• Maibort Petit

Media rights vs Government

Updated: Sep 8, 2021

Prosecutor's Office asks the Court to reject media request to open records of previous government contacts with Victor Mones Coro, associated with Tareck El Aissami

The government warns that the information would be exposed not only to journalists, but also to enemies of the United States.

By Maibort Petit

U.S. Attorney for the Southern District of New York Audrey Strauss asked Judge Alvin K. Hellerstein to reject two requests filed by members of the media to open records related to Victor Mones Coro's previous contact with the U.S. government.

Mones Coro was sentenced on March 17 of this year to 55 months in prison because of his connection with a plan to facilitate and provide private charter flights to Tareck Zaidan El Aissami Maddah and Samark José López Bello, former vice president of Venezuela and current oil minister and his alleged front man respectively. He was also sentenced to pay $250,000 in fines and will undergo two years of supervised release as part of the sentence. The provision of this service by Mones Coro to El Aissami Maddah and López Bello, constitute a violation of the sanctions imposed by the Office of Foreign Assets Control (OFAC) of the Department of the Treasury in accordance with those established in the Law of designation of foreign narcotics ringleaders[1].

On November 26, 2019, Victor Mones Coro pleaded guilty to violating Kingpin Act sanctions against the Venezuelan minister and former vice president[2]. During various stages of Mones Coro's trial, including after sentencing, the parties submitted sealed or redacted communications discussing details related to the defendant's prior contact with the U.S. government. Subsequently, on March 31, 2021, the defense filed a notice on the record regarding two previously filed sealed filings.

On the same date, so the prosecution presumes a coordinated effort, Matthew Russell Lee of Inner City Press, through an email requested the opening of several sealed documents, including the same documents referred to by the defense attorney. Then, on April 2, 2021, the defense joined Inner City Press' request.

Meanwhile, Brian Barrett of the Associated Press, in a letter dated April 5, 2021, asked the Court to intervene and open documents related to the defendant's previous contact with the U.S. government, including those that were part of the transcript of the sentence.

The applicable law

Prosecutor Strauss' request states that while the Supreme Court has recognized the customary right of public access to court documents, this applies according to two factors, namely, that (a) "the role of the material in question in the exercise of Article III judicial power" and (b) "the resulting value of such information to those overseen by the federal courts."

It warns that, after determining the weight given to the alleged right of access, customary law is balanced with compensatory interests that favor access restrictions. "The fact that a document is a judicial file does not mean that access to it cannot be restricted," according to case law.

He recalled that the Second Circuit has recognized that certain categories of countervailing factors must be balanced with the presumption of access, including the danger of affecting judicial or law enforcement efficiency and the need to protect privacy interests. Regarding the alleged right of access granted by the First Amendment, the Attorney's Office for the Southern District of New York warns that this may be outweighed by "specific findings and on the record that sealing is necessary to preserve higher values" and when the "sealing order is strictly adapted to achieve that goal." , as established by case law.

The reasons of the Prosecutor's Office

The U.S. Attorney's Office for the Southern District of New York believes that, for the reasons already articulated by the Court, and because of the strong governmental interests that deprive against the opening, the applications should be denied.

He refers, as other judicial decisions have established, that "Transparency must sometimes yield to a more convincing interest" and "It is obvious and indisputable that no governmental interest is more compelling than the security of the nation."

Remember that sealed and redacted materials constitute highly sensitive information that could lead to unauthorized disclosure of classified information.

Audrey Strauss cautions Judge Hellerstein that, while there is no doubt in this litigation that requests for media openness are made in good faith and for a valid purpose, access would not be limited to media personnel.

"Our country's adversaries would also have access, and disclosures could increase the risks already faced by U.S. government personnel because each of the above considerations could cause serious harm to the government."

The prosecution therefore reminded the Court that that office provided the defense counsel with some information on the mutual understanding that references to this information would be removed in all subsequent submissions and, at that time, the defense did not object to this.

Prosecutor Strauss concluded her request by stressing that the Court's sealing orders to date have been fully justified — indeed, necessary — and by these considerations and should not be disturbed.

[1] Department of Justice. "Man Sentenced to 55 Months in Prison for Violating Sanctions Against Senior Venezuelan Leaders". March 17, 2021. https://www.justice.gov/opa/pr/man-sentenced-55-months-prison-violating-sanctions-against-senior-venezuelan-leaders

[2] Department of Justice. "Florida Man Pleads Guilty To Violating Kingpin Act Sanctions Against Venezuelan Minister And Former Vice President". November 26, 2019. https://www.justice.gov/usao-sdny/pr/florida-man-pleads-guilty-violating-kingpin-act-sanctions-against-venezuelan-minister.

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