1 Vhl fax andftlf email.

IJtlar .. i ihigc Kl1rll~, l I am clIK'Wil repmter wi1n bas been writing a weekly cl)iunln aoout orgnnized crim~ called "Gong T.rm.l" fot 20 years. It app~ onliuc at .!\"w»·£.!!p...gIi!'-IQi)~W:;.~{}Jn. I haw i.·oytrred ft;'(.kra! wurt proceedings and related law el1forct:.tnent w;.ti. ilic/i fQ[ mon" {hau J 5 :, eaTs.

I wflIlc itbout the instant case on August D. 2009 and intend to WrilC /lOOut. it agRin in the nefl1 fnture. J have attached a copy oj" my earlier article to thir, letter.

r petition you tu QC.cepl and docket this letter, Ilnd treat it ali a "pro sc" lcLlA-'T-mOlk'n in the inst"nl casc. I have faxed it tt) chambers aftc·r re..:ejving pcnnission from .T,)1\h. T nil"!;! cll1ailcd aud/or fiiXOO wpic-tl ofthis letter to the l)l)po~ing partie:i ill tW.: C~: 1l1dmliog !.he lWll lisll'ct c(Jull~1 for defendant !V1ureia.

Spccitjcally, I ask thai the transcript oftht· Juty 23, 2009 pmceeding in the cast", which th<! dock';l sheet indicate.s is "ptU1iaJly scakd" >. hilt which, y\JUf Jaw clerk. a::; well ilS the Svullit.rn District COWl: ReportClTs. sa)' is 5e<!leu in its entirety - to be unseated ill its entirety.

Lale todllY. cowt reporLe,r Albi Gorn reP011~ that hiS noles indicare thal ouly pagl.:':; three Illr(l1lgh 17 nrc sealed, and that pages L 2. and 28 thrOllgh :n ''''ere not !lea1ed.

In addition, ., a.~k that the Ocwber 14. :!.009 sealed documel1t: which the docket shet! idemiiit·o; ~o; Sealed OoclIme:nt #4~, al~o be unseaied :sir .. :~, upon mtimnRlion and bdiel: it

P.O. Bo)( 853 • Long Beach, New York 11561 • (516) 431-1277 1


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n:lall'.s spcdflC<1Jly M matters rJ'llt were discussed by the pat1.i~ 00 July 23, 2(j09, Ilnd ,11,1111d also be Ufl1>calc.d. If m)' illformatioIJ and belief about its relation t() the Juh' n. 2009 proceeding i:'l ."c(lrrec(' J wouid iJl:;l~ i:l$k thai you lk:(cnmllC whether the' . tlocUmt1ll was proPt~rl;' 8ubmitl\..xj for scaEng, und sealed :it'cording to :it~J.ul<l1'l.l:. ~(:L' .. lptcd h> I h~ ~ecnnd Cil'cuit Caun of Appeals.

Up~JIl iul<::Il'Llwtiml and belief. the ab\we d()CLlmellt!;; pt'.rt<till to :>o-called "Curc.ir. ml.lHel'~" involving an attorMY or altorncys who entere.:1 the co..'le as anomey for defendant I\! ilana Murl'ia In .July, 2009, according. to the official docket Sht."Cl in the case,

II u; , ... ·~U ~culoo in this district a)ld in federal courts around. tJle C-l)untry that the PI!!SS and the puhlic cantHit be denied access to court dlx:um{';]l!s in federal court.~ except when extra{~l\linary drl.~\iln3\.a.nCCl! exist, tndeed, upon information and helief~ U.S. DCpclnmenl ld .lustj.;x- gllidelines state that failing an extraordinary r~'~~ll, ass.iSUU1f U.S. attorneys are r~4ujrcd to oppose c1o~urc nf pf('ccedings. or sealed submissions: by ()lht:r parlk.s ir, ~:as-=~ ill which the government is involved,

ill the imlant ca:.e, l1.;-.ither rho.': d,~l'clt.C;C attorneys nor the U.S. Attorney's oftic:e b<1~ m:tde rmy rlJhlic claim t.hat tilt relea.'ic of this lnau:riai WQl.lid t'lIlinngc.( natinrlill SI."Curiry ,)[ th~ ~&~ty of' >my wiiut'S.;; Qr oth,=r pcrSVll, or Ibat.its relea..:;e w(lulJjeopardize any on~oiug iil\o,:stigatiolJ.

