UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK UNITED STATES OF AMERICA, V. WILLIAM NOJAY. Criminal Action No. PROPOSED INTERVENER THE DEMOCRAT MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO INTERVENE AND UNSEAL NIXON PEABODY LLP Christopher D. Thomas, Esq. Meghan K. McGuire, Esq. Jenny'R. Lewis, Esq. 1300 Clinton Square Rochester, New York 14604 Attorneys for Proposed Intervener The Democrat Chronicle TABLE OF CONTENTS POINT I: THE. HAS STANDING TO INTERVENE IN ORDER TO INVOKE THE RIGHT TO ACCESS THE NOJAY JUDICIAL 3 - POINT 11: PUBLIC ACCESS TO JUDICIAL RECORDS IS CRUCIAL TO THE TRANSPARENCY AND THUS THE PERCEIVED LEGITIMACY OF THE JUDICIARY 4 a POINT THE AND THE PUBLIC HAVE A COMMON LAW RIGHT TO ACCESS THE NOJAY JUDICIAL RECORDS IN THIS CASE ..- 6 A. Federal Common Law Creates A Presumption Of Access To Judicial Records and Documents ..- 6 B. The Nojay Judicial Records Are Quintessential Judicial Records And Thus Are Entitled To A Common Law Presumption Favoring Public Access 7 - C. Because The Complaint Is The Cornerstone Of The Case In General And Of This Court?s Issuance Of An Arrest Warrant In Particular The Presumption Of Access Is At Its ?Zenith? 9 D. There Are No Countervailing Factors Weighing Against Public Access In This Case lO - POINT IV: THE AND THE PUBLIC ALSO HAVE A FIRST AMENDMENT RIGHT TO ACCESS THE NOJAY JUDICIAL RECORDS IN THIS CASE - 13 A. The First Amendment Creates A Presumption Of Access To Judicial Proceedings And Judicial Documents l3 - B. A Complaint Is Entitled To First Amendment Protection From Concealment ..- l4 C. Allowing The Nojay Judicial Records To Remain Sealed Is Neither ?Essential To Preserve Higher Values? Nor Narrowly Tailored To Serve That Interest ..- 15 - POINT V: THE PRESUMPTION OF ACCESS SHOULD BE EVEN STRONGER IN THIS CASE BECAUSE MR. NOJAY WAS AN ELECTED .. PUBLIC 16 POINT VI: THE ABATEMENT DOCTRINE IS WHOLLY INAPPLICABLE ..- 18 A. Abatement Does Not Apply Because Mr. Nojay Was Not Convicted 19 B. Abatement Does Not Apply Because Mr. Nojay Did Not Appeal ..- 20 C. Even If Abatement Were Applicable In This Case (Which. It Clearly Is Not), It Would Have No Impact On The Outcome Of This Motion TABLE OF AUTHORITIES Page(s) FEDERAL CASES Abidor v. Johnson, 2016 WL 3102017 2016) ?73 10 ACLU of Mississippi v. Fordice, 969 F. Supp. 403 (SD. Miss. 1994) ..9 Bernstein v. Bernstein Litowiiz Berger Grossmann LLP, 814 F.3d 132 (2d Cir. 2016) .. passim Brine/co v. Rios Props., Inc. (In re Nai?l Consumer Mortg.), 512 BR. 639 (D. Nev. 2014) ..11 Chicago Tribune Co. (In re AP) 12. Ladd, 162 F.3d 503 (7th Cir 1998) ..3 Cordell v. Detective Publications, Inc, 419 F.2d 989 (6th Cir. 1969) ..9 Dahl v. Bain Capital Partners, LLC, 891. F. Supp. 2d 221 (D. Mass. 2012) ..13 Durham v. US, 401 US. 481, 91 858, 28 L.Ed.2d 200 (1971) (per curiam) ..19 FTC. v. Abeie Prod. LLC, 713 F.3d 54 (11th Cir. 2013) ..7 Gambale v. Deutsche Bank AG, N0. 02 CIV.4791 HB, 2003 WL 21511851 (S.D.N.Y. July 2, 2003) ..4 Globe Newspaper Co. v. Pokaski, 868 F.2d 497 (lst Cir. 1989) ..12, 20 IDT Corp. 12. eBay, Inc, 709 F.3d 1220 (8th Cir. 2013) ..7 In re Application Inc., 828 F.2d 958 (2d Cir. 1987) ..11 In re N. Y. Times Co, 828 F.2d 110 (2d Cir. 1987) ..13, 14 Lugoscn v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006) ..6, 7, 12, 14 New Era Publs. In?, 12. Henry Holt Co., 873 F.2d 576 (2d Cir. 1989) ..9 Nixon v. Warner Communications, Inc, 435 US. 589, 98 1306, 55 L.Ed.2d 570 (1978) ..6 Routh 1). Univ. of Rochester, 981 F. Supp. 2d 184 (W.D.N.Y. 2013) ..11 Scott v. City ofSiozix City, Iowa, 96 F. Supp. 3d 898, 910 (ND. Iowa 2015) ..1 1, 16 US. v. Alcantara, 396 F.3d 189 (2d Cir. 2005) ..14 US. v. Amalgamated Li?z Ins. Co, 534 F. Supp. 676 (S.D.N.Y. 1982) ..9 US. v. Amoa?eo, 44 F.3d 141 (2d Cir. 1995) ..6, 7 US. v. Are? 533 F.3d 72 (2d Cir. 2008) ..3, 4 US. v. Chin, 633 F. Supp. 624 (ED. Va. 1986) ..19 US. v. Chang, 181 Supp. 2d 1135 (D. Haw. 2001) ..19 US. v. Dimora, 862 F. Supp. 2d 697 (ND. Ohio 2012) ..16 US. v. Dominick, N0. CR 15?289, 2016 WL 1408558 (ED. La. 2016) ..9 US. 12. Erie County, 763 F.3d 235 (2d Cir. 2014) ..15 US. v. Graham, 257 F.3d 143 (2d Cir. 2001) ..3, 4, 7 US. v. Kushner, 349 F. Supp. 2d 892 (D.N.J. 2005) ..3 ii US. v, Lay, 456 F. Supp. 2d 869 (SD. Tex. 2006) ..18 US. v. Myers, 635 F.2d 945 (2d Cir. 1980) ..4, 16 US. v. Pic/card, t1 733 F.3d 1297 (10 1Clr. 2013) ..5 US. v. Smith, 776 F.2d 1104 (3d Cir. 1985) ..7 US. v. Williams, 2006 US. Dist. LEXIS 67579 Sept. 7, 2006) ..19 US. v. Wright, 160 F.3d 905 (2d Cir. 1998) ..17, 18, 19, 20 STATECMSES People v. Ekinici, 743 651 (NY. Sup. Ct. 2002) ..18, 19 STATESTATUTES NY Judiciary Law 446 ..16 INTRODUCTION Proposed Intervener The Democrat Chronicle submits this Memorandum of Law in Support of its Motion for an Order: (1) allowing the to intervene for the limited purpose of asserting the public?s constitutional and common law rights of access to all judicial records in this case (the ?Nojay Judicial Records?); and (2) unsealing of those judicial records. Intervention is regularly granted under such circumstances, access to judicial records is strongly presumed, countervailing arguments are unavailing, and continued sealing is inconsistent with public policy. FACTUAL BACKGROUND For more than two decades, Bill Nojay (?Mr Nojay? or ?Defendant?) was one of the most prominent politicians and public ?gures in Western New York. (Declaration of Christopher D. Thomas, dated September 19, 2016 (?Thomas Dec?), ll 5.) An outspoken lawyer, Republican politician, and arch~conservative, Mr. Nojay was a ?xture at the most rari?ed political circles of his party, which led to a series of political appointments in the Rochester region. (161., it 6.) In 1996, he