Case 2:15-cr-00171-MMB Document 90 Filed 11/16/16 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

v.
KEONNA THOMAS,
a/k/a “Fatayat Al Khilafah”
a/k/a “YoungLioness

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: CRIMINAL NO. 15-171
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MOTION OF PHILLY DECLARATION, LLC
AND AUSTIN NOLEN TO INTERVENE AND UNSEAL
Non-parties Philly Declaration, LLC, publisher of The Declaration news website, and its
Managing Director Austin Nolen (collectively, “The Declaration”), hereby move to intervene in
this matter and for an order granting access to (1) all records that presently appear on the docket
as sealed or inaccessible, including docket entries 24, 26, 31, 35, 47, 48, 62, 63, 64, 70, 86, and
87, and transcripts of both Defendant’s ex parte presentation to the Court on August 12, 2016
and her plea hearing on September 20, 2016 (the “Sealed Docket Records”), and (2) any search
warrant materials pertaining to the investigation and prosecution of the Defendant (the “Search
Warrant Materials”). In support of its motion, The Declaration relies on the accompanying
Memorandum of Law and the exhibits attached thereto.
WHEREFORE, The Declaration respectfully requests that the Court grant the motion to
intervene and enter an order granting access to the Sealed Docket Records and the Search
Warrant Materials.

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Date: November 16, 2016

Respectfully submitted,
LEVINE SULLIVAN KOCH & SCHULZ, LLP

By:

/s/ Michael Berry
Michael Berry
Paul Safier

1760 Market Street, Suite 1001
Philadelphia, PA 19103
Tel: (215) 988-9778
Fax: (215) 988-9750
mberry@lskslaw.com
psafier@lskslaw.com
Attorneys for Philly Declaration, LLC and Austin Nolen

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CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of November, 2016, I caused the foregoing
MOTION TO INTERVENE AND UNSEAL DOCUMENTS, and all supporting papers, to be
served via ECF to the following counsel of record:

Jennifer A. Williams
U.S. Attorney’s Office
615 Chestnut St., Suite 1250
Philadelphia, PA 19106
jennifer.a.williams@usdoj.gov
Attorney for the United States

Elizabeth Toplin
Federal Community Defender Office
601 Walnut St., Suite 545W
Philadelphia, PA 19106
elizabeth_toplin@fd.org
Kathleen M. Gaughan
Federal Community Defender Office
601 Walnut St., Suite 540
Philadelphia, PA 19106
kathleen_gaughan@fd.org
Attorneys for Defendant

/s/ Michael Berry

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

v.
KEONNA THOMAS,
a/k/a “Fatayat Al Khilafah”
a/k/a “YoungLioness

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: CRIMINAL NO. 15-171
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MEMORANDUM OF LAW IN SUPPORT OF THE MOTION OF PHILLY
DECLARATION, LLC AND AUSTIN NOLEN TO INTERVENE AND UNSEAL
The First Amendment and common law afford the public a right to access criminal
proceedings. As the Supreme Court has explained, this well-established right “permits the public
to participate in and serve as a check upon the judicial process—an essential component in our
structure of self-government.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606
(1982). This case involves the investigation and prosecution of a United States citizen accused
of cooperating with a foreign terrorist organization. Thus, the public interest in the case is
particularly high. Yet, a large number of this case’s proceedings have been sealed from public
view. These proceedings, and the records relating to them, have been sealed without any public
explanation and without the public being given notice and an opportunity to challenge the
proposed sealing.
Now that the Defendant, Keonna Thomas, has pled guilty and in light of her upcoming
sentencing, Philly Declaration, LLC, publisher of The Declaration news website, and its
Managing Director Austin Nolen (collectively, “The Declaration”) seek to vindicate the public’s

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right to access records that have been sealed. Specifically, The Declaration seeks access to:
·

all records that presently appear on the docket as sealed or inaccessible, including
motions filed by the parties, Court orders, transcripts, and plea documents
(hereinafter, the “Sealed Docket Records”); and

·

any search warrant materials pertaining to the underlying prosecution, including the
warrants themselves, warrant applications, affidavits filed in support of applications,
and returns filed with the Court (hereinafter, the “Search Warrant Materials”).