It i~ impossible for this reporter to state categorically thai the infonnation and thl~ 111aterial in the !lealed papers dot:l\ nul ~:{ldanf.',cr lUltional ;;ccurity, or put me safelY \)fthe ddcuJ;mt, l'r any othel' person ill jeopardy, (jf does not j«'pardi£¢ au)' Oll.b>oing iHvC'stigmion5;, However. it seems highl~ lloiikely I hal. the ahove listed .~ll.lerl court rapers pt:nair~ u) any i.'xtraordinary or sensitive matters that Jderve LO remain under ileal.

Indeed, in numerous cases in the Southern and Eastern District on New 'York, 90-C!lJkd

Cure-io hearings .. t which qefendallts are asked to ack''\(1wledge that they are aware the !L(J\<'ffilih!IIl is inveiOtigating allegatiol1l> involving their lawyt.>J'S, as well as other relmed doX"U1l1ents involving allegations (If crirl1ina.l violaTion!' and other alleged miSC(lDdu(;t by nllorney" are routinclytiled and d1SoCussed in upen t;'1Jllrt,

Th..: p<llJEc, ill £eJ\ero.!, and reru:lers of gunghmdnews,wm in pfll1iculilf, h<lve <I right It) know the Circ~uIlstaL1(;es of the f~'dcfaJ government's investigation of alleged '~Tong.doi!lg in\'olvir~g an ntto111ey in the case, The mere fact thaI the attom~~y(s) or the govenlTncnt

P.o_BoX863·Long BeaCh, NewYork.11561-(516)431-1271


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To: Page 4 of 7 ?DP9-12;,Q8 23:18: 12IGMJ).. Case 7:08-cr-00761-KIVIK uocument 4::> Filed 12/09/09 1~~g~o~b{(jm Jerri Capeci

Gang Land News Rear Stuff about Organized Crime

http:/WrNW.ganglandnews.com [email protected]

JERRY CAPECI webma$t~r

W(lllld raTher nol have inlbrmation about the inves1ip,atiol) become pan of the 1mbli15 re(.:md i~ 001 a rcarou to seal the record ah(mt that iniomul1lo11.

\1ilana \:lurcia. The only remaining defendant in the ca<re., whose hl . .1n is an FBI SlljA'fvisor, was inirially charged with wking part in a mulli-million doilat huc~cheme that t:xtt'rulcd over I't long period of time. She ha..<; pleaded !.--'Vitlv in a plea b<lI);..,ruzuftlu awaitc; ~<':nkncing that is c\.UTently scheduled to lakt! place on ]a.num·y :'7. 2010.

EVl!l1 when relatively minor istiucs are being litigated in civiL 01' small claims coun. lmn"parcJI(.:Y in the judicial process is recogni7txi as a paramount I~leml'nt of our dermx:r.ltic way oflik It must be cherished. j)rotocted M.d championed at all 001'1:>.

When discussiug rhe dang"r.; of wldue secrecy in tne courts many y~l'i ago, tht~ lak~ U,S. Supreme l'~lUrt Ju~t{ce LClUis D. Brandeis put it most eloquently: "Publicity iii jll.,,!]), commenJeJ as a remedy for social and indu.<:;triuf dlsc,a.<;eS. Sunlight is said to be tht be~t of disinkcj.lll1ts: electric light the most effic:;.j~nt policeman,"" he wrote.

Upon in.lonnation and belief, the federal gQvcmmcnt" s crimillal investigation of alkgcd wJ()lIgdoing by an atlomey{s) who ro;:prCSl;':nlS at dcfc.ndll.1ltin a majo!' criminal ca..-.e in infil111mliQll1hai descrvc.~ to ;gee the light (If day.

For the rC::1SQIlS stated. above, (1.<: well liS alJ other provisio.ns of the fe<kr.tl rules of

,:vi:lclICC and the First Amendment of the Constitution oftb~ United States that may apply. OIl behalf of th~ public and the press,. T ask that you LUlSCal the alorementio;:Il"j Ij'!m~cripl of the July 23,2009 pm-trial pfI)ccciHng and the Octilner 14,2009 5e-'i1ed Ur.1C\ItlK'llt ill the instant case and make them available Jor public inspection th"ugh the u!';uat m=.!ii.llS.

