WiseLawNY: Supreme Court Eases Blackout of RICO Case

After being pinned down for two years by a flurry of secrecy orders, a Long Island-based lawyer has opened a window on the lengths federal judges in New York will go to protect a cooperator and to rein in lawyers who obtain documents that breach the firewall the courts have erected.

On June 25, the U.S. Supreme Court gave the lawyer permission to publicly file extensive portions of his petition for certiorari that the U.S. Court of Appeals for the Second Circuit had ordered him to file in its entirety with the high court under seal. As instructed by the Supreme Court, the lawyer, Frederick M. Oberlander, filed a redacted version of his certiorari papers and supporting documents with the Court on July 13. Click here to read the redacted petition for certiorari and the motion to redact the petition

The Supreme Court’s order eases a blackout imposed by six federal judges in New York City on a civil RICO suit Mr. Oberlander brought against the cooperator using documents from his criminal file. The question of whether the documents were under seal when the lawsuit was filed is in dispute. The cooperator is identified under the pseudonym John Doe.

As per the Supreme Court’s order, any reference to John Doe’s real name, and the whole of any document in the record containing it, was blacked out in the public version of the petition and record. What remains is a rare, and penetrating, look at how an Eastern District judge and the Second Circuit sealed the cooperator’s record and then enforced their orders.

The public portion of the Supreme Court petition discloses that:

  •  Eastern District Judge I. Leo Glasser sealed Doe’s file without issuing a written order.
  • Eleven years passed before Doe was sentenced to probation and a $25,000 fine.
  • His probation officer was told not to examine what happened to proceeds of the $40 million stock swindle Doe had pleaded guilty to.
  • The Second Circuit ordered  the appointment of a second Eastern District judge to enforce Judge Glasser’s and its own orders.

The Second Circuit also warned Mr. Oberlander that he could be subject to an order requiring him to get permission before he could make any further court filings, a measure usually reserved for vexatious pro se clients. It likewise expressly forbade him from making certain information available to Congress.

 Judge Finds Oberlander at Fault

The government has argued, and a Second Circuit panel has ruled, that Doe has been an exceptionally valuable cooperator. In its June 29, 2011 order, a circuit panel, consisting of Judges Jose A. Cabranes, Rosemary S. Pooler and Denny Chin, wrote that Doe’s cooperation had led “to the convictions of myriad violent criminals.” The order further stated that the release of proof that Doe had cooperated “would cause him irreparable harm and would put his safety at risk.” Click here to read the two Second Circuit orders that are the subject of the certiorari petition. The two orders, dated Feb. 14, 2011 and June 29, 2011, remain available to the public through the federal court’s PACER system, which allows the public to access public court records through the Internet.

 The circuit’s June 29 order also reported that Judge Glasser, at the conclusion of a four-day fact-finding hearing, had found that Mr. Oberlander was aware that Doe’s records were under seal when he publicly filed them, that one of his clients had stolen the documents and their dissemination would result in “imminent” and “irreparable” harm which would put Doe’s safety at risk.

Mr. Oberlander, at my request for a response to the adverse Eastern District and Second Circuit rulings relayed to him by his lawyer, Richard E. Lerner, challenged Judge Glasser’s findings in a written comment designated as coming from “Richard Roe.”

“Richard Roe” remains the name on the public portion of the Supreme Court record in Roe v. U.S., 12-112. Although the statement I received came from “Richard Roe,” I am using Mr. Oberlander’s real name because The New York Times, in two articles published earlier this year, identified Mr. Oberlander as Richard Roe.

Oberlander: There Was No Sealing Order

In his written response, Mr. Oberlander disputed that Judge Glasser had ever issued a sealing order, writing that the judge had “admitted on the record that there was no such order” and had acknowledged that he could find no [such] order signed by him.”

Mr. Oberlander also advised in his statement that Eastern District Judge Brian M. Cogan, the enforcement judge appointed pursuant to the circuit’s order, had asked Eastern District prosecutors to investigate whether criminal contempt charges should be brought against his lawyer, Mr. Lerner. Mr. Lerner is a partner at Wilson Elser Moskowitz Edelman & Dicker.

In March, the Times reported that, at a public hearing, Judge Cogan had asked the U.S. Attorney’s Office to determine whether Mr. Oberlander should be charged with criminal contempt.

