Mocion Vocero Documentos Acevedo Vila

8/4/2019 Mocion Vocero Documentos Acevedo Vila

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1See, EL VOCERO DE PUERTO RICO cover of 31st of August, 2001, titled, El

Alacrn Vuelve a Picar

2 The Fideicomiso de Comunidades Especiales is a program established under Ms.

Calderns administration to benefit the underprivileged communities in Puerto Rico.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

UNITED STATES OF AMERICA )

) CRIMINAL NO. 08-36-PJB

Plaintiff, )

)

vs. )

)ANIBAL ACEVEDO VILA, et al, )

)

Defendants. )

____________________________________)

MOTION TO VACATE PROTECTIVE ORDER

TO THE HONORABLE COURT:

COMES NOW, Caribbean International News Corporation d/b/a El Vocero de Puerto

Rico (El Vocero) as Amicus Curiae, by and through its undersigned counsel, and respectfully

submits its MOTION TO VACATE PROTECTIVE ORDER [DOCKET NO.156], and in support thereof

respectfully states, alleges, and requests as follows:

I. INTRODUCTION.

In the past week, ex-governor Anibal Acevedo Vila (AAV) sent undisclosed

documents (the Documents) to ex-governor Sila Maria Caldern (Ms. Calderon) along

with a handwritten letter1. The Documents and letter were part of an alleged threat on behalf of

AAV to Ms. Calderon due to her recent public demands that the Fideicomiso de Comunidades

Especiales be investigated, which was the one of the main projects during Ms. Calderns term

as governor of Puerto Rico.2 After receiving the Documents, Ms. Caldern referred the matter to

Case 3:08-cr-00036-PJB Document 810 Filed 09/07/11 Page 1 of 13


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United States of America v. Anibal Acevedo Vila, et als.; Crim. No. 08-36 (PJB)

Motion to Vacate Protective Order

Page 2

3 See, footnote number 1.

4 See, EL VOCERO DE PUERTO RICO story of September 2, 2011.

the Federal Bureau of Investigation (the FBI) for further review3.

As news of the alleged threats made by AAV spread, reactions from the Executive

Branch of the Federal Government were made public. On September 1, 2011, Rosa Emilia

Rodriguez, United States District Attorney for the District of Puerto Rico, made public

declarations regarding the Documents. In sum, she explained that the Documents sent by AAV

to Ms. Caldern were protected by an Order [(Protective Order) Docket No. 156] issued by

this Honorable Court in the above captioned case. Due to this fact, the contents of the

Documents were not to be revealed to the public, thus, blocking the Puerto Rico medias access

to the truth4.

There should be no argument that the case before this Honorable Court received the

highest interest from all sectors of the media in Puerto Rico. After all, the case involved

criminal charges against an incumbent governor, AAV, who was and is a member of one of the

two leading political parties on the Island. Those two factors, by themselves, guaranteed a high

public interest in the case. It is safe to say that the case was the subject of literallyhundreds of

reports in all media. For example, El Vocero published at least hundreds of articles dealing with

this case.

El Vocero will demonstrate below how for a criminal proceeding with a major public

figure involved and high public interest the standard even for a partial closure of the

proceedings is not of such a low threshold as the Parties who persuaded this Honorable Court to

issue the Protective Order believed which governed and sealed all pre-trial discovery



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exchanged between the Parties and the Court. To the contrary, only in extraordinary situations

none of which were met below should a court seal proceedings in a criminal case. As the

instant case has been resolved, and now parties to the case are making very public references to

documents contained in the same, this Honorable Court should order the unsealing of the

Protective Order.

II. APPLICABLE LAW AND ARGUMENT.

a. The Publics First Amendment Right of Access to Criminal Proceedings.

It is beyond cavil that the public and the press have a First Amendment Right of access to

criminal proceedings in the courts.

