SEALED CASES AND THINGS

15 MARCH 2017

(www.conecuhcountynewsandviews.com)

James Leon Windham

As we all wait and wonder what happens with the johnny andrews drug case, why booking documents cannot be seen, why mug shots are not available, who his lawyer is and a multitude of other unanswered questions come to mind, perhaps this article will serve to enlighten some.


Based on what it says in this article and all the secrecy surrounding the case it appears andrews has been arrested on a Federal Warrant and they have yet to get all the information from him they want. If I was a betting person I’d bet that andrews has a pet name of Ca--na—ry and other arrest warrants are in the making. One can only speculate who will be on the next hit parade list.


Again, rumor control has it a longtime friend and associate of andrews has been called to Mobile for a chat. One thing is for sure, this has not been an accidental arrest, yes, there is something to it and I am finding it hard to wait for things to develop and only hope it will come out in the open.

Some federal cases are sealed away from public view

Monday, May 23, 2005

By BRENDAN KIRBY

Staff Reporter

Mobile Press Register

A lawyer representing a man arrested with millions of dollars' worth of

methamphetamines in his sport utility vehicle recently filed a motion to

subpoena a witness in federal court in Mobile.

Don't ask who the witness is, though.

It's a secret.

And don't ask why Mobile's federal prosecutors wanted a judge to give a

break to a pair of Nigerian nationals who pleaded guilty in a bank fraud

case last month.

That's a secret, too.

They are among the thousands of official secrets, large and small,

safeguarded by the U.S. District Court clerk's office in Mobile.

Sometimes, the public never learns a criminal case even exists.

According to the clerk's office, since 1993, 30 criminal cases have been

sealed entirely -- from indictment through resolution. Eight of those,

involving charges against juveniles, are required by law to be closed. The

rest, according to court officials, have been sealed to protect ongoing

investigations.

More common is the practice of sealing certain documents in cases that

otherwise are open to the public. These include papers that might reveal

national or corporate secrets, psychiatric or other medical information,

information that could jeopardize a criminal investigation or personal

financial data.

Dating to 1991 for civil lawsuits and 1993 for criminal cases, according

to federal court officials, the clerk's office has 5,629 "sealed"

documents that are unavailable for public inspection. Closed documents

that pre-date the court's computer system are housed in a pair of locked

filing cabinets and in a vault in the federal courthouse in Mobile.

Although less than 2 percent of all documents filed in federal court still

are sealed, legal experts said far more information is unavailable about

federal cases than those in state courts.

"I always thought of it as ripe for abuse," said Mobile lawyer Dom Soto,

who nonetheless added that it is appropriate to keep some information

secret. "It seems to be wide open as to what can be done under seal."

Lucy Dalglish, executive director of The Reporters Committee for Freedom

of the Press, said prosecutors generally seek to close cases in drug and

terrorism matters where they want co-defendants to turn on each other. 

Allowing defendants to plead guilty behind closed doors might protect them

from retribution, she said.

"There may be some merit to that. However, it's creating a completely

secret system of justice," Dalglish said. "That means that there are

people sitting in prisons and there is no public track record of how they

got there. I find that appalling."

Federal judges in Mobile said the vast majority of cases and documents

remain open. The closed federal cases represent less than 1 percent of the

3,557 criminal cases filed since 1993. Hidden civil cases are even more

unusual. The clerk's office said five out of 22,970 since 1991 have been

sealed.

"On very rare occasions, you will have a request by the government to file

an indictment under seal and keep it under seal even after a defendant has

been arrested," Chief U.S. District Judge Ginny Granade said. "It's so

rare. It's such an exception."

Justifications varied

Soto represents Juan Perez-Oliveros in the meth case. Police in January

pulled over a 2002 Chevrolet Avalanche that they testified was weaving on

Interstate 10 and found 85 pounds of methamphetamines inside.

Perez-Oliveros, who was driving the vehicle, faces federal drug charges

along with passenger Juvenal Espinoza.

Soto said attorneys routinely filed subpoena requests under seal so as not

to tip off the other side. Lawyers like to play their cards close to the

vest until it is time to exchange witness lists, he said.

In the bank fraud case, Adrian Chike Okakpu and Okwudili Umenyiora

pleaded guilty to stealing commercial checks, altering the payee lines,

then recruiting people in the Mobile area to cash the checks.

Assistant U.S. Attorney Michel Nicrosi told Senior U.S. District Judge

Charles Butler Jr. that the men have cooperated with investigators and

therefore deserved shorter prison sentences than called for under advisory

sentencing guidelines. Butler allowed her to detail her recommendation

outside of the earshot of courtroom spectators.

Willie James Ellison, a law professor at Samford University's Cumberland

School of Law in Birmingham, said the danger of closed proceedings and

sealed documents lies in the fact that the public cannot object to what it

does not know about. He said judges have wide discretion to determine what

is in public view and what is not, especially when neither side challenges

a ruling to keep information out of view.

"That is my concern," he said.

Still, Ellison said, much information could have damaging results if

released publicly. For instance, civil suits could destroy companies if

proprietary information got out, he said.


"You think Coca-Cola's going to reveal its formula? They may have to

compare formulas, but they're going to do it in the judge's chambers," he

said.

Soto has fought his own battles with sealed documents in federal cases. In

1989, he and law partner Arthur Madden represented a Bolivian man who was

brought up on cocaine conspiracy charges.