In accordance with its constitutional and common law rights, The Declaration respectfully
requests that (1) it be permitted to intervene to challenge the sealing of these materials,
including, where necessary, by being given enough information about the materials and the basis
for sealing them to mount a proper challenge; (2) it and the public be granted access to all such
materials; and (3) to the extent that the party seeking closure is able to meet its high burden of
showing that some sealing is necessary, the records be released with redactions limited only to
information that should properly be sealed.
BACKGROUND
The Proceedings Against Thomas: On April 3, 2015, Thomas was arrested for
attempting to provide material support or resources to the Islamic State of Iraq and the Levant
(ISIL), a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B (2015). See
Dkt. No. 1. The Complaint against Thomas alleges that she attempted to travel to Syria “in order
to join, fight with, and martyr herself on behalf of ISIL.” Id. ¶ 8. The probable cause for the
arrest was based on electronic surveillance of Thomas’s social media posts, as well as
communications between her and three alleged co-conspirators: “a known Somalia-based violent

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jihadi fighter originally from Minnesota,” “a known overseas ISIL fighter,” and “a radical
Islamic cleric located in Jamaica.” Id. ¶¶ 9-29.
The Government has stated that it obtained the evidence against Thomas pursuant to
grand jury subpoenas, search warrants, and “other investigative tools.” Dkt. No. 19 at 6:6-11.
Notwithstanding those representations, Thomas has expressed suspicion that the Government
“conducted additional searches and seizures beyond those it expressly disclosed in discovery.”
Dkt. No. 72 at 3-7.
A grand jury indicted Thomas on April 23, 2015. Dkt. No. 12. At her arraignment on
May 7, 2015, she pleaded not guilty. Dkt. No. 16. On September 20, 2016, with her trial date
approaching, Thomas amended her plea to guilty. Dkt. No. 88. Her sentencing is scheduled for
January 17, 2017. Dkt. No. 89.
The Extensive Sealing of Records: Between the time of Thomas’s indictment and her
guilty plea, the parties have filed many papers under seal, several proceedings have been closed,
and the Court has entered certain orders under seal:
On July 22, 2015, the Government filed a motion under seal. Dkt. No. 24. On August
19, 2015, the Court entered an order under seal. Dkt. No. 26. Both the motion and the order
remain under seal, with no explanation of their nature on the docket.
On November 13, 2015, the Government moved, ex parte and under seal, for a protective
order pursuant to section 4 of the Classified Information Procedures Act (“CIPA”), and Rule
16(d)(1) of the Federal Rules of Criminal Procedure. Dkt. No. 31.1 The Court granted the

1

Under section 4 of CIPA, a court may authorize the Government to omit classified
information—or provide a substitute for classified information—in documents provided to the
defendant in discovery. 18 U.S.C. App. III, § 4.
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Government’s motion on December 1, 2015, in a sealed order. See Dkt. No. 79 at 2. The
Government’s motion and the Court’s order remain sealed.
On April 1, 2016, Thomas moved for an order requiring the Government to provide her
with a bill of particulars, pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. Dkt.
No. 40. The Government filed an opposition to the motion on April 12, 2016, Dkt. No. 43, and
Thomas filed a reply to the opposition, under seal, on April 25, 2016, Dkt. No. 47. That same
day, the Court entered “an order to seal,” itself filed under seal. Dkt. No. 48. The Court
ultimately denied Thomas’s motion for a bill of particulars. Dkt. No. 57. Thomas’s reply and
the Court’s order to seal remain sealed.
On June 30, 2016, Thomas moved to compel the Government to disclose the methods of
surveillance it used in its investigation of her. Thomas originally filed the motion entirely under
seal, Dkt. No. 61, but later, with the Government’s consent, filed a redacted copy publicly, Dkt.
No. 72. Three other sealed filings—a motion by the Government and two orders—also dated
June 30, appear on the docket. Dkt. Nos. 62, 63, 64. The Government filed a response to the
motion, originally under seal, Dkt. No. 66, but now available to the public in full, Dkt. No. 74.
Both sides filed supplemental briefing following oral argument on July 22, 2016. Dkt. Nos. 71,
77. The Court afforded Thomas an opportunity to make an ex parte presentation on August 12,
2016, as to how information sealed under the Court’s December 1, 2015, order might be relevant
to her defense. See Dkt. No. 79 at 3. Ultimately, the Court denied Thomas’s motion. Dkt. No.
80. The record of Thomas’s presentation , as well as the three June 30 filings and a Court order
entered on July 26, 2016, Dkt. No. 70, remain sealed.
Finally, although the public docket indicates that Thomas pled guilty to Count 1 of the
indictment on September 20, 2016, the two plea documents that appear on the docket are either

