2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-20-2002

USA v. Chang

Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2839

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Recommended Citation

"USA v. Chang" (2002). 2002 Decisions. Paper 593.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/593
 NOT PRECEDENTIAL 

 THE UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 

 Nos. 02-2839 and 02-2907 

 ___________ 

 UNITED STATES OF AMERICA, 

 vs. 

 DAVID CHANG, a/k/a IL WOO CHANG, 

 Robert G. Torricelli (Intervenor in D.C.), 

 Appellant at No. 02-2839. 

 ___________ 

 UNITED STATES OF AMERICA 

 v. 

 DAVID CHANG, a/k/a IL WOO CHANG, 

 Robert G. Torricelli (Intervenor in D.C.), 

 WNBC, a television station owned and 

 operated by National Broadcastin

 Company, Inc.; NEW YORK TIMES, 

 publishers of theNew York Times; 

 PHILADELPHIA NEWSPAPERS INC., 

 publisher of the Philadelphia Inquirer; 

 NORTH JERSEY MEDIA GROUP, 

 publisher of The Record(Bergen County, 

 N.J.) and the American Broadcasting 

 Companies; MEDIA INTERVENORS 

 (Intervenors in D.C.), 

 Appellants at No. 02-2907. 

 ___________ 

 APPEAL FROM THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 (D.C. No. 99-cr-00726-2) 

 District Judge: The Honorable Alfred M. Wolin 

 ___________ 

 ARGUED SEPTEMBER 10, 2002 

 BEFORE: NYGAARD, ROTH, and WEIS, Circuit Judges. 

 (Filed: September 20, 2002) 

 ___________ 

Theodore V. Wells, Jr., Esq. (Argued) 

Paul, Weiss, Rifkind, Wharton & Garrison 
1285 Avenue of the Americas 

New York, NY 10019-6064 

 Counsel for Appellant, Robert G. Torricelli 

Bruce S. Rosen, Esq. (Argued) 

McCusker, Anselmi, Rosen, Carvelli, & Walsh 

127 Main Street 

Chatham, NJ 07928 

 Counsel for Appellants, Media Intervenors, et. al. 

Michael A. Rotker, Esq. (Argued) 

United States Department of Justice 

Criminal Division, Appellate Section 

Suite 6206, 601 D Street, NW 

Washington, DC 20530 

 Counsel for Appellee, United States of America 

Donald A. Robinson, Esq. 

Robinson & Livelli 

Two Penn Plaza East 

11th Floor 

Newark, NJ 07105 

 Counsel for Amicus Curiae, Newark Morning 

 

 OPINION OF THE COURT 

 ___________ 

NYGAARD, Circuit Judge. 

 Appellants, U.S. Senator Torricelli and Media Intervenors, appeal from the 

District Court’s decision to partially seal, by selective redactions, the government’s 

sentencing memorandum in its case against David Chang. The sentencing memorandum, 

here a letter filed pursuant to U.S. Sentencing Guidelines 5K1.1 (hereinafter "5K 

letter"), details Chang’s cooperation and the government’s reasons for seeking a 

downward departure in his sentence. The Senator seeks to deny access completely. The 

Media seek complete access. The government is content with the status quo. 

 We exercise plenary review over the District Court’s sealing of trial 

records. In re Newark Morning Ledger, 260 F.3d 217, 220 (3d Cir. 2001); United States 

v. Antar, 38 F.3d 1348, 1356 57 (3d Cir. 1994). The District Court had jurisdiction 

under 18 U.S.C. 3231. We have jurisdiction over a final order denying access to court 

records or proceedings under 28 U.S.C. 1291. In re Newark Morning Ledger, 260 F.3d 

at 220. We will reverse the order of the District Court and release the 5K letter in its 

entirety. 

 I. 

