UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF NEW YORK

------------------- ----------------- x
:
UNITED STATES OF AMERICA Case No. 17-cr-00686 (LAK)
:
v. NOTICE OF MOTION AND
: MOTION OF THE NATIONAL
JAMES GATTO, COLLEGIATE ATHLETIC
a/k/a “Jim,” : ASSOCIATION TO
MERL CODE, and INTERVENE FOR THE
CHRISTIAN DAWKINS, : LIMITED PURPOSE OF
OBTAINING MATERIALS
Defendants. :

------------------- ----------------- x

PLEASE TAKE NOTICE that on a date and time that may be set by the Court, before the

Honorable Lewis A. Kaplan, at the United States District Court for the Southern District of New

York, located at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, New

York, New York, 10007-1312, Courtroom 21-B, the National Collegiate Athletic Association

(“NCAA”) will respectfully move this Court for entry of an Order: (1) granting the NCAA’s

motion to intervene in this action for the limited purpose of obtaining copies of a subset of

materials; (2) ordering that the NCAA be provided with unredacted copies of the requested

materials within five (5) business days of the entry of the Court’s Order; and (3) ordering the

NCAA to pay the reasonable costs of copying and/or producing the materials.

This motion is based upon the accompanying Memorandum of Law in support of the

motion, the accompanying Declaration of Brendan R. McGuire, the trial record and other files in

this action, and any other written or oral argument that may be permitted by the Court.
 UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK

------------------- ----------------- x
:
UNITED STATES OF AMERICA Case No. 17-cr-00686 (LAK)
:
v. MEMORANDUM OF LAW IN
: SUPPORT OF THE
JAMES GATTO, NATIONAL COLLEGIATE
a/k/a “Jim,” : ATHLETIC ASSOCIATION’S
MERL CODE, and MOTION TO INTERVENE
CHRISTIAN DAWKINS, : FOR THE LIMITED PURPOSE
OF OBTAINING MATERIALS
Defendants. :

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 TABLE OF CONTENTS

INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................2
ARGUMENT ...................................................................................................................................3
I. INTERVENTION TO SEEK ACCESS TO THE MATERIALS IS PROPER ...................3
II. THE COMMON LAW AND THE CONSTITUTION GUARANTEE THE PUBLIC’S
RIGHT TO ACCESS THE REQUESTED EXHIBITS.......................................................5
A. The Exhibits Should Be Made Publicly Available Under The Public’s Common
Law Right Of Access ...............................................................................................5
1. The Trial Exhibits Constitute “Judicial Records” ........................................6
2. The Trial Exhibits Should Be Afforded a Strong Presumption of Access ..9
3. There Are No Competing Interests That Weigh Against Disclosure ........11
B. The Constitution Guarantees The Public’s Right To Access The Exhibits Sought
By The NCAA .......................................................................................................12
III. THE COURT SHOULD PERMIT THE PUBLIC TO ACCESS AN UNREDACTED
COPY OF GATTO’S SENTENCING MEMORANDUM ...............................................14
CONCLUSION ..............................................................................................................................17

ii
 TABLE OF AUTHORITIES

Cases Page(s)

ABC, Inc. v. Stewart,

360 F.3d 90 (2d Cir. 2004)...................................................................................................4, 13

Bernstein v. Bernstein Litowitz Berger & Grossmann LLP,

814 F.3d 132 (2d Cir. 2016).......................................................................................................7

Di Pietro v. United States,

2009 WL 801609 (S.D.N.Y. Mar. 24, 2009) ...........................................................................12

Globe Newspaper Co. v. Superior Court for Norfolk County,

457 U.S. 596, 102 S. Ct. 2613 (1982) ........................................................................................5

In re Application of the Herald Co.,

734 F.2d 93 (2d Cir. 1984).........................................................................................................4

In re Application of National Broadcasting Co., Inc.,

635 F.2d 945 (2d Cir. 1980)...............................................................................................4, 5, 7

In re Application of Newsday, Inc.,

895 F.2d 74 (2d Cir. 1990).......................................................................................................11

In re Associated Press,
162 F.3d 503 (7th Cir. 1998) ...............................................................................................4, 11

In re Globe Newspaper Co.,

729 F.2d 47 (1st Cir. 1984) ......................................................................................................14

In re New York Times Co.,

828 F.2d 110 (2d Cir. 1987).................................................................................................5, 13

In re Peregrine Systems, Inc.,

311 B.R. 679 (D.N.J. 2004) .......................................................................................................9

Joint Stock Society v. UDV North America, Inc.,

104 F. Supp. 2d 390 (D. Del. 2000) ...........................................................................................9

Lugosch, v. Pyramid Co. of Onondaga,

435 F.3d 110 (2d Cir. 2006)............................................................................................. passim

National Collegiate Athletic Association v. Board of Regents of the

University of Oklahoma,
468 U.S. 85, 104 S. Ct. 2948 (1984) ..........................................................................................2

iii
Newsday LLC v. County of Nassau,
730 F.3d 156 (2d Cir. 2013)...........................................................................................8, 12, 13

Nixon v. Warner Communications, Inc.,

435 U.S. 589, 98 S. Ct. 1306 (1978) ......................................................................................5, 6

Pelosi v. Spota,
607 F. Supp. 2d 366 (E.D.N.Y. 2009) .......................................................................................9