c~~~·-·-

i::r&i J 5 t b-·B \·1177 C;mi!ciili:Il~r.glandncwg.CQ01

PO. Box 863· Long BeaCh. New York '11561 • (516) 431-12T7


A-15

To' Page 5 of 7 • AQ.Q!t-12;Q8 23:1812 (GMl.L Case 7:08-cr-00761-KIVIK uocument 4::> Filed 12/09/09 1p~~~Oifbf!5'm: JerrI Capeci

{mng Lund· r he ColtlIDll

;~=

.?:'IL.~ (,:h;.~Z" Wi~i:·I!!l,r.i

Augv~t 1$, 2009

By Jerry Coped

G-Man's Mom Cops Plea Deal In Tragic $4.5M Investor Scam :GANG' In a case lirtged with irony. iI1lti,gue and ; LAND tragi2<lv. the rnolher of 0 top FBI orgonlz:ed i lIxdlald.Y"' c:rfme wpervisor pleaded guilty lost week 10

~windlir\g investors o-ut of $4.$ mlll10n thr()ugh sevtiCll bogu$ gI,:,bClil Jecyc:ftng compOnie& .he 'on wfth hey

Ul=:~~""",:,~\=~§=~llf late husb(lnd, Gong land he" learned.

-=:I!!!!!i"'~H Mllono Mur~Ja - who allegedly funnele<l hundled. of !hO\lSOn4s of dollors in dolen fund$ to tier daughtel, but gave none to he, PII agent son - Clgf"ed to a plea deoilltat colis for a maximum of

F=-, ... ··,,·· . .'.''''---..j~~'''''-·,'='' ....... -lUI IIva Vec:n Indead of Ihe :to years she ~~~~!II would have raced it convicted crt trial.

m·~,~:,;,.~'=~ No ather Murcla fe-Iatlves have b .. n charged, and sources say fue il'westigcllon.15 ovef.

last yeor, when agents moved qvicldy to emest Murcia ond 11iI::~-==:-.!~~'-=='=;:o~~11 hat hllsbcnd PtlIJ1lppe labov., right} to $flut dOwn th&ir

lcheme-s even bitfore the Investigation Wtl, concluded, PBI ='-~~~~IIi honcho, In Woshington cQlfed ftle orreus one of 1he "'&I't

T()p T~ NOWI Storii!!S~ 01 the week.

Among other thIngs. according 10 an allest complaint filed In January 2008, the couple fraudule-ntly claimed their companies mined diamonds In Africa. mode "dlorcoal nom nees on \h land In ihe CongD and Russia." 'film bundlng ~plants In portvgal and Spatn to conI/elf wost. Info coal," ond htld Q water purfflcotton "contract wllh Club Med i.l'sot1s in Moroc(;'o."

In the complalnl, fit agen1 Franci$ ~asper Wl'()te thut Ill"=.;;o;;.=··~\,:-"';';;"--""';II "budne» bank account records" of the Jttfgel1lJt Corp.-1"!;,,;,<5i!~~~~~~~ one of ,.veTal eQrnpan~.$1he t;oupht controlled - shQwl:-d I, ~.. fhaf in reeent yeors, ~670,OOO had Ixte-n transtel'l'e<l to

Conmct Gon!,lJ..uns! personol anct busl~n account! of Milano MlJlcio's broth e •.. ;":'1 ~;r:;c, and or her doushfer. The scheming bagan In 1997.

Im",,. •.•. / •. ", ,',,! according to eaurt records. '-fl.J¥'~l4' ::n,~

J,.' fdo::~t<.: ,,-,,~f~Q~ There hove been no allegations thai MurcIQ~' son, FII agent

htt .. ·/!wu."U· "'~t\olrJ1'1r1nl!\'-'!\.cOlUJlllemhersh:olumn648.hlm

.:i. !teal stull

4hOOl Orgal'll~d Crime

. Read la~l(~

c..~llfmn

L 217 !20(N


A-16

To. Page 6 of 7 f'!ClQ!)-12,;Q8 23:18:12 (GMT). Case 7:08-cr-00761-KIVIK. uocument 40 Filed 12/09/09 1P~~Mo~b(~m: Jerri Capec;

Gang Umtl - The Column

L",

i. il Vadlm Thomos, c;umanHv OUtgM(f to the Il'Ispttction Division ; of the- FBI's Washington D.C. headqvalfers. ever received

a===--..... """'="' .. ·""· ... ·>= __ iioI' any funds from any company ac:count. He olio has nol been ImplJeated In th& scheme in QAy other way.

