Case 3:15-cr-30018-MGM Document 33 Filed 08/10/15 Page 1 of 7

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
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UNITED STATES,
v.

ALEXANDER CICCOLO,
a/kJa "Ali Al Amriki,"
Defendant.

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CRIMINAL ACTION
NO. 15-cr-300 18-MGM

MEMORANDUM OF LAW IN SUPPORT OF MOTION OF BOSTON GLOBE MEDIA

PARTNERS, LLC FOR RECONSIDERATION OF ORDER ALLOWING MOTION TO

SUBSTITUTE EXHIBIT AND IN SUPPORT OF MOTION TO INSPECT AND COPY

EXHIBIT

Boston Globe Media Partners, LLC, publisher of the Boston Globe newspaper (the
"Globe"), submits this memorandum of law in support of its motion for reconsideration of the
Court's July 20, 2015 Order (Docket # 19) allowing the Government's Assented-to Motion to
Substitute Exhibit (Docket # 18) and in support of the Globe's motion for leave to inspect and
copy the Exhibit in the form in which it was offered and admitted at the July 14,2015 detention
hearing. For the reasons set forth below, the press and the public have a common law right of
access to the original exhibit relied upon in the Court's July 14,2015 Detention Order.

STATEMENT OF FACTS
On July 4, 2015, the government filed an application for a complaint charging the
defendant with being a felon in possession of a firearm in violation of 18 U.S.C. 922(g). Dkt.
#4.

The defendant was arrested on July 4, 2015, and was temporarily detained pending a

Detention Hearing scheduled for July 14,2015. Dkt. #8 and #9.

The Detention Hearing occurred on July 14, 2015, and was open to the public.

The

government's Exhibit 1 was an 8-1/2 minute videotape of portions of defendant's post-arrest

interview. The docket indicates that Exhibit 1 "was admitted and published without objection."
Dkt. # 15. The Exhibit shows the defendant sitting in the comer of a cubicle being interviewed
by a law enforcement agent about his beliefs about ISIS. The government later released to the

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public a copy of Exhibit 1, but with the defendant's face obscured.

See excerpt at

http://www.bostonglobe.com/metro/20 15/07 I 14/detention-hearing-slated-this-afternoon-for

mass-terror-suspectltU2gpN09pxDUfoj fu8g 1FP Istory.html.
During the interview the defendant stated his support for ISIS, including the following
statements:
"Nobody is hurt if they don't fight by, you know, either with their words,
meaning propaganda of any kind, or physically fight."
"Most people, if they're not harming the Muslims then, then they won't be hurt."
"[ISIS is] doing a good thing ... They're implementing the sharia, they're freeing
people from oppression. Wherever they go they're changing things."
"People that you see being executed are criminals. They're criminals. They are
the lowest of the low."
"They don't kill children or women. That's lies. That's lies. That's lies. They
will do that if they fight, if a woman or a child fights. Even with the children,
that's very rare, that's a very rare occurrence."
"The moment that a group of people begins implementing something other than
Sharia, they are enemies."
"How can a mere man-made law be better than divine law.

It's not even

possible. "
"They kill enemies, they kill oppressors."
"What I'm saying is, that they've only killed people that fight them."
After argument, the Court granted the government's motion for detention. The Court's
Detention Order described the evidence against the defendant as "very strong," and stated that it
"consists in large measure of words he has spoken or written." Order at 2 (Docket #17). The
Court also found that the defendant "reaffirmed after being given his Miranda rights that he is
committed to the goals of ISIL, an international terrorist organization ...." Id.

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On July 17, 2015, the government filed, with the defendant's assent, its Motion to
Substitute Exhibit.

The motion to sought withdraw Exhibit 1 and substitute in its place a

redacted version of the video in which the defendant's face is obscured. The motion stated that
Exhibit I had been "improvidently offered" in unredacted form. Motion at I. The government
also stated its belief that ISIL had recruited the defendant in part through videos posted on social
media sites and could effectively use an unredacted version of the defendant's post-arrest
statement to recruit others.

