Nancy Salzman’s letters of support are going to become public
By order of US District Court Judge Nicholas G. Garaufis, Salzman is directed to “file the sentencing memorandum and exhibits publicly on the docket with the exception of references to medical conditions” by Wednesday, October 6, 2021, at 12 pm.
Salzman asked the judge to keep her letters of support sealed. Her lawyer, Robert A Soloway, argued that supporters were in danger of being outed by the Frank Report.
“As this Court is aware, the Frank Report weaponizes statements made in support of the Nxivm defendants, and exists for virtually no purpose other than to damage the reputation and fortunes of remaining ‘loyalists,’ Soloway wrote.
When she filed it in late August, Salzman filed her entire sentencing memorandum under seal, without following court procedures which include getting the judge’s permission to file under seal.
History of this issue of privacy.
Sept. 5: I wrote to Judge Garaufis asking him to require Salzman to file her sentencing memorandum publicly.
Sept. 6: Judge Garaufis ordered Salzman to make the memorandum public by September 7th.
Sept. 7: Salzman’s attorneys filed a partially redacted sentencing memorandum; they continued to redact letters of support [Exhibits A, B, C, and G contain supportive letters, Exhibits D, E, and F contain medical information.]
Sept. 8: Salzman was sentenced to 42 months followed by three years of supervised release, and ordered to report to prison in January for her conviction on one count of racketeering conspiracy.
Sept. 10: the Albany Times Union submitted a letter to the court seeking public disclosure of the remaining portion of her sentencing submission, in particular the letters of support.
Sept. 20: The judge directed that Salzman explain her “legal justification” for the remaining redactions of her sentencing memorandum, and the letters of support.
Sept. 27, her attorney, Robert Solloway, filed an explanation, offering, as noted above, the Frank Report for justification.
Nancy Salzman heads to court for sentencing on September 8, 2021 [Photo courtesy Daily Mail]
Judge Nicholas Garaufis
On October 4, the judge denied the request and ordered the letters unsealed:
“[The] right of open access arises from … common law and the First Amendment… Sentencing memoranda and their accompanying exhibits generally qualify as judicial documents because they are submitted by defendants – as the letters are here – …. as part and parcel of their legal arguments for a particular sentence to influence the court’s sentencing decision….
The … concerns identified by Saltzman [the memorandum misspells Salzman as Saltzman] do not outweigh the heavy presumption of open access…
Saltzman argues that disclosure would have a “chilling effect on those who wish to assist other defendants and courts in future high-profile cases.”… The court is not persuaded. This is not a case in which a party seeks to seal identities of cooperating witnesses, where unsealing would present a public safety risk and could discourage witnesses from cooperating in other cases…..
She submitted her supporters’ letters as exhibits to her own memorandum, incorporating them into her legal arguments….. Saltzman also argues that significant privacy interests are at stake because the authors of supportive letters may face retribution if their identities are publicly known, given the public attention that has been paid to this case….
[T]he court holds that the privacy interests identified by Saltzman, while important, do not outweigh the presumption of open access to materials submitted by the defendant in support of her sentencing arguments….
…under the First Amendment… open access to criminal matters and its important democratic functions are well established…. This fundamental principle of criminal law is highlighted by Congress’s directive that sentencing proceedings must be held in “open court.” …. Relatedly, the documents relied on in sentencing arguments are an essential corollary to the sentencing proceedings, and the court views access to such documents the same way that access to the proceedings themselves are viewed, absent compelling competing concerns…. the public has a right to access nonmedical information relied upon in her sentencing submission.
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The judge also pointed out that Fed. R. Crim. P. 49.1(a), protects certain portions of social security numbers, taxpayer-identification numbers, birth dates, names of individuals known to be minors, financial-account numbers, and home addresses from public disclosure.
This, unfortunately for Salzman, does not protect the letter writers’ names or the contents of their letters.