Rushford v. New Yorker Magazine, Inc.,

846 F.2d 249 (4th Cir. 1988) .....................................................................................................6

Smith v. United States District Court for the Southern District of Illinois,
956 F.2d 647 (7th Cir. 1992) .....................................................................................................8

Sublett v. Beavers,
2018 WL 736272 (W.D. Ky. Feb. 6, 2018) ...............................................................................9

United States v. Alcantara,

396 F.3d 189 (2d Cir. 2005).....................................................................................................14

United States v. Amodeo,

44 F.3d 141 (2d Cir. 1995).........................................................................................................6

United States v. Amodeo,

71 F.3d 1044 (2d Cir. 1995)............................................................................................. passim

United States v. Aref,

533 F.3d 72 (2d Cir. 2008).....................................................................................................3, 4

United States v. Cannon,

2015 WL 3751781 (W.D.N.C. June 16, 2015) ........................................................................16

United States v. Dare,

568 F. Supp. 2d 242 (N.D.N.Y. 2008) .....................................................................................15

United States v. Gerena,

869 F.2d 82 (2d Cir. 1989).................................................................................................13, 14

United States v. Giordano,

158 F. Supp. 2d 242 (D. Conn. 2011) ......................................................................................14

United States v. Graham,

257 F.3d 143 (2d Cir. 2001)............................................................................................. passim

United States v. Harris,

204 F. Supp. 3d 10 (D.D.C. 2016) .....................................................................................15, 16

iv
United States v. Kravetz,
706 F.3d 47 (1st Cir. 2013) ................................................................................................15, 16

United States v. Madoff,

626 F. Supp. 2d 420 (S.D.N.Y. 2009)........................................................................................6

United States v. Martin,

746 F.2d 964 (3d Cir. 1984).......................................................................................................8

United States v. Park,

619 F. Supp. 2d 89 (S.D.N.Y. 2009)..................................................................................14, 15

United States v. Rajaratnam,

708 F. Supp. 2d 371 (S.D.N.Y. 2010)......................................................................................14

United States v. Smith,

985 F. Supp. 2d 506 (S.D.N.Y. 2013)......................................................................................12

United States v. Taylor,

2008 WL 161900 (S.D. W. Va. Jan. 15, 2008) ........................................................................15

v
 INTRODUCTION

On October 24, 2018, after a three-week trial featuring a dozen witnesses and hundreds of

exhibits, a jury returned convictions against three defendants for their roles in a corruption

scheme connected to men’s college basketball. The National Collegiate Athletic Association

(“NCAA”), which is mandated by its member institutions to enforce rules governing college

athletics, now moves to intervene in this matter for the limited purpose of obtaining copies of

certain exhibits referenced in open court during the trial, see Appendix A, as well as an

unredacted copy of the sentencing memorandum and its associated sealed exhibits filed by

defendant James Gatto, see Dkt. 282. Although not a party to the case, the NCAA has a strong

interest in the proceedings given the role its rules played at trial and its responsibility to enforce

those rules. The requested materials will permit the NCAA to investigate potential rule

violations, take enforcement action if warranted, and consider reforms to prevent future

violations.

The NCAA is not moving the Court for access to all materials collected by the

government during the investigation that led to this prosecution. Nor is the NCAA moving the

Court for access to all exhibits that were marked by the parties for potential introduction at trial.

Instead, consistent with Second Circuit precedent, the NCAA asks the Court to provide access to

twenty-four exhibits that were the subject of admissibility disputes, used to refresh the

recollection of witnesses, or otherwise discussed by the parties on the public record during the

trial, in addition to an unredacted sentencing memorandum that speaks directly to this Court’s

core Article III powers. For the reasons explained below, these materials constitute judicial

records entitled to a strong presumption of public access. Because the trial is now complete,

there are limited countervailing interests that counsel against disclosure.

1
 The NCAA respectfully requests that the Court grant this motion to intervene and permit

access to the requested materials.

BACKGROUND

The NCAA is a non-profit membership organization made up of colleges and

universities. As the Supreme Court has recognized, the NCAA “play[s] an important role in the

regulation of amateur collegiate sports,” including “adopt[ing] and promulgat[ing] … standards

of amateurism, standards for academic eligibility, [and] regulations concerning recruitment of

athletes.” Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of Univ. of Okla., 468 U.S. 85, 88,

104 S. Ct. 2948, 2953 (1984); see also Dkt. 170, Second Superseding Indictment (“Indictment”)

¶ 16 (describing the NCAA’s efforts to “regulate[] athletics” for its “over 1,000” members). The

official rulebook governing Division I schools is the NCAA Division I Manual, which is

published annually and contains the NCAA’s Constitution and the NCAA’s operating bylaws.

See Indictment ¶¶ 19-20 (describing the NCAA’s bylaws as the organization’s “rules” that are

“[c]onsistent with [its] core principles”). The NCAA, in collaboration with its member

institutions, is charged with investigating leads and collecting evidence related to possible

violations of these bylaws. Under the bylaws, a student-athlete or prospective student-athlete

found to have received “financial assistance” or other “benefits” can be “rendered ‘ineligible’ to

participate in Division I sports.” Indictment ¶¶ 20-21.

