13-2431-cr(L)
United States v. Jiau
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 20th day of May, two thousand fourteen.
5
6 PRESENT: DENNIS JACOBS,
7 CHESTER J. STRAUB,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13
14 Appellee,
15
16 -v.- Nos. 13-2431-cr(L), 13-2772-cr(CON)
17
18 DONALD LONGUEUIL, SON NGOC NGUYEN, AKA
19 SONNY, STANLEY NG,
20
21 Defendants,
22
23 WINIFRED JIAU, AKA WINI, AKA SEALED
24 DEFENDANT 1,
25
26 Defendant-Appellant.
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28
1
1 FOR DEFENDANT-APPELLANT: RANDA DEA MAHER, Maher &
2 Pittell, LLP, Great Neck, NY.
3
4 FOR APPELLEE: RICHARD A. COOPER (Diane
5 Gujarati, on the brief) for
6 Preet Bharara, United States
7 Attorney for the Southern
8 District of New York, New York,
9 NY.
10
11 Appeal from orders of the United States District Court
12 for the Southern District of New York (Rakoff, J.).
13
14 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
15 AND DECREED that the orders of the district court be
16 AFFIRMED.
17
18 Defendant-appellant Winifred A. Jiau appeals from
19 orders denying her pro se motions to unseal documents and to
20 file supplemental supporting evidence.1 We assume the
21 parties’ familiarity with the underlying facts, the
22 procedural history, and the issues presented for review.
23
24 1. Sealing Order. On application of both parties,
25 the district court entered a protective order in April 2011
26 providing that:
27
28 any documents, the information contained therein,
29 and other information provided by the Government
30 to the defendants pursuant to . . . Title 18,
31 United States Code, Section 3500, . . . are deemed
32 confidential.
1
This is not Jiau’s first appeal. In October 2013, by
opinion and two summary orders, this Court (1) substantially
affirmed Jiau’s conviction for insider trading and
conspiracy to commit securities and wire fraud, see 734 F.3d
147, 150 (2d Cir. 2013); (2) vacated and remanded as to the
district court’s (a) forfeiture order and (b) order denying,
for lack of jurisdiction, Jiau’s pro se motion for a new
trial, see 545 F. App’x 34, 36 (2d Cir. 2013); and (3)
dismissed an appeal from the denial of Jiau’s pro se § 2255
motion, see 536 F. App’x 140, 142 (2d Cir. 2013).
2
1 Protective Order on Consent at 1, United States v. Jiau, No.
2 11 Cr. 161 (JSR) (S.D.N.Y. Apr. 6, 2011), ECF No. 45. Such
3 “confidential” information “[s]hall be used by the
4 defendants and/or their counsel solely for purposes of this
5 criminal action” and “[s]hall not be disclosed in any form”
6 except in limited circumstances. Id. at 1-2. “[D]efendants
7 and/or their counsel” are to “abide by the [order’s]
8 restrictions . . . unless [they] make a written request to
9 the Government for an exception to these restrictions, and
10 such a request is granted.” Id. at 4. The Government is
11 required to “make all reasonable efforts to accommodate such
12 exceptions,” and Jiau “may seek relief from the” district
13 court if her request for an exception is “refused.” Id.
14
15 Jiau nevertheless attached “confidential” witness
16 statements and law enforcement reports to her pro se
17 publicly-filed 28 U.S.C. § 2255 motion, collaterally
18 attacking her sentence on the ground that her trial counsel
19 rendered ineffective assistance. In an October 2012 Sealing
20 Order, the district court directed the clerk of the court to
21 place Jiau’s motion and exhibits under seal and directed the
22 Government to publicly file a redacted version of the
23 materials. In June 2013, the court denied Jiau’s pro se
24 motion to lift the Sealing Order. On appeal, Jiau argues
25 that the documents should have been unsealed because they
26 are relevant to her § 2255 motion and her civil malpractice
27 suit against her former attorney.2
28
29 “[T]he decision whether or not to grant access [to
30 sealed documents] ‘is one best left to the sound discretion
31 of the trial court, a discretion to be exercised in light of
32 the relevant facts and circumstances of the particular
33 case.’” United States v. E. Air Lines, Inc., 923 F.2d 241,
34 245 (2d Cir. 1991) (quoting Nixon v. Warner Commc’ns, Inc.,
35 435 U.S. 589, 599 (1978)).
36
37 “[J]udicial documents [are] subject to the common law
38 presumption of public access.” United States v. Amodeo, 44
39 F.3d 141, 146 (2d Cir. 1995) (“Amodeo I”). However,
2
Jiau’s argument that the documents should be unsealed
because they are relevant to her § 2255 motion is puzzling.
The fact that exhibits to Jiau’s motion were sealed in no
way prevented the district court from considering them.
