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IN RE EYECARE PHYSICIANS OF AMERICA

June 7, 1995

IN THE MATTER OF THE SEARCH OF EYECARE PHYSICIANS OF AMERICA, 3101 NORTH HARLEM AVENUE, CHICAGO, ILLINOIS


The opinion of the court was delivered by: LEFKOW

RULING ON EYECARE PHYSICIANS OF AMERICA'S MOTION TO UNSEAL AFFIDAVIT

 Joan H. Lefkow, Executive Magistrate Judge:

 Eye Care Physicians of America ("EyeCare") has moved to unseal the affidavit filed with the court in support of a search warrant issued November 15, 1994 for the premises located at 3101 North Harlem Avenue, Chicago, Illinois. EyeCare seeks disclosure only to EyeCare and its attorneys and has obtained leave to file the motion to unseal and memoranda in support thereof under seal. EyeCare rests on a due process right to protect its own constitutional and statutory rights through obtaining knowledge of the contents of the affidavit, asserting that it must read the affidavit in order to evaluate whether to challenge the legality of the warrant. The United States Attorney opposes the motion on the ground that disclosure of the affidavit would jeopardize the investigation to which it pertains.

 The record reflects that the warrant application was accompanied by a motion to seal which set out as grounds that disclosure would jeopardize an ongoing investigation being conducted by federal law enforcement agencies of various doctors clinics, ambulatory surgical centers, and other entities engaged in providing health care services. The motion was granted for an undisclosed but definite period of time. An affidavit (also under seal) filed by the government in opposition to the pending motion, further asserts grounds and facts in support of maintaining the seal on the warrant application. This affidavit attests that disclosure would reveal names of witnesses and give the petitioner information concerning the ongoing investigation and thereby impede the investigation. Eyecare further asserts that national publicity resulting from the search has led members of the general public, including current and potential patients and members of the professional ophthalmic community to mistakenly believe that Eyecare has been shut down by the government; patients have expressed fear that they can no longer rely upon the quality of care provided by EyeCare; and public perception and confidence, particularly that of the elderly and indigent clientele served by EyeCare has been impaired.

 Eye Care rests on the following logic: Federal Rule of Criminal Procedure 41(g) requires the magistrate judge to file all papers submitted in connection with the warrant in order to protect a person's right to be free from unlawful search and seizure. In order to demonstrate (a) that the search was unlawful or (b) that it is entitled to lawful possession of its property, EyeCare must demonstrate lack of probable cause for issuance of the warrant. In order to establish lack probable cause, EyeCare must know the contents of the affidavit made in support of the warrant. Its right to mount a meaningful challenge to the affidavit rests in procedural due process guaranteed by the Fifth Amendment.

 EyeCare further asserts that disclosure will not jeopardize the investigation. EyeCare asserts that it has never attempted to resist a government investigation -- there have been several *fn1" -- influence witnesses, destroy or alter documents or otherwise obstruct justice. Since the government has already seized thousands of documents, and because the grand jury subpoenaed documents during the days immediately following the search, there is no possibility that EyeCare can alter or destroy them. EyeCare also points out that the investigation is no secret; indeed, the search garnered widespread publicity, so the harm that might otherwise result from disclosure of a secret investigation is not present here. Even at that, EyeCare only seeks disclosure to itself and counsel, not to the public. EyeCare relies on In The Matter of the Search of Wag-Aero, Inc., 796 F. Supp. 394 (E.D. Wis. 1992), and In re Search Warrant for Second Floor Bedroom, 489 F. Supp. 207, 209 (D.R.I. 1980).

 The government responds to the motion from the viewpoint that any pre-indictment motion which EyeCare might bring to challenge the warrant, i.e., a motion under Rule 41(e), would be unsuccessful. Therefore, EyeCare is not entitled to see the affidavit. Because EyeCare cannot prevail on a 41(e) motion, the government believes the court need not address the question whether the affidavit should remain sealed to protect the secrecy and integrity of the grand jury investigation. But, it argues in the alternative that its reasons for secrecy outweigh EyeCare's interest in disclosure. The government believes the affidavit would reveal the direction and progress of the investigation and would discourage witnesses from coming forward to testify fully and frankly before the grand jury. It asserts that unsealing the affidavit would also disclose the identities of witnesses and the substance of testimony that has been given to the grand jury.