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under seal, Dkt. No. 86, or unavailable via ECF, Dkt. No. 87. The transcript of the plea hearing
has not yet been posted on the docket.
A chart with a list of the Sealed Docket Records, and their respective descriptions on the
docket, is attached as Exhibit A.
The Declaration and The Substantial Public Interest in this Proceeding: The
Declaration is an online news magazine based in Philadelphia. See https://phillydeclaration.org/.
Its principal focus is on reporting about city, state and federal government activities through
means of public records requests. The Declaration began covering this case shortly after
Thomas’s arrest in April 2015. See Austin Nolen, Philadelphia Woman Faces Charges for
Allegedly Attempting to Join ISIS, The Declaration (Apr. 7, 2015), https://phillydeclaration.org
/2015/04/07/philadelphia-woman-faces-charges-for-allegedly-attempting-to-join-isis/. Like
other local and national news outlets, The Declaration has written extensively about the case.
See, e.g., Austin Nolen, Keonna Thomas Indicted: What we Know about the Investigation So
Far, The Declaration (Apr. 24, 2015), https://phillydeclaration.org/2015/04/24/keonna-thomasindicted-what-we-know-about-the-investigation-so-far/.2
Unfortunately, neither The Declaration nor other media has been able to report on many
proceedings in the case in light of the extensive sealing. For this reason, in May 2016, The
Declaration wrote to the Court seeking access to certain materials, which the Court provided.
Dkt. No. 54. When The Declaration wrote to the Court a second time, it responded by
instructing that The Declaration could seek further access to sealed materials only by way of a
2

See, e.g., Pete Williams & Tracy Connor, Keonna Thomas, Philadelphia Mom,
Charged With Plan to Join ISIS, NBC News (Apr. 4, 2015), http://www.nbcnews.com/
storyline/isis-terror/philadelphia-woman-keonna-thomas-charged-plan-join-isis-n335226; Jeremy
Roebuck, North Philly mom admits to planning to abandon kids for ISIS, philly.com (Sept. 21,
2016), http://www.philly.com/philly/news/20160921_North_Philly_mom_admits_to_planning_
to_abandon_kids_for_ISIS_fighter_she_married_over_Skype.html.
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formal motion to intervene. See Ex. B. Consistent with that instruction, The Declaration now
seeks to intervene for that limited purpose.
ARGUMENT
I.

THE DECLARATION SHOULD BE PERMITTED TO INTERVENE.
As this Court previously recognized, intervention is the appropriate procedural vehicle

for journalists to vindicate the right of the public and press to access judicial proceedings. See
Ex. B (August 16, 2016 letter from Court, citing Pansy v. Borough of Stroudsburg, 23 F.3d 772,
777 (3d Cir. 1994)). The Court of Appeals has “routinely found, as have other courts, that third
parties have standing to challenge protective orders and confidentiality orders in an effort to
obtain access to information or judicial proceedings. [Press organizations] may have standing
notwithstanding the fact that ‘they assert rights that may belong to a broad portion of the public
at large.’” Pansy, 23 F.3d at 777 (citations omitted). Indeed, to facilitate the ability of thirdparties to intervene to vindicate the public’s right of access, the First Amendment and common
law require that the public and press be given notice and an opportunity to heard “at a
meaningful time, and in a meaningful manner” before any records or proceedings are sealed.
United States v. Antar, 38 F.3d 1348, 1361 n.18 (3d Cir. 1994).
Although that did not happen in this case, The Declaration has standing to intervene
because it seeks to vindicate the right to access judicial documents that already have been sealed.
See, e.g., United States v. Wecht, 537 F.3d 222, 232 (3d Cir. 2008) (media intervenors had
standing to challenge restrictions on access to names of jurors); United States v. Wecht, 484 F.3d
194, 202-03 (3d Cir. 2007) (media outlets had third-party standing to challenge the
constitutionality of gag order on public’s behalf); United States v. Smith, 123 F.3d 140, 145 (3d

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Cir. 1997) (adjudicating merits of newspapers’ right of access claim to briefs and hearings in
criminal proceeding).
Accordingly, The Declaration respectfully seeks permission to intervene in this case for
the limited purpose of seeking access to records that have been sealed.
II.

THE SEALED DOCKET RECORDS SHOULD BE UNSEALED.
Consistent with well-established First Amendment and common law precedent, The

Declaration respectfully requests that the Sealed Docket Records be unsealed and, to the extent
that the Court holds that the parties can meet their burden of showing any sealing is necessary,
the remaining sealing be both narrowly tailored and explained in detailed public findings.
A.

