Kenneth Rijock

Kenneth Rijock

Tuesday, November 24, 2020

WHY IT IS IMPORTANT FOR US TO QUESTION SEALED FILINGS IN FEDERAL COURT CASES

 I understand that some of our readers may not fully understand the importance of the fact that certain pleadings have been filed Under Seal in Federal criminal cases, and we therefore wish to fully explain the significance of such filings. This is especially important when seeking to ascertain whether there may be additional defendants not publicly known, who may have already been indicted but not yet in custody or before the Court for some reason.

First of all, all pleadings filed in criminal cases in US District Court by  the Government, and by defense attorneys, are always open to the press and public, who may review them in electronic version, at a computer terminal in the Clerk's Office, or on PACER, at any time. The Docket Sheet lists all filings in chronological order.

However, when the Government has a specific reason to file pleadings under seal, meaning that they are not open to public view, and are restricted, it has the right to designate the filing as Under Seal. This is allowed only for a limited number of reasons, for the actions of the lawyers, the courts and the judiciary are to be always open for public scrutiny, as a matter of public policy in a free society.

Here's why Government prosecutors may seek to seal pleadings, filings or documents:

(1) The document is an indictment of an individual who is not yet in custody, and should he have advance knowledge that he has been charged with a Federal felony, he may see to engage in flight to avoid prosecution. When a defendant is outside the United States, his sealed indictment will sit in the file until he is arrested, or extradited, and physically before the court.

(2) A filing may name heretofore unindicted targets of an investigation,, and the Government fears that is his or her name is publicly exposed, the target may flee.

(3) There may be classified information in the filing. The Classified Information Procedure Act provides a number of ways the Court deals with this information, but initially it cannot be filed in open court.

(4) There is certain information in a filing that may alert targets that they are under criminal investigation, even though their names do not appear. The reference to a specific investigation may tip off targets. Also, information about an investigation by a law enforcement in another country could alert targets in this country.

(5) Testimony of a cooperating informant (CI) which, if exposed, may result in threats to the life or safety of the informant, or the removal or destruction of evidence or the proceeds of crime, generally assets.

Personally, when I see sealed filings in a Federal criminal case, I expect that there may be either sealed indictments in the court file, or information which may alert individuals that they are subjects or targets of the investigation. That's why I comment on what you may regard as routine filings, for they may be important clues about the development of an ongoing case.


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