Most of the statements in the certiorari petition purport to be backed up by citations to documents that remain under seal in the Supreme Court or were a part of the sealed record in proceedings before the Second Circuit. Unless indicated otherwise, the information reported here was obtained from the publicly available portion of the material Mr. Oberlander filed with the Supreme Court

Last Friday, the government filed a notice with the Supreme Court that it was waiving its right to respond to the petition. Robert Nardoza, a spokesman for the U.S. Attorney’s Office in Brooklyn, declined to comment. John Doe’s opposition to the petition is due Aug. 27.

Doe’s attorney, Nader Mobargha, of Beys, Stein & Mobargha, declined to comment. Mr. Lerner also declined to comment.

The Southern District RICO Suit

The controversy over Mr. Oberlander’s use of Doe’s criminal records began with his filing of a civil Racketeering Influenced and Corrupt Organizations Act (RICO) case in May, 2010 alleging that Doe had started a new fraudulent scheme using a real estate company, where he was the managing director, to defraud partners, investors and customers of up to $500 million. Two minority partners in the real estate venture sued for themselves and derivatively for the company.

The RICO case was built around documents, which Mr. Oberlander had said, he had received “unexpectedly, and without solicitation” from a former employee of the real estate company, who said he had retrieved the documents from the company’s files.

Mr. Oberlander filed the documents he had received, which included Mr. Doe’s cooperation agreement and his pre-sentencing report, to buttress the RICO claim that the “implied sealing” of Doe’s criminal file had enabled him to perpetuate the new fraud.

Within four days of the RICO suit being filed, Southern District Judge Naomi Reice Buchwald ordered the RICO filings sealed and directed Mr. Oberlander not further disseminate any of the materials from the criminal file. In addition to the two Second Circuit orders, the docket sheet for the RICO case filed in the Southern District remains available through Pacer.

Four days after Judge Buchwald issued her order, on May 18, 2010, Doe obtained, ex parte, a similar restraining order from Judge Glasser, who also ordered a hearing to find out how Mr. Oberlander had received Doe’s criminal file.

As mentioned above, Judge Glasser concluded that the documents had been stolen. The circuit’s June 29, 2011 order further reported that Judge Glasser, nearly a year later, had concluded in a scheduling order that Mr. Oberlander had “intentionally flouted a court order” by “unilaterally deciding” to disclose information from Doe’s sealed criminal file.

Mr. Oberlander’s petition, however, quotes apparently from transcripts made during the four-day hearing, in which Judge Glasser stated that he had been unable to find “any order signed by me which directed that this file be closed.” The petition further paraphrases Judge Glasser as having stated that he could find no theory by which any court order had been violated.

In its June 29, 2011 order, the circuit affirmed a series of temporary restraining orders that Judge Glasser had issued at Doe’s and the government’s request as well as his orders barring any further dissemination of the sealed materials. The circuit concluded its order with its own directive, prohibiting Mr. Oberlander, and anyone associated with him, from “revealing in any way” to “any person, or in any proceeding or forum” any of the documents sealed in Doe’s “pump and dump” stock fraud case.

The petition also describes a redacted order as “expressly barr[ing] the petitioner [Mr. Oberlander] from reporting to Congress documents showing that the District Court unlawfully failed to impose a congressionally mandated sentence of restitution.”

Omission of Restitution: Was it fatal?

 As noted above, Doe was sentenced to probation and $25,000. No mention was made of restitution.

Federal victims’ rights statutes mandate restitution and require that victims be provided with notice of the proposed amount of restitution and be given an opportunity to be involved in making that determination, Mr. Lerner wrote. That posed a dilemma for Judge Glasser: either he preserved Doe’s anonymity or he ordered notice be given to Doe’s victims. Judge Glasser chose to protect Doe’s identity and issued an “illegal sentence” in violation of the “regime of rights” created by federal victims’ right statutes, Mr. Lerner concluded in his motion to open portions of the Supreme court record.

The Eastern District Press Release: No Harm, No Foul?

 The Second Circuit’s June 29, 2011 order further disclosed that the Eastern District U.S. Attorney’s Office had issued a press release in 2000 disclosing that Doe had previously pleaded guilty in the “pump and dump” case. According to the petition, the U.S. Attorney’s Office issued the 2000 release to announce the arrest of 19 “underlings” in the stock swindle. Doe had pleaded guilty two years earlier in 1998.

Mr. Lerner, in “what me worry mode,” wrote in the petition “so much for any purported secrecy of pleas and cooperation.”

©DanielJWise 2012


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