Contacted by Gang Land, Thomas said he "had l'Ioltring to do with the InllestigoHon,"

' ............ " .• " ""did "not know much about it," and had no int&red in tuilling.

: "I don't have Q relClffonstUp ---......... ' ''---I'Wlth my molt1er; he $(lid,

beior. hanging Ul).

thomo$. Q Russian-ipeaking agent whQ worked lIulClan organi:ted erime cases before oveneeing traditional mob inv*ltigotiotU, MOV not have known much about the ptQbl!.' itlf<> his mother', crimes, but it was not for a Jack of irylng, ac(:ordlng to 1'81 loureel:.

~_.~ ... ,v,«, , •..... 'n. j' "He he.ard hIS mother wen . __ .e __ ... _ .

i".,.~ ...... , "",'.,,_ ~ '''.'~' ., ......... _,_ • .under Investlvalton and tried to ·r" .. · ... ··,··,·, "~ ... , ••• ~ ... , .... , ", ... ~ .... ·~···iUnd ()\If where it wos going.' '------.. ----... -..-. ...J$(1icj one ~OUfee, The source 5:tlld that even thol.J9h lhomo~ was an organb:&d crime svpltf\fUor. "he wos plugged Into the- ~t!!t.S9!1:O! ,g~ thot ran the lnvestigotloo. ~

l'he fll declined to answer any question, about the agencv's handling ot 1t!e probtt, wltich began, according to cOllff records, at leaJt two ye<m before rhe Mur'ciG& We,. QJ'fested_ The- f&l ~Iso cUtc:nned ro dfscuss why Thomas has been transfelTed in and out CIt several diffe~nt squads. both In NI'W York and Washington, In recent years.

Regarding his reloHons with his molher. "'r aHomey agrees wHh Tl1omos.

"She has nofhlng to do with "'"' son. They ore estrGl1ged. fl .oid lawyer Ronald fi,chetti, who decnned to discuss when mother and son ,ioppe-d talking to each: other.

On the day thQt his mother and her I\U$bond were atrested at th& Greenwie.h, Conn. house 'hat abo 'Served as ttl. corporate headquatteoB of severol companies they ran, sourell'l soy Thoma!. - who was woddng in New Yolk at /he lime - WOIi notified of the arrests by P.C1vld~~tt_CJ!1IIL head of the Nr1w York otIke of tke Fal's Ofgoniud crime Jmoestlgaflons.

MQQnwhh. hB mo1her and step fathel'. 0 french-bom inventor believed to be the main player ill the mulHple seQ"" the couple operated. were arraiCjlned on the frcLJd chutgfl, wHh each ulflmateJy r.teased on a $200.000 bond secured by Pfopetfie~ owned by friend5 and relatl\ie"

The story took 0 dork turn a few days later when, on the evenlng of January 15. 2008, wh.n MR. Murtle returned

htU1:i .wwv.. ,gd I 19landno::.ws.tKmlimembers!coluIlm648 .bt:m

Page 2 of 6

The \I~!lC..Mllll T';'iJf

:?::;:~-n ... ,.. -nc ''Mob ,:.c:q VeOA&"' 'JjeJl MiA.> Han'J«iU. a M~r:Mr Sr"'''''$ ·r"'·::.I·~:-:i"!VS~~.

!i~.ltlhlnd at I:!1$TORX'" ~.:~.;.,:);;l~'itor~··;i. ·,;: ... ·:N:.1I.:.H'iOLJ'S ~_.;. . .gs (~T'r.gJlI1d

'.j tjl:O$ 8. More ".,""io(Y<O"II·

1i1DlillPtWa(. F-·!d M;:. ~.~,

":',1.1 jr:'~8 'l;°H G"ff.',lf-t

r;r'1~IU!JI.Q<;!I.1I i;~f;j .;!;(f.~'ft. Op.st': ;'l~r Ilonr~ For rc,E't 1t.tT"""e·;::u·! Ft!.!!..nctes ;t ~,." ""'~' JE"".. ttl!"!

rlti5Montil i"

ta!Vf; I..tNn ljjsWJl

A\!.SU1".'1 •. Wll. ANGRY WOltOS

rlA~UI! I!X'AGEI'I' MURDER CASE

AU>lu~ 12. ,,'7 SONNY PAYS

THE PRICE rOIA~K

A.",g~sj~~l HeADACHES AlLUOUNO

~Q9.! sex. DRIlGS.

