On Monday, Costigan Media, the parent company of Gambling911, will present its case as part of a hearing to determine whether the warrants and affidavits used to seize over $30 million in online poker player funds should be unsealed.
In its original filing, Costigan Media outlined the central focus of the case: “Resolution of this issue will require the Court to define the scope of the public’s and the media’s First Amendment and common law rights of access to judicial documents.” The Government’s response brief asserts that the media organization “has not cited a single decision in any federal court granting a motion to unseal a seizure warrant affidavit while a criminal investigation is ongoing.” Most notably, the Government notes, “The interest of the public and the Government in avoiding interference with an ongoing criminal investigation and ongoing seizures of forfeitable assets outweighs the minimal interference with the public’s ability to access these documents.” It gives no indication as to when a criminal investigation will be completed and what its scope is.
A warrant for funds held in a Wells Fargo branch was filed on June 2nd. Twenty-two days later and 12 days removed from the actual seizure, a warrant was filed to freeze funds in a Union Bank branch. In each case, Dana Conte, an FBI Special Agent, swore to the affidavits. Addressing whether Costigan Media’s First Amendment rights apply, the Government’s brief asserts, “No court in the Second Circuit has held that there is a First Amendment qualified right to access seized warrant affidavits while an investigation is ongoing.”
Online poker players may have reason to fear future seizures as a result of language contained in the Government’s document. In a section entitled “Law enforcement concerns justify keeping the seizure warrant affidavits sealed,” U.S. attorneys explain, “Unsealing the Conte Warrant Affidavits would interfere with an ongoing criminal investigation and the Government’s ability to identify and seize forfeitable assets.” The Government’s filing was submitted on July 20th and is signed by Assistant U.S. Attorney Jeff Alberts. Nearly 20 cases are cited throughout its 12 pages, including legal actions involving the Globe Newspaper, Hartford Courant, San Francisco Chronicle, Baltimore Sun, New York Times, and Newsday.
On July 22nd, attorneys for Costigan Media filed a rebuttal brief after having time to absorb the Government’s arguments. In it, the parent company of Gambling911 claims that motions to unseal documents have occurred after a warrant has been executed, but before a criminal investigation has been brought. Its attorneys cite United States v. Cabal, a case in which the court “held that a presumption of access applied to warrant applications even while the investigation was still continuing.” The company also cites cases involving Semtex Industrial Corporation and L.S. Starrett Company as examples of warrants being unsealed.
The law firm of Arent Fox represents Costigan Media, led by attorneys Baruch Weiss and Matthew Trokenheim. Regarding law enforcement concerns, Costigan Media admits, “Law enforcement concerns can be a compelling interest that can overcome a presumption of access if the restriction on access is narrowly tailored to serve that interest. However, the Government has not asserted a sufficiently compelling case for that interest. Nor has it explained how denying access is narrowly tailored.”
The reasons behind the Southern District of New York’s seizure of online poker funds remain unknown. One of the payment processors affected, Account Services, has already filed a motion for the return of property, namely $13 million seized by the Government. To aid Account Services, the Poker Players Alliance (PPA) has filed a motion to submit an amicus brief focusing on how poker is a game of skill and therefore not illegal gambling. Costigan Media’s motion was filed in the Southern District Court of New York, while Account Services’ was filed in the Southern District Court of California.