A responsible press has always been regarded as the handmaiden of

effective judicial administration, especially in the criminal field. Its

function in this regard is documented by an impressive record of service

over several centuries. The press does not simply publish information

about trials but guards against the miscarriage of justice by subjecting the

police, prosecutors, and judicial processes to extensive public scrutiny and

criticism.

Sheppard v. Maxwell, 348 U.S. 333,350, 86 S. Ct. 1507, 16 L.Ed. 2d 600 (1966) (emphasis

supplied).

A trial courtroom is also a public place where the people generally

and representatives of the media have a right to be present, and where

their presence historically has been thought to enhance the integrity and

quality of what takes place. ... We hold that the right to attend criminal

trials is implicit in the guarantees of the First Amendment; without the

freedom to attend such trials, which people have exercised for centuries,

important aspects of freedom of speech and press could be eviscerated.

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980) (emphasis supplied).

The Courts recent decision in Richmond Newspapers firmly

established for the first time that the press and general public have a

constitutional right of access to criminal trials ... [T]he right of access to



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criminal trials plays a particularly significant role in the functioning of the

judicial process and the government as a whole. Public scrutiny of a

criminal trial enhances the quality and safeguards the integrity of the

fact finding process, with benefits to both defendant and to society as a

whole. Moreover, public access to the criminal trial fosters anappearance of fairness, thereby heightening public respect for the

judicial process. And in the broadest terms, public access to criminal

trials permits the public to participate in and serve as a check upon the

judicial process an essential component in our structure of self-

government. In sum, the institutional value of the open criminal trial is

recognized in both logic and experience.

Globe Newspaper Co. v. Superior Court of Norfolk County, 457 U.S. 596, 603-606, 102 S.Ct.

2613, 73 L.Ed.2d. 248 (1982) (emphasis supplied).

InRichmond Newspapers, 448 U.S. at 569, the Supreme Court endorsed the reasoning of

Hale, in the 17th century, and Blackstone, in the 18th, supporting open trials. [I]t gave assurance

that the proceedings were conducted fairly to all concerned, that it discouraged perjury, the

misconduct of participants, and decisions based on secret bias or partiality. InBowden v.

Keane, 237 F.3d. 125, 129 (2d Cir. 2001) (emphasis supplied), the circuit court established that,

[i]n conjunction with the First Amendment, the Sixth Amendment public trial guarantee confers

on criminal defendants the right to be tried in a courtroom whose doors are open to any members

of the public inclined to observe the trial. There is a consensus among the various judicial

circuits which supports this principle. InIn re Providence Journal Company, Inc. 293 F.3d 1, 9

(1st Cir. 2002), citing Seidle v. Putnam Inv., Inc., 147 F.3d 7, 10 (1st Cir. 1998), this Honorable

Court opined that public monitoring of the judicial system fosters the important values of

quality, honesty, and respect for our legal system. (emphasis supplied).

InIn re Providence Journal Company, Inc., supra, the First Circuit acknowledged

that the publics and presss constitutional right encompasses most pretrial proceedings,



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and that a court deliberating about whether to restrict the presss and publics rights to

access to materials submitted in connection with criminal proceedings ordinarily ought to

afford interested parties opportunity to be heard. Id. Perhaps most importantly, this First

Circuit found, citing other circuit court decisions, that: The First Amendment right of public

access is too precious to be foreclosed by conclusory assertions or unsupported speculation. Id.

at 13.

The Supreme Court has been unequivocal in its support of the right of the public and the

press to report on criminal trials and the proceedings surrounding them. In Waller v. Georgia,

467 U.S. 39, 44-45, 104 S.Ct.2210, 81 L.Ed.2d 31 (1984), the Supreme Court held that: The

press and public have a qualified First Amendment right to attend a criminal trial. ... We have

also extended that right not only to the trial as such but to also the voir dire proceeding in which

the jury is selected. As discussed below, such a First Amendment right of access has been

extended to other pretrial proceedings in criminal cases.

