Sealed Memorandum Opinion and Order — United States v. Butler (Dkt. 3, S.D. W. Va.)

Record facts

U.S. District Court for the Southern District of West Virginia · No. 2:22-cr-00161 · Doc. 3 · 2022-08-08 · Docket on CourtListener

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UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF WEST VIRGINIA 
AT CHARLESTON 
 
   
IN RE:  CALVIN BUTLER 
 
 
 
CASE NO: 2:22-mj-00110 
 
 
 
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 designate counsel for 
the targeted individual.  It is further ORDERED that the CJA Supervising Attorney 
provide appointed counsel 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 Assistant United States Attorney indicates that this matter is 
being presented to the grand jury on August 23, 2022. 
 
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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 
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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 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, 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 Clerk is further directed to forward copies of this Sealed Memorandum 
Opinion and Order to the targeted individual, the CJA Supervising Attorney, and the 
United States Attorney’s Office. 
ENTER:  August 8, 2022 
 
 
 
 
 
 
 
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