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Motion to Intervene, Second Circuit UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Thurgood Marshall U.S. Courthouse 40 Foley Square, New York, NY 10007 Telephone: 212-857-8500 MOTION INFORMATION STATEMENT Docket Number(s): 10-2905-cr; 11-479-cr Caption [use short title] Motion for: intervening and unsealing docket Roe v. United States 10-2905-cr, 11-470-cr Set forth below precise, complete statement of relief sought: This is a motion to intervene. Intervenor moves to: (1) intervene; (2) unseal the entirety of the Second Circuit's docket; and (3) unseal all docket entries. MOVING PARTY: Forbes Media LLC and Richard Behar OPPOSING PARTY: 9 Plaintiff 9 Defendant 9 Appellant/Petitioner 9 Appellee/Respondent MOVING ATTORNEY: Jay Ward Brown OPPOSING ATTORNEY: [name of attorney, with firm, address, phone number and e-mail] Levine Sullivan Koch & Schulz, L.L.P. Phone: (202) 508-1136 1899 L Street, NW, Suite 200 Email: [email protected] Washington, D.C. 20036 Court-Judge/Agency appealed from: N/A (The proceedings below occurred in the district court for the E.D.N.Y.) Please check appropriate boxes: FOR EMERGENCY MOTIONS, MOTIONS FOR STAYS AND INJUNCTIONS PENDING APPEAL: Has movant notified opposing counsel (required by Local Rule 27.1): Has request for relief been made below? 9 Yes 9 No ✔9 Yes 9 No (explain): Has this relief been previously sought in this Court? 9 Yes 9 No Requested return date and explanation of emergency: Opposing counsel’s position on motion: ✔9 Unopposed ✔ 9 Opposed 9 Don’t Know Note regarding opposing counsel's position: Does opposing counsel intend to file a response: ✔9 Yes 9 No 9 Don’t Know the United States counsel does not oppose standing, but does oppose unsealing; Doe's counsel did not respond after being notified of the motion. See FN 8. Is oral argument on motion requested? ✔9 Yes 9 No (requests for oral argument will not necessarily be granted) Has argument date of appeal been set? 9 Yes ✔9 No If yes, enter date:__________________________________________________________ Signature of Moving Attorney: ✔ ___________________________________Date: ___________________ Service by: 9 CM/ECF 9 Other [Attach proof of service] Form T-1080 (rev. 12-13) CERTIFICATE OF SERVICE I hereby certify that I caused this document to be electronically transmitted to the clerk’s office by emailing a pdf of this document and the accompanying papers to [email protected], copying all registered parties this 22nd day of March, 2017. In addition, I hereby certify that I caused copies of this document and the accompanying papers to be mailed to all registered parties by United States mail this 22nd day of March, 2017. Jay Ward Brown IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________________________________ ) RICHARD ROE, ET AL., ) ) Appellants, ) ) v. ) Nos. 10-2905-cr, 11-479-cr. ) UNITED STATES OF AMERICA, ET AL., ) ) Appellees. ) ) ) ) ______________________________________________ ) FRAP 26.1 CORPORATE DISCLOSURE STATEMENT Pursuant to Federal Rule of Appellate Procedure 26.1, I, the undersigned counsel of record for Forbes Media LLC certify that, Forbes Global Media Holdings Inc., a BVI entity, is Forbes Media LLC’s sole parent corporation and owns 100% of Forbes Media LLC. Dated: March 22, 2017 Jay Ward Brown LEVINE SULLIVAN KOCH & SCHULZ, LLP 1899 L Street, NW, Suite 200 Washington, D.C. 20036 (202) 508-1136 [email protected] Attorney for Forbes Media LLC IN THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ______________________________________________ ) RICHARD ROE, ET AL., ) ) Appellants, ) ) v. ) Nos. 10-2905-cr, 11-479-cr. ) UNITED STATES OF AMERICA, ET AL., ) ) Appellees. ) ) ) ) ______________________________________________ ) MOTION BY FORBES MEDIA LLC AND RICHARD BEHAR FOR LEAVE TO INTERVENE AND TO UNSEAL JUDICIAL RECORDS Jay Ward Brown LEVINE SULLIVAN KOCH & SCHULZ, LLP 1899 L Street, NW, Suite 200 Washington, D.C. 20036 (202) 508-1136 [email protected] John Langford, supervising attorney Eric Brooks, law student intern Brandon Sadowsky, law student intern MEDIA FREEDOM AND INFORMATION ACCESS CLINIC ABRAMS INSTITUTE Yale Law School P.O. Box 208215 New Haven, CT 06520 Phone: (203) 436-5831 Fax: 212-850-5299 [email protected] Attorneys for Intervenors TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .....................................................................................................1 BACKGROUND .............................................................................................................................2 A Sater’s 1998 Prosecution......................................................................................................2 B. Sater’s Known Connections to President