United States District Court, D. Nevada
FINDINGS & RECOMMENDATIONS Motion to Dismiss (#390)
GEORGE FOLEY, Jr., Magistrate Judge.
This matter is before the Court on Defendant Leon Benzer's Motion to Dismiss-Prosecutorial Misconduct (#390), filed on November 3, 2014. The Government filed its Opposition to Defendant Benzer's Motion (#408) on November 20, 2014. Defendant Benzer filed his Reply (#420) on November 25, 2014. Also before the Court is Defendant Gregory's Joinder in the Benzer Motion to Dismiss (#410), filed on November 20, 2014. The Government filed its Opposition to Defendant Gregory's Joinder (#423) on November 26, 2014. Defendant Gregory filed his Reply (#430) on December 2, 2014. The Court conducted a hearing in this matter on December 15, 2014.
Defendant Leon Benzer's motion to dismiss the indictment based on prosecutorial misconduct arises from Co-Defendant Keith Gregory's motion to sever which was filed on August 5, 2014. See Motion to Sever (#328). The Government filed its response to Defendant Gregory's motion to sever on August 22, 2014 and Defendant Gregory filed his reply on September 5, 2014. See Docket Nos. 339 and 344. The Court set a hearing on Defendant Gregory's motion to sever for September 16, 2014 at 3:30 p.m. Order (#342). On the day of the hearing, Defendant Gregory filed a Motion to Seal Supplement to his Motion to Sever (#347). This motion was docketed at 12:53 P.M. Defendant Gregory moved for an order sealing his supplement which consisted of the memoranda of interviews of Co-Defendant Leon Benzer during proffer sessions with the Government. Defendant Gregory represented that "[t]he Government, by and through Charles La Bella, Esq., has stated to Gregory's counsel the instant Motion to Seal said documents is appropriate." Id., pg. 1. The motion briefly discussed why the Benzer proffer interviews were relevant to Defendant's Gregory's motion to sever. Id., pgs. 1-2. Although the Court had not granted Defendant Gregory leave to file a supplement to his motion to sever, Defendant Gregory attached the memoranda of interviews as exhibits to his unsealed Motion to Seal Supplement (#347).
The Government filed its Response to Defendant Gregory's Motion to Seal Supplement to his Motion to Sever (#349) on September 16, 2014. The Government's response was docketed at 1:56 P.M. The Government stated that "contrary to the representation in the motion, counsel for the United States did not agree that the instant Motion to Seal said documents is appropriate.'" The Government also argued that Defendant Gregory's supplement was filed too late, noting that there was no reason that the material in the supplement could not have been included in Defendant's reply. Id., pg. 1. The Government further stated:
Third, Defendant Gregory has offered absolutely no justification for why the "supplement" should be sealed. "[A]ny step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification." United States v. Stoerau, 524 F.3d 988, 1012 (9th Cir. 2008) (citation and internal quotation omitted). Thus, in considering motions to seal, [courts] begin with the press and public's presumed right of access to court proceedings and documents' under the First Amendment." United States v. Guerrero, 693 F.3d 990, 1000 (9th Cir. 2008). Having offered no reason whatsoever for sealing, Defendant Gregory's motion should be denied.
Government's Response (#349), pg. 2.
The undersigned magistrate judge issued an order temporarily sealing Exhibit A to the motion "until the Court has the opportunity to review and determine whether sealing is appropriate." Order (#351), docketed at 4:13 P.M. on September 16, 2014. At the outset of the September 16th hearing, the Court stated that it had reviewed Defendant Gregory's motion to seal shortly before the hearing and had ordered that it be temporarily sealed. The Government's counsel, Mr. La Bella, responded to the Court by stating:
In light of the late filing, we even have a later filing, which would oppose the sealing, because we don't think there's a legitimate reason to do so.
There might have been a misunderstanding between counsel. Mr. Snow believes that - that I have agreed to - if we filed them, any of the proffers, either Mr. Benzer's or Mr. Gregory's, that we would agree to them being sealed.
The government's not going to agree to that. So if there was a misunderstanding, it was a misunderstanding. So that's why we oppose it.
Government's Opposition to Defendant Benzer's Motion to Dismiss (#408), Exhibit C, Transcript of Proceedings, pg. 4.
Defendant Gregory's counsel, Mr. Snow, responded to the Court as follows:
Thank you, Your Honor. It's the - I apologize that was filed late. They are answers, proffers. They took them. They've ...