was appointed by Governor George Pataki as the commissioner of the Rochester Genesee Regional Transportation Authority. (Id, 1) 7.) He also served on the Executive Committee of the Genesee Transportation Council and as the chairman of the Regional Trails Initiative Steering Committee for the Rochester re gion. (Id, ?33 8.) On November 6, 201.2, Noj ay was elected to the New York State Assembly for the l33rd Assembly District, serving parts of Monroe and Steuben Counties. (Id, 9.) Most recently, he was co- chairman of Republican presidential candidate Donald Trump?s New York campaign committee. (Id, it 10.) Outside of the political arena, Mr. Nojay wore many hats of different shapes and colors: daily conservative radio talk show host, international agricultural entrepreneur in Cambodia, and, most recently, silent participant in a group called DeWolff EPIC, which was bidding on a multi~ million dollar project to renovate schools in the Rochester City School District (Id. ii 1 The Cambodian venture led to a fraud complaint filed against him in Cambodia. (Id, 12.) The RCSD venture resulted in a convoluted series of secret maneuvers, which ultimately resulted in the collapse of DeWolff EPIC and its subsequent inability to deliver on its bid. (Id. 1i l3.) Nojay?s legal troubles in Cambodia and growing rumors of his silent involvement in the RCSD reconstruction project caused the to assign its ?Watch Dog? team of investigative journalists to look into Mr. Nojay?s business and political dealings. (Id, fl 6; see also id, Ex. A.) While the was conducting its investigative reporting, the FBI, USPS, and DOJ were apparently also conducting a criminal investigation which began to bear fruit. (Id, 15.) Upon information and belief, consistent with the Federal Rules of Criminal Procedure, on or before Friday, September 9, 2016, agents of the FBI, USPS, and/or DOJ presented Magistrate Judge Hon. Jonathan W. Feldman (the with a complaint and supporting deposition(s) detailing alleged criminal wrongdoing by Mr. Nojay. (Id, ll 16.) As they regularly do when seeking a judge?s signature on an arrest warrant, the agents asked the Court to review the complaint and supporting deposition in order to assess whether there existed reasonable cause to believe a crime was committed by Mr. Nojay. (Id, jl 17.) The Court ful?lled its judicial functions and reviewed the complaint and supporting depositions. (Id, 18.) Based on their contents, the Court signed a warrant for Mr. Nojay?s arrest. (Id, jl 19.) It was at that moment the complaint and supporting depositions became ?Judicial Records? (hereinafter the ?Nojay Judicial Records?) in their entirety. (Id) Through counsel, the Court and law enforcement officers extended a signi?cant courtesy to Mr. Nojay of letting him turn himself in on the warrant instead of suffering the humiliation of a public arrest. (101., ?ii 20.) Mr. Nojay was to surrender himself on Friday, September 9th at or around 9:30 am. for processing. 11 21.) Mr. Nojay?s arraignment on the Nojay Judicial Records was scheduled to take place in an open session of court shortly thereafter, around 10:00 am. (161., ?ll .22.) Upon information and belief, at about 9:20 am. that morning, Mr. Nojay committed suicide by fatally shooting himself. (1d, 11 24.) The Noj ay Judicial Records have yet to be unsealed. (Id, 11 27.) POINT I THE HAS STANDING TO INTERVENE IN ORDER TO INVOKE THE RIGHT TO ACCESS THE NOJAY JUDICIAL RECORDS ?The Federal Rules of Criminal Procedure make no reference to a motion to intervene in a criminal case. However, such motions are common in [the Second] Circuit to assert the public?s First Amendment right of access to criminal proceedings.? US. v. Aref, 533 F.3d 72, 81 (2d Cir. 2008) (citations omitted). ?Because vindication ofthe right of public access requires some meaningful opportunity for protest by persons other than the initial litigants . . . a motion to intervene to assert the public?s First Amendment right of access to criminal proceedings is proper.? Id. (quotation and citation omitted). Courts have consistently held that members of the media, in particular, are entitled to ?an opportunity to be heard at a meaningful time, and in a meaningful manner before they can be deprived of [their right of access to judicial records].? US. v. Kushner, 349 F. Supp. 2d 892, 898 (D.N.J. 2005) (granting motion to intervene) (citing US. v. Antar, 38 F.3d 1348, 1361 n. 18 (3d 5 Cir. 1994)); see also US. v. Graham, 257 F.3d 143 (2d Cir. 2001) (granting media interveners access tojudicial records); US. v. Aref, 533 F.3d 72, 81 (2d Cir. 2008) (holding that a motion to intervene to assert the public?s First Amendment right of access to criminal proceedings is proper); Chicago Tribune Co. (In re AP) v. Ladd, 162 F.3d 503, 507 (7th Cir 1998) (granting motion to intervene as an ?appropriate procedural mechanism? to assert right of access). The is the hometown newspaper of Rochester, New York. (Thomas Dec., 11 3.) As such, it is an appropriate party to assert and protect its and the public?s First Amendment and common law rights to access. Accordingly, the motion to intervene should be granted. POINT II PUBLIC ACCESS TO JUDICIAL RECORDS IS CRUCIAL TO THE TRANSPARENCY AND THUS THE PERCEIVED LEGITIMACY OF THE JUDICIARY The Second Circuit has stated a clear preference for transparency in criminal proceedings, holding: ?Transparency is pivotal to public perception of the judiciary?s legitimacy and independence.? US. v. Aref, 533 F.3d 72, 83 (2d Cir. 2008). According to the Second Circuit, ?