U.S. District Court Judge Clay Land's Response To The Ledger's Request For The Letters

Case 4:15-cr-00037-CDL-MSH Document 20 Filed 01/27/16 Page 1 of 1
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CLERKs OFFICE
20i6 JAN 27 PM 2: 58
follow us.
January 27, 2015
U.S. District Court Judge Clay D. Land

Middle District Georgia
U.S. Post Office & Court House
PO Box 124
Columbus, GA 31902
Re: UNITED STATES OF AMERICA v. SHAH

Case number: 4: 15-cr-00037-CDL-MSH-1
Your honor,
In reference to the above case, the character letters you mentioned in the Jan. 26 sentencing hearing are not
available to the public via PACER. When requesting those documents, which are on the docket report, the
user is told: 'You do not have permission to view this document."
Because of public interest in this case and the fact they were referenced in the sentencing of Mr. Shah, it is
my contention that those letters should be available for public examination. Please consider this a request to
view and download those letters.
r;
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e_
1
Respectfully;
I
\
\
... /...
____ ....../
Senior Reporter
Columbus Ledger-Enquirer
706 681-4014
chwilliams@ledger-enquirer.com
------------- _......
IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
UNITED STATES OF AMERICA,
*
*
vs.
CASE NO. 4:15-CR-37
SAWAN S. SHAH,
*
O R D E R
A reporter for the Columbus Ledger-Enquirer has requested

all character letters submitted to the Court on behalf of
Defendant prior to his sentencing hearing.
an important question.
This request raises
Does the publics right to know what a
sentencing judge relies on in his sentencing decision outweigh

the
privacy
candid
rights
assessment
of
of
citizens
a
who
criminal
voluntarily
defendants
share
character?
their
To
answer this question, the Court first places it in context by

describing
Defendants
sentencing
hearing.
identifies the various interests at stake.
The
Court
next
Finally, the Court
balances these interests and determines that the balance tilts

in favor of public disclosure of the letters.
DEFENDANTS SENTENCING
Defendant cashed 567 federal tax refund checks that he knew
had been fraudulently obtained.
As a result of the fraud, the
United States treasury lost $1,357,476.18.
For his services,
Defendant received fees ranging from ten to thirty-percent of
the
face
operating
value
an
of
the
unlicensed
checks.
money
violation of 18 U.S.C. 1960.

twenty-one
release.
the
U.S.
months
Defendant
pled
transmitting
guilty
to
business,
in
The Court sentenced Defendant to
imprisonment
and
three
years
of
supervised
The Court also ordered Defendant to pay restitution to

Internal
Revenue
Service
in
the
amount
of
$1,357,476.18.
Prior to Defendants sentencing hearing, the United States
Probation
Office
prepared
Presentence
Investigation
Report
(PSR), and both the Government and counsel for Defendant filed
sentencing memoranda.
Consistent with the Courts practice, the
PSR and the sentencing memoranda were only accessible to the

parties and the Court.
sentencing
probation.
hearing,
In his sentencing memorandum and at the
Defendants
counsel
sought
sentence
of
In support of the probation request, Defendants
counsel included twenty-four
letters (character letters) as
attachments to his sentencing memorandum and provided the Court

with one character letter on the morning of the sentencing.
The
character letters were from Defendants family members, business

associates, and close friends.
elected public officials.
Four of the letters were from
All of the character letters recite a
common themethat Defendant is a good man, that he generously

contributes to his community, that his criminal conduct is not
indicative
of
his
character,
and
that
he
should
receive
lenient sentence.
is
the
Sheriff
Only two of these letter writers, one of whom

of
Muscogee
County,
Georgia,
made
public
statement at Defendants sentencing hearing.

