United States v. Lorenzana-Cordon , 197 F. Supp. 3d 1 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES,
Criminal Action No. 03-cr-331-14 (CKK)
v.
WALDEMAR LORENZANA-CORDON, REDACTED
Defendant.
MEMORANDUM OPINION AND ORDER
(July 26, 2016)
The Court is in receipt of Defendant Waldemar Lorenzana-Cordon’s [841] Motion to
Unseal Indictment, in which Defendant requests that this Court unseal the complete Indictment in
this case. Upon consideration of the parties’ submissions,1 the relevant legal authorities, and the
record as a whole, the Court shall DENY Defendant’s Motion to Unseal Indictment. The Court
finds that unsealing the complete Indictment in this case would be unwarranted, pursuant to
Federal Rule of Criminal Procedure 6(e)(4). The Court further finds that the Government’s
proposal to provide Defendant a copy of a partially unsealed indictment strikes an appropriate
balance between affording Defendant access to information in order to make his arguments to the
Court, while protecting the identities of those co-defendants who are being actively sought, or
whose identities should be protected for good cause.
I. DISCUSSION
On July 6, 2016, Defendant filed a Motion to Unseal Indictment, in which Defendant
requests that the Court unredact the names of 13 co-defendants listed in the Third Superseding
1
The Court’s consideration has focused on the following documents: Def.’s Motion to Unseal
Indictment, ECF No. [841]; Govt.’s Opp’n to Def.’s Motion, ECF No. [842]; Redacted Third
Superseding Indictment, ECF No. [522]. In addition, the Court reviewed in camera the
Government’s Sealed Ex Parte Supplemental Memorandum in Opposition to Defendant’s
Motion to Unseal Indictment, ECF No. [844] and the Government’s Sealed Ex Parte Notice of
Reasons for Sealing Named Persons, ECF No. [845].
1
Indictment. See Def.’s Motion to Unseal Indictment, ECF No. [841]; see also Redacted Third
Superseding Indictment, ECF No. [522]. In support of his motion, Defendant asserts that a
“complete record of the actual charged indictment is important to Defendant’s legal issues [to be
raised in Defendant’s Rule 29 and/or Rule 33 motion],” and that sealing of the indictment is no
longer necessary because the indictment was issued over seven years ago. See Def.’s Motion to
Unseal Indictment, ECF No. [841], at 2-3. However, Defendant’s motion also states that Defense
Counsel has received an unredacted copy of the purported Indictment as part of extradition papers
that the government of Guatemala provided in response to inquiries by Defendants’ family and/or
counsel for the family. Id. Counsel states that “[i]f the Court were to deny this motion to unseal,
Defendant could still make the same arguments by filing a completely sealed pleading, but
Defendant submits that this unnecessarily complicate the post-trial process, and possibly the appeal
process.” Id. at 4.
The Government opposes Defendant’s motion, citing Federal Rule of Criminal Procedure
6(e)(4), which authorizes indictments to be “kept secret until the defendant is in custody.” Fed. R.
Crim. P. 6(e)(4); see also Govt.’s Opp’n to Def.’s Motion, ECF No. [843], at 3. The Government
also cites United States v. Muse, in which the Second Circuit observed that one purpose of Rule
6(e)(4) is to “prevent the requirement of an indictment from serving as a public notice that would
enable the defendant to avoid arrest.” 633 F.2d 1041, 1043-44 (2d Cir. 1980) (en banc); see also
id. (holding that an indictment involving multiple defendants may remain sealed, even if one or
more defendants’ whereabouts are known, as long as the decision is “based on the legitimate
prosecutorial needs of the Government to capture those properly indicted from criminal activity”).
The Government also cited several cases for the proposition that Rule 6(e)(4) authorizes
indictments to remain sealed for “sound reasons of policy” or where the “public interest requires
2
it.” See, e.g., United States v. Southland Corp., 760 F.2d 1366, 1379 (2d Cir. 1985); United States
v. Edwards, 777 F.2d 644, 648 (11th Cir. 1985); United States v. Michael, 180 F.2d 180 F.2d 55,
57 (3d Cir. 1949).
The Government asserts that in this case, unsealing the Indictment “has the potential to
cause serious harm,” such as “tipping off” defendants and co-conspirators who do not know that
they have been indicted and affording them the ability to retaliate against potential witnesses and
destroy evidence while evading law enforcement. Govt.’s Opp’n to Def.’s Motion, ECF No. [843],
at 7. The Government also argues that “sound reasons of policy” support the continued redaction
of the names of certain co-defendants who are no longer fugitives. See id. Upon the Court’s
request, the Government filed two ex parte notices for the Court’s in camera review, explaining
their proffered policy justifications. See Govt.’s Sealed Ex Parte Supplemental Memorandum in
Opposition to Defendant’s Motion to Unseal Indictment, ECF No. [844]; Govt.’s Sealed Ex Parte
Notice of Reasons for Sealing Named Persons, ECF No. [845].
In opposing Defendant’s motion, the Government also proposes an alternative plan, under
which the Government would provide Defendant a copy of a partially unsealed indictment with
the unredacted names of eight co-defendants who either testified at trial, have concluded or are
serving their sentences, or are deceased. See Govt.’s Opp’n to Def.’s Motion, ECF No. [843], at
9. The Government would redact the names of five co-defendants who are fugitives or whose
names need to remain redacted for sound policy reasons. See id. The disclosure of the partially
unsealed indictment would be subject to the existing Protective Order applicable to discovery in
this case, which inter alia, prohibits Defense Counsel from further distribution of the protected
materials. See Protective Order for Discovery Applicable to Waldemar Lorenzana-Cordon, ECF
No. [551].