 Inasmuch as there is nothing of precedential value in our decision here, and 

we write mainly for the District Court and the parties who are familiar with both the facts 

and procedural history of this case, it is unnecessary to recount either in detail. For 

readers not so initiated, it is sufficient background to relate that Chang pleaded guilty to 

five counts related to making illegal contributions to Senator Torricelli. Sentencing for 

Chang was scheduled for May 23, 2002. His counsel prepared an 18-page sentencing 

memorandum setting forth in great detail Chang’s relationship with Senator Torricelli 

over a period of years. The memorandum recited Chang’s allegations of his payments in 

cash and gifts to the Senator totaling many thousands of dollars in return for Torricelli’s 

efforts on Chang’s behalf to secure repayment of a debt by the North Korean 
government. The memorandum also alleged that although he had cooperated with the 

federal government, Chang had been arrested and jailed and had been threatened by 

Senator Torricelli. 

 Chang’s sentencing memorandum was date-stamped by the Clerk of the 

District Court’s Office indicating that it was "Received May 22, 2002 at 8:30." At the 

opening of the sentencing proceeding on May 23, 2002, the district judge announced that 

on entering the courthouse that morning he was presented with two newspaper articles 

referring to Chang’s sentencing memorandum in detail. The judge observed that ’it’s in 

the public domain’ and the newspapers ’have quoted it with a degree of intimacy of the 

details indicating they had an opportunity to read it very carefully.’" 

 II. 

 Torricelli argues that the information in the 5K letter reveals secret grand 

jury material, and should thus remain sealed. His argument is meritless. We are 

exploring no new jurisprudential territory on this issue. It is well-settled law that if the 

information sought is secret grand jury material, or even "affects" or "relates to" grand 

jury proceedings, no presumptive right of access exists. See, e.g., United States v. Smith, 

123 F.3d 140, 143 (3d Cir. 1997). Federal Rule of Criminal Procedure 6(e) specifically 

provides that the court shall seal records to "prevent disclosure of matters occurring 

before a grand jury." Fed. R. Crim. Pro. 6(e)(2). This protection extends to "anything 

which may reveal what occurred before the grand jury," including indirect disclosures of 

information. In re Grand Jury Matter (Catania), 682 F.2d 61, 63 (3d Cir. 1982). 

 It is also well-settled law that information does not become a matter 

occurring before the grand jury simply by being presented to the grand jury, particularly 

where it was developed independently of the grand jury. See In re Grand Jury Matter 

(Garden Court), 697 F.2d 511, 513 (3d Cir. 1982). Information developed outside the 

grand jury process, "although perhaps developed with an eye toward ultimate use in a 

grand jury proceeding" exists apart from the grand jury process. Catania, 682 F.2d at 

64. Here, Chang did not even testify before the grand jury. Moreover, the most 

compelling evidence against Torricelli’s argument is the content of the 5K letter itself. 

We agree completely with the District Court that the 5K letter does not reveal "what 

occurred before the grand jury" and therefore is not protected grand jury material. 

 

 III. 

 The Media seek access to the 5K letter under both the common law right of 

access to judicial records and First Amendment right of access. Because we decide the 

Media’s appeal under the common law right of access, we need not reach the First 

Amendment issues. 

 Once again, jurisprudentially, there is nothing new here. In Nixon v. 

Warner Cable, the Supreme Court recognized an historic common law right of access to 

judicial documents. 435 U.S. 589, 597 (1978). "The common law right of access is not 

limited to evidence, but rather encompasses all ’judicial records and documents.’" United 

States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984). It is beyond question that the 5K 

letter at issue in this case is a judicial document. "The status of a document as a ’judicial 

record’ . . . depends on whether a document has been filed with the court, or otherwise 

somehow incorporated or integrated into a district court’s adjudicatory proceedings." In 

re Cendant Corp., 260 F.3d 183, 192 (3d Cir. 2001). Filing clearly establishes the status 

of a document as a judicial record. Id. The government filed its 5K letter with the court, 

and the District Court used it in adjudicatory proceedings as a basis for departing from 

the sentencing guidelines. Therefore, as a judicial document, the 5K letter falls under the 

presumption of openness that attaches to such documents. 

 That having been decided, we recognize a long-standing and strong 

presumption of the right to inspect and copy judicial records. See United States v. 

Criden, 648 F.2d 814, 819 (3d Cir. 1981). This presumption arises out of many of the 

same considerations that support the First Amendment right of access to criminal trials. 

