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(1) Govt Opposition & (2) Order to Unseal Search Warrants for Nichols Property

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UNITED STATES OF AMERICA,
Plaintiff
vs.
JAMES DOUGLAS NICHOLS,
Defendant.

UNITED STATES OF AMERICA,
Plaintiff,
vs.
3616 NORTH VAN DYKE ROAD,
DECKER, MICHIGAN,
Defendant.

CRIM. NO. 95-80361

HONORABLE PAUL D. BORMAN

MISC. NO. 95-X-71665

GOVERNMENT'S RESPONSE IN OPPOSITION TO THE MOTION OF THE DETROIT FREE PRESS TO OPEN SEALED MATTERS

Question Presented: Whether the First Amendment or the common law affords the press a right of access to search warrants and related materials during the pendency of a criminal investigation?

Principal Authorities: Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986); Nixon v. Warner Communications Inc., 435 U.S. 589 (1978); Cincinnati Gas & Elec. Co. v. Genera Elec. Co. 854 F.2d 900 (6th Cir. 1988); Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989); Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989)

EXHIBIT B

I. Introduction

On June 1, 1995, the Detroit Free Press requested "an order allowing unrestricted access by the public to all documents filed with the Court relating to the James Nichols case, including all search warrants, affidavits filed in support of search warrants, and returns on search warrants." The government hereby agrees to the unsealing of all materials related to five previously-executed warrants, but the government opposes the motion insofar as it seeks to unseal all investigative materials that are part of a continuing criminal investigation based in Oklahoma City, Oklahoma.

II. Factual Background

On April 19, 1995, a bomb was detonated outside the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma. In the wake of the blast, federal agents obtained and executed search warrants for buildings and land at 3616 North Van Dyke Road in Decker, Michigan. These warrants led to the seizure of evidence that the government intends to use in the prosecution of James Nichols in the Eastern District of Michigan. The materials relating to these five search warrants were sealed by various United States magistrate judges. Because the five warrants have been executed and the information in the supporting affidavits no longer must be kept confidential, the government does not object to unsealing the five warrants for the Decker property, the supporting affidavits, and the returns on the warrants.

As the criminal investigation of the events in Oklahoma City unfolded, the government obtained additional search warrants and undertook other investigative measures to secure evidence regarding the explosion. In addition, a grand jury in the Western District of Oklahoma opened an investigation of the Oklahoma City bombing. Federal authorities in Oklahoma City have advised the United States Attorney's Office for the Eastern District of Michigan that the federal criminal investigation and the grand jury investigation are expected to continue for a matter of weeks or perhaps even months. At this juncture, the government has employed various investigative tools in an effort to obtain as much information as possible about the bombing and those suspected of carrying cut the criminal act. Materials relating to these investigative measures have been filed under seal in the Eastern District of Michigan. [FN1] These materials, which relate to the Oklahoma City investigation, have not been made available to the defense attorney for James Nichols or to attorneys representing anyone who may be implicated in the Oklahoma bombing. Indeed, disclosure of the materials could seriously jeopardize the investigation that is still in progress.

In its motion to unseal, the Detroit Free Press has demanded access to all sealed materials in the Eastern District of Michigan. This request, of course, is not presented in precise terms because the Detroit Free Press cannot know what materials have been filed under seal. The Free Press has identified the First Amendment and the common law as two independent justifications for unsealing the search warrants, affidavits, returns, and other materials that are contained in sealed court files. [FN2] Each of these theories provides general support for press and public access to judicial proceedings and records, but the right of press access to sealed search warrant materials that pertain to ongoing criminal investigations is quite circumscribed. [FN3]

III. The First Amendment

The Supreme Court has recognized that the press enjoys a First Amendment right of access to criminal trials. [FN4] Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 536, 603-06 (1982). This right of access has been extended to other criminal proceedings such as preliminary hearings. Press- Enterprise Co. v. Superior Court of California, 478 U.S. 1, 10-13 (1986). Extensions have been predicated upon findings that "there has been a tradition of accessibility" to the hearings to which press access is sought, id. at 10, and that access would "play[] a particularly significant positive role in the actual functioning of the process." Id. at 11. This "'experience and logic' test" controls the outcome of the motion before this Court. See, e.a., United States v. Corbitt, 879 F.2d 224, 228-29 (7th Cir. 1989); accord Cincinnati Gas & Elec. Co. v. General Elec. Co., 854 F.2d 900, 903 (6th Cir. 1988) (explaining and applying two-part test). The request of the Detroit Free Press for access to sealed materials related to the ongoing investigation of the Oklahoma City bombing fails both requirements of this test.

