BC Motion Cont Impound

8/11/2019 BC Motion Cont Impound

1/6

1

UNITED STATES DISTRICT COURT

FOR THE

DISTRICT OF MASSACHUSETTS

IN RE: Request from the United Kingdom )

Pursuant to the Treaty Between the )Government of the United States of )

America and the Government of ) M.B.D. No. 11 mc 91078-WGY

the United Kingdom on Mutual )

Assistance in Criminal Matters in )the Matter of Dolours Price )

Governments Motion for Continued Impoundment

The United States of America, by and through Assistant U. S. Attorney John T. McNeil,

respectfully submits this motion for continued impoundment of certain enforcement-sensitive

documents in the case captioned above. This constitutes the governments third supplemental

response to the letter submitted by NBC News dated May 6, 2014. [D.80].

At a hearing on this matter on June 3, 2014, the Court indicated that it intended to issue an

order which would unseal much of the record in this matter, but maintain a limited number of

pleadings under seal for an additional three months. The Court noted that absent some additional

information from the government at the conclusion of the three month period, it would unseal

most, but not all, of the remaining documents which have been impounded in this matter. To the

governments knowledge, the Court has not issued such an order and, as a consequence, the

materials have not been ordered unsealed to date.

The government seeks the continued impoundment of the materials identified on June 3,

2014, in consultation with the courtroom deputy clerk. Those materials include: D.1-1 (pages

6-20); D.2 (pages 1-2); D.8 (all pages); D.9 (all pages); D.15 (all pages); D.16 (all pages); D.36 (all

attachments to one page motion); D.50 (all pages); D.54 (names in the sealed sidebar transcript);

and D.86 (all pages). The government requests that these materials be maintained under seal until

Case 1:11-mc-91078-WGY Document 93 Filed 09/16/14 Page 1 of 6


2/6

2

such time as authorities in the United Kingdom inform the government and the Court that there is

no longer any need for impoundment.

I.

The Central Authority in the United Kingdom requested from the outset that materials

concerning their investigation be maintained in confidence. [D.1; D.2]. The United Kingdom

continues to press the government and this Court for the materials to remain under seal so as not

interfere with their investigation and criminal prosecution of individuals in the United Kingdom.

SeeExhibit 1. In particular, they continue to seek that the materials remain impounded to ensure

that evidence (both testimonial and documentary) is not destroyed or altered, and to ensure that

witnesses and investigators are not subject to harassment, reprisals or tampering. Id.

At the initiation of this matter the United Kingdom invoked Section 7 of the US-UK

MLAT, requesting that the scope and nature of their investigation be maintained in confidence.

[D.1; D.2]. SeeUS-UK MLAT at Article 7, 1 (The Requested Party shall, upon request, keep

confidential any information which might indicate that a request has been made or responded to.

If the request cannot be executed without breaching confidentiality, the Requested Party shall so

inform the Requesting Party, which shall then determine the extent to which it wishes the request

to be executed.). Because the United Kingdom invoked this provision, the United States

government sought leave from the Court to proceed ex parteand under seal. [D.1; D.2]. Filing

such materials ex parteand under seal is the accepted manner for executing MLAT requests, and

authorities in the United Kingdom reasonably relied on this longstanding practice. See, e.g.In re

Letter of Request from Crown Prosecution Serv. of United Kingdom, 870 F.2d 686, 693 (D.C. Cir.

1989)(outlining ex parteprocedure in MLATs from the United Kingdom);Matos v. Reno, 1996

WL 467519 at 2 (S.D.N.Y. Aug. 16, 1996) (noting that requests are confidential, and [the



3/6

3

Department of Justice Office of International Affairs] does not notify actual or potential targets or

subjects of investigations and outlining ex parteprocedure).

As anticipated both by the United States government and authorities in the United

Kingdom, the Court granted the governments motion to proceed ex parteand under seal. [D.3].

This Court subsequently noted that, [q]uite properly, this case was filed under seal, citing Article

7 of the US-UK MLAT. United States v. Trustees of Boston Coll., 831 F. Supp. 2d 435, 439 (D.

Mass. 2011) aff'd in part sub nom.In re Request from United Kingdom Pursuant to Treaty

Between Gov't of U.S. & Gov't of United Kingdom on Mut. Assistance in Criminal Matters in the

Matter of Dolours Price, 685 F.3d 1 (1st Cir. 2012) and aff'd in part, rev'd in part sub nom. In re

Request from the United Kingdom Pursuant to the Treaty between the Gov't of the U.S. & the Gov't

of the United Kingdom on Mut. Assistance in Criminal Matters in the Matter of Dolours Price, 718

F.3d 13 (1st Cir. 2013). As a result, the United Kingdom had no reason to withdraw or alter its

MLAT request in order to protect the information which it had submitted to the government and

which was appended to the governments filings with the Court. Likewise, when affidavits and

other sensitive documents were submitted to the Court in support of the litigation, it was done so ex

parteand under seal, both in the district court and in the appellate court. See, e.g. D.8; D.9; D.15;

D.16; D.36; D.49; D.50; D.60. The Court continued to grant the governments motions to so

submit this material. Id.1

Unsealing these documents at this time, absent the consent of authorities in the United

Kingdom, is contrary to the terms and spirit of Article 7, 1 of the US-UK MLAT, and would work

a fundamental unfairness on our treaty partner. Authorities in the United Kingdom reasonably

1 Notably, the First Circuit was untroubled by the fact that a number of the documents which were submitted to the

district court were submitted ex parteand under seal, and remained under seal even at the appellate stage.In re

Request from United Kingdom Pursuant to Treaty Between Gov't of U.S. & Gov't of United Kingdom on Mut.