In this case, the NCAA and its bylaws figured prominently in both the government’s

charging documents and in the public trial. For example, the basis of the government’s wire

fraud and conspiracy charges against the defendants was, as the government noted in the

Indictment, the allegation that the defendants “conspired to illicitly funnel” money to the families

of prominent high school basketball players in efforts to lure those players to four of the

NCAA’s member institutions. See, e.g., Indictment ¶¶ 29-46. Because accepting these funds

2
would render the players ineligible to compete under NCAA bylaws, the government alleged that

the defendants’ actions had the effect of “exposing the universities to tangible economic harm,

including monetary and other penalties imposed by the NCAA.” Indictment ¶ 49. The NCAA’s

bylaws were featured and discussed during the trial, and the parties and witnesses regularly

referred to those bylaws. See, e.g., Tr. 760:19-21 (discussing the NCAA’s “amateurism

bylaws”); Tr. 1390:7-17 (discussing the differences between various NCAA bylaws). Indeed,

multiple witnesses employed by the NCAA’s member institutions explained in detail that their

jobs were to ensure that their athletic departments were in “compliance with the[] rules and

regulations” as “set forth by the NCAA.” Tr. 350:1-12 (John Carns, Senior Associate Athletic

Director for Compliance, University of Louisville); see also Tr. 726:12-19 (Carrie Doyle, Senior

Associate Athletics Director for Compliance, North Carolina State University) (“I’m primarily

responsible for making sure that everyone associated with NC State athletics is following NCAA

rules.”).

The NCAA has conferred with both the U.S. Attorney’s Office and counsel for the

defendants regarding this motion. The Government deferred taking a position on the motion

pending its review of the NCAA’s memorandum in support. Counsel for the defendants have

stated that the defendants have no objection to the NCAA’s motion.

ARGUMENT

I. INTERVENTION TO SEEK ACCESS TO THE MATERIALS IS PROPER

Although the Federal Rules of Criminal Procedure lack an explicit counterpart to Federal

Rule of Civil Procedure 24, which permits intervention, United States v. Aref, 533 F.3d 72, 81

(2d Cir. 2008), it is well settled that members of the public are permitted to intervene in a

criminal proceeding for the limited purpose of obtaining copies of judicial records, see, e.g.,

United States v. Graham, 257 F.3d 143, 145-146 (2d Cir. 2001) (recognizing right to intervene to

3
obtain exhibits in criminal case); In re Application of Nat’l Broad. Co., Inc. (United States v.

Myers), 635 F.2d 945, 949-952 (2d Cir. 1980) (“Myers”) (same). Indeed, the Second Circuit has

regularly permitted third-party intervention in criminal cases to vindicate the “public’s First

Amendment right of access to criminal proceedings.” Aref, 533 F.3d at 81; Graham, 257 F.3d at

149-151 (collecting cases); see also, e.g., ABC, Inc. v. Stewart, 360 F.3d 90, 97 (2d Cir. 2004)

(affirming lower court’s decision to permit third-party intervention to challenge juror-anonymity

order); In re Application of the Herald Co., 734 F.2d 93, 102 (2d Cir. 1984) (noting that, “[s]ince

by its nature the right of public access is shared broadly by those not parties to the litigation,

vindication of that right requires some meaningful opportunity for protest by persons other than

the initial litigants”); In re Associated Press, 162 F.3d 503, 507-508 (7th Cir. 1998) (permitting

third-party intervention in a criminal prosecution and collecting other cases on the subject).

In accordance with this precedent, the Court should permit the NCAA to intervene to

vindicate the public’s right to access exhibits that were discussed, debated, and subject to judicial

ruling during a trial that was the subject of significant public attention, as well as an unredacted

version of Gatto’s sentencing memorandum and its associated sealed exhibits that the Court will

consider as part of the sentencing process. Notably, the NCAA’s interest in these materials

stretches beyond that of a member of the general public, as the documents it seeks are vital to its

own regulatory function. As described at trial and as evidenced from the docket, these materials

appear to contain information regarding potential infractions of NCAA bylaws. Permitting the

NCAA to access those materials will allow it to investigate those possible infractions, impose

penalties if warranted, and implement safeguards to prevent future violations. This access will

advance the public interest in safeguarding the integrity of college athletics.

4
II. THE COMMON LAW AND THE CONSTITUTION GUARANTEE THE
PUBLIC’S RIGHT TO ACCESS THE REQUESTED EXHIBITS

As the Supreme Court has explained, “the courts of this country recognize a general right

to inspect and copy public records and documents, including judicial records.” Nixon v. Warner

Commc’ns, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312 (1978). Indeed, the public’s “common

law right to inspect and copy judicial records is beyond dispute.” Myers, 635 F.2d at 949. The

public also has a “constitutional right of access to criminal trials,” Globe Newspaper Co. v.

Super. Ct., 457 U.S. 596, 603, 102 S. Ct. 2613, 2618 (1982), that extends to “written documents

submitted in connection with judicial proceedings,” In re New York Times Co., 828 F.2d 110,

114 (2d Cir. 1987).

Here, both the common law and the First Amendment guarantee the public’s right to

access the exhibits sought by the NCAA.