A. Historical treatment of search warrant materials.

With respect to the first part of the Supreme Court's test for press access, there is "no historical tradition of public access to warrant proceedings." Times Mirror Co. v. United States, 873 F.2d 1210, 1213 (9th Cir. 1989). To be sure, many search warrants and supporting affidavits "routinely become public after the warrant is served," but this availability "does not undermine the government's claim that there is no history of unrestricted access to warrant materials." Id. at 1214; see also Baltimore Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989). This is so because the government "has always been able to restrict access to warrant materials by requesting a sealing order, which courts have granted freely upon a showing that a given criminal investigation requires secrecy." Times Mirror, 873 F.2d at 1214. Although a divided panel of the Eighth Circuit reached a contrary conclusion, In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 573 (8th Cir. 1988), the majority of the circuits that have faced the issue have correctly reasoned that history provides no support whatsoever for press access to search warrants and related materials. Goetz, 886 F.2d at 64; Times Mirror, 813 F.2d at 1213- 14. This fact, in and of itself, is sufficient to defeat the First Amendment claim of the Detroit Free Press.

B. The impact of Press access upon the investigative process.

The second part of the First Amendment access analysis, which focuses on whether access plays a significant positive role in the functioning of the particular process in question, Cincinnati Gas & Elec., 854 F.2d at 904, decisively militates against unsealing the materials requested by the Free Press. The investigation of the Oklahoma City bombing by a grand jury in the Western District of Oklahoma is in progress. While some charges have been brought against some individuals, including James Nichols, this does not support the claim of the Free Press that the materials should be conceptualized as part of a completed investigation. See Certain Interested Individuals v. Pulitzer Publishing Co., 895 F.2d 461, 467 (8th Cir.) (case still in investigative stage even though some targets had already been indicted and had pleaded guilty or gone to trial), cert. denied, 498 U.S. 880 (1990). At this point, only one person -- James Nichols -- has been indicted for any offense by any grand jury in any district in the country.

Because the case is still in the investigative stage, all of the concerns identified by the various circuits in denying access to search warrant materials apply here. First and foremost, if the search warrant materials are made public while the investigation is ongoing, "persons identified as being under suspicion of criminal activity might destroy evidence, coordinate their stories before testifying, or even flee the jurisdiction." Times Mirror, 873 F.2d at 1215. Second, the individuals who are linked to the bombing in the search warrant materials have important privacy interests that counsel against unsealing the materials at the pre- indictment stage of the Oklahoma investigation. Id. at 1215. These two fundamental concerns led the Ninth Circuit to conclude that the "social utility of open warrant proceedings and materials" is outweighed by "the substantial burden openness would impose on investigations." Id. at 1217.

Even after the grand jury in the Western District of Oklahoma has completed its investigation, legitimate reasons for maintaining the sealing orders may still exist. See Goetz, 886 F.2d at 64. A search warrant affidavit "may describe continuing investigations, disclose information gleaned from wiretaps that have not yet been terminated, or reveal the identity of informers whose lives would be endangered." Id. Although the government is not requesting a permanent sealing order based upon Goetz, the reasoning of Goetz undercuts the argument that all search warrant materials should be made public in the wake of James Nichols's indictment. See id. In sum, the Detroit Free Press has failed to establish that permitting press access to search warrant materials during a pending criminal investigation "plays a significant positive role in the functioning of the particular process in question." Press- Enterprise, 478 U.S. at 11.

IV. The Common Law Right of Access

American courts recognize a general right to inspect and copy "judicial records and documents." Nixon v. Warner Communications Inc., 435 U.S. 589, 597 (1978) (footnotes omitted). Moreover, this common law right of access to records and documents does not depend "on a proprietary interest in the document or upon a need for it as evidence in a lawsuit." Id. Nevertheless, "the right to inspect and copy judicial records is not absolute." Id. at 598.

