This is the letter I emailed to the appropriate clerk for US District Court Judge Nicholas G. Garaufis.
September 5, 2021
The Hon. Nicholas G. Garaufis
U.S. District Court Judge
United States Courthouse
Room 1426 S
225 Cadman Plaza East
Brooklyn, NY 11201
RE: Request To Unseal Filings in U.S. v. Raniere Et Al/Case No. 1-18-00204
Dear Judge Garaufis:
I am writing, as a representative of the media and as a citizen of the United States, to request that you unseal both the Sentencing Memorandum and the revised version of that document that were recently filed on behalf of Nancy Salzman in the above-referenced case. In this regard, I believe that the original filing occurred on or about August 30, 2021 – and that the revised document was filed on or about September 3, 2021.
As you know, Nancy Salzman will be the fifth defendant to be sentenced in this case – the others being, in chronological order, Keith Raniere, Clare Bronfman, Allison Mack and Lauren Salzman. With regard to each of those other sentencings, the defendant’s Sentencing Memorandum – or, with respect to Clare Bronfman, her Response to the government’s Sentencing Memorandum – was filed openly on PACER and available for review by the respective victims of those defendants and the general public (See PACER Document 925 and Document 926 regarding Keith Raniere; PACER Document 927 regarding Clare Bronfman; PACER Document 1053 regarding Allison Mack; and PACER Document 1077 regarding Lauren Salzman). In addition, all the government’s Sentencing Memorandums for those same defendants were also openly filed on PACER so that they were available for review by the respective victims of the defendants and the general public.
For reasons that are yet unknown, Nancy Salzman’s attorneys apparently decided to file their Sentencing Memorandum on behalf of her “under seal”. In doing so, it appears that they violated the directions that are set forth in the attached “Guide To Filing Sealed Documents & Motions” with regard to the PACER filing system – which, insofar as I can ascertain, are applicable to this matter.
As set forth in the Guide, the general rule is that a party “…must file a Motion to Leave to File Under Seal and obtain leave of [the] court to file a Sealed Document of a Sealed Motion, unless the document is responsive to a motion or document already filed under seal”. The only exceptions to that general rule are as follows (None of these apply to the Sentencing Memorandums that were filed on behalf of Nancy Salzman):
- Plea Agreement Supplements;
- Motions pursuant to Rule 35 of the Federal Rules of Criminal Procedure and accompanying memorandums in support and responsive filings;
- Motions pursuant to Section 5K1.1 of the United States Sentencing Guidelines and accompanying memorandums in support and responsive filings;
- Pen register or trap and trace device applications pursuant to either 18 U.S.C. 3121 et seq. or 18 U.S.C. §2516 et seq.;
- Sentencing Memorandum Supplements; and
- Search and Seizure Warrant Applications.
Even if the local rules of the U.S. District Court for the Eastern District of New York permit the filing of a defendant’s Sentencing Memorandum to be done “under seal”, there are constitutional reasons – and long-standing traditions – that would argue against such a filing being allowed with respect to Nancy Salzman.
Federal courts have previously recognized that the public’s right to access court records is rooted in the First Amendment, the Sixth Amendment, and common law. In this regard, the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Although the First Amendment does not expressly address public access to court filings, it “goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 98 (1978). In addition, free speech carries with it the freedom to listen – and the right to “receive information and ideas.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .”. In this context, the term “a public trial” conveys the notion that the general public will be allowed to observe all the proceedings in court – as well as all the related filings – with respect to a criminal case unless there are extraordinary circumstances that would justify the limitation of those rights.
Over the years, numerous courts throughout the country have provided various reasons for allowing the general public to access court records and proceedings. As one commenter noted, these reasons include the fact that such access:
- Promotes informed discussion of governmental affairs by providing the public with a more complete understanding of the judicial system;
- Serves an important “educative interest”;
- Gives “the assurance that the proceedings were conducted fairly to all concerned” and promotes the public “perception of fairness”;
- Has a “significant community therapeutic value” because it provides an “outlet for community concern, hostility, and emotion”;
- Serves as a check on corrupt practices by exposing the judicial process to public scrutiny, thus discouraging decisions based on secret bias or partiality; and
- enhances the performances of all involved.
In addition to the fact that the general public has a right to know what Nancy Salzman’s attorneys have had to say on her behalf in their Sentencing Memorandum, there is, of course, the right of her victims to have access to that information. In this regard, these are people who were harmed by Nancy in a variety of ways – e.g., emotionally, financially, physically, psychologically, etc. – and who have a right to confront whatever misinformation is contained in that document.
According to numerous people with whom I have spoken over the years, Nancy is an inveterate liar: i.e., a person who lies without thought or remorse – and who does so even when telling the truth would lead to a similar outcome as lying. As a result, allowing her lawyers to file their Sentencing Memorandum “under seal” will only increase the likelihood that the document contains lies and mistruths since her attorneys were, in large part, dependent on whatever information Nancy provided them in response to issues that were raised in her Pre-Sentencing Report.
Given that Nancy is due to be sentenced on Wednesday, September 8th, I am requesting that your Honor unseal both the original Sentencing Memorandum – and the revised Sentencing Memorandum – that were file on behalf of Nancy by 12:00 Noon on Tuesday, September 7th. By doing so, you will give those individuals who plan to deliver their Victim impact Statement at her sentencing enough time to determine if there are any lies or mistruths in her Sentencing Memorandum – and to prepare appropriate responses to same.
Alternatively, you can approve the redacting of any information in Nancy’s Sentencing Memorandum that would otherwise be entitled to such treatment – and have the amended document posted on PACER. Once again, however, this should be done no later than Tuesday, September 7, 2021, so that her victims will have an opportunity to review – and respond to – any misinformation in it.
Thank you for considering this request.
Niagara Fall Reporter
The Frank Report