The Miami Herald has asked a New York federal judge to unseal the docket in a complex criminal case that involves possible contempt charges against a lawyer, a Russian enterprise that preyed on land investors in Florida and Texas, and a businessman turned government cooperator.
The case sparked national attention last month when The New York Times reported that a civil racketeering lawsuit filed in May 2010 garnered an unusual response — a hurling of the case “into secretive chaos.” The lawsuit accused a group of people associated with a New York investment firm of bilking investors out of millions of dollars.
While the fraud case itself was benign, what was unusual was that it revealed the criminal past of one of the defendants, referred to in pleadings as "John Doe," according to The Times article. Documents attached to the lawsuit revealed that Doe not only pleaded guilty in an organized crime case in Brooklyn, N.Y., but also became a cooperating witness for the government — a fact neither he nor prosecutors ever intended to make public, the newspaper reported.
The federal judge overseeing the civil suit in Manhattan placed the documents under seal, and the federal judge in Brooklyn overseeing the businessman’s criminal case, which was already hidden from public view by the docket caption Secret v. Secret, held hearings to investigate how the materials were obtained, according to The Times report.
The judge referred the matter to the U.S. Attorney’s Office to determine whether Fred Oberlander, the attorney who disclosed the businessman’s name in the court filing and who is referred to as Richard Roe in all related court proceedings and documents, should be held in criminal contempt of court, according to a transcript of the Feb. 27 hearing. If the federal prosecutor’s office declines to prosecute Oberlander, the judge said he would consider appointing someone to prosecute the attorney privately, according to the transcript.
In The Times article, Oberlander said the secrecy surrounding the prosecution of John Doe prevented investors from learning about the businessman’s criminal record, which Oberlander said should have been disclosed. Failing to do so was a violation of the man’s fiduciary obligation to investors, Oberlander contended.
Oberlander’s client, along with unrelated parties, including The Herald, moved to unseal the criminal docket related to the criminal case against the businessman. Last month, the paper published an article about a Russian couple that hooked hundreds of investors in land-development schemes in Florida and Texas and then vanished.
The article said Oberlander represented one of the partners in a company founded by Russian Victor Wolf and quoted a motion filed in a Texas court accusing another partner of fraud.
In its memorandum in support of the motion to unseal, The Herald points out that the issues of whether an order actually sealing Doe's criminal file was entered or whether a motion requesting such was actually filed are not entirely clear.
“This lack of notice to the public highlights the need to unseal the docket, as unsealing the docket could, among other things, provide the public with the reasons for why sealing was sought and why it was ordered," the motion states. "Public docketing of all judicial matters is an essential component of the common law right of access to judicial records, fundamental both in its own right and as a means of facilitating access to judicial documents."
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