Opinion
22 Cr. 137 (PAE)
03-03-2022
UNITED STATES OF AMERICA, v. STEPHEN BOND-NELSON, Defendant.
GINA CASTELLANO Assistant U.S. Attorney
GINA CASTELLANO Assistant U.S. Attorney
SEALING ORDER
THE HONORABLE PAUL A. ENGELMAYER UNITED STATES DISTRICT JUDGE
WHEREAS, an application has been made by the United States of America, with the defendant's consent, for the closing of the courtroom for the above-captioned defendant's arraignment and plea proceeding; the sealing of the transcript of such proceeding and any related documents; and the temporary delay of any docket entries in the above-captioned case;
WHEREAS, the Court finds that active law enforcement investigations may be compromised if the Government's application is not granted;
IT IS HEREBY ORDERED that this matter shall remain under seal and no docket entries shall be made in the abovecaptioned matter until further order by this Court;
IT IS FURTHER ORDERED that that all documents relating to this matter shall remain under seal in the chambers of the undersigned;
IT IS FURTHER ORDERED that the courtroom shall be closed for the defendant''s plea proceeding; the transcript of such proceeding, the related documents, this Order, and the Government's application for this Order, shall be sealed; and
IT IS FURTHER ORDERED that counsel for the defendant and the Government may be provided a copy of the transcript of the proceedings without further Order of the Court; and
IT IS FURTHER ORDERED that upon relaying to officials at the U.S. Securities and Exchange Commission (the "SEC") that this matter is under seal, counsel for the Government is permitted to inform the SEC of the fact of the plea proceeding and provide to the SEC the plea agreement and Information if counsel for the Government deems such production appropriate.
IT IS FINALLY ORDERED that the Government shall report to the Court on or before six months after execution of this Order regarding the continuing need, if any, to maintain these matters under seal.
SO ORDERED:
SEALED AFFIRMATION AND APPLICATION
GINA CASTELLANO hereby affirms, under penalty of perjury and pursuant to Title 28, United States Code, Section 1746, as follows:
1. I am an Assistant United States Attorney in the office of Damian Williams, United States Attorney for the Southern District of New York, and I am familiar with this matter. By this affirmation, the Government applies for an order of the Court (1) closing the courtroom during the arraignment and plea proceeding for the above-captioned defendant, STEPHEN BOND-NELSON (the "defendant"); (2) sealing the transcript of the proceeding, all accompanying documents, and this application and accompanying proposed order; and (3) delaying docketing of any items related to this case until further order by this Court. This Office has received authorization from the Deputy Attorney General of the United States, in accordance with 28 C.F.R. § 50.9(d), to request the relief requested herein, 2. At the defendant's arraignment, the Government expects that the defendant will waive indictment and plead guilty to a four-count information charging him with conspiracy to commit securities fraud, investment adviser fraud, and wire fraud; securities fraud; investment adviser fraud; and conspiracy to obstruct justice, in connection with an investigation into a large-scale securities fraud scheme involving multiple members. The investigation revealed that in the period from at least 2014 through in or about 2020, members of this scheme defrauded investors in funds managed by Allianz Global Investors U.S. LLC by making false and misleading statements to current and prospective investors that substantially understated the risks being taken with respect to those funds' investments.
3. As noted above, the Government expects that on March 3, 2022, at an arraignment and plea proceeding before Your Honor, the defendant will waive indictment, consent to the filing of an information, and enter a plea of guilty pursuant to a cooperation agreement. Among other things, the defendant has cooperated with the Government by providing information about his criminal associates, including an associate identified as CC-1 in the information. While CC-1 is aware of the' Government's investigation, CC-1 is unaware of the precise timing of criminal charges that might be filed against CC-1. The Government believes that CC-1 is a dual American and French citizen and has substantial assets located overseas, and if the fact or transcript of the defendant's arraignment and guilty plea become known to CC-1, there is reasonable grounds for concern that CC-1 may flee to avoid arrest.
4. Although there is a qualified right of public access to Court documents, the Second Circuit has recognized that documents may be filed under seal to, among other things, further ongoing law enforcement efforts, including grand jury investigations. See United States v. Cojab, 996 F.2d 1404, 1407-09 (2d Cir. 1993) (affirming sealing order); United States v. Haller, 837 F.2d 84, 88 (2d Cir. 1988) (affirming decision to seal that portion of a plea agreement that referred to a defendant's ongoing cooperation); see also Fed. R. Crim. P. 49.1(d) and (e) & advisory committee note (permitting a court to order filings to be made under seal, and explicitly listing, as examples, "plea agreements indicating cooperation"). The Second Circuit has also recognized that even docketing the applications to seal those materials could be prejudicial, and in such cases the applications themselves and related notes to the docket could be sealed. See United States v. Alcantara, 396 F.3d 189, 200 n.8 (2d Cir. 2005).
5. Compelling law enforcement interests support an order directing that filings and other docket entries in this case be made under seal. Exposure of the defendant arraignment and guilty plea could lead to CC-1 fleeing to avoid arrest. An order closing the courtroom during the guilty plea, sealing the transcript and the defendant's Information, and delaying all docket entries in the above-captioned case would greatly reduce the risk that the timing of the defendant's guilty plea would result in CC-1 fleeing.
6. The defendant's cooperation (and the charges against him) will not be kept sealed indefinitely, however. The Government anticipates that, once CC-1 has been arrested, for example, the filings in this case would no longer need to be sealed. Accordingly, at such time, the Government will inform the Court of that development and move this Court for an order unsealing the filings of this case, and docketing the previously un-docketed entries. In any event, the Government will provide the Court with an update with respect to these matters no later than six months' time from the date of the requested order, and every six months thereafter until the sealed matters are unsealed and the un-docketed items are docketed.
7. Accordingly, the Government requests that the courtroom be closed for the defendant's guilty plea proceeding, that all filings and other docket entries in the above-captioned case, including this affirmation and any order issued in connection with it, be filed under seal, and that no docket entries be made in this matter until further order of the Court.
8. The Government understands that the U.S. Securities and Exchange Commission (the "SEC") is conducting a parallel investigation into the conduct set forth in the Indictment. Accordingly, the Government further requests that it be permitted to inform the SEC of the fact of the defendant's guilty plea and provide to the SEC the plea agreement and Information if the Government deems such production appropriate.
9. No prior request for the relief set forth herein has been made, and defense counsel has consented to this application.