Sealed Memorandum Opinion and Order — In re Calvin Butler (Dkt. 3)

Summary

In re Calvin Butler, Case No. 2:22-mj-00110, Document 3: a Sealed Memorandum Opinion and Order filed August 8, 2022, in the United States District Court for the Southern District of West Virginia at Charleston. After filing a target letter under seal, the court orders the CJA Supervising Attorney to designate counsel for the targeted individual. The court reasons that the targeted individual has not been charged with a crime and states that the Assistant United States Attorney indicates the matter is being presented to the grand jury on August 23, 2022. It describes public notice of sealing through a PACER message stating "This case is SEALED." The Clerk is directed to forward copies to the targeted individual, the CJA Supervising Attorney, and the United States Attorney's Office.

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    Case 2:22-mj-00110      Document 3       Filed 08/08/22    Page 1 of 4 PageID #: 3




                  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.
    Case 2:22-mj-00110       Document 3      Filed 08/08/22     Page 2 of 4 PageID #: 4




       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


                                              2
    Case 2:22-mj-00110         Document 3        Filed 08/08/22     Page 3 of 4 PageID #: 5




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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   Case 2:22-mj-00110       Document 3   Filed 08/08/22   Page 4 of 4 PageID #: 6




      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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File and source

File

gov.uscourts.wvsd.234723.3.0.pdf

Size

151,192 bytes

SHA-256

c562bc6138abdbc3edc7a56b0146c89592afb783ce0d82d76f6c522bb2692567

Our copy

gov.uscourts.wvsd.234723.3.0.pdf

Original

No public link identified.