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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

UNITED STATES OF AMERICA
V. Criminal No. 19-148-1 (CKK)

PRAKAZREL MICHEL (1),
Defendant.

 

 

MEMORANDUM OPINION
(November 6, 2019)

Pending before the Court is Defendant Prakazrel Michel’s [16] Motion to File Under Seal
Temporarily and for an Order for the Government to Respond. The Court previously granted this
Motion in part by allowing Mr. Michel to file his motions under seal temporarily and requiring the
Government to respond to Mr. Michel’s Motion. Because both parties indicated that redactions
may be the appropriate course, the Court indicated in its September 27, 2019 Minute Order that
the parties would file under seal a Joint Status Report outlining their positions on the Government’s
proposed redactions.

In the October 25, 2019 Sealed [29] Joint Status Report submitted by Mr. Michel and the
Government, the parties indicate their remaining disagreements regarding their proposed
redactions to the pretrial briefing. Mr. Michel’s position is that the names of entities or persons
should only be redacted if their inclusion would suggest that they are a co-conspirator, while the
Government takes a broader view that redactions should be implemented for numerous parties and
entities to protect them from due process concerns, untoward attention, and undue scrutiny as well
as to protect ongoing government investigations. See United States’s Resp. to Def.’s Mot. to Seal,

ECF No. 20, at 2-3; Joint Status Report at 3-4. Because this Memorandum Opinion and
accompanying Order shall be filed on the public docket, the Court does not list the exact names
that the Government proposed to redact in the Joint Status Report.

“[ T]he starting point in considering a motion to seal court records is a ‘strong presumption
in favor of public access to judicial proceedings.’” E.E.O.C. v. Nat’l Children’s Ctr., Inc., 98 F.3d
1406, 1409 (D.C. Cir. 1996) (quoting Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268,
1277 (D.C. Cir. 1991)). This is because ‘‘[a]ecess to records serves the important functions of
ensuring the integrity of judicial proceedings in particular and of the law enforcement process
more generally.” United States v. Hubbard, 650 F.2d 293, 314-15 (D.C. Cir. 1980). Where, as
here, “members of the taxpaying public are, in effect, real parties in interest,” there is an especially
vital need “for public access to judicial records.” United States v. Thomas, 840 F. Supp. 2d 1, 3
(D.D.C. 2011) (internal quotation marks omitted) (quoting United States ex rel. Schweizer v. Oce,
N.V., 577 F. Supp. 2d 169, 172 (D.D.C. 2008)).

As the Supreme Court has recognized, this decision regarding public access to court
documents “is one best left to the sound discretion of the trial court, a discretion to be exercised in
light of the relevant facts and circumstances of the particular case.” Nixon v. Warner Commc'ns,
Inc., 435 U.S. 589, 599 (1978). Consequently, a court must consider in each case six factors in
determining whether the presumption in favor of public access should be overcome:

(1) the need for public access to the documents at issue; (2) the extent of previous

public access to the documents; (3) the fact that someone has objected to disclosure,

and the identity of that person; (4) the strength of any property and privacy interests

asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the
purposes for which the documents were introduced during the judicial proceedings.

Nat’! Children’s Ctr., 98 F.3d at 1409.
Here, these factors weigh in favor of allowing the Government’s proposed redactions to
the pretrial briefing. As for the first and second factors, it is true, as Mr. Michel advances, that

there is a strong need for public access in this case, which involves alleged foreign financial

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influence in the 2012 presidential election, and where the Government is a party. See id. However,
numerous docket entries remain sealed and similar redactions were applied to the now-unsealed
Indictment that are in alignment with the Government’s proposed redactions (and the protective
order agreed to by the parties). See Indictment, ECF No. | (including redactions to numerous
persons’ and entities’ names); Protective Order, ECF No. 8 (restricting disclosure of discovery
material due to “confidential and law-enforcement-sensitive” nature of information); see also May
10, 2019 Minute Entry (noting that Court granted Government’s oral motion to unseal Indictment).
The strong need for public access can be substantially satisfied by making these documents
publicly available with only limited information redacted.

As for the third, fourth, and fifth factors, the Government has objected to full disclosure of
these identities on the basis that it might raise due process concerns, subject these persons or
entities to unnecessary scrutiny and attention, and potentially disrupt ongoing government
investigations, all of which are compelling reasons to enact the redactions that they propose. As
the Indictment alleges that some of these persons and entities (such as the political campaign
committees and financial institutions) were unaware of their role in this scheme, they have strong
privacy interests in not being identified in the briefing. See, e.g., United States v. Anderson, 55 F.
Supp. 2d 1163, 1168 (D. Kan. 1999) (“The very real stigmatization suffered by the movants from
this government action far outweighs the nonexistent government interest in publicly naming them
as coconspirators.”’).

Mr. Michel argues that these risks are diminished because the British Virgin Islands has
already responded to the Government’s official request under 18 U.S.C. § 3292 and because the
United Arab Emirates has yet to respond to the Government’s official request for an interview of

Associate B. See Def.’s Mot. to File Under Seal Temporarily at 3-4. But this does not address
the possibility that the Government has other ongoing investigations that are unrelated to those
requests, which the Government’s arguments suggest may be the case, and which consequently
weighs against imposing Mr. Michel’s less comprehensive proposed redaction scheme. Cf United
States v. Armstrong, 185 F. Supp. 3d 332, 335 (E.D.N.Y. 2016) (explaining that “sentencing
memoranda that implicate cooperation are often filed under seal” due to ongoing nature); United
States v. ISS Marine Servs., Inc., 905 F. Supp. 2d 121, 141 (D.D.C. 2012) (finding government’s
assurance that unsealing would not pose risk to ongoing investigations weighed in favor of
unsealing).

Lastly, as for the sixth factor, Mr. Michel emphasized in his original Motion that the public
will require access to this Court’s decision on his pretrial motions. Def.’s Mot. to File Under Seal
Temporarily at 5. But the Court may file a public Order and Memorandum Opinion that uses the
same fictitious names for individuals and entities that were used in the Indictment and the
Government’s oppositions to Mr. Michel’s pretrial motions, which align with the redactions that
the Government now proposes. The Court plans to do so in order for the public to be able to access
its decisions on these important pretrial motions. In sum, the Court finds that allowing the
Government’s proposed redactions to be applied to the pretrial briefing is the least restrictive
method of balancing the public’s need for access with the important privacy and other interests at
stake.

Accordingly, the Court GRANTS IN PART and DENIES IN PART the remainder of Mr.
Michel’s [16] Motion. In particular, the Court allows the pretrial briefing identified in the parties’
Joint Status Report to be filed on the public docket with the Government’s proposed redactions
implemented. The Court assumes that the Government has implemented essentially the same

proposed redactions in its oppositions to Mr. Michel’s motions by using fictitious names for certain
individuals and entities, and that those oppositions can be filed on the public docket without
substantial changes. The pretrial briefing shall be filed on the public docket, with the
Government’s proposed redactions, by NOVEMBER 22, 2019.

An appropriate Order accompanies this Memorandum Opinion.

Dated: November 6, 2019
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