Trump .................................................................4 C. Unsealing Sater’s Criminal Prosecution ..............................................................................6 D. Unsealing the Related Civil Contempt Docket ....................................................................8 E. Remaining Sealed and Missing Documents and Entries On This Court’s Docket ..................................................................................................................................9 ARGUMENT .................................................................................................................................10 I. INTERVENORS HAVE STANDING TO INTERVENE FOR THE LIMITED PURPOSE OF ASSERTING THE PUBLIC’S FIRST AMENDMENT AND COMMON LAW RIGHTS OF ACCESS .....................................10 II. THE PUBLIC HAS A RIGHT OF ACCESS UNDER THE FIRST AMENDMENT TO THIS SEALED AND MISSING RECORDS IN THIS PROCEEDING ..................................................................................................................11 A. The public’s constitutional right of access plainly extends to the documents at issue here .........................................................................................11 1. There is a history and logic of access to appellate proceedings and records ................................................................................................12 2. The right of access to appellate briefing, appendices, motions, and procedural filings derive from, and are necessary corollaries of, the public’s right of access to appellate proceedings ................................................................................................13 B. The government cannot meet its burden of demonstrating that the public’s right of access to the records is overcome ...............................................14 III. THE RECORDS ARE SUBJECT TO THE COMMON LAW RIGHT OF ACCESS ............................................................................................................................16 CONCLUSION ..............................................................................................................................17 i TABLE OF AUTHORITIES Cases Page(s) ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir. 2004).................................................................................................14, 15 In re Application of Herald Co., 734 F.2d 93 (2d Cir. 1984).......................................................................................................15 In re Applications to Unseal 98 CR 1101(ILG), 568 F. App’x 68 (2d Cir. 2014) .............................................................................................7, 8 Gambale v. Deutsche Bank AG, 377 F.3d 133 (2d Cir. 2004).....................................................................................................15 Gifford v. Gibb, 67 U.S. 2 (1862) .......................................................................................................................12 Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) ...........................................................................................................10, 11 Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004).................................................................................................11, 14 Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006)............................................................................................. passim In re Motion for Civil Contempt By John Doe, No. 12-mc-0557 (BMC), 2016 WL 3460368 (E.D.N.Y. June 22, 2016) ..................................8 In re N.Y. Times Co., 828 F.2d 110 (2d Cir. 1987).........................................................................................13, 14, 16 In re Application of N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 577 F.3d 401 (2d Cir. 2009)...............................................................................................11, 12 Newsday LLC v. Cty. of Nassau, 730 F.3d 156 (2d Cir. 2013).....................................................................................................16 Press-Enter. Co. v. Superior Court, 478 U.S. 1 (1986) .........................................................................................................11, 15, 16 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ...........................................................................................................12, 13 Roe v. United States, 414 F. App’x 327 (2d Cir. 2011) ...........................................................................................6, 7 ii Roe v.
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