Assistance in Criminal Matters in the Matter of Dolours Price, 685 F.3d 1, 6 (1st Cir. 2012) cert. denied, 133 S. Ct.

1796, 185 L. Ed. 2d 856 (U.S. 2013)



4/6

4

relied on this Courts acceptance of MLAT materials ex parteand under seal. They have no

ability at this stage to invoke the safe harbor provision of the US-UK MLAT, which ordinarily

permits them to withdraw their request to protect sensitive information. US-UK MLAT at Article

7, 1. Since this remedy is no longer available, the United States owes a continued obligation to

the United Kingdom to honor its invocation of the confidentiality provisions of the US-UK

MLAT.

Moreover, in concluding that it was an appropriate time to unseal material in this matter,

the Court noted that, this case is over, and that it was therefore appropriate for the Court, to see

that matters all be unsealed. SeeHearing Transcript (June 3, 2014) at 6. As a general matter it

is important to unseal records filed with the Court at the conclusion of a case. See, e.g.United

States v. Kravetz, 706 F.3d 47, 52 (1st Cir. 2013). As a result, the government has worked with

Boston College and the Clerks Office to identify much of the sealed record which could be made

available to the public with no concomitant harm. However, the United Kingdoms investigation

and enforcement efforts are far from over, and the unilateral unsealing of a narrow set of

documents which were submitted to the United States government in confidence, could have

significant negative ramifications in this and other cases.

The request of the United Kingdom to maintain these matters under seal is grounded in its

concern that premature release could work an injustice in that country. SeeExhibit 1; Hearing

Transcript (June 3, 2014) at 8. Among other things, at least one individual has been charged and

another individual is under consideration for prosecution. See Exhibit 1; [D.86]. The release of

enforcement-sensitive information could unfairly prejudice those matters.

Moreover, the documents which remain under seal include the identities of witnesses and

other individuals who have not been charged in this matter. The public release of this information



5/6

5

at any point could unfairly stigmatize or tarnish the reputations of those individuals and cause them

to be subject to harassment or retribution. Similarly, the impounded documents include

identifying information about one or more individuals in the United Kingdom who have been

involved in the investigation of these matters. According to authorities in the United Kingdom,

because of the sensitive nature of the investigations being conducted by these individuals,

documents filed in that country typically shield the identities of those law enforcement officers and

identify them by number rather than by name. SeeExhibit 1. Authorities in the United Kingdom

have requested that the identities of the officer(s) be protected so that they are not subject to

reprisals for their involvement in these investigations. Id.

The impounded documents also include allegations supported by probable cause, but

which have not yet been proven in a court of law, or been assessed by a judicial officer. [D.1;

D.2; D.9; D.50]. The public release of such allegations could have ramifications in a foreign

country which are not fully appreciated here. As a result, to the extent permissible, the Court

should defer to the assessment of the authorities in the United Kingdom.

Finally, because the US-UK MLAT is a bilateral agreement, the unsealing of this material

over the objection of our treaty partner could substantially inhibit this countrys ability to obtain

evidence and other information from the United Kingdom in confidence. SeeIn re Letter of

Request from Crown Prosecution Serv. of United Kingdom, 870 F.2d at 690 (the expectation or

hope [in passing the predecessor MLAT statute] was that by making assistance generously

available through the good offices of United States officials and courts, our country would set an

example foreign courts and authorities could follow when asked to render aid to United States

courts, authorities, and litigators.) The unsealing of material in this case could cause our treaty

partner to unseal our enforcement-sensitive requests without regard to the impact on our ongoing



6/6

6

investigations and prosecutions. Id. Likewise, such unsealing over the objection of a treaty

partner could damage mutually beneficial agreements with other treaty partners.

Conclusion

Until such time as authorities in the United Kingdom inform the Court that impoundment is

no longer necessary, the Court should maintain those documents specified under seal. To do

otherwise would conflict with Article 7 of the US-UK MLAT, work a fundamental unfairness on

our treaty partner, risk prejudicing matters in the United Kingdom, and damage the United States

ability to obtain evidence in foreign countries without prematurely exposing sensitive law

enforcement information.

Respectfully submitted,

CARMEN M. ORTIZUNITED STATES ATTORNEY

Date: September 16, 2014 By: s/ John T. McNeilJohn T. McNeil

Assistant United States Attorney

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically

to the registered participants as identified on the Notice of Electronic Filing (NEF).

s/ John T. McNeil

John T. McNeil

Assistant United States Attorney


Documents

BC Motion Cont Impound