The First Amendment and Common Law Rights of Access

Judicial records in criminal proceedings are subject to both a First Amendment and
common law right of access. See United States v. Smith, 776 F.2d 1104, 1112-13 (3d Cir. 1985);
In re Cendant Corp., 260 F.3d 183, 192, 198 n.13 (3d Cir. 2001). These rights are “firmly
established,” Smith, 123 F.3d at 146, and “well-settled,” Cendant Corp., 260 F.3d at 192. The
Court of Appeals has emphasized that the right to access court records and proceedings enhances
“the quality of justice dispensed by the court,” “diminishes possibilities for injustice,
incompetence, perjury, and fraud,” and “provide[s] the public with a more complete
understanding of the judicial system and a better perception of its fairness.” Cendant Corp., 260
F.3d at 192 (quoting Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988) (internal marks
omitted)). The rights of access are particularly important in criminal proceedings because “the
process by which the government investigates and prosecutes its citizens is an important matter
of public concern.” Wecht, 484 F.3d at 210; id. (“[T]he public has a ‘vital interest in evaluating

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the public officials who work in the criminal justice system.’” (quoting United States v. Criden,
675 F.2d 550, 557 (3d Cir. 1982)).
Courts determine whether a First Amendment right of access attaches to a particular
record or proceeding by applying a two-prong “experience” and “logic” test. N. Jersey Media
Grp. Inc. v. United States, 836 F.3d 421, 428-29 (3d Cir. 2016); see also United States v. Kemp,
365 F. Supp. 2d 618, 628 (E.D. Pa. 2005) (citing In re Newark Morning Ledger, Co., 260 F. 3d
217, 221 n.6 (3d Cir. 2001)). Under that test, a court first examines “whether there has been a
tradition of opening to the press the matter in question” and then considers “whether public
access plays a positive role in the judicial process by, inter alia, ‘enhancing both the basic
fairness of the criminal trial and the appearance of fairness so essential to public confidence in
the system.’” N. Jersey Media Grp., 836 F.3d at 429 (quoting Wecht, 537 F.3d at 233-34).
When a First Amendment right attaches, it creates a “strong presumption” of access that
“may be overcome only by an overriding interest based on findings that closure is essential to
preserve higher values.” Id. (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 9
(1986)) (internal marks omitted). Any closure must be “narrowly tailored to serve” that
overriding interest. Id. And, the sealing must be “the least restrictive means”; there must be no
“alternative measures” available. Antar, 38 F.3d at 1359. If a court finds closure is warranted,
that finding must be “specific, individualized,” and “articulated on the record before closure is
effected.” Id.
Even where the First Amendment right of access does not apply, the common law right of
access attaches to all judicial records. Wecht, 484 F.3d at 208. As the Court of Appeals has
held, a judicial record is a document that is meant to “aid . . . the judge in rendering a decision”
or serves “some other judicial purpose.” N. Jersey Media Grp., 836 F.3d at 436; accord Cendant

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Corp., 260 F.3d at 192 (explaining that a judicial record is a “document [that] has been filed with
the court” or is “otherwise somehow incorporated or integrated into a district court’s
adjudicatory proceedings”). The common law right of access “encompasses all ‘judicial records
and documents,’” including “‘transcripts, evidence, pleadings, and other materials submitted by
litigants.’” United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984) (citations omitted)).
Judicial records are subject to a “strong presumption” of public access. United States v.
Smith, 787 F.2d 111, 115 (3d Cir. 1986) (citing United States v. Criden, 648 F.2d 814, 823-29
(3d Cir. 1981)). In the face of that presumption, “the party . . . seeking sealing . . . ‘bears the
burden of showing that the material is the kind of information that courts will protect’ and that
‘disclosure will work a clearly defined and serious injury.’” Cendant Corp., 260 F.3d at 194
(citations omitted). Prior to sealing a record subject to the common law right of access, courts
must “articulate[] the compelling countervailing interests” that justify closure and make “specific
findings” that closure is necessary. Id. at 194, 198 (citation and internal marks omitted).
B.

The Applicable Procedural Requirements For Sealing Have Not Been Met.

In this case, no public findings have been made with respect to any of the Sealed Docket
Records. Indeed, there is not even any publicly available information as to what several of these
sealed records are, let alone whether, for each record, there are sufficient grounds to justify its
sealing.
Based on the minimal information available to the public, the Sealed Docket Records
appear to consist of transcripts and papers filed in connection with various motions, Court orders,
and plea documents. See Ex. A. Those are the kinds of records that fall within the First
Amendment right of access, requiring that any sealing be justified under the demanding
constitutional standard. See Smith, 123 F.3d at 146 (noting that the Third Circuit has extended

