Attorney asks U.S. Supreme Court to consider constitutionality of years-old blanket sealing order

The U.S. Supreme Court recently released dozens of documents about a businessman turned government witness as part of a request that the high court find that a 12-year-old blanket sealing order in the case amounts to an unconstitutional prior restraint.

In the meantime, the criminal case against the government witness in Brooklyn, N.Y., remains hidden from public view, despite The Miami Herald’s request in March that the presiding judge unseal the docket.

Through independent reporting, The Herald identified the businessman as Felix Sater, who, as he was awaiting sentencing in the organized crime case in the Eastern District of New York, helped convince investors to pour millions of dollars into a failed Trump high-rise in Fort Lauderdale, Fla.

Late last month, the Supreme Court docketed the appeal in Roe v. United States. It also granted the party's request to file his petition asking the Supreme Court to hear the case under seal with redacted copies available for the public record. It is from these unsealed documents that additional information about Sater was revealed.

Those materials were before the high court because attorney Fred Oberlander, who is referred to as Richard Roe in all court proceedings and documents, has asked the court to find that the blanket sealing order still in effect in Sater’s underlying criminal prosecution prevents him from speaking about the case and thus violates his First Amendment rights.

In May 2010, Oberlander, who represents a plaintiff in a civil racketeering lawsuit in Manhattan, filed documents in connection with the litigation that revealed the criminal past of Sater, referred to in pleadings as “John Doe.” Although Oberlander said he received the case documents from a whistleblower, the federal judge overseeing that civil suit in Manhattan placed the documents under seal.

And the federal judge who oversaw Sater’s prosecution in Brooklyn issued a permanent injunction against further dissemination of the materials, a ruling which the U.S. Court of Appeals in New York (2nd Cir.) affirmed. The appellate court remanded the case to another federal trial court to ensure compliance with that order. When that court ordered Oberlander to destroy or return the sealed documents and denied his request to release that information from the sealed documents, he appealed to the Second Circuit again.

That court found that the permanent injunction barring dissemination of the information and requiring Oberlander to return it to the government did not violate his First Amendment rights — the ruling that the attorney has asked the Supreme Court to hear.

Oberlander has said the secrecy surrounding the prosecution of Sater prevented investors from learning about the businessman’s criminal record.

The petition before the Supreme Court said the Brooklyn court “illegally” sealed the case and never ordered Sater to make restitution to victims in that case.

“The courts know respondent takes advantage of his sealed case, concealing his conviction from investors and partners in spite of a duty to disclose. Does a court violate the law when it emboldens crime by maintaining seals?” the petition asks under its “questions presented” heading.

The petition also maintains that Sater’s case is “not unique,” alleging that courts like the Brooklyn one violate the constitutional right of public access when they “indiscriminately blanket seal entire cases, operating a covert dual justice system, accountable to no one, without public notice, hearing, or evidentiary support.”

Related Reporters Committee resources:

· Secret Justice: Secret Dockets

· The First Amendment Handbook: Introduction — Fair trials — National security — Law enforcement investigations