[a]ny step that withdraws an element of the judicial process from public view makes the ensuing decision look more like ?at and requires rigorous justi?cation.? Id. (quotation omitted). ?Because the Constitution grants the judiciary ?neither force nor will, but merely judgment,? courts must impede scrutiny of the exercise of that judgment only in the rarest of circumstances.? Id. (quoting The Federalist No. 78 (Alexander Hamilton)). The Second Circuit?s mandate for transparency is strongest in criminal cases, as ?it is dif?cult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted.? US. v. Myers, 635 F.2d 945, 951 (2d Cir. 1980) (quoting Richmond Newspapers, Inc. v. Virginia, 448 US. 555, 575 (1980)). Thus, .. 4 there is a ?strong presumption in favor? of access to judicial records in criminal proceedings. U. 3. v. Graham, 257 F.3d 143, 149 (2d Cir. 2001) (quoting US. v. Myers, 635 F.2d at 952). Thus, while it is ?widely recognized that the district courts retain the inherent power to control access to their records on a case? even ?long after it has been resolved or settled? (Gambale v. Bank/1G, No. 02 CIV.4791 HB, 2003 WL 21511851, at *3 (S.D.N.Y. July 2, 2003) (citing cases)), it is an abuse of discretion for a court to seal documents without applying the correct legal principles or placing insufficient weight on the strong presumption favoring openness (US. v. Pic/card, 733 F.3d 1297, 1302 (10th Cir. 2013)). The continued sealing of the Nojay Judicial Records in this case violates these principals of transparency and public scrutiny. (Thomas Dec., 11 30.) If the Noj ay Judicial Records remain secret, people will necessarily wonder what law enforcement officials and the Court did related to Mr. Nojay. 31.) There will inevitably be questions about the legitimacy of the complaint, the legitimacy of the supporting depositions, and the legitimacy of the warrant. (Id, 11 32.) Such speculation is bad for the court system, bad for law enforcement, and bad for the public. (Id, 33.) It facilitates conspiracy theories as to what ?really? happened or what the ?real? reasons were for the signing of the warrant. Few things are worse for the legitimacy ofajudicial system. (Id, 11 34.) Unsealing resolves this. (161.) Continued secrecy also causes people to speculate that a powerful, rich, white, Republican, conservative lawyer is getting special treatment from a justice system that is populated by powerful, rich, white, politically-connected lawyers. (Id, 11 35.) In other words, some might believe that Mr. Nojay received preferential treatment in life (by being allowed to turn himself in instead of being arrested) and will continue to benefit from such preferential treatment in death (by being allowed to keep his alleged misdeeds hidden from the public when anyone else?s judicial records would be released). (Id, 8 36.) Mr. Nojay was allowed to turn himself in on the warrant. (1d, 37.) Many think, correctly or not, that a poor, black, powerless defendant would not have been given the same preferential treatment. Instead, he would have been arrested by US Marshals pursuant to Federal Rule of Criminal Procedure 5, and therefore would not have had an opportunity to commit suicide. (Id) In that case, the defendant would be brought to court for arraignment and the judicial record in his case would have been unsealed as a matter of course, for the public to see and review, as should have happened in the case at bar. (Id, 11 38.) Continued sealing works Violence on the basic precept of court legitimacy transparency and the perception of unequal treatment eats away at the very foundation of our legal system. (Id, fl 39.) POINT THE AND THE PUBLIC HAVE A COMMON LAW RIGHT TO ACCESS THE NOJAY JUDICIAL RECORDS IN THIS CASE A. Federal Common Law Creates A Presumption 0f Access To Judicial Records and Documents The Supreme Court has de?ned the common law right of public access to judicial documents as a ?general right to inspect and copy public records and documents, including judicial records and documents.? Nixon v. Warner Communications, Inc, 435 US. 589, 597498, 98 1306, 1312, 55 L.Ed.2d 570 (1978). The common law right of public access creates ?a presumption favoring access tojudicial records.? US. v. Amodeo, 44 F.3d 141, 146 (2d Cir. 1995) (citing Nixon v. Warner Communications, 435 US. at 602, 98 at 1314.). ?Once the court has determined that the documents are judicial documents and that therefore a common law presumption of access attaches, it must determine the weight of that presumption.? Lugosch v. Pyramid Co. ofOnondaga, 435 F.3d 110, 119 (2d Cir. 2006). The weight is determined by: (1) ?the role of the material at issue in the exercise of Article judicial power?; and (2) ?the resultant value of such information to those monitoring the federal courts.? Id. ?Generally, the information will fall somewhere on a continuum from matters that directly affect an adjudication to matters that come within a court?s purview solely to insure their irrelevance.? Id. I ?[A]fter determining the weight of the presumption of access, the court must balance competing considerations against it.? Id. ?Countervailing factors include, among other things, the danger of impairing judicial efficiency and the privacy interest of those resisting disclosure.? Abidor v. Johnson, 2016 WL 3102017, *3 (E.D.N.Y. 2016) (Citing Stern v. Cosby, 529 F. Supp. 2d 417, 420 (S.D.N.Y. 2007); see also Lugosch v. Pyramid Co. ofOnondaga, 435 F.3d 110, 119 20 (2d Cir. 2006); US. v. Graham, 257 F.3d at 149-155. B. The Nojay Judicial Records Are Quintessential Judicial Records And Thus Are Entitled A Common Law Presumption uvoring Public Access The Second Circuit has de?ned a judicial record or document as one that is ?relevant to the performance of the judicial function and useful in the judicial process?? US. 12. Graham, 257 F.3d 143, 152 (2d Cir. 2001) (quoting