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the First Amendment right of access beyond criminal trials “to additional aspects of criminal
proceedings” and “to the records and briefs that are associated with those proceedings”); Newark
Morning Ledger Co., 260 F.3d at 220 (First Amendment right of access applies “to many pretrial criminal proceedings including pre-trial suppression, due process, and entrapment
hearings”).3 At the very least, this Court must make a threshold determination as to whether the
First Amendment right of access attaches to these records. Due process requires that The
Declaration be permitted to weigh in on that issue. That, in turn, requires that The Declaration
and public be provided with sufficient information about the Sealed Docket Records so that it
can meaningfully argue that they are subject to the First Amendment right of access. See United
States v. Raffoul, 826 F.2d 218, 224 (3d Cir. 1987) (“For a case-by-case approach to be
meaningful, representatives of the press and general public must be given the opportunity to be
heard on the question of their exclusion.” (internal marks and citations omitted)).
Even if the First Amendment right of access does not apply to all the Sealed Docket
Records, they are, at the very least, “judicial records,” thus falling within the scope of the
common law right of access. See N. Jersey Media Grp., 836 F.3d at 434-35; accord Cendant
Corp., 260 F.3d at 192-93. Each of the documents appears to be “relevant to the performance of
the judicial function and useful in the judicial process” and thus is a judicial record. N. Jersey
Media Grp., 836 F.3d at 435 (citation and internal marks omitted).
3

Courts outside the Third Circuit have made similar findings about the kinds of
documents at issue here. See, e.g., Associated Press v. U.S. District Court, 705 F.2d 1143, 1145
(9th Cir. 1983) (“[T]he public and press have a first amendment right of access to pretrial
documents [in criminal proceedings] in general.”); Wash. Post Co. v. Robinson, 935 F.2d 282,
288 (D.C. Cir. 1991) (recognizing “a first amendment right of access to plea agreements”);
United States v. Ressam, 221 F. Supp. 2d 1252, 1262-63 (W.D. Wash. 2002) (finding that court
orders are subject to a First Amendment right of access). See generally 1 Lee Levine et al.,
Newsgathering and the Law § 5.02 (4th ed. 2011), at 5-10 (“With few exceptions, the courts
have recognized a qualified First Amendment-based right of access to pretrial proceedings in
criminal cases and have required a rigorous showing to justify closure.”).
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Because the Sealed Docket Records are subject to the First Amendment and/or common
law right of access, they only can be sealed if the parties have met their burden of showing that
sealing is necessary to achieve an overriding interest. And, even if there is some as-yet-unmade
case for sealing the records, the extent of the sealing here is likely more than is necessary and
hardly narrowly tailored or limited to the least restrictive means. While there may be legitimate
grounds to protect some information, doing so does not require the wholesale sealing of records.
It can be accomplished by targeted redactions, limited to protecting whatever legitimate interests
in secrecy exist without compromising the public’s right of access.4
Finally, it bears emphasizing that the public interest in this case and the issues it presents
is high. It is axiomatic that “the appearance of justice can best be provided by allowing people to
observe it.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980). Yet, because
Thomas has elected to forgo her constitutional right to a public trial by pleading guilty while
many records relating to her prosecution (including the plea agreement itself) remain under seal,
the public has been deprived of the opportunity to observe the proceedings against Thomas,
assess the evidence against her, and fulfill its role as a check on the prosecutorial and judicial
process. When a defendant’s fate is determined without the benefit of a public trial, as it has
been in this case, it is critical that the public has the tools to understand the nature of the
underlying proceedings, the basis for the defendant’s decision to admit her guilt, and what the
Government has agreed to in exchange. See Oregonian Publ’g Co. v. U.S. District Court, 920
F.2d 1462, 1465 (9th Cir. 1990) (holding that the public has a constitutional right to access plea
4

For example, the Stipulated Protective Order entered in this case requires the parties to
file “sensitive but unclassified discovery materials” under seal. Dkt. No. 25 at 1-2. But, the
protected “sensitive information,” id., such as “personal identifying information” and “coconspirator identities or contact information,” could simply be redacted—if the parties can show,
in the first instance, that the specific “sensitive information” contained in the documents is
properly sealed under the First Amendment and common law.
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agreements and noting that “[i]n many respects, the plea agreement takes the place of the
criminal trial”). Accordingly, as in all criminal cases, recognizing the public’s right to access
here will enable it to assess “the basic fairness” of these criminal proceedings and will increase
“public confidence in the system.” N. Jersey Media Grp., 836 F.3d at 429 (internal marks and
citation omitted). These principles and the interests for which they stand are even more vital in
this case, which involves matters of substantial public concern: the alleged cooperation of a
United States citizen with an international terrorist organization and the Government’s
surveillance of its own citizens.
In short, to the extent that there is any dispute as to whether any particular record falls
within either the First Amendment or the common law right, The Declaration must be given a
meaningful opportunity to make its case that the record is subject to a right of access. And, to
the extent the Sealed Docket Records fall within either of those rights, they should be unsealed,
subject to whatever targeted redactions the Court deems necessary in detailed public findings to
preserve a compelling interest.
III.

