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In re Eyecare Physicians Of American

November 13, 1996


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 94 M 474 Robert W. Gettleman, Judge.

Before ESCHBACH, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.



On November 15, 1994, United States government agents executed a search warrant on the premises of EyeCare Physicians of America ("EyeCare"), located at 3101 and 3115 N. Harlem in the city of Chicago, and seized a number of documents to facilitate an ongoing criminal investigation into the activities of various doctors, clinics, ambulatory surgical centers, and other entities engaged in providing health care services. Contemporaneously, the government moved to have the application and affidavit in support of the warrant sealed on the ground that premature disclosure of the application for the search warrant and affidavit filed in support could jeopardize the on-going investigation. A United States magistrate judge determined that the search warrant material could be sealed for a two-year period (until November 15, 1996), and agreed with the government that "premature disclosure [of the search warrant material] could jeopardize an ongoing investigation." Immediately thereafter, the government offered to provide EyeCare with copies of any and all of their seized documents. The government has complied and turned over to EyeCare the documents requested.

One month after the search and seizure (December 19, 1994), EyeCare filed a motion to have the warrant application and affidavit unsealed to "assess whether to challenge the government's extraordinarily broad search. . . . EyeCare can make an informed and meaningful decision regarding its rights under Federal Rule of Criminal Procedure 41 only if it can review the affidavit." The government, on February 10, 1995, in response to the December 19, 1994 motion, filed another affidavit under seal, arguing that unsealing the affidavit would provide EyeCare with a road map to the government's investigation. The affidavit includes the names of individuals who were sources of information, describes documents reviewed as part of the investigation as well as information obtained from various documents, and specifically outlines conduct which the government believes demonstrates criminal culpability. The magistrate judge, after hearing argument from the parties, denied the motion, concluding that disclosure of the affidavit could result in breaching the secrecy of grand jury testimony and subpoenas, that the privacy of implicated persons who have not been charged, other witnesses and patients would be impaired by disclosure; that the identity of unnamed subjects would become clear to petitioner which disclosure could jeopardize the investigation in light of particular instances revealed in the government's affidavit made in opposition to the pending motion in which persons on behalf of [EyeCare] have taken actions to discourage cooperation; that disclosure of numerous potential witnesses could result in their unwillingness to cooperate with the government; and that the scope of the investigation would be revealed so as to give petitioners premature guidance concerning potential charges.

The magistrate judge, after considering the feasibility of disclosing a redacted version of the affidavit, stated that "redaction would entail such a large portion of the affidavit that it is not a practical alternative." EyeCare appealed the magistrate judge's denial of its motion to release the sealed documents to the district court, and the trial judge directed the government to file a draft redacted version of the affidavits for inspection by the court in camera. After in camera review of the proposed redactions as well as the affidavit of a government agent explaining its reasoning for the redactions (also under seal), and following oral argument, the district court affirmed the magistrate judge's order. The district court incorporated the magistrate judge's rationale with the additional finding that "partial disclosure or redaction might mislead the reader to mistakenly conclude that certain persons and entities are either subjects of the investigation or are cooperating with the government." *fn1

EyeCare appeals the district court's denial of its motion, arguing that the government has failed to establish that it has a compelling interest in keeping the three affidavits sealed. We affirm.

I. EyeCare's Constitutional Arguments

EyeCare asserts that it has a "due process" right to review the affidavit under the Fourth Amendment. This argument is a synthesis of two independent rights, requiring analysis of each argument. The Due Process Clause of the Fifth Amendment protects EyeCare from being deprived of life, liberty or property without due process of law. Any argument based upon this section of the Fifth Amendment falls on deaf ears, for no person affiliated with EyeCare has even been indicted, much less deprived of life or liberty. Nor can EyeCare claim that it has been deprived of property, for the government has furnished copies of all its requested documents.

EyeCare points us to In the Matter of the Search of Wag-Aero, Inc., 796 F. Supp. 394 (E.D. Wis. 1992). WagAero was an appeal of a magistrate judge's denial of a motion to unseal search warrant materials and is barren of any analysis concerning how due process was lacking (although the petitioner claimed, and the court agreed, that the government had taken property (airplane parts) during the search and had not returned them). Again, a deprivation of property is not an issue here for the government has provided EyeCare with copies of the requested seized documents. Of course, we realize it would be most advantageous and a defense attorney's dream to have knowledge of the contents of the affidavits in challenging whether the warrant was actually supported by probable cause. By the very nature of a secret criminal investigation of this type, the target of an investigation more often than not remains unaware of the specific grounds upon which a warrant was issued. If preindictment disclosure of sealed warrant affidavits was required to satisfy due process (assuming there had been a predicate deprivation of life, liberty or property), the hands of law enforcement would be needlessly tied and investigations of criminal activity would be made unduly difficult if not impossible. We need not belabor the lack of merit to EyeCare's due process argument.

EyeCare also asserts that the Fourth Amendment recognizes a right of access to sealed affidavits. EyeCare's argument does not rest upon the terms of the Fourth Amendment, for the text of that Amendment does not address, even implicitly, the problem of lack of access to sealed search warrant affidavits. *fn2 The Warrant Clause of the Fourth Amendment circumscribes the issuance of warrants, but does not address access to the affidavits employed to support them. EyeCare relies upon the unpersuasive case of In re Search Warrants Issued August 29, 1994, 889 F. Supp. 296 (S.D. Ohio 1995), a district court opinion which is conclusory at best (with respect to the applicability of the Fourth Amendment) and conspicuous for its lack of analysis. *fn3

II. Federal Rule of Criminal Procedure 41(g)

EyeCare argues that Federal Rule of Criminal Procedure 41(g) is a codification of Fourth Amendment procedures and thus provides a fundamental right of access to search warrant affidavits. As discussed above, no provision within the Fourth Amendment grants a fundamental right of access to sealed search warrant affidavits before an indictment. We are convinced that a proper reading of Rule 41(g) does not include a constitutional right of access to sealed ...

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