     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
11       - - - - - - - - - - - - - - - - - - - -X
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.
27       - - - - - - - - - - - - - - - - - - - -X
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




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