Moreover, the policies expounded upon by the Supreme Court and the circuit courts

compel the application of the right of First Amendment access to the instant case.

In cases dealing with the claim of First Amendment right to access

criminal proceedings, our decisions have emphasized two complementary

considerations. First, ... we have considered whether the place and

process have historically been open to the press and the general public. ...

Second, in this setting the Court has traditionally considered whether

public access plays a significant positive role in the functioning of the

particular process in question.

Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 8, 106

S.Ct. 2735, 92 L.Ed. 2d 1 (1986), which was cited favorably United States District Court for the

District of Puerto Rico inRivera-Puig v. Garca-Rosario, 983 F.2d 311, 314 (1st Cir. 1992) ,



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citing San Jose Mercury-News v. Municipal Court, 30 Cal.3d 498, 179 Cal.Rptr. 772, 780, 638

P.2d 655, 663 (1982) (preliminary hearings cannot be routinely closed). The Court found that

criminal trials pass the test as to whether public access plays a significant positive role. 983

F.2d at 323.

The publics right of access to court proceedings and documents is

well established. ... This fundamental premise is grounded in three

important policy concerns. Public scrutiny over the court system serves to

(1) promote the community respect for the rule of law, (2) provide a check

on the activities of judges and litigants, and (3) foster more accurate fact

finding.

In re Associated Press, 162 F.3d. 503,506 (7th Cir. 1998).

One of the most enduring and exceptional aspects of Anglo-American justice is an open

public trial. Indeed, throughout its evolution, the trial has been open to all who cared to observe.

... The press and the general public have a constitutional right of access to criminal trials.

Phoenix Newspapers, Inc. v. U.S. Dist. Court for Dist. of Arizona, 156 F.3d 940, 946 (9th Cir.

1998) (emphasis supplied).

The Fifth Circuit phrased it well:

Thus, the right [to a public trial, the benefits of which are frequently

intangible, difficult to prove, or a matter of chance ... as discussed by the

Supreme Court in Waller, 467 U.S. at 49 & n.9] is both primary and

instrumental: not merely a method to assure that nothing untoward is

done clandestinely but a guarantee against the very conduct of private

hearings. It is a check on judicial conduct that tends to improve the

performance both of the parties and of the judiciary. Even absent a

showing of prejudice, infringement of the right to a public trial exacts

reversal as the remedy.

Rovinsky v. McKaskle, 722 F.2d 197, 202 (5th Cir. 1984) (internal quotations and footnote

omitted; bracketed material added; emphasis supplied).



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The decision of the Ninth Circuit inMcClatchy Newspapers, Inc. v. U.S. District Court,

288 F.3d 369 (9th Cir. 2002), is instructive. The circuit court vacated and remanded the district

courts clearly erroneous redaction of records and ordered it to grant the press access to a

criminal defendants redacted records. The private individual, who was found by the district

court to do much business with public bodies, has no privacy interest in allegations, baseless

though they may be, bearing on the way he does business with public bodies. Id. at 373. The

court found no government interest in protecting that individual, noting exceptions to the

American view of the right to inspect and copy court documents, id. at 371, none of which

applied in that situation.

The Supreme Court has established atwo-part inquiry for determining whether a

particular proceeding is one to which the First Amendment right of access attaches. The test

requires a court to consider both experience and logic. ... The experience prong requires us to

consider whether the place and process have historically been open to the press and the general

public. ... The logic inquiry asks us to determine whether public access plays a significant

positive role in the functioning of the particular process in question. U.S. v. Smith, 123 F.3d 140,

146 (3d Cir. 1997) (emphasis supplied).

The appropriateness of making court files accessible is accentuated in cases where the

government is a party; in such circumstances, the publics right to know what the executive

branch is about coalesces with the concomitant right of the citizenry to appraise the judicial

branch. United States v. Sampson, 297 F.Supp.2d 342, 345 (D. Mass. 2003), citing Standard

Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987).