A. The Exhibits Should Be Made Publicly Available Under The Public’s Common
Law Right Of Access

The public’s traditional right of access to judicial records is “firmly rooted in our nation’s

history.” Lugosch, v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006). The right

derives from society’s “desire to keep a watchful eye on the workings of public agencies” and

the “operation of government,” Nixon, 435 U.S. at 597, 98 S. Ct. at 1312, and is “based on the

need for federal courts … to have a measure of accountability and for the public to have

confidence in the administration of justice,” United States v. Amodeo, 71 F.3d 1044, 1048 (2d

Cir. 1995) (“Amodeo II”). 1

1
The fact that the NCAA’s motive to obtain these exhibits is to fulfill its responsibilities rather than to monitor the
federal courts is irrelevant to the disposition of this motion. See Amodeo II, 71 F.3d at 1050 (“Although the
presumption of access is based on the need for the public monitoring of federal courts, those who seek access to
particular information may want it for entirely different reasons. However, we believe motive generally to be
irrelevant to defining the weight accorded the presumption of access.”).

5
 The public’s right to access judicial records, however, is “not absolute,” Nixon, 435 U.S.

at 598, 98 S. Ct. at 1312, and “can be rebutted if countervailing interests heavily outweigh the

public interests in access,” Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir.

1988). The decision whether to grant the public access to a particular judicial document is left

“to the sound discretion of the trial court,” which it exercises “in light of the relevant facts and

circumstances of the particular case.” United States v. Amodeo, 44 F.3d 141, 146 (2d Cir. 1995)

(“Amodeo I”) (quotation marks omitted).

In the Second Circuit, whether to grant the public access to judicial documents has been

reduced to a three-part inquiry. See Lugosch, 435 F.3d at 119-120; see also United States v.

Madoff, 626 F. Supp. 2d 420, 424 (S.D.N.Y. 2009). First, a court must determine whether the

documents at issue constitute “judicial records” to which the public would presumptively have

access. Second, the court must inquire as to the strength of that presumption by analyzing how

closely the requested judicial records are connected to the exercise of Article III judicial power.

And third, the court must balance the presumption of access against other factors like fairness to

the defendants and any privacy interests of third-parties. The NCAA will address each prong in

turn.

1. The Trial Exhibits Constitute “Judicial Records”

The Second Circuit has explained that the “definition of a ‘judicial document’” includes

“any material presented in a public session of court ‘relevant to the performance of the judicial

function and useful in the judicial process.’” Graham, 257 F.3d at 153 (quoting Amodeo I, 44

F.3d at 146). To determine whether a document has met this standard, the Second Circuit has

instructed courts to “evaluate the relevance of the document’s specific contents to the nature of

the proceeding and the degree to which access to the document would materially assist the public

in understanding the issues before the court, and in evaluating the fairness and integrity of the

6
court’s proceedings.” Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132,

139 (2d Cir. 2016) (quotation marks and alterations omitted). While documents “passed between

the parties in discovery” might not qualify, documents “presented to the court to invoke its

powers or affect its decisions” stand on a “different footing.” Amodeo II, 71 F.3d at 1050.

The Second Circuit has long held that exhibits entered into evidence at trial fit squarely

within this definition. See Graham, 257 F.3d at 149 (holding that there is “a ‘strong

presumption’ in favor of allowing the public to inspect and copy ‘any item entered into evidence

at a public session of a trial’” (quoting Myers, 635 F.2d at 952)). This conclusion derives from

the principle that all members of the public—not just the ones who physically attend a trial

session—should be permitted to monitor the functioning of the courts. As the Second Circuit has

noted, “[o]nce the evidence has become known to the members of the public … through their

attendance at a public session of court, it would take the most extraordinary circumstances to

justify restrictions on the opportunity of those not physically in attendance at the courtroom to

see and hear the evidence” as well. Myers, 635 F.2d at 952.

More recently, the court clarified that it has never “impl[ied] that the term ‘judicial

document’ applied only to evidence admitted at trial,” and affirmatively stated that the “common

law [access] privilege … does not turn on whether [exhibits] were formally admitted as

evidence.” Graham, 257 F.3d at 152-153 (emphases added). To the contrary, the court has

noted that it “makes sense” that the judicial record label would “extend” to any evidence

“presented in a public session of court … whether or not it was formally admitted.” Id. at 153

(emphasis added). Again, the court pointed to the public access principle noted above, stating

that a member of the public “sitting in the courtroom” who observes “the presentation of

evidence”—even when that evidence is not “formally admitted”—should have no greater right to

7
“inspect[]” the “evidence presented” than a member of the public who was not able to attend the

trial. 2 Id.

Here, many of the records the NCAA seeks—exhibits used to refresh a witness’s

recollection, for example, or exhibits discussed by the parties on the record—are quite similar to

the exhibits that were at issue in Graham. In that case, the Second Circuit was asked to decide

whether tapes that were played at the defendants’ public pretrial detention hearing but “not

entered into evidence” constituted “judicial records” to which the public’s presumptive right of

access attached. See Graham, 257 F.3d at 147, 151. The court answered in the affirmative,

noting that the key question was not whether the tapes were “formally admitted as evidence” but

whether they were “relevant to the performance of the judicial function and useful in the judicial

process.” Id. at 152-153 (quotation marks omitted). Because the tapes were relevant to the

court’s detention decision, the Second Circuit explained, they constituted judicial records. Id. at

153. The same conclusion holds here, where many of the exhibits at issue were presented to

witnesses in order to elicit the testimony the jury used to render its verdict. See infra II.A.2; but

see Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 167 (2d Cir. 2013) (holding that a document

used “only as a reference … to refresh [a witness’s] recollection” during a closed contempt

hearing did not constitute a judicial record where the document “was not significantly relied

upon or at issue”); id. at 169 (Lohier, J., concurring) (concluding that it was “relatively easy” to

find that the document was a judicial record as its “contents were central to the [court’s]

determination” of “[the defendant’s] substantive legal rights”).

