Sealed memorandum opinion and order — United States v. Omar (S.D. W. Va.)

Record facts

U.S. District Court for the Southern District of West Virginia · No. 1:24-cr-00036 · Doc. 3 · 2024-02-16 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA 
 
AT BLUEFIELD 
 
 
IN RE: ANNA OMAR 
MAGISTRATE NO. 1:24-mj-00012 
 
 
 
SEALED MEMORANDUM OPINION AND ORDER 
 
The Court has filed under seal today a target letter directed to the above-named individual.  
It is ORDERED that the CJA Supervising Attorney appoint the Federal Public Defender’s Office 
as counsel for the targeted individual and provide him or her with a copy of (1) the target letter, 
and (2) this sealed memorandum opinion and order. 
Whether a right of public access to the target letter, the affidavit, or this order derives from 
the common law or the First Amendment, and assuming further that these documents qualify as 
“judicial records” as that term is used in our court of appeals’ precedent, there are compelling 
reasons to seal the case. Foremost, the targeted individual has not been charged with a crime. The 
disclosure of the targeted individual’s identity at this point would be akin to the disclosure of 
matters occurring before the grand jury. See United States v. Sells Engineering, Inc.,  463 U.S. 
418, 424-25 (1983) (“[B]y preserving the secrecy of the proceedings, we assure that persons who 
are accused but exonerated by the grand jury will not be held up to public ridicule.’  Grand jury 
secrecy, then, is ‘as important for the protection of the innocent as for the pursuit of the guilty.’”) 
(citations omitted); United States v. E-Gold, Ltd., 521 F.3d 411, 420 (D.C. Cir. 2008)(same). 
Indeed, the target letter indicates that this matter is being presented to the grand jury. 
 
 
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Additionally, the Court is not privy to the details of the ongoing investigation involving 
the targeted individual. Depending upon the nature of that inquiry, public disclosure of the targeted 
individual’s name might also compromise the investigation of others and possibly endanger the 
targeted individual, whether or not that individual ultimately chooses to cooperate in the 
investigation.  Apart from that consideration, however, is a further justification for sealing. The 
sole reason that this matter is presently of record is to reflect the appointment of counsel given the 
targeted individual’s lack of sufficient funds to hire a lawyer. If a targeted individual is not 
indigent, he or she would simply retain private counsel without having to seek a court appointed 
lawyer, and without the attendant risk of it becoming publicized that the individual has fallen under 
suspicion by law enforcement. Fair process suggests that similarly situated individuals should be 
treated alike without regard to their station in life. A sealing order achieves that end. 
As required by controlling precedent, the Court has considered other alternatives short of 
an absolute seal. Indeed, it would be the Court’s preference to seal only the targeted individual’s 
identity and identifying information. Court personnel have submitted an Emergency Modification 
Request (EMR) that would permit the CM/ECF software to allow the sealing of a targeted 
individual's identity alone instead of requiring that the entire case be sealed. 
The Court is aware of the obligation to provide public notice of a sealing order and a 
reasonable opportunity to challenge the decision. See, e.g., Virginia Dept. of State Police v. 
Washington Post, 386 F.3d 567, 576 (4th Cir. 2004). The Court understands that the public may 
use the PACER system to generate a report of criminal cases for a given period. If an interested 
person runs the report, sealed actions do not appear among the numerically sequenced cases. If, 
however, the interested party simply keys in a case number missing from the sequenced cases, he 
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or she will receive a message stating “This case is SEALED.”  The Court deems this device 
sufficient to provide notice to interested members of the public that a case has been sealed. Should 
an interested party object to continued sealing, he or she may then request an opportunity to be 
heard. Cf. Media General Operations, Inc. v. Buchanan, 417 F.3d 424, 430 (4th Cir. 2005) (“We 
agree that members of the press and the public must ordinarily be given notice and opportunity to 
object to sealing of public documents. But, in the context of search warrant documents, the 
opportunity to object does not arise prior to the entry of a sealing order when a search warrant has 
not been executed. . . . Because the sealing order was made public upon the execution of the search 
warrant and petitioners were then given an opportunity to object to the sealing of the affidavits, 
the notice requirement was satisfied.”).1 
Accordingly, the Court ORDERS the Clerk to seal this action provisionally until such 
time, if ever, that (1) an interested party demonstrates that continued sealing is unwarranted, or (2) 
the grand jury returns an indictment, or the United States Attorney files an information, naming 
the targeted individual. 
 
 
 
1In Buchanan for example, the court of appeals noted that there was no right to view or 
object to sealing orders relating to search warrants prior to the time of their execution.  The bases 
for that decision included the fact that pre-search publication of the matter might tip off the person 
subject to the warrant, resulting in the destruction or removal of evidence, or endanger law 
enforcement.  Similar concerns arise here by analogy. 
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The Court further DIRECTS the Clerk to provide a copy of this Order to the targeted 
individual, to the Federal Public Defender’s Office, and to the United States Attorney’s Office. 
ENTERED: February 16, 2024. 
 
 
 
 
 
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