Although federal courts have recognized "that the common law right of access creates a 'strong presumption' in favor of public access to materials submitted as evidence in open court," Corbitt, 879 F.2d at 228; accord Nixon, 435 U.S. at 602, "this presumption should not apply to materials properly submitted to the court under seal." Corbitt, 879 F.2d at 228; accord Matter of Search of 1638 E. 2d Street Tulsa, Oklahoma, 993 F.2d 773, 775 (10th Cir.), cert. denied, 114 S. Ct. 196 (1993). Consequently, when court records are filed under seal, "the party seeking disclosure may not rely on presumptions, but must instead make a specific showing of need for access to the document[s]." Corbitt, 879 F.2d at 228. The Detroit Free Press has failed to make such a showing here.

As the Ninth Circuit has held, "there is no right of access to documents which have traditionally been kept secret for important policy reasons." Times Mirror, 873 F.2d at 1219; cf. also Goetz, 886 F.2d at 65-66 (judicial officer may deny access "when sealing is 'essential to preserve higher values and is narrowly tailored to serve that interest"'). Policy reasons that justify the denial of press access include the need for secrecy during a pending criminal investigation. Times Mirror, 873 F. 2d at 1219. The investigation in Oklahoma City is still in progress. Investigative devices that are in place to further that criminal inquiry need not be provided to the press at this juncture under the common law right of access. The government has assented to the unsealing of all materials that pertain to the pending prosecution of James Nichols in the Eastern District of Michigan. The government will agree to the unsealing of all materials related to the Oklahoma investigation as soon as the grand jury investigate on in the Western District of Oklahoma is completed.

Respectfully submitted,

SAUL A. GREEN
United States Attorney

/s/ROBERT P. CARES
Assistant U.S. Attorney

CHRISTOPHER P. YATES
Assistant U.S. Attorney
211 W. Fort Street Suite 2300
Detroit, Michigan 48226

Dated: June 12, 1995

END NOTES

1 The government will provide this Court with copies of all of these materials for in camera review.

2 The Free Press also has alluded to Fed. R. Crim. P. 41(g) in its motion. That provision, which instructs magistrate judges to file all papers relating to search warrant returns with the clerk of the district court, does not provide any support for the motion to unseal. See, e.q., Times Mirror Co. v. United States, 873 F.2d 1210, 1219-20 (9th Cir. 1989).

3 Because the government does not wish to divulge the nature of the materials under seal, they will be identified and analyzed as search warrant materials. An in camera review of the materials should reveal that they all must be analyzed in the same manner as search warrants.

4 The right of access afforded to the general public under the First Amendment is coterminous with the right of press access. See Pell v. Procunier, 417 U.S. 817, 833-34 (1974); see also Nixon v. Warner Communications. Inc., 435 U.S. 589, 609 (1978) ("The First Amendment generally grants the press no right to information about a trial superior to that of the general public."). Thus, the term "press access" must be regarded as synonymous with public access.

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ORDER TO UNSEAL FIVE SEARCH WARRANTS AND RELATED MATERIALS

IT IS ORDERED, by and with the consent of the United States Attorney's Office and the attorneys for the Detroit Free Press, that the following sealed documents be unsealed:

1. The April 21, 1995 warrant, the supporting affidavit, the application, and the return for the search of 3616 North Van Dyke Road, Decker, Michigan, which is contained in E.D. Mich. No. 95-X- 71665;

2. The May 3, 1995, warrant, the supporting affidavit, the application, and the return for the search of "All buildings and vehicles and farm equipment on premises or any other conveyances, 3616 North Van Dyke Road, Decker, Michigan, which is contained in E.D. Mich. No. 95-X- 71665;

3. All of the contents of E.D. Mich. No. 95-X-71671;

4. All of the contents of E.D. Mich. No. 95-X-71750:

EXHIBIT C

5. All of the contents of E.D. Mich. No. 95-X-71775. The file identified as E.D. Mich. No. 95-X-71665 contains materials in addition to those described in paragraphs 1 and 2 above. IT IS ORDERED that no materials contained in E.D. Mich. No. 95-X-71665 other than those identified in paragraphs 1 and 2 above shall be unsealed without a further court order.

IT IS SO ORDERED.

/s/HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

Dated: June 12, 1995

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