3
1 “[d]ocuments that play no role in the performance of Article
2 III functions, such as those passed between the parties in
3 discovery, lie entirely beyond the presumption’s reach, and
4 stand on a different footing than . . . any other document
5 which is presented to the court to invoke its powers or
6 affect its decisions.” United States v. Amodeo, 71 F.3d
7 1044, 1050 (2d Cir. 1995) (“Amodeo II”) (emphasis added)
8 (citation, internal quotation marks, and brackets omitted).
9 In addition to common law values, “First Amendment concerns
10 implicated by the sealing of [judicial] proceedings or
11 documents mandate close appellate scrutiny.” Newsday LLC v.
12 Cnty. of Nassau, 730 F.3d 156, 163 (2d Cir. 2013).
13
14 The documents Jiau seeks to unseal may well constitute
15 discovery materials “that play[ed] no role in the
16 performance of Article III functions.” Amodeo II, 71 F.3d
17 at 1050. Jiau cannot unilaterally convert discovery
18 documents into public “judicial documents” by challenging
19 the application of the Protective Order. See SEC v.
20 TheStreet.com, 273 F.3d 222, 233 (2d Cir. 2001) (rejecting
21 as “without merit” the argument that “Confidential Testimony
22 is a ‘judicial document’ because the Court reviewed it in
23 order to decide whether or not to enter the protective
24 order”); cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 143
25 n.8 (2d Cir. 2004) (“There is . . . a troubling element of
26 bootstrapping about the presumption of access here: . . .
27 the result was to transmute arguably legitimately
28 confidential data to a document to which the public has a
29 presumptive right of access.”).3
3
Jiau’s reliance on United States v. Pickard, 733 F.3d
1297 (10th Cir. 2013), is misplaced. The documents in
Pickard had been filed by the Government with the district
court and considered by the court in making evidentiary
rulings; the documents were therefore clearly “judicial
documents” subject to a presumption of public access. See
id. at 1300, 1302. Moreover, Pickard deemed significant
that the district court “did not consider whether
selectively redacting just the still sensitive . . .
information from the sealed . . . documents and then
unsealing the rest of the . . . file would adequately serve
the government’s interest.” Id. at 1304. Here, the
provisions of the Protective Order that allow for exceptions
and district court review constitute the narrow tailoring
that would otherwise be done by targeted redaction.
4
1 Even if the sealed documents were subject to a
2 presumption of public access, the district court explained
3 that “the documents subject to the Protective Order were
4 properly placed under seal, as they reflected sensitive
5 information about cooperating witnesses and the Government’s
6 investigative methods and techniques.” Order at 2, Jiau,
7 No. 11 Cr. 161 (JSR), ECF No. 185. “We have recognized the
8 law enforcement privilege as an interest worthy of
9 protection,” Amodeo I, 44 F.3d at 147, and one designed to
10 “prevent disclosure of law enforcement techniques and
11 procedures, to preserve the confidentiality of sources, . .
12 . [and] to safeguard the privacy of individuals involved in
13 an investigation,” In re Dep’t of Investigation, 856 F.2d
14 481, 484 (2d Cir. 1988). “Both the claims of law
15 enforcement privilege and privacy are proper concerns for a
16 trial court in performing the balancing test required to
17 determine whether access should be allowed or denied.”
18 Amodeo I, 44 F.3d at 147; see also In re N.Y. Times Co., 828
19 F.2d 110, 116 (2d Cir. 1987) (“Certainly, the privacy
20 interests of innocent third parties as well as those of
21 defendants that may be harmed by disclosure . . . should
22 weigh heavily in a court’s balancing equation . . . .”).
23 The district court was “in the best position to weigh
24 the[se] factors,” Amodeo II, 71 F.3d at 1053, and we see no
25 abuse of discretion in requiring Jiau to comply with the
26 Protective Order to which she consented.
27
28 2. Supplemental Evidence. “A motion to reopen the
29 record for the presentation of new evidence is addressed to
30 the sound discretion of the trial court, and it may only be
31 reversed on appeal if the trial court abused its
32 discretion.” DiBella v. Hopkins, 403 F.3d 102, 119 (2d Cir.
33 2005) (internal quotation marks and brackets omitted).
34
35 Jiau’s supplemental evidence consisted of orders and
36 motion papers related to a deadline extension in Jiau’s
37 legal malpractice lawsuit, internet profiles of Jiau’s
38 former lawyer, and letters the Government previously sent to
39 the district court. The court correctly observed that these
40 documents were either already considered or “largely
41 irrelevant to whether the Sealing Order should be lifted.”
42 Order at 2, Jiau, No. 11 Cr. 161 (JSR) (July 3, 2013), ECF
43 No. 188. The district court did not abuse discretion in
44 denying Jiau’s motion to file supplemental evidence.
45
5
1 We have considered all of Jiau’s remaining arguments
2 and conclude that they are without merit. The orders of the
3 district court are hereby affirmed.
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
6