AND DlRl'Y au Lien

A~!t~~ feos TAU 2d SHOf AT ~MOK'WG G<UN

CA~!

1217 .0.UO')


A-17

Page 70f7 ,20D,9.;12-,Qtl23,18:12 (GMI!Case 7:08-cr-00761-KMK uocument 40

(jang Lmd • The Column

home and discovered that hll/I husbond hod flange(! hlms~ In '(emt a pictur", 01 Je-iUS Christ that aclQrned a Jiving room wall.

';11 was (I hOrrible. horrible tragedy," sold PhIlHppe's f4tderai defender. Suzanne Brody,. to whom he wrote a signed, suicide' left.r thai thanked her lor h~r SaMe.I, whicn, he noted wryly, would Mnot be any Ion9tH''' needed "beCalm: I'm taking my lite tDday." In the lettel, he absolvecl his wife <md step·daughf.r of emy wrongd<llng, stating they had oeted under his "requG, «der and command."

In on emollon<ll. handwriHen good. bye note to his wU. of Z2 yeocn. whDm he addressed os ~aaby." he bagged her to forgive his decision to lent himseff. and to ask hi, childr.," and theft dearMt frIends foT their fotgivell$$s as wei as their pray.rt, "Pray for my soul. • he WTot ••

The I~r endttd: "'love yov and I<iss you. Yours lor etemlty. Lee."

M". Mur<;lo, 65, faces between :'7 (lnd 4.!t months in prison, according to : fQderal senlencing guidelines.. lut her; attorney Is golt\; 10 pr.~s White PlaIns !

Pec:Mllal Judge Kenneth Karas for probClfipn when hi$ dent is sentenced In November.

"Her husband W45 Q scientist. he

"3 llu\-t.:· ~.4.'" 'Tu .... .' H

:i: "" (4 ... I,):: ... ~ .. " ~"

,,4,.. ..... \ '"""-... \:,»r' \ ...... ,j,~i

'l ... ...1.~ i~f" lj;;' ,."V~:......