Id. at 820. Quoting Chief Justice Burger in Richmond Newspapers, we noted in Criden 

"To work effectively, it is important that society’s criminal process ’satisfy the 

appearance of justice,’ and the appearance of justice can best be provided by allowing 

people to observe it." Id. at 821 (quoting Richmond Newspapers, Inc. v. Virginia, 448 
U.S. 555 (1980) (citation omitted)). Also worth more than a mere note, is the important 

functional role that openness and access to judicial documents occupies in both our 

government and our society; by assuring that the public is informed; in demonstrating the 

fairness of the law being administered to all the citizenry; in the check that such openness 

provides on the judiciary as a restraint against possible abuse of power; and in assuring, 

and giving the appearance of, propriety in judicial proceedings. All of these 

considerations are operative in this case. 

 That is not to say that sometimes other concerns may prevail over the 

strong presumption of access. This, however, is not one of those times. The government 

suggests that releasing the letter will reveal prosecutorial methodology and disadvantage 

law enforcement in its future efforts, or that there will be a chilling effect on 

prosecutorial disclosures in sentencing memorandums, thus leaving courts to make 

sentencing decisions with less than complete information. Again the 5K letter itself is 

the best evidence against these arguments. There is simply nothing in the document that 

would do any of the above. These bald, unsupported assertions simply fail to overcome 

the strong presumption of openness that attaches to judicial documents. 

 As stated by then-Judge Kennedy of the Ninth Circuit, "Public 

examination, study, and comment is essential if the corrections process is to improve. 

Those objectives are disserved if the government conceals its position on so critical a 

matter as the modification of a felony sentence in a celebrated case." CBS, Inc. v. 

District Court, 765 F.2d 823, 826 (9th Cir. 1982). Here, the government’s concerns 

about damage to the judicial system and law enforcement are not very realistic, and are 

simply inadequate to overcome the strong presumption of openness. 

 IV. 

 Both Torricelli and the government call for sealing the 5K letter to protect 

the privacy interests of unindicted third parties; to wit, the Senator. Again, we recognize 

that in some circumstances, legitimate privacy concerns may overcome the presumption 

of access. See Criden, 648 F.2d at 829. And again, this is not one of those times. 

 We have carefully compared the allegations in Chang’s memo and the 

government’s version in its 5K letter concerning what Chang told various officials. We 

find that they are substantially the same. Thus, whatever the nature of Senator 

Torricelli’s privacy interest, the issue of secrecy became irrelevant when the newspapers 

published Chang’s sentencing memorandum. As far as the Senator’s privacy is 

concerned, the ink was in the milk and nothing in the government’s memorandum 

worsened the situation for him. 

 In United States v. Smith, 787 F.2d 111 (3d Cir. 1986), the media sought 

access to transcripts of sidebar and chambers conferences, which would reveal that the 

government had targeted a witness for criminal investigation. The witness, an official in 

the state Republican party, argued that the disclosure would "expose him to ’unwarranted 

public humiliation and degradation, would be unseemly and shameless, and would 

constitute an unconscionable invasion of privacy." Id. at 116. We noted that although 

access to judicial records could be denied to prevent "unnecessary and intensified pain on 

third parties who the court reasonably finds are entitled to such protection," the witness 

in Smith was not such a person. Id. As with the witness in Smith, Torricelli’s connection 

with the trial has been made public. Indeed, the record indicates that he has already made 

public statements attempting to refute the very material he now wants us to suppress from 

public view. And as in Smith, although the 5K letter contains statements that are perhaps 

painful to Torricelli, it is not the "unnecessary and intensified pain" required to overcome 

the presumption of openness. 

 V. 

 In summary, the government’s 5K letter is not subject to the rule of grand 

jury secrecy. Without that protection, the common law right of access to judicial 

documents and records applies. Neither the government’s asserted interests in protecting 

law enforcement methods and judicial efficiency, nor Torricelli’s asserted privacy 

interests overcome the important governmental and societal reasons for openness and 

allowing access. We will therefore reverse the order of the District Court, which released 

only a redacted version of the 5K letter, and will release the 5K letter in its entirety. 

_________________________ 
TO THE CLERK: 

 Please file the foregoing opinion. 

 

 /s/ Richard L. Nygaard 

 Circuit Judge