10-2905, 11-479
USA v. Doe

    10-290S-n. 11-479-cr
    USA v. Doc

                                          UNITED STATES COURT OF APPEALS
                                             FOR THE SECOND CIRCUIT

                                                     SUMMAR.Y ORDER
            Rulings by summary order do not have lprecedential effect. Citation to summary orders
    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 patty citing a summ~lry order must serve a copy of it
    on any party nor represented by cOlIDsel.

           At a stated term of the U oited States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the     I4       t'"
                          day of &"b~I.l"-'vy two thom;and and eleven.

    PRESENT:

              J USE A. CABR.t\NES,
              Rosl·~l\{.i\.KY   S. PUOlJ-:W..
              DENNY CHIN,
                                    G-'mit }1I{/geJ.

    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
    RICHARD RoD.,

                                    Appt:llant,

                                                v.                                             Nos. 10-2905-cr, 11-479-cr

    UNITflD STATES or, AMERLC..A,

                                    Appellee,

    JOliN DOE,

                                    Dejefl{/anl-/Jppellee.
    - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - . . - - - - - - - - - -x

    FOR RICHARD ROE:                                               RICHARD E. LEItNER, Wilson, Ehcr, Moskowitz,
                                                                   Edelman & Dicker LLP, New York, NY..

    FOR APPELLEE:                                                  TODD KAMINSKY,Assistnnt United States Attorney,
                                                                   Uniled States Attorney's Office fot the Eastern    Di~t:rict
                                                                   of New Yode, Brooklyn, NY.
                                                                          1
 1   FOR DEFENDANT-APPELLEE:                            KELLY ANNE MOORE, Morgan, Lewis & Bockius LLP,
 2                                                      N ew York, NY.
 3
 4
 5
 6              UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 7   DECREED, following a hearing on the record on February 14,2011, that an injunctionpelZdeJ1te lite

 8   shall enter to prevent the dissemination by an party, their officers, servants, employees and attorneys,

 9   and all who are in active concert or participation with them, of materials placed under seal by orders of

10   this Court or of the United States District Court for the Eastern District of New York (1. Leo Glasser,

11   Judge) .

12              Richard Roe ("Roe") is an attorney at law whose identity is known to all participants in this

13   litigation and who has been given the name "Richard Roe" as a legal placeholder because the disclosure

14   of his true identity in this litigation context may, for the time being, lead to the improper disclosure of

15   the materials at issue here.

16              Roe appeals from orders of the District Court permanently enjoining distribution of a

17   Presentence Investigation Report ("PSR") prepared for sentencing purposes in a criminal proceeding

18   before Judge Glasser and temporarily enjoining Roe and his clients from further disseminating other

19   sealed documents filed in Doe's criminal proceedings before the District Court (Docket No. 10-2905-

20   cr).

21              We also have before us a separately docketed but consolidated petition for a writ of mandamus

22   directing the District Court to make public the docket of tl1e criminal case in question (Docket No. 11-

23   479-cr). In turn, the United States (the "government") seeks a temporary injunction, pending the

24   disposition of this appeal, to restrain Roc and his counsel and clients, and all persons acting in concert

25   with them, from the threatened dissemination of the sealed materials at issue here by (1) filing and

26   pursuing civil actions in other federal or state courts in which tl1e sealed materials are annexed to

27   pleadings or otherwise referred to or made public, and (2) by conveying copies of these matcrials or the

28   contents thereof to third-parties, including the media.

29              We assume the parties' f;miliarity with tlle remaining facts and procedural history of the casc.

30
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          1                                                            00
          2              We turn flrst to Roe's petition for a writ of mandamus. The All Writs Act empowers us to

          3      "issue all writs necessary or appropriate in aid of [our] respective jurisdiction[] and agreeable to the

          4      usages and principles of law." 28 U.S.c. § 1651(a). One such writ is the writ of mandamus, an

      5          "extraordinary remedy" that has been used "both at common law and in the federal courts ... to

      6         conflne the court against which mandamus is sought to a lawful exercise of its prescribed jurisdiction."

      7         Chenry v. U.S. DzJl. Crt. for Dist. of Columbia, 542 U.S. 367, 380 (2004) (brackets and internal quotation

      8         marks omitted). We issue a writ of mandamus only in "exceptional circumstances amounting to a

      9         judicial 'usurpation of power' or a 'clear abuse of discretion.'" ld. (citations and some internal quotation

     10         marks omitted); see also Sims v. BIoI, 534 F.3d 117, 132 (2d Cir.2008) ("A district court has abused its

     11         discretion if it [has] based its ruling on an erroneous view of the law or on a clearly erroneous

 12            assessment of the evidence or [has] rendered a decision that cannot be located within the range of

 13            permissible decisions." (brackets, citations, and internal quotation marks omitted)).

 14                    Roe falls well short of his heavy burden to secure a writ of mandamus directed to the District

 15            Court. Here, the District Court reviewed the sealed documents and the voluminous submissions by the

 16            parties, conducted four days of hearings inquiring into how Roe had obtained the documents and how

 17            he intended to use them, and explained in detail and on the record its well-reasoned decision to issue a

 18           permanent injunction against further distribution of the PSR and a temporary injunction against further

 19           distribution of the other sealed documents. Under the circumstances, we see no basis upon which to

20            conclude that the District Court in any way usurped its power or clearly abused its discretion. See Chenry,

21            542 U.S. at 380. Accordingly, the petition for a writ of mandamus (Docket No. 11-479-cr) is DENIED.