Soto said two men claiming to be cousins of their client, Alfredo Garcia,

contacted them and offered substantial payments to represent him -- but

only if they agreed not to report it. That would have been a crime, Soto

said, since the federal government had paid them a fee to represent the

man as an indigent defendant.

Soto said he and Madden became suspicious when Garcia told them he did not

have a cousin. He said he was even more suspicious after prosecutors and

the FBI seemed uninterested in the incident.

The lawyers took up the issue with the judge, who revealed the existence

of sealed documents and secret tape recordings. Butler agreed to open the

records, and the lawyers learned the men who had contacted them actually

were an undercover FBI agent and a confidential informant.

Soto said he remains convinced that the entire effort was an entrapment

attempt against him and his partner. But he said he never would have known

about it if Butler had not opened up the sealed records.

"A lot of this relies on the good faith of the court and the person that's

making the motions," he said. "It's a whole shadow government out there a

lot of times."

Post-9/11 concerns

The practice of secret court cases has come under fire from advocates

across the country, particularly after the Sept. 11, 2001, terrorist

attacks.

In one high-profile case, authorities a month after the attacks detained a

waiter in Florida named Mohamed K. Bellahouel, who had ties to two of the

hijackers and whose student visa had expired. But the federal court in

Miami kept all details about Bellahouel's case secret -- including that it

even existed.

It only became public, according to news accounts, when someone in the

clerk's office of the 11th Circuit Court of Appeals in Atlanta

accidentally posted information about the case online and the Miami Daily

Business Review picked up the story. Bellahouel had appealed the district

judge's decision to seal the case.

The court also kept secret nearly all information about Bellahouel's

separate attempts to open the case, including his name and the names of

the lawyers involved.

The appeals court reviewed the case and issued a "sealed and unpublished

judgment" in 2003.

Bellahouel appealed the case to the U.S. Supreme Court, which declined

last year to hear it and refused an attempt by a coalition of media

organizations and public interest groups to join the case.

The justices heavily edited the publicly released version of the legal

brief submitted to the high court, blanking out entire pages. In an

unprecedented move, the court also allowed the federal government to file

a completely secret response, according to news accounts. 

Lawyers and advocates have identified other sealed cases suggesting that

the practice has been used relatively frequently in the Miami-based

federal court, including a case in which drug defendant Nicholas

Bergonzoli was convicted, sentenced and imprisoned last year in total

secrecy.

Dalglish, whose reporters committee fought in court to open up the

Bellahouel case, said secrecy in court proceedings "conjures images of

people disappearing in Argentina in the 1970s."

In Mobile, federal judges and prosecutors said they can recall few cases

that have been shut entirely.

"I can only think of one case where significant portions would be deemed

sealed," said U.S. Attorney David York, who citedongoing investigations

and the safety of witnesses as the reasons for closing criminal cases to

the public.

He said his office asks for information to be withheld from the public

only to protect an informant or cooperating witness or keep personal

information from becoming public.

Granade and other judges said lawyers must meet a high standard for

removing records from public view, especially in civil suits.

"I can't recall anything in civil cases since I've been a judge that's

been allowed to be sealed, except in cases where there's a parallel

criminal case," she said.

U.S. Magistrate Judge Sonja Bivins said she has denied requests to seal

documents that merely would be embarrassing to one party or another. She

said she always holds hearings to determine if she will seal information.

"Without seeing the document, without knowing the reasons why it should be

sealed, I'm not going to give my blessing to it," she said.

Different in state court

Ellison, the Samford law professor, said federal criminal probes often are

wide-ranging, involving multiple suspects and different locations --

sometimes even in other countries. Publicizing an indictment in such cases

could not only hurt the chances of arresting co-conspirators but endanger

people's lives as well, he said.

"Crime is taking on a completely different posture today as opposed to 40

years ago, when the feds were basically chasing moonshiners," he said.

But Soto said many of those same issues exist in state courts, which do

not close hearings of defendants to protect ongoing investigations. 

"If you tried that in state courts, they'd look at you and say, 'Well,

then don't start the prosecution,'" he said.

Added Robert Kendall, the presiding Mobile County Circuit Court judge:

"Nobody has had the temerity to suggest that to me."

Kendall said state judges have no authority to close criminal cases.While sympathizing with the plight of prosecutors wanting to protect ongoing investigations, he said a citizen's constitutional rights are paramount. "If they had their druthers, they would try everyone at (the federal government's detention facility in) Guantanamo Bay rather than in open court," he said. "It's my belief that every defendant has a constitutional right to an open trial."

Kendall also took a dim view of withholding information in civil cases. He

said lawyers must meet a high threshold before he agrees to that.

"It seems to me to be becoming a more and more common practice where

lawyers seek to have files or portions of files closed," he said. "I deny

most of them."

Once the rationale for sealing a document has passed, it is the

responsibility of the party that requested it to be removed from public

view to ask the judge to unseal it. But judges acknowledged that lawyers

do not always follow through.

"There's no prompt unless the government realized it's still sealed and

wants it unsealed," said U.S. District Judge William Steele.

Federal courts cannot destroy sealed files or send them to federal

archiving centers. But the courts have different policies regarding how to

handle documents once they have been sealed. Some, for instance, set a

deadline for opening up a sealed file and then send the document to the

person who asked that it be sealed.

The federal court in Mobile, however, has no such policy. Unless it adopts

one, court officials acknowledged, closed files will sit in locked drawers

forever -- long after everyone involved in the case is dead.