US. v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)). complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court?s decision.? FTC. v. Abb Vie Prod. LLC, 713 F.3d 54, 62 (11th Cir. 2013). Thus, courts in the Second Circuit and throughout the county consistently treat complaints as judicial records subject to the common law presumption favoring access. See, eg, -7- Bernstein v. Bernstein Litowir'z Berger Grossrnann LLP, 814 F.3d 132 (2d Cir. 2016) conclud[ing] that a complaint is a? judicial record); Corp. v. eBay, Inc, 709 F.3d 1220 (8th Cir. 2013) (?nding a complaint to be ajudicial record); US. v. Smith, 776 F.2d 1104, 1 111?2 (3d Cir. 1985) (public access to charging documents serves societal interests). In fact, courts consistently treat documents far less central to the judicial function and judicial process than a complaint as subject to the presumption favoring access as well. See US. v. Amodeo, 44 F.3d 141 (2d Cir. 1995) (?nding a court of?cer?s investigative report to be a judicial record for purposes of unsealing); Lugosch v. Pyramid Co, 435 F.3d 110 (2d Cir. 2006) (?nding documents submitted to a court for consideration in a summary judgment motion were judicial records); Abidor v. Johnson, 2016 WL 3102017 (B.D.N.Y. 2016) (?nding documents submitted to judge to provide context for the claims asserted in an initial brief were judicial documents even though the judge did not rely on the documents in reaching a decision). The Nojay Judicial Records the complaint and supporting declaration(s)) are quintessential judicial records. They were undeniably presented to and reviewed by Court. They were not just useful. to the Court, they were the sole basis upon which the Court exercised its judicial function the issuance of a warrant. Access to the Nojay Judicial. Records is ?necessary if the public is to understand a court?s decision? to sign an arrest warrant for a high-ranking, elected, public of?cial. FTC. v. Abeie Prod. LLC, 713 F.3d 54, 62 (11th Cir. 2013). As such, the Nojay Judicial Records are entitled to a presumption favoring public access under the common law. C. Because The Complaint Is The Cornerstone Of The Case In General And Of This Court?s Issuance Of An Arrest Warrant In Particular The Presumption 0f Access Is At Its ?Zenith? ?Where a document?s role in the performance of Article 111 duties is negligible, the weight of the [presumption favoring access to judicial records] is low.? Bernstein v. Bernstein Litowitz Berger Grossmann LLP, 814 F.3d 132, 142 (2d Cir. 2016). ?Conversely, where documents directly affect an adjudication or are used to determine litigants? substantive legal rights, the presumption of access is at its zenith and thus can be overcome only by extraordinary circumstances.? Id. (internal quotation marks omitted). ?The locus of the inquiry is, in essence, whether the document is presented to the court to invoke its powers or affect its decisions.? Id. Complaints are entitled to the strongest presumption in favor of public access because ?[ojf all the records that may come before a judge, a complaint is among the most likely to affect judicial proceedings. It is the complaint that invokes the powers of the court, states the causes of action, and prays for relief.? Id. Thus, ?[p]leadings, such as the complaint here, are highly relevant to the exercise of Article power.? Id. As stated above, the Nojay Judicial Records in this case the complaint and supporting declaration(s)) were not only presented to and reviewed by the Court but, upon information and belief, they were the sole basis upon which the Court signed the arrest warrant of Mr. Nojay. See Fed. R. Crim. P. 4(a) (?If the complaint or one or more affidavits ?led with the complaint establish probable cause to believe that an offense has been committed and that the defendant committed it, the judge must issue an arrest warrant to an officer authorized to execute The Nojay Judicial Records were presented to the Court to invoke its powers and affect its decisions. They are therefore subject to the strongest possible presumption of access and can only remain sealed under extraordinary circumstances, which do not exist here. -9- D. There Are No Countervailing Factors Weighing Against Public Access In This Case i. Neither Mr. Nojay Nor His Estate Have A Privacy Interest Because He Is Deceased The right to privacy ?terminates upon death and does not descend to the heirs of the deceased.? US. v. Amalgamated Life Ins. Co, 534 F. Supp. 676, 679 (S.D.N.Y. 1982) (citing A/leeropol v. Nizer, 381 F. Supp. 29, 37 (S.D.N.Y. 1974) aff?d in relevantpart, 560 F.2d 1061, 1068 (2d Cir. 1977); New Era Publs. .lnt?l, v. Henry Holt Co., 873 F.2d 576, n. 4 (2d Cir. 1989) (a person?s privacy terminates at death); Cordell v. Detective Publications, Inc, 419 F.2d 989, 990?1 (6th Cir. 1969) right [of privacy] lapses with the death of the person who enjoyed Thus courts consistently either refuse to seal or grant motions to unseal documents, even medical documents, after the death of the affected party. See, e. g, US. v. Dominick, No. CR 15? 289, 2016 WL 1408558, at *3 (ED. La. 2016) (denying a motion for a protective order because ?