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Under the demands of high profile trials with large media exposure, we cannot expect

trial judges to make perfect decisions. However, following the procedural and substantive

guidelines of Oregonian and Brooklier allows courts to make more informed judgements, and

lessen the possibility of error. As the Supreme Court has observed, public scrutiny of a criminal

trial enhances the quality and safeguards the integrity of the fact-finding process, with benefits to

both the defendant and society as a whole. ...Here, the failure to disclose the truth of the trial

proceedings unfortunately created the potential for suspicion and mistrust, precisely the

consequences a public trial is designed to forfend. Phoenix Newspapers, Inc. v. U.S. Dist.

Court for Dist. of Arizona, 156 F.3d 940, 951 (9th Cir. 1998).

Although the right to access to criminal trials is of constitutional stature, it is not

absolute... But the circumstances under which the press and public can be barred from a

criminal trial are limited; the States justification in denying access must be a weighty one.

Where, the State attempts to deny the right of access in order to inhibit the disclosure of

sensitive information, it must be shown that the denial is necessitated by a compelling

governmental interest, and is narrowly tailored to serve that interest ht of access to criminal

trials is of constitutional stature, it is not absolute. ....Globe Newspaper Co. v. Superior Court

Norfolk County, supra, at 606-607 (emphasis supplied).

It is clear that the Parties asked this Honorable Court for a blanket order to keep all pre-

trial discovery documents under seal. As stated in the Protective Orders language, the reason

for the sealing of the documents was that they might be of a sensitive and private nature and

that the United States and Defendants may need to utilize some portion of these documents at

trial.



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As we all know, the above captioned case is over, thus continuation of the Protective

Order, the gagging of the parties and their counsel particularly with the current controversy in

which a party to the case (AAV) sent Documents that were protected by the Courts Orderto Ms.

Caldern as an alleged threat cannot be justified by any speculation in which the Parties and

this Honorable Court might have engaged about the possible effects of public dissemination of

the pre-trial documents to be exchanged.

El Vocero and through them, the public have a right to know the whole story, whom

this Honorable Court is protecting, and why. Simply stated, the public interest in this matter is

too great to allow the Documents to remained sealed by the Protective Order.

Nobody involved in this case is willing to talk to El Vocero regarding the Documents in

controversy, thus, blocking the publics right to access. It is imperative to ask, how can the

public and the press be expected to learn the truth, which, after all, is the purported objective of

a criminal trial? And now, of course, after the public heated exchanges between AAV and Ms.

Calderon, the Documents sent by AAV to Ms. Calderon take center stage in the controversy

which is of major public interest since it involves two ex-governors of Puerto Rico and could

involve serious allegations regarding the management of the Fideicomiso de Comunidades

Especiales. In sum, there are immense amounts of speculation regarding the contents of the

Documents sent by AAV, but there is one clear way to set the record straight. If indeed the

Documents sent by AAV to Ms. Caldern were part of the documents protected and sealed by

the Order issued by the Court then there is one clear way to set the record straight with the

public: To Vacate the Protective Order and ungag the Parties and their counsel. By doing so, the

public will have access to the Documents in controversy since under the current circumstances,

there is no way the citizenry can exercise that right. If this Honorable Court should deem that



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the Protective Order is still necessary to this day, it will have the effect of raising even more

suspicion an mistrust as to the contents of the Documents.

As explained above, we are talking about a high profile trial with extensive media

coverage. The AAV case has been the subject of various articles in the Puerto Rico Press as well

as the United States Press. It is undoubtedly highly charged with public interest [,] and press

coverage of it provided the public with the community therapeutic value of openness.Rivera-

Puig, 983 F.2d at 324.

III. Conclusion.

The First Amendment guarantee of the publics and the presss right of access to criminal

trials established in theRichmond Newspaperscase determined that criminal trials are

presumptively open and may only be closed by and overriding interest articulated by findings.