 Concerning the futility of a Rule 41(e) motion, the government relies on numerous cases involving motions for return of property in which the courts have said that equitable principles govern. E.g., Floyd v. United States, 860 F.2d 999, 1002-03 (10th Cir. 1988). As such, the movant must show irreparable harm, which is difficult to do pre-indictment, particularly where, as here, the property is documentary and the government has provided the movant with copies of all documents needed by the movant. See Matter of Search of Kitty's East v. United States, 905 F.2d 1367, 1375 (10th Cir. 1990) (Because government had returned copies of business records requested by movant, court found movant was not aggrieved by the search).

 The government next argues that EyeCare is not entitled to seek a declaration that the search was illegal until after charges are brought, citing, inter alia, Matter of 949 Erie Street, Racine Wis., 824 F.2d 538, 541 (7th Cir. 1987), where the court of appeals refused to consider the appeal of a denial of a Rule 41(e) motion where the motion was not directed primarily toward the return of seized property. The government states that if charges are brought against EyeCare, it will have an opportunity to test the legality of the warrant. If no charges are brought, the government will simply return the property or, if not, EyeCare may sue under Rule 41(e) for its return.

 Finally, the government insists that secrecy of the affidavit is appropriate in this instance and that EyeCare's real interest is in discovering for itself and another subject, Dr. James Desnick, a road map for the investigation. The government relies on several cases in which secrecy of a search warrant affidavit was maintained to protect the investigation. Times-Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989); Matter of Flower Aviation of Kansas, Inc., 789 F. Supp. 366, 368 (D. Kan. 1992); In re Search Warrant for Secretarial Area Outside Office of Gunn, 855 F.2d 569, 574 (8th Cir. 1988); see also, United States v. Corbitt, 879 F.2d 224, 235 n.14 (7th Cir. 1989) (movant must show compelling, particularized need for disclosure of presentence investigation report) and Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 219, 99 S. Ct. 1667, 1673, 1979, 60 L. Ed. 2d 156) (grand jury transcripts were properly denied to civil plaintiffs who were suing subjects of investigation).

 The common law recognizes a general right to inspect and copy judicial records and documents. Nixon v. Warner Communications. Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312, 55 L. Ed. 2d 570 (1978). The right is not absolute, however, and "the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case." Id. at 599, 98 S. Ct. at 1312-13. The cited cases illustrate how courts have exercised their discretion. In Wag-Aero, on which EyeCare relies, a magistrate judge on June 4, 1992, granted for a period of six months a motion to seal an affidavit made in support of a search warrant. The representation supporting the motion included the law enforcement agent's opinion that disclosure would enable the target company to obstruct the investigation and also might threaten the safety of an unnamed witness. On an appeal from denial of a motion to unseal, the district court unsealed the affidavit on August 14, 1992, stating that "the heavy cloak of secrecy has been misapplied in this case . . . ." Wag-Aero, 796 F. Supp. at 395. Noting that the government as a result of the search had possession of a large number of documents and aircraft parts, which under the magistrate judge's order it could retain for six months before the target could examine the record, the judge concluded, "In my opinion, Wag-Aero has a right to consider whether it wishes to challenge the issuance of the search warrant and whether it wishes to seek to obtain the return of its property." Id. It added that the injury to Wag-Aero's due process rights flowing from non-disclosure significantly outweighed the government's interests recited in the affidavit. Id.

 The government distinguishes Wag-Aero on the basis that there, the movant needed the affidavit in order to consider whether to seek the return of its property, pointing out that the ultimate resolution of Wag-Aero was mootness after the government returned the property. See Wag-Aero, Inc. v. United States, 837 F. Supp. 1479, 1486 (E.D.Wis. 1993) (Where parties agreed among themselves that all property would be returned on condition that the return would have no preclusive effect on any other proceeding, plaintiff was not entitled to further relief under Rule 41(e)).

 In Second Floor, also cited by EyeCare, a magistrate judge had sealed the application on the representation that disclosure would frustrate an ongoing grand jury investigation. The court unsealed the warrant. The court, finding that the district court has inherent power to seal affidavits in proper circumstances, id. at 109, applied a standard that "the government must demonstrate a real possibility of harm before the court takes the unusual step of sealing a search warrant affidavit not based directly on grand jury testimony. The mere possibility of harm . . . is not sufficient to outweigh the established policy embodied in Rule 41(g)." *fn2" The court rejected the government's unspecific assertion that harm would result because future grand jury witnesses would be able to tailor their testimony in light of the affidavit and thereby frustrate the investigation. *fn3"


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