[t]he government has not shown that the medical records of a deceased person outweigh the public?s right to access judicial records?). Here, because Mr. Nojay is dead, his ?privacy? interests cannot outweigh the public?s interest in knowing the contents of the Nojay Judicial Records. See ACLU of Mississippi v. Fordice, 969 F. Supp. 403, 410 (SD. Miss. 1994) (?The right of the public to know about the unlawful activities of its government must be considered and should be weighted more heavily in cases of deceased victims, who can suffer no embarrassment, than in cases where the victim is still living?) And, since Mr. Nojay does not have a privacy interest, his estate cannot attempt to assert such an interest on his behalf. Cordell, 419 F.2d at 991 right [of privacy] lapses with the death of the person who enjoyed it, and one cannot recover this kind of invasions of the privacy of a relative, no matter how close the relationship?). -10.. While Mr. Nojay?s suicide eviscerates his right to privacy in this action, it also raises an important public policy issue. The Nojay Judicial Records undeniably would have been unsealed by the Court after Mr. Nojay was arraigned. (Thomas Dec, 11 41.) Allowing the Nojay Judicial Records to remain sealed in whole or in part because Mr. Nojay committed suicide creates a real risk that other defendants, especially white collar defendants, will take their own lives in an effort to protect their legacies, prevent their loved~ones? embarrassment, and prohibit the public?s knowledge of their misconduct. (Id, 11 42.) That is a strong motivator for some people especially white men in their late 50?s who are common white collar defendants and at highest risk of suicide to take their own lives. See Conwell, Yeates, M.D., ?Suicide and Suicide Prevention in Later Life,? FOCUS, Winter 2013, Vol. XI, No. 1; also available at Thomas Dec., Ex B. ii. Even If Mr. Nojay Were Still Alive, His Privacy Interests Would Not Outweigh The Public ?s Right To Access The Complaint ?When considering an assertion of a right to privacy, a court should look to the extent to which the subject matter is traditionally considered private, the sensitivity of the information at issue, the reliability of the information, and the extent to which the party would have a fair opportunity to respond to accusations contained in the material.? Abidor v. Johnson, 2016 WL 3102017 at First, as is set forth above, documents similar to the Nojay Judicial Records are traditionally made available to the public. Second, the contents of the Nojay Judicial Records are neither private nor sensitive. The Nojay Judicial Records contain information about Mr. Nojay?s alleged wrongdoing, including, potentially, his misuse of his position as a public of?cer. While these allegations may be embarrassing, the embarrassment is a result of Mr. Nojay?s own alleged criminal conduct. See In re Application Inc, 828 F.2d 958, 961 (2d Cir. 1987) 11 is not an innocent bystander subject to public embarrassment solely because of the acts of others. Rather, the circumstances in which he ?nds himself are solely the result of his criminal acts?) Embarrassment alone is not enough to impair the public?s right of access. See Scott v. City ofSioi/x City, Iowa, 96 F. Supp. 3d 898, 910 (ND. Iowa 2015) (?nding ?a public person?s ?embarrassment? over sexual misconduct while conducting the business of the City? an insuf?cient interest to justify sealing judicial records); Brincko v. Rios Props, Inc. (In re Nat"! Consumer Mortg.), 512 BR. 639, 641 (D. Nev. 2014) a litigant?s embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.? (quotation omitted)); Routh v. Univ. ()fRocheSi?er, 981 F. Supp. 2d 184, 217 (W.D.N.Y. 2013) (denying motion to seal complaint even though sexuallyeexplicit allegations were embarrassing). Third, the Nojay Judicial Records contain reliable information, as they are sworn to by an attorney and supported by declarations of law enforcement of?cials. But, even if some of the information in the Nojay Judicial Records proves to be untrue, unsealing the complaint does not assume the truth of the allegations within it. Bernstein v. Bernstein Lit'owil'z Berger Grossmann LLP, 814 F.3d 132, 143 (2d Cir. 2016). As the Second Circuit recently explained: Complaints canwand frequently domcontain allegations that range from exaggerated to wholly fabricated. That is the nature of judicial proceedings?not everything alleged by one party can or should be taken as ground truth. Still, the pleadings can and do properly frame the proceeding and provide outer boundaries on the claims advanced and the redress sought. Following defendants? logic to its conclusion, moreover, would create an untenable result?wthe sealing of all complaints in actions in which the plaintiff does not prevail, and all indictments in a criminal prosecution in which the defendant is acquitted. Id. (emphasis added) (citing US. v. Amodeo, 44 F.3d 141, 147 (2d Cir. 1995)). For this reason, indictments, complaints, supporting depositions, and other documents that comprise the record of a criminal case are presumptively available to the public, even in cases where the defendant is -12- acquitted. See Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509 (1st Cir. 1989) (holding ?a blanket restriction on access to the records of cases ending in an acquittal, a dismissal, a nolle prosequi, or a ?nding of no probable cause, is unconstitutional?). Finally, while Mr. Noj ay will not have an opportunity to respond to accusations contained in the Nojay Judicial Records, that is Mr. Nojay?s own fault. He would have had a full and fair opportunity to rebut the charges, but he chose not to. Mr. Nojay?s private choice to not face these charges and defend himself against them cannot deprive the public of its right to access. Based on the traditionally-public nature of the Nojay Judicial Records, the lack of sensitive or private information contained therein, the reliability of the information contained therein, and Mr. Nojay?s own forfeiture of his opportunity to respond to the accusations, Mr. Nojay?s privacy interest (were he still alive) would not outweigh the public?s right to access the Nojay Judicial Records. POINT IV THE AND THE PUBLIC ALSO HAVE A