2
The Second Circuit’s holding in Graham aligns with those of multiple other circuits. See, e.g., Smith v. U.S. Dist.
Court for the S. Dist. of Ill., 956 F.2d 647, 650 (7th Cir. 1992) (“Courts have also held that judicial records include
transcripts of proceedings, everything in the record, including items not admitted into evidence.”); United States v.
Martin, 746 F.2d 964, 968–969 (3d Cir. 1984) (holding that the “common law right of access is not limited to
evidence, but rather encompasses all judicial records and documents” (quotation marks and citation omitted)).

8
 The remaining records sought by the NCAA are exhibits that the defendants attempted to

move into evidence, but that were excluded by the court after an objection from the government.

The Second Circuit’s decision in Graham also contemplated this precise situation and

determined that these types of exhibits, too, constituted judicial records. Indeed, the court

explained that the “definition of ‘judicial document’” includes “evidence as to which an

objection is made and sustained” just as it includes “evidence which is admitted.” 257 F.3d at

153 (emphasis added). Other district courts have put the point even more plainly, “routinely”

noting that “all exhibits, including those exhibits which the court rules inadmissible or are not

admitted for some other reason, are part of the public record.” See, e.g., Pelosi v. Spota, 607 F.

Supp. 2d 366, 375 (E.D.N.Y. 2009) (citing Graham) (emphasis added); see also Sublett v.

Beavers, 2018 WL 736272, at *4 (W.D. Ky. Feb. 6, 2018) (“[F]ederal courts have held that ‘all

materials that are the subject of an evidentiary ruling by the court, whether or not found

admissible, are part of the record for purposes of the public’s right to inspect and copy.’”

(quoting Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 899 (E.D. Pa.

1981))); In re Peregrine Sys., Inc., 311 B.R. 679, 687-688 (D.N.J. 2004) (same); Joint Stock

Soc’y v. UDV N. Am., Inc., 104 F. Supp. 2d 390, 402-403 (D. Del. 2000) (same).

In sum, the twenty-four documents sought by the NCAA constitute “judicial records” as

that term has been defined by the Second Circuit.

2. The Trial Exhibits Should Be Afforded a Strong Presumption of Access

Should the Court agree that the trial exhibits constitute judicial records, it must then

gauge the presumption of public access to which the documents are afforded. The Second

Circuit has described the presumption of access as a “continuum” with documents “used to

determine litigants’ substantive legal rights” or those that discuss “‘matters that directly affect an

adjudication’” afforded a “strong presumption of access,” and those that “come within a court’s

9
purview solely to insure their irrelevance” afforded a “declin[ing]” presumption. Lugosch, 435

F.3d at 121 (quoting Amodeo II, 71 F.3d at 1049). At bottom, the question is how strong a role

the document plays in the court’s “performance of Article III duties,” id. (quotation marks

omitted), and the “resultant value of such information to those monitoring the federal courts,”

Amodeo II, 71 F.3d at 1049.

In this case, most of the exhibits at issue were the subject of a judicial determination that

is at the core of the Court’s Article III responsibilities: whether that exhibit should be presented

to a jury as evidence of a defendant’s guilt or innocence. The exhibits were served up to the

Court for a direct exercise of its judicial power, and in each instance, the Court was asked to

make a public, on-the-record decision as to the exhibit’s admissibility. Indeed, most of the

requested exhibits were described and debated in redacted memoranda and letter briefs filed by

the parties, and sixteen of the twenty-four exhibits were filed under seal on the docket, placing

them squarely before the Court. See Dkts. 232, 233, 234, 237. Although the Court’s decisions

and its reasoning varied from exhibit to exhibit, the fact that those exhibits “directly affect[ed] an

adjudication” warrants a strong presumption of access. Lugosch, 435 F.3d at 121; see also

Amodeo II, 71 F.3d at 1050 (recognizing the importance of access to documents “presented to

the court to invoke its powers or affect its decisions”).

A handful of the requested exhibits were never directly put to the Court for an official

ruling as to their admissibility. However, those exhibits were all discussed on the record and, for

the majority of them, their contents were presented to trial witnesses in order to refresh their

recollections so that they could provide testimony. These exhibits are so tied to trial testimony

itself—which is indisputably presumed to be public—that on the continuum described by the

Second Circuit, they should be subject to a strong presumption of public access.

10
 3. There Are No Competing Interests That Weigh Against Disclosure

Finally, the Court must determine whether the public’s right to access the trial exhibits is

outweighed by any opposing interest. In the criminal context, courts must balance “both the

singular importance of protecting the rights of criminal defendants and the particular interest of

the public in scrutinizing the operation of our criminal justice system” before determining

whether to grant the public access to a judicial record. Graham, 257 F.3d at 149. Courts must

also weigh “(i) the danger of impairing law enforcement or judicial efficiency and (ii) the

privacy interests of those resisting disclosure.” Amodeo II, 71 F.3d at 1050; see also, e.g.,

Associated Press, 162 F.3d at 508 (noting that “the Supreme Court has recognized that the

constitutional and common law right of access to judicial records and proceedings must be

balanced against competing values that may require closure” (citing Press-Enter. Co. v. Super.

