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United States v. Magana

United States District Court, D. Nevada

October 11, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LAWRENCE PATRICK MAGANA et al., Defendants.

          STEVEN W.MYHRE Acting United States Attorney, RICHARD ANTHONY LOPEZ Assistant United States Attorney, Representing the United States of America.

          GOVERNMENTS MOTION TO UNSEAL CASE AND TO PARTIALLY UNSEAL INDICTMENT

         The United States of America, by and through Steven W, Myhre, Acting United States Attorney, and Richard Anthony Lopez, Assistant United States Attorney, hereby moves this Court for an order unsealing the case and (in lieu of unsealing the Indictment) permitting the public filing of a version of the Indictment that redacts only the identities of defendants not yet arrested by law enforcement.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On July 26, 2017, a Federal Grand Jury charged Lawrence Patrick Magana and multiple co-defendants with one count of Conspiracy to Commit Wire Fraud in violation of 18 U.S.C. §§ 1343, 1349. On September 22, 2017, Defendant Magana was arrested on the resulting warrant while trying to board a cruise ship in San Diego California. On October 6, 2017, Defendant Magana made his initial appearance is this District. Because the other defendants remain at large, the Government seek* to have the case unsealed, while keeping under seal the portion of the Indictmenl referencing the identities of the defendants who have not yet been arrested. A redacted version of the Indictment that seals the identity of those defendants is attached as Exhibit A.

         II. ARGUMENT

         Under Federal Rule of Criminal Procedure 6(e)(4), "[t]he federal magistrate to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial." "The decision of a magistrate to seal an indictment is entitled to considerable deference." United States v. Gigante. 436 F.Supp.2d 647, 654 (S.D.N.Y. 2006).

         The '"obvious purpose'" of the Rule '"is to prevent the requirement of an indictment from serving as a public notice that would enable the defendant to avoid arrest.'" United States v. Davis. 598 F.Supp. 453, 455 (S.D.N.Y. 1984) (quoting United States v. Muse, 633 F.2d 1041, 1043 (2d Cir. 1980)): see also United States v. Upton, 339 F.Supp.2d 190, 194 (D. Mass. 2004) ("Rule 6(e)(4) presumes a governmental objective of preventing pre-arrest flight by the defendant").

         Where, as here, an indictment charges multiple defendants and some, but not all, have been arrested, the Government's interest in preventing pre-flight arrest of those at large defendants remains as strong as when the indictment first issued. For that reason, courts have permitted the redaction of the identities of those remaining defendants pending their apprehension. See United States v. Diaz. 2006 WL 1833081, at *3 (N.D. Cal. June 30, 2006) (denying defendant's request to unredact the names of two co-defendants because "the names of those two redacted defendants are properly withheld to facilitate their capture"); see also United States v. Walker, 1996 WL 924620, at *1 (W.D. Va. Oct. 21, 1996) (rejecting the Government's request to keep the entire case and indictment under seal because "redaction [of the indictment] is proper to meet the concerns of the United States attorney about alerting co-defendants who are still at large").

         "In fairness, [redaction] is entirely the appropriate way to proceed." Walker, 1996 WL 924620, at *2. Then, once the remaining codefendants are arrested (and thus the Government's "legitimate need for delay has been satisfied"), the Government will move to unseal the Indictment in its entirety. United States v. Watson, 599 F.2d 1149, 1154 (2d Cir. 1979).

         III. CONCLUSION

         To facilitate the arrest of the outstanding defendants in this case, the Government respectfully requests that this Court grant the Government's motion, unseal the case, and permit the public filing of a version of that Indictment that redacts the identities of Defendant Magana's co-defendants (attached as Exhibit A).

         ORDER

         Based on the Government's Motion to Unseal the Case and to Partially Unseal the Indictment in the above-captioned matter and good cause appearing ...


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