FIRST AMENDMENT RIGHT TO ACCESS THE NOJAY JUDICIAL RECORDS IN THIS CASE A. The First Amendment Creates A Presumption 0f Access To Judicial Proceedings And Judicial Documents The First Amendment right to access is different than the common law right to access; it protects the public?s right to ?attend judicial proceedings and to access certain judicial documents.? Lugosch, 435 F.3d at 120. The Second Circuit has articulated two different approaches for determining whether the First Amendment right to access applies to certain categories of documents. Bernstein v. Bernstein Litowilz Berger Grossmann LLP, 814 F.3d 132, 141 (2d Cir. 2016). The first -13.. approach considers ?experience and logic?; it analyzes ?whether the documents have historically been open to the press and general public and whether public access plays a signi?cant positive role in the functioning of the particular process in question.? Id. ?The second approach considers the extent to which the judicial documents are derived from or are a necessary corollary of the capacity to attend the relevant proceedings.? Id. Once it is determined that a document falls within the First Amendment?s right of access, an opponent of public access bears the heavy burden of demonstrating ?speci?c, on the record ?ndings . . . demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.? In re N. Y. Times Co, 828 F.2d 110, 116 (2d Cir. 1987). B. A Complaint Is Entitled 0 First Amendment Protection From Concealment complaint . . . is best evaluated under the ?experience and logic? approach.? Bernstein, 814 F.3d at 141. Experience supports access because, ?[c]omplaints have historically been publicly accessible by default, even when they contain arguably sensitive information.? Id. Logic also supports access because, ?[p]ublic access to complaints allows the public to understand the activity of the federal courts, enhances the court system?s accountability and legitimacy, and informs the public of matters of public concern.? Id. ?Conversely, a sealed complaint leaves the public unaware that a claim has been leveled and that state power has been invokedmand public resources spent?in an effort to resolve the dispute. Thus, ?public access to the complaint and other pleadings has a significant positive role in the functioning of the judicial process.? Id. For these reasons, courts in the Second Circuit and around the country have consistently applied the First Amendment right of public access to complaints. See, e. g, Bernstein, 814 F.3d at 132 (determining that the ?public and press should receive First Amendment protection in -14- their attempts to access? complaints); Dahl v. Bain Capital Partners, LLC, 891 F. Supp. 2d 221, 224 (D. Mass. 2012); see also Lugosch v. Pyramid Ca, 435 F.3d 110, 120 (2d Cir. 2006) (holding that the First Amendment requires the court to consider whether the document has been ?historically open to the press and general public?). Here, Mr. Nojay was scheduled to be arraigned the morning of September 9th. The public had the right to attend that arraignment and the was anticipating exercising that right. See US. v. Alcanl?ara, 396 F.3d 189. 205 (2d Cir. 2005) arraignment . . . [has] historically been conducted in the public courtroom, and we believe the Federal Rules of Criminal Procedure were intended to codify that practice?). A corollary of the public?s right to attend the arraignment is the public?s right to review the complaint and supporting declarations that formed basis ofthat entire proceeding. See, Bernstein, 814 F.3d at 132. Thus, the Nojay Judicial Records would have been unsealed at the time of Mr. Nojay?s arraignment. And they could only have been subsequently re-sealed upon motion of an interested party pursuant to Local Rule 55 and a ?substantial showing? that restricting access was necessary. It is only because Mr. Nojay evaded his arrest and arraignment by committing suicide that the Nojay Judicial Records remain sealed at this time. No party has moved to seal the Nojay Judicial Records pursuant to Local Rule of Criminal Procedure 55, and there has been no ?substantial showing? of a need to do so. But for Mr. Nojay?s suicide, the Noj ay Judicial Records would already be available to the public. They should be made available now. C. Allowing The Nojay Judicial Records 0 Remain Sealed Is Neither ?Essential To Preserve Higher Values Nor Narrowly Tailored To Serve That Interest To overcome the First Amendment right of access an opponent must ?demonstrate[e] that 335 closure is essential to preserve higher values and is narrowly tailored to serve that interest. Bernstein, 814 F.3d at 132; In re N. Y. Times Co, 828 F.2d 110, 116 (2d Cir. 1987). A party 15 opposing public access must bring forth ?speci?c, on~the?record ?ndings? rather than ?broad and general ?ndings.? US. v. Erie County, 763 F.3d 235, 239 (2d Cir. 2014) (emphasis added). In US. v. Erie County, the County based its desire for sealing pre~negotiation documents on the need for ?frank, and hence con?dential, discussion among the parties.? Id. at 243. The Second Circuit determined that the documents at issue are not made in preparation of the negotiation and there was no issue of attorney-client con?dentiality or of divulging strategy. ?Signi?cantly, Erie County, in basing its sealing argument only on the aforementioned settlement contention does not invoke privacy interests, or safety concerns, or for that matter, any other value that plausibly may be construed as being higher than the First Amendment values at stake.? Id. at 243-4 (internal citations omitted). Likewise, Mr. Nojay by his own choice no longer has any privacy rights or safety concerns in the unsealing of the Complaint. Further, given Mr. Noj ay?s decision to end his life, there is no longer any risk of impeding law enforcement?s investigation. There is no plausible or even conceivable argument that Mr. Noj ay?s interests - even from the grave are more important than the First Amendment. POINT THE PRESUMPTION OF ACCESS SHOULD BE EVEN STRONGER IN THIS CASE BECAUSE MR. NOJAY WAS AN ELECTED PUBLIC OFFICIAL As is set forth above, the common law and First Amendment create strong presumptions that judicial documents, such as the complaint and supporting declaration(s) in this case, should be available to the public. But that presumption is even stronger (and virtually ir-rebuttable) where the accused defendant is a public of?cial and the issues involve public trust, public duties, and/or public funds. -16- The Second Circuit has noted that, ?