Ct. of Calif., 464 U.S. 501, 510, 104 S. Ct. 819, 824 (1984))).

Under these circumstances, there are minimal countervailing interests that counsel

against disclosure. There is no risk, for example, that disclosing the trial exhibits to the NCAA

would compromise the defendants’ right to a fair trial—the jury has already rendered its verdicts,

and the defendants have informed the NCAA that they do not object to this motion. Nor is there

any risk that permitting the NCAA access to the exhibits would impair the functioning of law

enforcement—to the NCAA’s knowledge, these exhibits have no relevance to the other college

basketball prosecutions brought by the government. The only countervailing interest that

appears to be at issue here is the privacy interests of the individuals whose communications are

reflected in the exhibits. 3 Those interests are limited as the gist of those communications was

3
As noted in more detail below, see infra II.B, the fact that some of the exhibits requested by the NCAA derive
from Article III wiretaps does not merit a different result. If a document otherwise qualifies as a “judicial record”
subject to a presumption of public access, the “presence of material derived from intercepted communications …
does not change its status as a public document subject to a common law right of access.” In re Application of
Newsday, Inc., 895 F.2d 74, 79 (2d Cir. 1990).

11
already made public during the trial, and they are, nevertheless, outweighed by the strong

presumption of public access to these judicial records.

B. The Constitution Guarantees The Public’s Right To Access The Exhibits Sought
By The NCAA

Although the common law right of access—standing alone—merits the public disclosure

of the requested exhibits, the court should conclude that the First Amendment warrants their

release as well. See Lugosch, 435 F.3d at 124 (“Having concluded that the common law

presumption of access exists in this context, we may not avoid the question of whether a First

Amendment presumption of access also exists[.]”); see also Di Pietro v. United States, 2009 WL

801609, at *2 (S.D.N.Y. Mar. 24, 2009) (The “First Amendment presumption of access exists

whenever the common law presumption attaches.”).

To determine if the “First Amendment right applies to particular material,” the Second

Circuit has instructed courts to look to (1) whether “the documents have historically been open to

the press and general public”; (2) whether “public access plays a significant positive role in the

functioning of the particular process in question”; and (3) whether the documents “are derived

from or are a necessary corollary of the capacity to attend the relevant proceedings.” Newsday,

730 F.3d at 164 (quotation marks omitted); see United States v. Smith, 985 F. Supp. 2d 506, 516-

517 (S.D.N.Y. 2013) (discussing application of constitutional analysis). Under the common law

framework, the court may withhold the requested judicial records if “competing considerations”

outweigh the presumption of access. See Amodeo II, 71 F.3d at 1050-1051. But if a

constitutional presumption of access applies, the judicial records may be withheld from the

public only if “specific, on the record findings are made demonstrating that [withholding the

records] is essential to preserve higher values and is narrowly tailored to serve that interest.”

Lugosch, 435 F.3d at 120 (quotation marks omitted).

12
 Here, the public has a First Amendment right to access the twenty-four exhibits sought by

the NCAA. First, criminal trials are the quintessential judicial fora that have been historically

open to the public, facilitating general access to the exhibits discussed on the record. See ABC,

Inc., 360 F.3d at 98 (“[T]he criminal trial historically has been open to the press and [the] general

public.” (quotation marks omitted) (second alteration in original)). Second, public access to the

exhibits is, for the reasons explained above, supra II.A.2, key to the public’s ability to monitor

the proper functioning of the federal courts, especially where the exhibits in question formed the

bases of judicial rulings pertaining to the information that the parties were allowed to put before

the jury. Third, the exhibits at issue squarely “derive[] from or are a necessary corollary of the

capacity to attend” the trial proceedings. Newsday, 730 F.3d at 164. Indeed, all of the requested

exhibits were discussed on the record, and the vast majority were the subject of judicial

determinations or were shown to witnesses in open court. And finally, there are no “higher

values” warranting withholding the documents. See Lugosch, 435 F.3d at 120. As explained

above, supra II.A.3, the countervailing interests at issue are minimal, as the trial has already

concluded.

The fact that a handful of the requested exhibits were the product of Title III wiretaps

does not change the calculus. Although the Second Circuit has recognized that “the right of

privacy protected by Title III is extremely important,” where a “qualified First Amendment right

of access exists, it is not enough simply to cite Title III.” New York Times, 828 F.2d at 115.

“[A] statute,” the Second Circuit has pointed out, “cannot override a constitutional right,” id.,

and the public’s right to access the materials “applies not only when defendants want to keep

information under seal but also when the government, for its own reasons, desires to keep

information out of the public domain,” United States v. Gerena, 869 F.2d 82, 85 (2d Cir. 1989).

13
 In this case, many of the “individual privacy rights” that were of “paramount importance

and concern” to Congress when it enacted Title III, United States v. Giordano, 158 F. Supp. 2d

242, 245 (D. Conn. 2011), are not at issue. For example, the Court has already ruled on the

lawfulness of the electronic surveillance in this case, see, e.g., Dkts. 105, 129, and where “Title

III material [is] found to have been lawfully obtained, the public’s claim of access to that

material will be stronger,” United States v. Rajaratnam, 708 F. Supp. 2d 371, 376 (S.D.N.Y.