THE PRESS AND PUBLIC SHOULD HAVE
ACCESS TO THE SEARCH WARRANT MATERIALS.
The Declaration respectfully requests that this Court order that the Search Warrant

Materials be made available to the public. Although the Third Circuit has yet to weigh in on this
issue, the overwhelming weight of authority holds that where, as here, a criminal investigation
has concluded, search warrant materials are subject to a right of access, under either the First
Amendment or the common law. Based on that authority, which is consistent with the well-

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established law governing access in this Circuit, the Search Warrant Materials should be made
public.5
A.

The Search Warrant Materials Come
Within the Common Law Right of Access.

Every federal appellate court that has considered the question of whether search warrant
materials are subject to a common law right of access has held that, once a criminal investigation
concludes, search warrant materials are “judicial records and documents” to which such a right
attaches. See Balt. Sun Co. v. Goetz, 886 F.2d 60, 64 (4th Cir. 1989) (“conclud[ing] that
affidavits for search warrants are judicial records”); In re Search of 1638 E. 2nd St., Tulsa, Okla.,
993 F.2d 773, 775 (10th Cir. 1993) (same); In re Application of Newsday, Inc., 895 F.2d 74, 79
(2d Cir. 1990) (finding that “common law right to inspect” search warrant application attached
after completion of criminal investigation); In re EyeCare Physicians of Am., 100 F.3d 514, 517
(7th Cir. 1996) (search warrant affidavits fall within the common law right of access); United
States v. Bus. of Custer Battlefield Museum & Store, 658 F.3d 1188, 1190 (9th Cir. 2011) (“a
qualified common law right of access” applies to “materials filed in support of search warrant
applications after an investigation has been terminated”). As the Ninth Circuit has noted,
“[c]ourts have applied the common law right of access to a variety of warrant-related materials.”
Custer Battlefield, 658 F.3d at 1192 n.4.
The presumption of access under the common law has particular force for search warrant
materials. As one court has explained, these documents “adjudicate[] the right of individuals
5

As a technical matter, the Search Warrant Materials were likely sealed by the
Magistrate Judge in a separate proceeding. The Declaration has been unable to find where those
materials have been filed or whether those filings or the entire proceeding is under seal. Thus, it
makes this Motion in this Court, which has the authority to order to search warrant materials
unsealed. See, e.g., United States v. Kott, 380 F. Supp. 2d 1122 (C.D. Cal. 2004), ), aff’d, 135 F.
App’x 69 (9th Cir. 2005); In re Application of N.Y. Times Co. for Access to Certain Sealed Court
Records, 585 F. Supp. 2d 83, 85-86 (D.D.C. 2008); In re Application of WP Co. LLC, 2016 WL
1604976 (D.D.C. April 1, 2016).
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under the Fourth Amendment not to be subjected to government intrusion into areas in which
they might reasonably have expected privacy absent a judicial determination of sufficient cause.”
In re Sealed Search Warrant, 2006 WL 3690639, at *3 (N.D.N.Y. Dec. 11, 2006). Because
“[t]he judicial determination whether to permit the government to enter and search a person’s
private property and possessions” is “at the heart of the performance of judicial functions,” the
presumption of access to search warrant materials “carries the maximum possible weight.” Id.
In light of Thomas’s indictment and recent guilty plea, it appears that the Government’s
investigation of her has concluded. Thus, the common law right of access has attached to the
Search Warrant Materials, and they should be released to The Declaration, subject to any
targeted redactions found by the Court to be necessary.
B.

The Search Warrant Materials Come
Within the First Amendment Right of Access.

In addition, the Search Warrant Materials are subject to the First Amendment right of
access. For instance, the Eighth Circuit, applying the “experience and logic” test, has held that
“the first amendment right of public access does extend to the documents filed in support of
search warrant applications.” In re Search Warrant for Secretarial Area Outside Office of Gunn,
855 F.2d 569, 573 (8th Cir. 1988). Other courts have held the same, in circumstances where the
criminal investigation has concluded. See, e.g., Kott, 380 F. Supp. 2d at 1124-25; In re
Application of N.Y. Times Co., 585 F. Supp. 2d at 88-90; United States v. Loughner, 769 F. Supp.
2d 1188, 1195 (D. Ariz. 2011); In re Application of WP Co. LLC, 2016 WL 1604976. But see In
re Search of Fair Finance, 692 F.3d 424 (6th Cir. 2012) (holding that no First Amendment right
of access attaches to search warrant materials).
That conclusion is plainly correct. First, while search warrant proceedings are generally
held in camera and ex parte, the warrant materials themselves have historically been open to the