22                    Our decision to deny the petition for a writ of mandamus may be further elaborated in due
23            course in a published opinion.

24                    The docket in tllls proceedings (Docket No. 11-479-cr) and all documents referenced therein
25            shall remain SEALED until further order of this Court.
26

27

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 1                                                       (li)
 2
 3           Pending a full rcvicw of the merits of Roe's appeal by a panel of this Court, the government, by

 4   a sealed motion of January 26, 2010 and accompanying affidavit, requests a temporary stay of the

 5   unsealing of Docket No.1 0-2905-cr and of the materials placed under seal by Judge Glasser pending the

 6   appeal of this matter. In light of the serious, indeed grave, concerns expressed by the United States

 7   regarding the possible consequences of unsealing these documents, and the absence of any sufficiently

 8   persuasive countervailing considerations expressed by Roe, the government's motion is hereby

 9   GRANTED.

10          Accordingly, pursuant to this order and to our orders of January 28,2011 (granting

11   government's motion for an emergency stay of unsealing the docket in No.1 0-2905); February 9, 2011

12   (granting government's motion for an emergency stay of unsealing the docket in No. 11-479 and

13   ordering Roe not to publicly file any additional documents or cases that referred to matters subject to

14   sealing orders in Nos. 10-2905-cr and 11-479-cr); February 10, 2011 (re-emphasizing, inter alia, that Roe

15   was not to reveal or distribute sealed documents, nor contents thereof, to any third-parties, including

16   members of the public or the media); and February 11,2011 (re-emphasizing, inter alia, that all previous

17   orders of this Court and of the United States District Court for the Eastern District of New York with

18   respect to the documents at issue remained in full force and effect until further order of this Court), we

19   hereby ORDER that ALL PARTIES, THEIR OFFICERS, AGENTS, SERVANTS, EMPLOYEES,

20   AND ATTORNEYS, AND ALL OTHER PERSONS WHO ARE IN ACTIVE CONCERT OR

21   PARTICIPATION WITH THEM, see Fed. R. Civ. P. 65(d)(2), are TEMPORARILY-and WITHOUT

22   PREJUDICE to any claims or arguments that may be asserted by the parties on the merits of these

23   appeals or on the orders in effect during the consideration of the appeals-ENJOINED from publicly

24   distributing or revealing in any way, to any person, or in any court, proceeding or forum, except to those

25   persons directly involved in the parties' own legal representation, any documents or contents thereof

26   subjcct to sealing orders in Docket No. 10-2905-cr or in any related procecdings before the District

27   Courts for thc Eastern District ofNcw York and Southern District of New York.

28          For the purposc of enforcing this Court's orders and those of the District Court for thc l:;:astcrn

29   District of N cw York during the panel's consideration and adjudication of the pending appeal, we
                                                         4
          1     REMAND the cause (Docket No.1 0-2905-cr) to the District Court for the Eastern District of New

          2     York with instructions to the Chief Judge of that Court to assign a United States District Judge from

          3    that Court with the limited mandate of implementing and overseeing compliance with our orders and

          4    the orders previously entered by Judge Glasser. Of course, Judge Glasser, an experienced and able jurist

          5    who has shown admirable patience and forbearance in the face of extraordinaq provocations, shall

      6        retain jurisdiction over the underlying (and long-lived) criminal proceeding involving John Doe.

      7                Furthermore, in all other respects and pursuant to United State.r v. Jacob.ron, 15 F.3d 19 (2d Cir.

      8        1994), tllls panel shall retain jurisdiction over (1) the pending appeal, both for the disposition of the

      9       appeal on the merits as well as with respect to any further motions practice; (2) any other appeals from

     10       the District Court's order granting the permanent and temporary injunctions at issue; and (3) any

     11       appeals arising from any further proceedings in the District Court, including any further petitions for

 12           extraordinaq writs, including the writ of mandamus.

 13

 14                                                                  (iii)

 15                   Without in any way limiting the effect of this summaq order and the Court's previous orders,

 16           we further ORDER:

 17                  (1) This appeal (Docket No. 10-2905-cr) will be EXPEDITED.

 18                  (2) The briefing schedule will be as follows:

19                                   a. Roe's opening brief shall be flIed no later than Monday, Februaq 28,2011.

20                                   b. The government's opening brief shall be filed no later than Monday, March

21                                   14,2011.

22                                   c. Roe's reply brief shall be flIed no later than Monday, March 21,2011.

23                                   d. The government's sur-reply brief shall be flied no later than Thursday, March

24                                   24,2011.

25

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     1

     2
                                             CONCLUSION
     3    To summarize:

     4
          (1) the petition for a writ of mandamus in Docket No. 11-479 is DENIED, and the docket of
     5
          that case shall remain SEALED pending further order of our Court;
 6
          (2) the government's motion for a temporary stay of unsealing of the docket in No.1 0-2905-cr
 7       pending full review of the merits of Roe's appeal is GRANTED;
 8
         (3) the parties and all who are in active concert or participation with them are TEMPORARILY
 9       ENJOINED, pursuant to the terms of the order stated above;

10
         (4) we REMAND the cause to the United States District Court for the Eastern District of New
11       York for a limited purpose and under the terms noted above.
12       The limited mandate described above shall issue forthwith.

13

14
                                               FOR THE COURT,

                                              Catherine O'Hagan Wolfe, Clerk of Court




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