2010); In re Globe Newspaper Co., 729 F.2d 47, 54 (1st Cir. 1984) (“[I]f an electronic

surveillance has been shown to be unlawful, Title III prevents its fruits from being disclosed to

the public.”). And because the trial has already concluded, there are no “fair trial interests” that

could weigh against disclosure. Gerena, 869 F.2d at 85. As noted above, the third-party

individuals whose communications are reflected in the wiretaps do have privacy interests that

should be considered, but because the exhibits have largely already been discussed on the public

record, those interests do not outweigh the public’s constitutional right to access the materials.

In sum, the public has a constitutional right to access the exhibits, and there are no

“higher values” that warrant a different conclusion.

III. THE COURT SHOULD PERMIT THE PUBLIC TO ACCESS AN UNREDACTED

COPY OF GATTO’S SENTENCING MEMORANDUM

In addition to the exhibits described above, the Court should also permit the public to

access an unredacted version of defendant James Gatto’s sentencing memorandum and should

unseal the exhibits that are attached to that memorandum (Dkt. 282). Gatto’s counsel has

informed the NCAA that Gatto does not oppose this request.

The Second Circuit has made clear that a “qualified First Amendment right of public

access attaches to sentencing proceedings.” United States v. Alcantara, 396 F.3d 189, 199 (2d

Cir. 2005); see also United States v. Park, 619 F. Supp. 2d 89, 93 (S.D.N.Y. 2009). And because

14
the right of access attaches to the sentencing proceedings, it is, correspondingly, “well-

recognized that the public has a strong right to sentencing memoranda under the First

Amendment and the common law right to judicial records.” United States v. Dare, 568 F. Supp.

2d 242, 244 (N.D.N.Y. 2008) (emphasis added); see Park, 619 F. Supp. 2d at 93 (noting that the

“right of access” attaches to both “proceedings” and “documents”); United States v. Kravetz, 706

F.3d 47, 57 (1st Cir. 2013) (“[S]entencing memoranda are judicial documents subject to the

common law presumption of public access.”); United States v. Harris, 204 F. Supp. 3d 10, 14-15

(D.D.C. 2016) (collecting authority that “sentencing memoranda” constitute “‘judicial records’

entitled to the common law presumption of access”).

Moreover, as relevant here, “[c]ourts addressing this issue” have “consistently h[e]ld that

sentencing memoranda should not be kept under seal” because, “absent unusual circumstances,”

the memoranda “do not contain the type of information that typically outweighs the public’s

right of access.” United States v. Taylor, 2008 WL 161900, at *1 (S.D. W. Va. Jan. 15, 2008).

The “applicability of the First Amendment” to sentencing memoranda is “not dispositive” as to

whether unredacted versions must be made available, but the records may only be sealed “‘if

specific, on the record findings are made demonstrating that closure is essential to preserve

higher values and is narrowly tailored to serve that interest.’” Park, 619 F. Supp. 2d at 93

(quoting New York Times, 828 F.2d at 116). This is because sentencing memoranda “fall

squarely into the category of materials that a court relies on in determining central issues in

criminal litigation” and are “clearly relevant to a studied determination of what constitutes

reasonable punishment.” Kravetz, 706 F.3d at 56. Indeed, as the First Circuit has noted,

facilitating public access to sentencing memoranda “stimulate[s] public confidence in the

15
criminal justice system by permitting members of the public to observe that the defendant is

justly sentenced.” Id. at 57.

Here, the Court should permit access to Gatto’s unredacted sentencing memoranda and

its accompanying exhibits for precisely the reasons outlined above. Notably, this is not a

situation where the redacted portions of the memorandum appear to be detailing Gatto’s

cooperation with the government, see Harris, 204 F. Supp. 3d at 15 (noting that “sentencing

memoranda that include information regarding a defendant’s cooperation are often filed under

seal”), nor do the redacted sections of the memorandum appear to touch on sensitive “medical

[or] mental health records,” United States v. Cannon, 2015 WL 3751781, at *3 (W.D.N.C. June

16, 2015). To the contrary, the redacted portions of the memorandum seem to be discussing

potential NCAA bylaw violations committed by third-parties—exactly the type of information

that the NCAA intends to investigate in furtherance of its mission. See, e.g., Dkt. 282 at 23

(asserting in a topic sentence that Brian Bowen, Sr. “received multiple monetary offers in

exchange for his son’s agreement to play basketball” while the remainder of the paragraph).

At bottom, Gatto’s sentencing memorandum is the quintessential type of judicial record

that should be made available for public review and inspection. Because no “higher value”

warrants redactions to that record, the Court should grant the NCAA’s motion and release an

unredacted version of the memorandum, and should unseal the exhibits that support that

memorandum.

