As forecast, Eastern District Judge I. Leo Glasser today unsealed the criminal docket sheet of a cooperator who has been at the center of a heated battle that has led to a burst of sealing and gag orders and given rise to a criminal contempt investigation of two lawyers. (See prior entries dated Aug. 8 and Aug. 22).
Citing a press release by the Eastern District U.S. Attorney’s Office, issued more than a decade ago, and the “inadvertent” release of the docket sheet for several days, Judge Glasser found the public availability of the docket sheet of Felix H. Sater/John Doe to be a fait accompli. “The cat is out of the bag, the genie is out of the bottle,” Judge Glasser wrote in deciding to grant the motion of the Miami Herald and others to unseal the docket sheet, 12-mc-150 (EDNY).
Judge Glasser’s ruling means that for the first time since Felix H. Sater pleaded guilty in 1998 to participation in a $40 million stock swindle, the docket sheet is officially available to the public. The question of whether the actual documents referred to in the 167 items listed on the docket sheet should be unsealed will be the subject of a hearing on Oct. 2.
Judge Glasser had previously acknowledged that he could not find a written order sealing Mr. Sater’s file. But, in yesterday’s ruling, he stated, he has found a “minute entry” by a clerk noting the file had been sealed, which gives rise to “the inescapable conclusion” that he had issued an oral order to seal the file.
During the last two years, lawyers for the government and Mr. Sater have fought a pitched battle to keep Mr. Sater’s record under wraps.
The battle erupted in May, 2010 after Long Island lawyer, Frederick M. Oberlander, filed a civil racketeering complaint in the Southern District of New York, claiming that Mr. Sater’s ability to conceal his criminal past had enabled him to carry out a second $500 million real-estate fraud which included two deals—one in SoHo and one in Ft. Lauderdale—involving Donald Trump, or at least his name.
Mr. Oberlander’s filing of the racketeering complaint in the Southern District, in Kriss v. Bay Rock Group, 10-cv-3959, set off a furor because he annexed to it records from Mr. Sater’s sealed criminal file, including his probation report and cooperation agreement.
Over the next 18 months three federal trial judges (two in the Eastern and one in the Southern District) and a Second Circuit panel fired off a series of orders to keep the sealed records out of the public domain and barring Mr. Oberlander from taking any steps to disseminate the documents. At the Second Circuit’s direction, a second Eastern District judge, Brian M. Cogan, was appointed to enforce Judge Glasser’s orders. In March Judge Cogan ordered a criminal contempt investigation of Mr. Oberlander and his lawyer, Richard E. Lerner of Wilson Esler Moskowitz Edelman & Dicker.
On closer examination, though, it became apparent that Mr. Sater’s name and cooperation was already in the public domain. The U.S. Attorney’s Office itself had issued a press release in 2000 identifying Mr. Sater by name and stating that sometime earlier (actually on Dec. 10, 1998) he had pleaded guilty to the “pump and dump” swindle.
An order issued by the Second Circuit on June 29, 2011 acknowledged that the press release had put the fact of Mr. Sater’s guilty plea into the public domain.
The New York Times had written an article in 2007, nearly three years prior to the filing of the racketeering complaint, identifying Mr. Sater by name and containing on the record remarks from an associate of his that he was cooperating with the government. The article also mentioned the dealings of Mr. Sater, and the company he was associated with, the Bay Rock group, with Mr. Trump.
Additionally, Judge Glasser noted in his opinion, that twice the government had mistakenly made public sealed documents that contained references to
Mr. Sater and his cooperation.. The first was 2009, and the second was earlier this month when the docket sheet itself was posted on PACER, the court’s system for making documents available to the public on the Internet.
The docket sheet was available to the public for a week before it was taken off PACER on Aug. 16. Nonetheless the docket sheet remained available on both WestLaw and Lexis, Judge Glasser noted.
On July 1, the Miami Herald, in an article about the collapse of a Bay Rock project in Ft. Lauderdale identified with the Trump name, ran a photo of Mr. Sater and identified him by name.