In the government's view, a version of the video in which the

defendant's face is obscured "would have significantly less recruiting value." Motion at 2. The
Court granted the Motion to Substitute on July 20,2015 (Docket #19).

ARGUMENT
A.

The Press and the Public Have a Common Law Right of Access to the
Exhibit.

"[R]elevant documents which are submitted to, and accepted by, a court of competent
jurisdiction in the course of adjudicatory proceedings, become documents to which the [common
law] presumption of public access applies." Federal Trade Commission v. Standard Financial
Management Corp., 830 F.2d 404, 409 (1 st Cir. 1987) (recognizing common law right of access
to judicial records relied on in adjudicatory proceedings). "Thus, videotapes and audiotapes on
which a court relies in the determination of substantive rights are within its reach." See In re
Providence Journal Co., Inc., 293 F.3d 1, 16 (1 st Cir. 2002). See generally Nixon v. Warner
Communications, Inc., 435 U.S. 589, 599 (1978) (recognizing common law right of access to
inspect and copy trial exhibits). See generally In re Globe New!-'paper Co., 729 F.2d at 52 (First
Amendment right of access applies to "pretrial proceedings setting and modifying bail, and to the
documents on which the bail decisions are based").
The party seeking to seal bears the burden of persuasion. Standard Fin. Mgmt., 830 F.2d
at 411; see also Rushford v. New Yorker Magazine, Inc., 846 F.2d 249,253 (4th Cir. 1988).
"Only the most compelling reasons can justify non-disclosure of judicial records."
Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983).

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Conclusory assertions of the

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need for closure are not accepted as surrogates for hard facts, and doubts are to be resolved in
favor of public aceess. Continental Illinois Securities Litigation, 732 F.2d at 1313; Standard

Fin. Mgmt., 830 F.2d at 412; Siedle v. Putnam Investments. Inc., 147 F.3d 7,10 (1st Cir. 1998).
"The appropriateness of making court files accessible is accentuated in cases where the
government is a party: in such circumstances, the public's right to know what the executive
branch is about coalesces with the concomitant right of the citizenry to appraise the judicial
branch." Standard Fin. Mgmt., 830 F.2d at 410.
Applying these principles, federal courts routinely have granted public access to
recordings presented as evidence in criminal trials. See, e.g., United States v. Sampson, 297 F.
Supp.3d 342, 346 (D. Mass. 2003) (finding "'significant public interest' in affording citizens an
opportunity to copy audio recordings' contemporaneously with the introduction of the tapes into
evidence in the courtroom, when public attention is alerted to the ongoing trial"') (citation
omitted); United States v. Criden, 648 F.2d 814, 822 (3d Cir. 1981) (public forum values "can be
fully vindicated only if the opportunity for personal observation is extended to persons other than
those few who can manage to attend the trial in person"); Valley Broad. Co. v. United States

Dis!. Court, 798 F.2d 1289, 1294 (9th Cir. 1986) (abuse of discretion to deny media request to
copy and broadcast audio and video tapes received in evidence).

As the Second Circuit

explained:
Though the transcripts of the videotapes have already provided the public with an
opportunity to know what words were spoken, there remains a legitimate and
important interest in affording members of the public their own opportunity to see
and hear evidence that records the activities of [the defendants], as well as [law
enforcement officers]. And there is a significant public interest in affording that
opportunity contemporaneously with the introduction of the tapes into evidence in
the courtroom, when public attention is alerted to the ongoing triaL

In re Application ofNational Broadcasting Co. (Myer:,), 635 F.2d 945, 952 (2d Cir. 1980). See
also In re NBC (Jenrette), 653 F.2d 609, 620-21 (D.C. Cir. 1981) (holding that trial court's
denial of access to video admitted into evidence was an abuse of discretion).