14

 Case 2:15-cr-00171-MMB Document 90 Filed 11/16/16 Page 18 of 26

public, particularly after a criminal investigation has concluded. See Gunn, 855 F.2d at 573
(“[A]lthough the process of issuing search warrants has traditionally not been conducted in an
open fashion, search warrant applications and receipts are routinely filed with the clerk of court
without seal.”); Custer Battlefield, 658 F.3d at 1193-94 (“Post-investigation, however, warrant
materials ‘have historically been available to the public.’” (quoting In re Application of N.Y.
Times Co., 585 F. Supp. 2d at 88)); United States v. Wells Fargo Bank Account Number
7986104185, 643 F. Supp. 2d 577, 581 (S.D.N.Y. 2009) (“Search warrant applications clearly
form the basis for judicial decision making and generally are unsealed at later stages of criminal
proceedings, such as upon the return of the execution of the warrant or in connection with postindictment discovery.”). As one court has put it, the “fact that there is a common law tradition of
access to warrant materials” strongly supports the conclusion that the “experience” prong of the
test is satisfied. In re Application of N.Y. Times Co., 585 F. Supp. 2d at 89.
Second, a First Amendment right to access search warrant materials after an investigation
has concluded plays a significant positive role in the functioning of the criminal justice system.
Search warrant materials reflect how, and in what circumstances, the Government may invade a
person’s constitutional right to privacy in their homes and affairs. Accordingly, to make those
materials available furthers the “public’s understanding of the function and operation of the
judicial process and the criminal justice system.” Gunn, 855 F.2d at 573; see also In re Sealed
Search Warrant, 2006 WL 3690639, at *3 (“The right of officers to thrust themselves into a
home is also a grave concern, not only to the individual but to a society which chooses to dwell
in reasonable security and freedom from surveillance.” (quoting Johnson v. United States, 333
U.S. 10, 14 (1948) (Jackson, J.) (internal marks omitted))). Public access to search warrant
materials also “may operate as a curb on prosecutorial . . . misconduct” by shining a light on the

15

 Case 2:15-cr-00171-MMB Document 90 Filed 11/16/16 Page 19 of 26

grounds sought for the warrant and the measures the Government has used to collect evidence.
Gunn, 855 F.2d at 573. In addition, the “tradition of openness [of warrant materials] ‘serves as a
check on the judiciary because the public can ensure that judges are not merely serving as a
rubber stamp for the police.’” Custer Battlefield, 658 F.3d at 1194 (quoting In re Application of
N.Y. Times Co., 585 F. Supp. 2d at 90). More than that, access to search warrants strengthens the
public’s confidence in the fairness of the courts and justice system: “To work effectively, it is
important that society’s criminal process ‘satisfy the appearance of justice,’ and the appearance
of justice can best be provided by allowing people to observe it.” Richmond Newspapers, 448
U.S. at 571-72 (citation omitted).
Accordingly, the Search Warrant Materials come within the First Amendment right of
access, and should be unsealed, subject to limited redactions necessary to protect a compelling
government interest.
CONCLUSION
For the foregoing reasons, The Declaration respectfully requests that (1) it be permitted
to intervene in this proceeding, (2) the Court enter an order unsealing all of the Sealed Docket
Records and all of the Search Warrant Materials, and (3) to the extent that the party seeking
closure is able to meet its high burden of showing that some sealing is necessary, the records be
released with redactions limited only to that information that should properly be sealed.
Date: November 16, 2016

Respectfully submitted,
LEVINE SULLIVAN KOCH & SCHULZ, LLP
By:

/s/ Michael Berry
Michael Berry
Paul Safier

1760 Market Street, Suite 1001
Philadelphia, PA 19103

16

 Case 2:15-cr-00171-MMB Document 90 Filed 11/16/16 Page 20 of 26

Tel: (215) 988-9778
Fax: (215) 988-9750
mberry@lskslaw.com
psafier@lskslaw.com
Attorneys for Philly Declaration, LLC and Austin Nolen

17

 Case Document 90 Filed 11/16/16 Page 21 of 26

EXHIBIT A

Case 2:15-cr-00171-MMB Document 90 Filed 11/16/16 Page 22 of 26

SEALED OR INACCESSIBLE DOCUMENTS*

Docket
Number

Date

Description on Docket

24

07/22/2015 SEALED MOTION by USA as to KEONNA THOMAS.

26

08/19/2015 SEALED ORDER as to KEONNA THOMAS.

31

Ex Parte MOTION for Protective Order Pursuant to Section 4 of the
Classified Information Procedures Act and Rule 16(d)(1) of the Federal
11/13/2015
Rules of Criminal Procedure, Caption Only, by USA as to KEONNA
THOMAS.

35

12/02/2015 JUDICAL DOCUMENT AS TO KEONNA THOMAS.

