United States District Court, D. Nevada
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
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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).
'"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
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
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).
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).
on the Government's Motion to Unseal the Case and to
Partially Unseal the Indictment in the above-captioned matter
and good cause appearing ...