Compare

Providence Journal, 293 F.3d at 17 (affirming denial of media request for access to recordings

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"that [did] not exist in readily reproducible form" where request would require the "creation of
something not already in existence").!

B.

The Government Has Not Overcome the Public's Presumption of Access.

The factual predicate for the government's motion was that the government "believes"
that (l) ISIL recruited the defendant "in part" through videos posted on social media sites"; and
(2) ISIL could effectively use an unredacted version of the defendant's post-arrest statement to
"recruit others," but a video in which the defendant's face is obscured "would have significantly
less recruiting value." Motion at

The government's submission, unsupported by affidavit,

falls far short of justifying an order that effectively denies public access to evidence after it has
been entered in a case and relied upon in a judicial ruling.
The government does not contend that simply disseminating the statements made by the
defendant would be an effective terrorist recruitment tool. Were that the case, the defendant's
words would not have been played in open court, nor would the government have made publicly
available redacted copies of Exhibit I containing the defendant's statements.
The government also does not contend that allowing the public to hear the defendant's
own voice, tone and mode of expression in expressing support for ISIL would be an effective
recruitment tool-all of that also is in the public domain in the redacted Exhibit released to the
press.

! The Providence Journal Court readily concluded that tapes which had been admitted into
evidence were subject to the public's common law right of access. Jd. at 16. It noted, however,
that the case before it (the prosecution of Providence Mayor "Buddy" Cianci) contained a
"unique twist." Jd. at 17. The government had not merely played individual tapes, but, rather,
had used the Sanctions software to play "medleys of sealed excerpts from the universe of taped
material stored on its laptop computer." Jd. (emphasis added). "As a result, there is no
electronic medium--no tape or CD-ROM--currently in existence that contains the precise
medleys of taped excerpts that have been played in open court." Jd. Because the case involved a
media request for access to materials "that [did] not exist in readily reproducible forn1," the
Court refused to disturb the district court's holding that the common law right of access "did not
mandate the creation of something not already in existence (i.e., a tape or CD-ROM containing
only those excerpts played in open court) and finding replication infeasible." Jd.
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Nor does the government contend that redacting the Exhibit is necessary to protect the
investigative techniques of the law enforcement official who questioned the defendant, or the
setting in which the questioning occurred-those too are all available to the public on the
videotape released by the government.
The question before the Court, m short, is whether combining the image of the
defendant's face with the information described above by itself poses a credible threat of
promoting terrorist recruitment sufficient to justify withdrawing from the public record an
Exhibit offered by the government and relied upon by the Court in ordering a defendant detained
without bail before trial. In the absence of any evidentiary support for such an assertion, the
Globe respectfully submits that the government has not met its burden and that the original
version of Exhibit 1 should be returned to the court file and made available for inspection and
.

copymg.

CONCLUSION
For the foregoing reasons, the Globe requests that the Court reconsider its Order granting
the Government's Motion to Substitute Exhibit and grant the Globe's motion for leave to inspect
and the exhibit introduced at the July 14,2015 detention hearing.

The defendant's desire to protect his "privacy" is similarly insufficient to overcome the public's
right of access, particularly given the non-private nature of the image of defendant's face and the
legitimate public interest in the government's allegations against the defendant.

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Respectfully submitted,

BOSTON GLOBE MEDIA PARTNERS, LLC

By its attorneys,
IslEmma D. Hall

Jonathan M. Albano BBO #013850

jonathan.albano@morganlewis.com
Emma D. Hall BBO #687947
emma.hall@morganlewis.com
MORGAN, LEWIS & BOCKIUS, LLP
One Federal Street
Boston, MA 02110-1726
Phone: 617-951-8000
Fax: 617-951-8736
Dated: August 7, 2015

CERTIFICATE OF SERVICE
I, Emma D. Hall, hereby certify that this document filed through the ECF system
will be sent electronically to the registered participants as identified on the Notice of Electronic
Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on
August 7, 2015.
Is/Emma D. Hall
Emma D. Hall

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