FILED
2022 OCT 26
CLERK
U.S. DISTRICT COURT
THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
IN THE MATTERS OF (1) EXTENDING
THE DEADLINE TO FILE A MOTION TO GENERAL ORDER
EXTEND THE SEAL AND (2) 22-019
REDACTION BEFORE UNSEALING
SOME MAGISTRATE JUDGE CASES
On August 19, 2022, the Court entered General Order 22-014 implementing a
process to review some sealed magistrate judge cases (mj cases) and complaints (or
charging documents) to determine if there was any reason those cases and complaints
should not be unsealed. The Order pertained to sealed mj cases and complaints filed
between January 1, 2012, to July 31, 2022.
The Order required the Clerk’s Office to provide a list of the sealed cases to the
United States Attorney Office (United States), which after review, it would send to the
Federal Defender’s Office for the District of Utah (FDO). After those agencies reviewed
the hundreds of cases on the list, they could file a motion to continue the seal by
October 3, 2022, or the cases and some complaints would be unsealed.
During its review, the United States discovered that many of the sealed
complaints required redactions before they could be unsealed. This eventuality was not
anticipated when General Order 22-014 was entered. Allowing the entities to file
redacted complaints enables the court to preserve the public’s right to access judicial
records. The United States explained that redaction is necessary to remove personal
identifying information, safeguard investigative techniques, and protect the names of
minors, witnesses, sources, informants, uncharged individuals, and others. See Letter
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from Drew Yeates, Criminal Division Chief, United States Attorney’s Office for the
District of Utah, attached.
The Court agrees with the United States and finds that under Fed. R. Crim. P.
49.1(d), DUCrimR 49-1(a), and case law that redaction is warranted to protect the
information identified above and as specified in the letter.
Separately, while these agencies have worked tirelessly to meet the October 3,
2022 deadline to file a motion to continue the seal, additional time is needed for FDO to
complete a thorough review of each case. FDO specifically has requested an extension
to file any motions to continue the seal.
THEREFORE IT IS HEREBY ORDERED that:
1. Unsealing Redacted Cases and Complaints: The United States may
provide a copy of the redacted complaints or charging document to the Clerk’s Office.
After receiving the redacted complaints, the Clerk’s Office will send a copy to FDO. FDO
will have until November 15 to coordinate additional redaction for the cases on the list
with the United States, if it is needed, or to file a motion to seal or redact if an
agreement cannot be reached. By December 15, 2022, the Clerk’s Office will file the
redacted complaint in the correct cases. The redacted complaint will be publicly
available; the case will be unsealed as ordered in General Order 22-014; and the
unredacted complaint will remain sealed.
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2. Extension of Time for Motions: The United States and FDO have until
October 28, 2022, to send to the Clerk’s Office for filing any motions to extend the seal
for cases identified on the Clerk’s Office list.
SO ORDERED this 26th day of October, 2022.
BY THE COURT:
_____________________________________
ROBERT J. SHELBY
CHIEF UNITED STATES DISTRICT JUDGE
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U.S. Department of Justice
TRINA A. HIGGINS
United States Attorney
District of Utah
REPLY TO: Office of the United States Attorney (801) 524-5682
J. Drew Yeates 111 South Main, Suite 1800 (800) 949-9451
Assistant United States Attorney Salt Lake City, Utah 84111-1506 Fax: (801) 524-6924
October 10, 2022
United States District Court, District of Utah:
Pursuant to General Order 22-014, the United States Attorney’s Office for the District of Utah
has worked expeditiously and diligently to clear a decade-long backlog of approximately 300 sealed
MJ cases. Counsel for the United States carefully reviewed the cases with an understanding that court
filings are presumptively open to the public. The United States has stipulated to the unsealing of
approximately 85% of the backlogged cases. The United States has identified approximately four
dozen cases that may be unsealed after minor redactions are made to one of more documents
contained therein.
The four dozen cases at issue were originally sealed pursuant to DUCrimR 49-2(b) with an
understanding that the documents could be redacted prior to unsealing. See Federal Rule of Criminal
Procedure 49.1(d). Federal Rule of Criminal Procedure 49.1(d) allows a party unsealing a filing to
file a redacted version for the public record. Moreover, DUCrimR 49-2(a) encourages counsel to
“redact personal identifiers” and “confidential portions of a Document when they are not directly
pertinent to the issues before the court.”
The United States’ proposed redactions to previously sealed Criminal Complaints are narrow
in scope and necessary to remove personal identifying information (PII), sensitive investigative
techniques, and names of minors, witnesses, sources, cooperators, informants, and uncharged
coconspirators. A Criminal Complaint is a mere allegation based upon the low evidentiary standard
of probable cause and is a temporary charging document. Authorizing limited redaction pertaining to
unproven allegations is supported by sound public policy.
The United States proffers the following findings and justifications to establish good cause for
the redactions.
• DUCrimR 49-2(a) encourages counsel to “redact personal identifiers” and
“confidential portions of a Document when they are not directly pertinent to the issues
before the court.”
• Federal Rule of Criminal Procedure 49.1(d) allows a party unsealing a filing to file a
redacted version for the public record.
• There is ordinarily “no legitimate governmental interest served” by the government’s
public allegation of wrongdoing by an uncharged party.” In re Smith, 656 F.2d 1101,
1106-07 (5th Cir. 1981). See also United States v. Anderson, 55 F. Supp 2d 1163,
1169-70 (D. Kan. 1999) (finding a due process violation as a result of the
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government’s “unqualified identification of movants as unindicted coconspirators in
its pretrial moving papers [which] allows for the reasonable inference that they have
been labeled criminals”); United States v. Smith, 992 F. Supp. 743 (D.N.J. 1998)
(noting a court should determine whether a compelling need for disclosure exists or
will serve the interests of justice, especially where a sentencing memo contains
allegations implying named third parties engaged in criminal conduct with defendant
when such allegations were not raised at trial).
• Courts have precluded the public identification of unindicted third-party wrongdoers
in plea hearings, sentencing memoranda, and other government pleadings. See Finn v.
Schiller, 72 F.3d 1182 (4th Cir. 1996); United States v. Briggs, 514 F.2d 794 (5th Cir.
1975); United States v. Anderson, 55 F.Supp.2d 1163 (D. Kan 1999); United States v.
Smith, 992 F. Supp. 743 (D.N.J. 1998).
Accordingly, good cause has been established for the redactions in this small number of cases.
Sincerely,
TRINA A. HIGGINS
United States Attorney
/s/ J. Drew Yeates
J. Drew Yeates
Assistant United States Attorney
Chief, Criminal Division