Not all records and not all proceedings are subject to First Amendment protection. A court must

apply the logic and experience test to determine, first, whether the place and process have

historically been open to the press and general public and, then, whether public access plays a

significant positive role in the functioning of the particular process in question. Press-

Enterprise, 478 U.S. 1,8 (1986).

Clearly, the first determination favors the Vacating of the Protective Order, unsealing the

record, and ungagging the parties and their counsel. Criminal trials and proceedings, as

discussed above, have historically been open to the press and the general public. Likewise,

public access plays a significant role in the process. In United States v. Criden, 675 F.2d. 557-

560 (3d Cir. 1982),then Chief Judge Collins J. Seitz articulated the six societal interests that

may be advances by opening the proceedings, all of which exist in the instant situation:



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1. Access by the press promotes an informed discussion of governmental affairs by

providing the public with a more complete understanding of the judicial system.

2. Access by the press gives assurance that the proceedings are conducted fairly to all

concerned and promotes the public perception of fairness.

3. Access by the press has significant community value because it provides for

community concern, hostility, and emotion.

4. Access by the press serves as a check on corrupt practices by exposing the judicial

process to public scrutiny, thus discouraging decisions based on secret bias or partiality.

5. Access by the press enhances the performance of all involved.

6. Access by the press discourages perjury.

The experience and logic test thus satisfied, there is a qualified right to access. As

abundantly discussed above, there is no compelling interest that overcomes this qualified First

Amendment right of access. Nor was an order to deny access narrowly tailored by this

Honorable Court to serve that interest. Nixon v. Warner Communications, 435 U.S. 589

(1978), articulates El Voceros general right to inspect and copy public records and documents

including judicial records and documents. In fact, according toNixon, at 598, under certain

circumstances, the media may have broader access under the common law than under the First

Amendment.

With a strong presumption favoring access, the burden with the common law and First

Amendment tests is upon the accused (or the party seeking to deny access) to establish that there

is a substantial probability that the defendants right to a fair trial will be substantially

prejudiced by publicity that closure would prevent and that reasonable alternatives to closure

cannot adequately protect thedefendants fair trial rights. El Vocero de Puerto Rico v. Puerto



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Rico, 508 U.S. 147, 151 (1993) (emphasis supplied). In the instant case, the above captioned

case has ended, thus defendant would not be prejudiced by Vacating of the Protective Order,

thus making the Documents in controversy available to the public.

It is respectfully submitted that this Honorable Courts Protective Order be ordered

VACATED by this Honorable Court, and the public and El Vocero, be allowed access to all of

the documents included in the Protective Order [Docket No. 156] of the action before this

Honorable Court in the prosecution of Anibal Acevedo Vila and others, specifically that it be

granted access to the Documents in controversy.

WHEREFORE, El Vocero respectfully requests that this Honorable Court GRANT its

Motion to Vacate Protective Order, or in the alternative, schedule a Hearing to discuss El

Voceros arguments in favor of its Motion.

RESPECTFULLY SUBMITTED, in San Juan, Puerto Rico, this 7th day of September

2011.

I HEREBY CERTIFY that on this date the foregoing was filed electronically with theClerk of this Court using the CM/ECF System which will send notification of such filing by e-

mail to all CM/ECF participants in this case.

WEINSTEIN-BACAL & MILLER, P.S.C.

Gonzlez Padn Building - Penthouse

154 Rafael Cordero Street, Plaza de Armas

Old San Juan, Puerto Rico 00901

Tel: (787) 977-2550

Fax: (787) 977-2559

Email: [email protected]

[email protected]@w-bmlaw.com

By: S/Stuart A. Weinstein-Bacal

U.S.D.C. No. 204208

S/Peter W. Miller



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U.S.D.C. No. 213609

S/Myriam C. Ocasio-Arana

U.S.D.C. No. 228111

Counsel for Caribbean International News

d/b/a El Vocero de Puerto Rico


Mocion Vocero Documentos Acevedo Vila

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