[t]he presumption is especially strong . . . where the evidence shows the actions of public officials? because there is ?a legitimate and important interest in affording members of the public their own opportunity to see and hear evidence that records the activities of. . . local elected officials.? Application of Nat ?l Broad. Co, Inc, 635 F.2d 945, 952 (2d Cir. 1980). See also Scott 12. City osz'oux City, Iowa, 96 F. Supp. 3d 898, 910 (ND. Iowa 2015) (noting public employees and public officials ?might reasonably expect a higher degree of public scrutiny, even of their private doings? and holding that ?neither ?secrecy for secrecy?s sake? nor a public person?s ?embarrassment? over sexual misconduct while conducting the business of the City is an interest suf?cient to justify keeping the Evidentiary Ruling sealed?); US. v. Dimora, 862 F. Supp. 2d 697, 706 (ND. Ohio 2012) (recognizing that where ?the case centers on the conduct of a public of?cial, the importance of public scrutiny is heightened? and ?the public?s interest in the operation of government adds weight in the balance toward allowing permission to copy judicial records?). Mr. Nojay was an elected State who took an oath to ?support the constitution of the United States, and the constitution of the State of New York, and [to] faithfully discharge the duties of [his] office . . . according to the best of [his] ability.? N.Y. Const. Art. 1. He was also an attorney and, as such, an of?cer of this Court with a similar sworn obligation to ?support the constitution of the United States, and the constitution of the State of New York, and that [to] faithfully?discharge the duties of the office of attorney and counselor??at?law, according to the best of [his] ability.? NY Judiciary Law 446. In his roles as a State and attorney, Mr. Nojay was entrusted to act in the public?s interest, specifically in his allocation of public money and other resources. However, in this action, upon information and belief, Mr. Nojay is accused of violating the law he swore to uphold. Such -17- accusations are of particular interest to the members of the public who were potentially deceived. Accordingly, unsealing of the Nojay Judicial Records is both necessary and appropriate. POINT VI THE ABATEMENT DOCTRINE IS WHOLLY INAPPLICABLE To the extent an argument is made that abatement somehow impacts the above analysis, it is off base. The abatement doctrine provides that, ?when a convicted defendant dies while his direct appeal as of right is pending, his death ?abates not only the appeal but also all proceedings had in the prosecution from its inception.m US. v. Wright, 160 F.3d 905, 908 (2d Cir. 1998) (citing Dar/1am v. US, 401 US. 481,483, 91 858, 28 L.Ed.2d 200 (1971) (per curiam)). Perhaps the most timely example of abatement is the case of Former New York State Senator Thomas Libous, who was convicted in July 2015 of lying to federal investigators about using his in?uence to get his son a job with a well-connected Westchester County law ?rm and arranging for an Albany lobbyist to cover part of the salary. (Thomas Dec., 1145.) Mr. Libous ?led an appeal of that conviction, but died of cancer while the appeal was pending. 11 46.) Mr. Libous?s estate subsequently ?led a motion with the Second Circuit to withdraw the appeal, vacate the conviction, and remand to the District Court with orders to dismiss the indictment. US. v. Libous, Case No. 15-3979, Dkts. 44?1 through 44-10, 08/15/2016; also available at Thomas Dec., Ex. C. And the US. Attorney?s of?ce consented to the vacatur of Mr. Libous?s conviction, conceding that, ?[w]hen a defendant dies while his direct appeal is pending, ordinarily the defendant?s appeal is dismissed as moot and the judgment of conviction is vacated, pursuant to the ?rule of abatement.? US. v. Libous, Case No. 15?3 979, Dkt. 49, 8/29/2016; also available at Thomas Dee, Ex D. -13.. A similarly-notorious example of the application and. effect of the abatement doctrine is the case of Ken Lay, former CEO and Chairman of Enron Corporation. (Id, 49.) Mr. Lay was convicted of multiple counts of fraud and conspiracy related to his (mis)management of Enron. Mr. Lay suffered a heart attack after his conviction but before he was able to ?le an appeal. Thus, Mr. Lay?s estate ?led a motion to vacate his conviction and dismiss the indictment, which. was granted. US. v. Lay, 456 F. Supp. 2d 869 (SD. 2006). In both of these cases, the defendants were convicted of crimes, ?led (or intended to ?le) appeals, but died of natural causes before their appeals were resolved. (Id, 5 3.) Mr. Libous and Mr. Lay?s respective estates moved to abate their convictions. (Id, 54.) But neither even attempted to argue that the abatement doctrine required sealing of the judicial records in their respective cases. (Id, 55.) In fact, those records including the indictment and criminal complaint in the Libous case1 are