Case 1:13-cr-00054-JBW Document 20 Filed 05/07/13 Page 1 of 4 PageID #: 174 U.S.

Department of Justice

United States Attorney Eastern District of New York DAS:PT/AAS F.#2012R01861

271 Cadman Plaza East Brooklyn, New York 11201

May 7, 2013 BY HAND & ECF The Honorable Jack B. Weinstein United States District Judge Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: United States v. Shirley Huntley Criminal Docket No. 12-54 (JBW)

Dear Judge Weinstein: The government respectfully submits this letter in connection with the application of May 6, 2013 by members of the media to unseal the May 1, 2013 sentencing letter filed by the defendant Shirley Huntley (the May 1 Letter). As noted in the governments sentencing letter filed publicly on May 3, 2013 (the May 3 Public Letter), the defendant recorded conversations with nine individuals at the direction of law enforcement authorities during the summer of 2012. For the reasons set forth below, the government respectfully submits that the identities of the nine individuals whose conversations Huntley recorded should remain under seal. I. Overview

The government has also filed today, with the consent of defense counsel, a letter ex parte and under seal (the Ex Parte Letter) setting forth the status of the governments investigation with respect to each of these nine individuals. As explained in more detail in the Ex Parte Letter, eight of these nine individuals remain the subjects of ongoing criminal investigations. The remaining three individuals are not subjects of any ongoing law enforcement investigation of which this Office is aware. II. The Eight Individuals Who Are Under Investigation The defendant recorded meetings with eight individuals who remain under investigation and have not been publicly

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2 identified. For reasons set forth in the Ex Parte Letter, and that their names should be redacted from any public filing of page 8 of the May 1 Letter. See United States v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995) (need to protect the integrity of an ongoing investigation, including the safety of witnesses and law enforcement personnel, and to prevent interference, flight and other obstruction, may be compelling reason justifying sealing). Huntleys recordings of three of these eight individuals yielded evidence useful to law enforcement authorities, and the details of these recordings are provided to the Court in a third letter filed by the government today, which was filed under seal and copied to Huntleys counsel (the Sealed Letter). Huntleys recordings of one other individual, who is not one of the eight that are the subjects of ongoing investigations, also yielded evidence useful to law enforcement authorities, and the details of those conversations are also provided to the Court in the Sealed Letter. Any ongoing investigation of this last individual would not be affected by that individual being publicly named, but for reasons set forth in the Sealed Letter, the governments submits that this individuals name should also remain sealed at this time. III. The Individual Who Is Not Under Investigation The other individual whose conversations with the defendant were recorded (the Other Individual) is not a subject of any criminal investigation of which this office is aware. Indeed, the government currently has no basis to believe that the Other Individual has engaged in any criminal wrongdoing. While the disclosure of the identity of the Other Individual would not, therefore, undermine any ongoing investigation, the government nonetheless respectfully submits that the name of the Other Individual should not be publicly disclosed. In this regard, the government submits that the privacy interests of the Other Individual, as an innocent third party, outweighs the presumptive right of the public to access an unredacted version of the May 1 Letter that includes the Other Individuals name.1

The government notes that at the May 6, 2013 hearing, members of the press proposed that a relevant consideration for the Court in this matter should be whether there have been published reports about investigations into any of the listed individuals. The government disagrees with that proposition, because reports published in the press, without confirmation by any investigating agency, generally do not have the same effect on the behavior of a target of an investigation. The standard

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3 First, any public interest in the name of the Other Individual that was created by its inclusion in the May 1 Letter is slight. Its relevance to the defendants sentencing lies not in the Other Individuals identity but in the fact that the defendant attempted to assist the government by making recordings of the Other Individual, to determine whether he or she had participated in or would participate in criminal wrongdoing, or had witnessed such wrongdoing. The May 3 Public Letter has already made known to the public that the defendant made recordings of nine individuals at the governments direction, so revealing the identities of the Other Individual to the public adds nothing to the publics understanding of the factors relevant to the defendants sentencing. Second, courts have recognized that privacy interests can outweigh the publics interest in the public filing of judicial documents such as the May 1 Letter. See Amodeo, 71 F.3d at 1050-51(quoting United States v. Biaggi, 828 F.2d 110, 116 (2d Cir. 1987) that [t]he privacy interests of innocent third parties . . . should weigh heavily in a courts balancing equation). In this case, the Other Individual is just that - an innocent third partiy to the defendants sentencing, who has not sought redress by the Court and is not a defendant or even a witness. The Second Circuit has instructed that one factor the Court should consider when balancing the public right of access against the Other Individuals privacy interests is the degree to which the subject matter has traditionally been considered private rather than public. Amodeo at 1051. In this case, the position of the Other Individual is akin to that of subjects of a grand jury investigation, who have traditionally received the privacy protections of the various grand jury secrecy provisions of Rule 6 of the Federal Rules of Criminal Procedure. A primary purpose of that rule is to allow law enforcement authorities to use specific, powerful investigative techniques, while simultaneously safeguarding the subjects of those techniques from the public stigma and opprobrium, with resulting negative personal and professional consequences, which often result from being identified as merely the subject of a criminal investigation, even if no charges are ultimately brought. Such stigma could be particularly damaging to an elected official for

that should apply is whether disclosure of the fact that the defendant made recordings of a particular investigative target would interfere with that investigation, a standard which is often unaffected by the existence of published news reports.

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4 whom reputation is of grave professional importance. Cf. United States v. Haller, 837 F.2d 84, 88 (2d Cir. 1988) (noting that public disclosure of a portion of a sentencing document might have subjected the labor organization officers and employees, who although not specifically named were reasonably identifiable from [the sentencing document in question], to public embarrassment, even if they were later exonerated by the grand jury, and that [p]rotection of such privacy interests is especially important when the third parties under investigation may be unaware of the threatened danger to their interests and may not appear before the district court to protect themselves). Similarly, the government submits that the identity of the Other Individual should remain under seal. IV. Conclusion

For the reasons set forth above, and in the Ex Parte Letter and Sealed Letter filed by the government today, the government respectfully submits that the identities of the nine individuals whose conversations with Huntley were recorded should remain sealed, and such information should be redacted from the May 1 Letter. Respectfully submitted, LORETTA E. LYNCH United States Attorney By: /s/ Daniel Spector Paul A. Tuchmann Alexander Solomon Assistant United States Attorneys (718) 254-6345/6294/6074

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Sally Butler, Esq. (by email)