47

04/25/2016 SEALED REPLY TO RESPONSE to Motion by KEONNA THOMAS.

48

04/25/2016 SEALED ORDER TO SEAL AS TO KEONNA THOMAS.

62

06/30/2016 SEALED ORDER AS TO KEONNA THOMAS.

63

06/30/2016 SEALED MOTION by USA as to KEONNA THOMAS.

64

06/30/2016 SEALED ORDER as to KEONNA THOMAS.

70

07/25/2016 SEALED ORDER AS TO KEONNA THOMAS.

86

09/20/2016

87

09/20/2016 Plea Document as to KEONNA THOMAS.

Plea Document by USA AND CERTIFICATE OF SERVICE as to
KEONNA THOMAS.

* Not listed here (but to which access is also sought) are the Search Warrant Materials
and transcripts of (1) Ms. Thomas’s ex parte presentation to the Court on August 12,
2016, and (2) the plea hearing on September 20, 2016 (not yet posted to ECF).

 Case Document 90 Filed 11/16/16 Page 23 of 26

EXHIBIT 

Case Document 90 Filed 11/16/16 Page 24 of 26
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENN 5 YL VANIA
3810 United States Courthouse
Sixth and Market Streets

Philadelphia, [9106-1 741
E-mail: 

Chambers of Telephone (267) 299-7520
Michael M. Baylson Fax (267) 299-5078
United States District Judge

August 15, 2016

Mr. Austin Nolan
PO. Box 29476
Philadelphia, PA 19125

RE: United States v. Keonna Thomas; EDPA Criminal No. 15-171
Order re: Request for Access to Documents

Dear Mr. Nolan:

In response to your letter of July 13, 2016, I believe it will be necessary for you to file a
motion to intervene in this case, pursuant to Pansy v. Borough of Stroudsburg, 23 F.3d 772, 777
(3d Cir. 1994), requesting that the Court or any parties provide you with the information you are
seeking in your letter (which will be docketed). After giving counsel an opportunity to respond
to any request you may make, the Court may issue a ruling.

  

Michael M. aylson
United States District Court Judge

MMB/lkd
cc: Jennifer Williams, AUSA

Elizabeth Toplin, Asst. Federal Defender
Kathleen Gaughan, Asst. Federal Defender

Cases\lS-l 71 US Thomas\15-171 US Thomas to Nolandocx

 

Case 2:15-cr-00171-MMB Document 90 Filed 11/16/16 Page 25 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

v.
KEONNA THOMAS,
a/k/a “Fatayat Al Khilafah”
a/k/a “YoungLioness

:
:
:
: CRIMINAL NO. 15-171
:
:
:
:
:
:
:
:
:
:

PROPOSED ORDER
Upon consideration of the Motion of Philly Declaration, LLC and Austin Nolen to
intervene and for an order granting access to (1) all records that presently appear on the docket as
sealed or inaccessible (the “Sealed Docket Records”), and (2) any search warrant materials
pertaining to the investigation and prosecution of the Defendant (the “Search Warrant
Materials”), it is this ____ day of ________________ 2016, hereby
ORDERED that the Motion to Intervene is GRANTED; it is further
ORDERED that the Motion for an order granting access to (1) Sealed Docket Records
found at docket entries 24, 26, 31, 35, 47, 48, 62, 63, 64, 70, 86, and 87, (2) transcripts of both
Defendant’s ex parte presentation to the Court on August 12, 2016 and her plea hearing on
September 20, 2016, and (3) the Search Warrant Materials is GRANTED.
BY THE COURT:

Michael M. Baylson, U.S.D.J.

 Case 2:15-cr-00171-MMB Document 90 Filed 11/16/16 Page 26 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA,

v.
KEONNA THOMAS,
a/k/a “Fatayat Al Khilafah”
a/k/a “YoungLioness

:
:
:
: CRIMINAL NO. 15-171
:
:
:
:
:
:
:
:
:
:

CORPORATE DISCLOSURE STATEMENT
The undersigned counsel for non-parties Philly Declaration, LLC and Austin Nolen
hereby certify that non-governmental corporate party Philly Declaration, LLC does not have a
parent corporation, and no publicly held corporation owns 10% or more of its stock.
Date: November 16, 2016

Respectfully submitted,
LEVINE SULLIVAN KOCH & SCHULZ, LLP

By:

/s/ Michael Berry
Michael Berry
Paul Safier

1760 Market Street, Suite 1001
Philadelphia, PA 19103
Tel: (215) 988-9778
Fax: (215) 988-9750
mberry@lskslaw.com
psafier@lskslaw.com
Attorneys for Philly Declaration, LLC and Austin Nolen