16
 APPENDIX A – REQUESTED EXHIBITS

Exhibit Transcript Citation Disposition

DX 6T* 1404-1408 Excluded by the Court (Tr. 1408:1-2)

DX 25T* 1404; 1415-1419 Excluded by the Court (Tr. 1404:7-8; 1415:23)

DX 28T* 1408-1412 Excluded by the Court (Tr. 1412:1-2)

DX 32T* 1180-1181, 1202 Discussed on the record but never moved into
evidence
DX 35T 1353-1356
Used to refresh recollection (Tr. 1355:9-20)
DX 101* 1093 Excluded by the Court (Tr. 1093:15-18)

DX 102* 1413-1415 Excluded by the Court (Tr. 1415:16-18)

DX 162* 1198-1203 Excluded by the Court (Tr. 1202:10; 1203:2-3)

DX 185A 1131-1132 Used to refresh recollection (Tr. 1132:8-13)

DX 199* 1193
Excluded by the Court (Tr. 1193:15-21)
DX 219* 1434-1436
Excluded by the Court (Tr. 1436:15-16)
DX 223* 1436-1438
Excluded by the Court (Tr. 1438:2-4)
GX 306D 1 1120; 1126-1130
Used to refresh recollection (Tr. 1126-1130)
Used first to refresh recollection (Tr. 1130:15-18);
GX 309C 2 1130-1131 Gatto then sought to introduce the exhibit but, after
the Government’s objection, abandoned his effort
(Tr. 1131:7-13)
DX 1011* 1412-1413 Excluded by the Court (Tr. 1413:5-21)

DX 1065 1091-1092 Used to refresh recollection (Tr. 1091:16-25 – Tr.

1092:1-4)

1
The NCAA seeks access to only two pages of GX 306D (29327 and 29328). See Tr. 1126-1130. Pages 334, 335,
and 9293 of GX 306D were admitted into evidence. See Tr. 1120:16-21.

2
Another portion of GX 309C appears to have been admitted into evidence by the Court. See Tr. 1030:7-10.

* Exhibit was submitted under seal as an attachment to a letter-brief filed by the defendants, see Dkt. 232, or as an
attachment to a memorandum of law filed by the defendants, see Dkts. 234, 237.

A1
DX 1301* 1396-1402 Excluded by the Court (Tr. 1402:16-17)

DX 1302* 1396-1402 Excluded by the Court (Tr. 1402:16-17)

DX 1307* 1402-1404 Discussed on the record but never moved into

evidence
DX 1309* 1402-1404 Discussed on the record but never moved into
evidence
DX 1313* 1396-1402 Excluded by the Court (Tr. 1402:16-17)

DX 1951 786-788 Used to refresh recollection

(Tr. 787:8-25 – Tr. 788:1-5)
DX 1958 799-800 Excluded by the Court (Tr. 800:4-7)

DX 3508-02 789-790 Used to refresh recollection

(Tr. 789:20-25 – Tr. 790:1-6)

A2
 UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK

------------------- ----------------- x
:
UNITED STATES OF AMERICA Case No. 17-cr-00686 (LAK)
:
v. DECLARATION OF
: BRENDAN R. MCGUIRE IN
JAMES GATTO, SUPPORT OF THE MOTION
a/k/a “Jim,” : OF THE NATIONAL
MERL CODE, and COLLEGIATE ATHLETIC
CHRISTIAN DAWKINS, : ASSOCIATION TO
INTERVENE FOR THE
Defendants. : LIMITED PURPOSE OF
OBTAINING MATERIALS

------------------- ----------------- x

I, Brendan R. McGuire, declare as follows:

1. I am a member in good standing of the bars of the State of New York and of this

Court. I am a partner of the law firm of Wilmer Cutler Pickering Hale & Dorr LLP, counsel for

the National Collegiate Athletic Association (“NCAA”). I submit this declaration in support of

the NCAA’s Motion to Intervene for the Limited Purpose of Obtaining Materials.

2. On February 22, 2019, the NCAA’s counsel informed Edward Diskant and Robert

Boone of the United States Attorney’s Office for the Southern District of New York by email

that it intended to file this motion. The Government deferred taking a position on the motion

pending its review of the NCAA’s memorandum in support.

3. On February 21, 2019, the NCAA’s counsel informed counsel for Defendants

James Gatto, Merl Code, and Christian Dawkins by email that it intended to file this motion.

Counsel for Defendants all responded that their clients have no objection to the NCAA’s motion.
 CERTIFICATE OF SERVICE

I, Brendan R. McGuire hereby certify that true and correct copies of the (1) Notice of

Motion and Motion of the National Collegiate Athletic Association to Intervene for the Limited

Purpose of Obtaining Materials; (2) Memorandum of Law in Support of the Motion; and (3)

Declaration of Brendan R. McGuire in Support of the Motion, dated February 28, 2019, were

served on February 28, 2019 by overnight delivery on the following:

Edward B. Diskant Andrew A. Mathias

Robert L. Boone William W. Wilkins
United States Attorney’s Office, SDNY Nexsen Pruet, LLC
One Saint Andrew’s Plaza 55 East Camperdown Way, Suite 400
New York, NY 10007 Greenville, SC 29601

Counsel for the United States of America Counsel for Merl Code

Michael S. Schachter Mark C. Moore

Casey E. Donnelly Nexsen Pruet, LLC
Willkie Farr & Gallagher 1230 Main Street, Suite 700
787 Seventh Avenue Columbia, SC 29202
New York, NY 10019
Counsel for Merl Code
Counsel for James Gatto

David Angeli
Angeli Law Group LLC
121 S.W. Morrison Street
Suite 400
Portland, OR 97204

Counsel for James Gatto