3
Upon review of the parties’ submissions, including the Court’s in camera review of the
Government’s two ex parte filings, the Court finds that unsealing the complete indictment in this
case would be unwarranted pursuant to Federal Rule of Criminal Procedure 6(e)(4), and that
Defendant would not be prejudiced by the proposal advanced by the Government.
As a preliminary matter, the Court agrees that the names of co-defendants who are still
fugitives should remain under seal. Although the Indictment was issued in November 2007,
extraditions have occurred on a rolling basis over the intervening years—in 2009, 2011, 2012,
2014, and 2015. There is no reason to conclude that the remaining co-defendants “already know
about the indictment or are feeling something more serious, such as a vendetta by other angry drug
traffickers.” Def.’s Mot. to Unseal, ECF No. [841], at 3. Furthermore, in its Ex Parte Notice of
Reasons for Sealing Named Persons, the Government submits information sufficient to conclude
that release of the fugitives’ names could jeopardize ongoing capture operations. See Govt.’s
Sealed Ex Parte Notice of Reasons for Sealing Named Persons, ECF No. [845].
The Court also agrees that “sound policy reasons” support the continued sealing on the
public docket of the names of certain co-defendants who testified at trial, who are deceased, or
who have concluded their sentences. Specifically, in the Government’s Supplemental Opposition
to Defense Motion to Unseal Indictment, the Government submits that
4
Moreover, Defendant would not be prejudiced if the complete Indictment is not unsealed.
Defense Counsel has asserted that he has an unredacted copy of the purported Indictment as part
of extradition papers produced by the government of Guatemala. Moreover, Defense Counsel has
acknowledged that the public unsealing of the Indictment would have no effect on his ability to
raise his legal arguments in his Rule 29 and/or Rule 33 motion. See Def.’s Motion to Unseal
Indictment, ECF No. [841], at 2-3.
In light of the foregoing, the Court finds that unsealing the complete indictment in this case
would be unwarranted. Fed. R. Crim. P. 6(e)(4); see also Muse, 633 F.2d at 1043-44. The Court
further finds that the Government’s proposal strikes an appropriate balance between affording
Defendant access to information in order to make his arguments to the Court, while protecting the
identities of those who are being actively sought, or whose identities should be protected for good
cause.
Accordingly, the Court shall require the Government to provide Defendant with a copy of
a partially unsealed Indictment with the unredacted names of nine co-defendants who either
testified at trial, have concluded or are serving their sentences, or are deceased. Referencing the
co-defendants by their relative placement on the Third Superseding Indictment (i.e., Waldemar
Lorenzana-Cordon is Defendant No. 11), the Government shall provide the names of the following
co-defendants, subject to the terms of the Protective Order: Nos. 1-6, 8, 10, and 13.2 See Protective
Order for Discovery Applicable to Waldemar Lorenzana-Cordon, ECF No. [551]. The
2
The Court notes that Defendant No. 8 is Defendant’s father, Waldemar Lorenzana-Lima. Mr.
Lorenzana-Lima’s name was unredacted in the Third Superseding Indictment published on the
public docket in this case in November 2014. See Redacted Indictment, ECF No. [522].
Defendant No. 10 is Defendant’ brother, Eliu Lorenzana-Cordon. Mr. Eliu Lorenzana-Cordon’s
name was unredacted in the Third Superseding Indictment published on the public docket in his
case, 03cr-331-13, in April 2015. See Redacted Indictment, ECF No. [563].
5
Nos. 1-6, 8, and 13—who either testified at trial, have concluded or are serving their sentences, or
are deceased; it is
FURTHER ORDERED that the Government shall provide these names in accordance
with the terms of the Protective Order for Discovery Applicable to Waldemar Lorenzana-Cordon,
ECF No. [551]; it is
FURTHER ORDERED that the Government shall redact the names of five co-
defendants—Defendants Nos. 7, 9, 12, 14, and 15—who are fugitives or whose names need to
remain redacted for sound policy reasons; it is
FURTHER ORDERED that any post-trial Motion for Judgment of Acquittal pursuant to
Federal Rule of Criminal Procedure 29 and any Motion for New Trial pursuant to Federal Rule of
Criminal Procedure 33 shall be filed by Defendant Waldemar Lorenzana-Cordon on or before
August 23, 2016;3
FURTHER ORDERED that the Government’s Response to any Motion for Judgment of
Acquittal and/or Motion for New Trial shall be filed on or before September 23, 2016; it is
FURTHER ORDERED that Defendant Waldemar Lorenzana-Cordon’s Reply shall be
filed on or before October 7, 2016;
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
3
The Court notes that in determining the appropriate dates for this briefing schedule, the Court
has considered the fact that Defense Counsel already has access to an unredacted copy of the
purported Indictment. As such, it appears unlikely the Government’s production of the partially
unsealed Indictment would significantly affect the time necessary for Defense Counsel to prepare
his legal arguments in Defendant’s Motion for Judgment of Acquittal and/or Motion for New
Trial.
7