Opinion
1:22-mj-05837-UA
07-15-2022
UNITED STATES OF AMERICA v. PABLO HERNANDEZ, a/k/a "Carlos Nieves,” Defendant.
SEALED ORDER
THE HONORABLE JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE
WHEREAS, an application has been made by the United States of America, with defendant PABLO HERNANDEZ'S consent, for the temporary sealing of filings and other docket entries in the above-captioned case, and the captioning of the case as United States v. John Doe in the public docket;
WHEREAS, the Court finds that the defendant's safety may be placed at risk and active law enforcement investigations may be compromised if the Government's application is not granted;
IT IS HEREBY ORDERED that filings in the above-captioned case be filed under seal, and the case shall be captioned as United States v. John Doe in the public docket, until further order by this Court;
IT IS FURTHER ORDERED that no docket entries shall be made in the above-captioned matter until further Order by this Court;
IT IS FURTHER ORDERED that counsel for the defendant and the Government may be provided a copy of the transcript of proceedings in this matter without further Order of the Court; and
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
MATTHEW R. SHAHABIAN 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 directing that filings and other docket entries in the above-captioned case be filed under seal, and that the case be captioned United States v. John Doe in the public docket.
2. On or about July 14, 2022, defendant Pablo Hernandez was arrested by agents with the Drug Enforcement Administration for narcotics trafficking and gun possession. He will have his initial appearance on July 15, 2022.
3. In an interview with agents after his arrest, Hernandez provided information to law enforcement officers about unlawful conduct, including providing information about foreign and United States-based co-conspirators in the narcotics trafficking scheme in which he is charged. The information he provided thus far appears reliable and is consistent with other evidence gathered during the law enforcement investigation in connection with this case.
4. I am informed by the defendant's attorney, Christopher Flood, Esq., that Hernandez wishes to continue providing information to the Government. Accordingly, the Government anticipates that, after further investigation, information provided by Hernandez may be presented to a grand jury in this District, for purposes of obtaining an indictment against those co-conspirators, and further that subpoenas may be issued in the name of the grand jury for records pertaining to this investigation, 5. 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 protect, among other things, a cooperating defendant's safety or to 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. Pro. 49.1(d) and (e) & advisory committee note (permitting a court to order filings to be made under seal, and explicitly listing, as an example, “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). Docketing this case under the pseudonym "John Doe,” and sealing all filings in the case, is equivalent to making a sealed entry in the docket sheet.
6. Compelling law enforcement interests support an order directing that filings and other docket entries in this case be made under seal. The Government has learned through its conversations with law enforcement officers that the drug trafficking scheme in which Hernandez is a participant is continuing to actively transport drugs. If Hernandez's co-conspirators learned about the charges against Hernandez or his attempts to assist the Government, they could flee, stop their narcotics trafficking, destroy or delete evidence, and take other steps to avoid detection. Exposure of Hernandez's attempted assistance could jeopardize an ongoing investigation. Further, I am aware based on my training and experience that, in cases involving narcotics trafficking and firearms, if Hernandez's efforts to cooperate were known, it could place at risk his, or his family's, safety. An order sealing filings and other docket entries in the above-captioned case would greatly reduce the risk that Hernandez's efforts to assist or the charges against Hernandez will be exposed.
7. Hernandez's attempted assistance (and the charges against him) will not be kept sealed indefinitely, however. The Government anticipates that, if Hernandez's efforts to assist lead to the arrest and prosecution of other targets of this investigation, the filings in this case may be unsealed, and the docket sheet could reflect the true caption of this case. At that time, the Government will move this Court for an order unsealing the filings of this case, and restoring the true caption of the case to the docket sheet, 8. Accordingly, the Government requests that 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 the case be captioned United States v. John Doe in the public docket, until further order of the Court.
No prior request for the relief set forth herein has been made, and counsel for Hernandez has consented to this application.