do ,t~ ~~~ ........ \.. '1"~" Cl-v.

~~~~:Jc.. ~ ... to a,j "'-wet .~.

",~f-4"J#, ......... hi'!.

j.\.:.,.... !\ .. ~,~ "'''' tv.l"j'''f', -..:,

~f"1 {.... ""'I '" . ...1

=~:::~~~!,:,~~~ :~~i. L_~"_~' __ _ uSh, did what he told Jtftfto do, Now she's lost everytbing. her hwoband, her home. She doesn't d"erve to be in pri$on. She deserves pcobatlon."

In C(Jn'C'ersotions wHh 5eVf'ral fnv~$bB from 200410 2007, however, InCluding se-veral thai WMe fope·reeordad, MIlana MUlde said that Regenat "was preparing to sign several $Ignlftc:ont c()ntrac:t$ In MCIIn& , .. with companie$ In the potato Industry" to buDd plants ~fo convert w~t~ into cOClI."

'hose claims, prollecuton; NIcholas McQuaid and Jason timperin might c:ountef. are not small JKlta1oes, Expect them to pustllor plfson time within ttl" rec6mmended gulcl.Dnes ,ra,,!,,!~ ._. '0 _____ " ..... _. .. ___ .' " ___ "_ ....... _. ___ ••

; am3~On.cOm' : ---- ..... ,~

Card Game Thief; Beaten By Mob, Gets Hit Again By Judge

smcJl time gambler who was 1arotiled and badly beaten by Mobst .. 1'$ to,

. orches1rafing fhe crme<l robbefy I)' a

htiT>,j.UWW oil~lIlandn6ws.conl;membt:irs/colwnn64g,htm

Page 3 o[~

AugwI29,292:2 A lOUSY LEGACY

J2i71200()


A-18

Case 7:08-cr-00761-KMK Document 47

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YO,-"RK~ __ --,

UNITED STATES OF AMERICA,

-v-

MILANA MURCIA,

Defendant.

KENNETJI M, KARAS, U,S,D),:

Filed 01/~~~~~:::!:::===::'1 II USDS Sm;y J

DOCJ1\'fF'; r ELl,:",' <n';'(' '.'.LYFILEI' DOC ,,': i

DXrE FILED: -=J Case No, 08-CR-761 (KMK)

ORDER

On July 23, 2009, the Court ordered the transcript of certain proceedings held before it scaled, By letter dated December 8, 2009, Mr. Jerry Capeci, a journalist, acting pro se, asked that the transcript be unsealed becausc of his and the public's First Amendment interests in the contents of the July 23 proceeding, Mr, Capeci also lequested that the Court unseal a document scaled and filed on October 14, 2009, (Dkt. No, 43,) That scaled document and the transcript arc one and the same,

At the Court's request, the Parties respondcd, under seal, to Mr, Capeci's motion,

Mr, Capeci's motion to unseal thc documents in their entirety is denied. An order giving reasons for the denial is being issued undcr seal simultaneously with this Order.

The Court recognizes that it is unusual to seal a document, seal the responses to the motion to unseal that document, and then issue an opinion explaining the outcome which is, itself, scaled, Unfortunately there is no other option in this case, Mr, Capeci should be aware that the full transcript, the full reasoning of this Court, and all other relevant documents have been docketed and are, therefore, available for appellate review,

The Court has ordered that pages 1-2 and 28-33 of the transcript or the July 23 proceeding be unsealed.

SO ORDERED,

DATED: January (" 2010 White Plains, New York


\ \J . ~ \j\

f UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

J€r t'i (!Ci(p(?Ci j (]o,lJfj IaubJews:, ~ (In the ,pace above enter the jull name(s) oj the,2 )7petltlOner(s).)

- against

()£~. 7ft; (

(In the space above enter the full nameM ofthe .'5 'respondent(.~).)

Notice is hereby given that :Ierr'f ~ec i) as; JOutrr,ttI,.st (party)

Dr CafaJI/?lJJJ. c?am)

~ f63

A TRUE COPY J. MICHAEL McMAHfJIN

entered in this action on the ---f-

Address

f:?!1,"&7J~J NV /IJ0! /~----'---'--/['"_ _ ,2°--10 ( Qfo )'-131- /2-27

Telephone Number

etIrP eel ({j)g (It-j/ClI.-c/)1 f!f.1.}.r f UWI. NOTE: To take an appeal, this form must be received by the Pro Se Office of the Southern District of New York within thirty (30) days of the date on which the judgment was entered, or sixty (60) days if the United States or an officer or agency of the United States is a party.

Rev. 0512007

.r .~

~,:,...r- c\ ',.' S'- v.........- \. l \.LA

Case: 10-301 Document: 1-1 Page: 1 01/27/2010 4041 15

A-19

,

..c ,j..J-

f,- \.J',,"

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Jet t'i {J~i j QalJ!jiawitJewr. ~ (in the 'pace above enter the Jull name(s) oj the j it IpefltlOner(s).j

- against-

(In the space above enter the full name(.s) of the .12 respondent(.s).)

\\J. ':) 1..)\

NOTICE OF APPEAL of .. A CIVIL·'iMK a c6 b I{

J tJ ct ch YJ1llJtt { t.R:l.{e,

Notice is hereby given that -:Ie r r'j ~ec;) a·~ Tou tJ1.Jallrf t (party)

entered in this action on the _--+-__ day of JaW hd (month)!

~I S JAN o2OfO

Address

)J;/1,e&?i~ I Nt[ /lJb I /t----V-"~"--/J _ _ ,20-LO ( t{/ro ) 13/ /2. 27

Telephone Number

cQ(pec /6) ff(It"3101Jc/Yl~W['U»1 NOTE: To take an appeal, this form must be received by the Pro Se Office of the Southern District of New York within thirty (30) days of the date on which the judgment was entered, or sixty (60) days if the United States or an officer or agency of the United States is a party.

Rev. 0512007


STATE OF NEW YORK COUNTY OF NEW YORK

) ) )

ss.:

AFFIDAVIT OF CM/ECF SERVICE

I, Cristina E. Stout, being duly sworn, depose and say that deponent is not a party to the action, is over 18 years of age.

On November 1, 2010 deponent served the within: Brief and Appendix for Interested Party-Appellant

upon:

Nicholas L. McQuaid, Esq. United States Attorney's Office, Southern District of New York 1 Saint Andrew's Plaza New York, New York 10007 (212) 637-1049 via the CM/ECF Case Filing System. All counsel of record in this case are registered CM/ECF users. Filing and service were performed by direction of counsel. Sworn to before me on November 1, 2010

Maryna Sapyelkina Notary Public State of New York

No. 01SA6177490 Qualified in Kings County

Commission Expires Nov. 13, 2011

Job # 233086


brief and appendix for interested-party … for interested-party appellant 1050 17th street, nw,...

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