still accessible to the public via PACER. (Id, EX The examples of Mr. Libous and Mr. Lay easily contrast with the facts of this case and explain why abatement is inapplicable. First, there is no right to abatement unless and until a defendant is convicted. Second, only a defendant who ?led or clearly intended to ?le an appeal before he died can bene?t from abatement. Third, abatement only affects a deceased defendant?s conviction. and punishment, it has never been invoked to seal judicial records. A. Abatement Does Not Apply Because Mr. Nojay Was Not Convicted The doctrine of abatement exists because ?after conviction and before appeal the presumption ofinnocence ends? and instead ?there is a presumption of guilt.? People v. Ekinicz?, I The indictment in the Lay case appears to have been scaled when ?led, pursuant to a request by the United States government. -19- 743 651 (NY. Sup. Ct. 2002). Thus, without the doctrine of abatement, a defendant who is convicted but dies before that conviction is ?nal is deemed irreversibly guilty. See also US. v. Wright, 160 F.3d 905, 908 (2d Cir. 1998) interests ofjustice ordinarily require that [a defendant] not stand convicted without resolution of the merits of an appeal?). The same concern is not present when a defendant dies before he is convicted of any wrongdoing; the un- convicted defendant enjoys the presumption of innocence for all of eternity. Thus, a conviction is necessary before abatement can be applied. See Durham v. US, 401 US 481, 91 858, 28 L.Ed.2d 200 (1971) (abating conviction of defendant who was convicted before he died); US. v. Wright, 160 F.3d 905 (2d Cir. 1998) (abating conviction of defendant who was convicted and appealed conviction before she died); US. v. Williams, 2006 US. Dist. LEXIS 67579, *5 Sept. 7, 2006) rule of abatement is only applicable when a defendant dies pending direct appeal of his criminal conviction?); Ekiniei, 743 at 651 (refusing to abate criminal fine imposed on defendant who was able to appeal his sentence and conviction before he died). Here, Mr. Nojay was never convicted. Thus, he is totally ineligible for abatement. B. Abatement Does Not Apply Because Mr. Nojay Did Not Appeal 0r Clearly Intend 0 Appeal A Conviction A convicted defendant only qualifies for abatement if he appealed or intended to appeal his conviction. US. v. Chin, 633 F. Supp. 624 (ED. Va. 1986). As a Virginia court carefully explained: defendant?s] suicide indicates to this Court that he chose to take his life instead of pursuing the appeals procedure which he knew would have been available to him. It seems contrary to our system of justice to allow, as defense counsel has asked, [a defendant] to be absolved of all criminal liability because he intentionally took his own life at a time when he had not been afforded a right to appeal. [The defendant] had a choice: his life or an appeal. Sadly and regrettably he chose to die and although. he is now unable to present his case on appeal, the -20- Court cannot help but conclude that such a choice was a conscious and deliberate one. Id. at 627~28. See also US. v. Chang, 181 F. Supp. 2d 1135, 1137 (D. Haw. 2001) vacating a conviction due to the death of a defendant from causes other than suicide makes sense because in such case truly ?death has deprived the accused of his right to our decision?; yet to enable a defendant to remove his criminal conviction by taking his own life establishes a questionable precedent to say the least, and in some situations tragically may tempt a defendant to commit suicide?) Mr. Nojay committed suicide, which demonstrates not only that he had no intention of ?ghting a conviction but that he had no intention of appealing it. Mr. Nojay had a choice. Sadly and regrettably, he chose to die. But that choice cannot deprive the public of its right to access the Nojay Judicial. Records in this case under the abatement doctrine. C. Even If Abatement Were Applicable In This Case (Which It Clearly Is Not), It Would Have No Impact On The Outcome Of This Motion Abatement only vacates a deceased defendant?s conviction and punishment. See US. v. Wright, 160 F.3d 905, 908 (2d Cir. 1998) (??First, the interests ofjustice ordinarily require that [a defendant] not stand convicted without resolution of the merits of an appeal. Second, to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served?). Abatement has never been used to justify the burial of otherwise public documents related to the deceased party?s case. To the contrary, courts consistently make judicial records of cases that end without a ?nal conviction available to the public. See Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509 (1st Cir. 1989) (holding ?a blanket restriction on access to the -21- records of cases ending in an acquittal, a dismissal, a nolle prosequi, or a ?nding of no probable cause, is unconstitutional?). Thus, the abatement doctrine has no bearing on the present motion for access to the Nojay Judicial Records. Because the abatement doctrine is inapplicable to this case in general and this motion to unseal the Nojay Judicial Records in particular, it should be given no weight in the Court?s analysis. CONCLUSION For the foregoing reasons, the respectfully requests that the Court grant its Motion for an Order: (1) allowing the to intervene for the limited purpose of asserting the public?s constitutional and common law rights of access; and (2) unsealing the Nojay Judicial Records in this action. Dated: September 19, 2016 LLP er 1/ By: am. ChristOpher D. Thomas Meghan K. McGuire Jenny R. Lewis 1300 Clinton Square Rochester, New York 14604 (585) 263-1087 ilewisQDnixonpeabody.com Attorneys for Proposed Intervener The Democrat Chronicle -22-