The Court determined that Defendants advisory guideline
sentencing
range
was
between
thirty
and
thirty-seven
months.
The Government filed a motion to reduce Defendants sentence to

a
range
of
twenty-one
to
twenty-seven
months
based
on
Defendants substantial assistance pursuant to 5K1.1 of the

United
States
Sentencing
Guidelines.
The
Court
granted
Governments motion for a three level downward departure.
the
Thus,
Defendants departure advisory guideline range became twenty-one

to twenty-seven months.
Defendant sought an additional downward
variance to probation.
In support of this downward variance,
Defendant relied in part on the character letters submitted with

his
sentencing
memorandum.
character
letters,
deserved
credit
(notwithstanding
certainly
did
Pointing
Defendants
for
his
not
counsel
having
aberrant
need
to
been
to
these
argued
such
criminal
go
to
impressive
that
model
conduct),
prison.
and
Defendant
citizen
that
Considering
he
the
sentencing factors set forth in 18 U.S.C. 3553(a), the Court

concluded
appropriate
probation.
that
and
an
additional
rejected
Instead,
downward
Defendants
the
Court
plea
variance
for
sentenced
him
was
sentence
within
not
of
the
departure advisory guideline range to a term of imprisonment of

twenty-one months.
DISCUSSION
After the sentencing hearing, a reporter from the Columbus
Ledger-Enquirer sent a letter to the Court requesting copies of
the
character
letters
sentencing hearing.
Defendant
had
provided
to
the
Court
prior
to
the
The reporter was aware of the support that
received
from
at
least
three
elected
public
officials because they were present at the sentencing hearing

and one of them, the Muscogee County Sheriff, actually spoke on
Defendants behalf.
The reporter also was aware of the letters
because the Court and Defendants counsel referred to them at

the
sentencing
interest
in
hearing.
this
character letters.
Contending
case,
the
that
reporter
the
seeks
public
access
has
to
an
the
The Clerk accepted the reporters letter and
docketed it as a motion to obtain access to the letters (ECF No.

20).
The Court provided the Government and Defendant with an
opportunity to respond.
The Government is in favor of public
disclosure, while Defendants counsel is not.

I.
The Interests of the Public and the Court

Several
whether
First,
the
the
proceedings
important
interests
character
public
are
letters
has
open
an
and
are
at
should
be
interest
transparent.
in
stake
in
publicly
assuring
The
deciding
disclosed.
that
federal
court
district
court is a public institution.

in
manner
particularly
that
allows
sensitive
to
Its business should be conducted
public
the
scrutiny.
need
for
The
openness
Court
in
is
criminal
proceedings in which the people of the United States through

their United States Attorney seek to deprive a defendant of his
freedom
because
States.
When
he
a
violated
citizen
the
is
criminal
found
law
guilty
of
of
the
United
crime,
the
punishment he receives certainly has the most direct impact on

himself, his family, and his close friends.
But it also impacts
the
to
public.
The
public
has
the
right
know
how
their
government exercises its strongest swordthe power to take away

a citizens liberty.
Consequently, sentencing hearings are held
in open public courtrooms and not in secret chambers.
No one
can legitimately dispute the strong interest of assuring public

access to the sentencing process.
While
proceedings
sacrosanct.
the
is
publics
compelling
right
and
to
open
often
access
to
indisputable,
sentencing
it
is
not
The Court has a legitimate interest, under certain
circumstances, in not disclosing publicly every aspect of the

sentencing
process.
sentencing
judge
by
For
the
example,
United
the
States
generally not available to the public.
PSRs
provided
Probation
to
the
Office
are
See e.g., United States
v. Williams, 624 F.3d 889, 894 (8th Cir. 2010) (requiring a

showing of special need before a PSR may be released to a third
party); United States v. Wayne, 591 F.3d 1326, 1334 n.7 (10th
Cir. 2010) (explaining that disclosure of a PSR must serve the
interests of justice); United States v. Charmer Indus., Inc.,
711 F.2d 1164, 1175 (2d Cir. 1983) (disclosing a PSR is not
appropriate absent compelling need to satisfy ends of justice).
The judge may disclose certain parts of the PSR during a public
sentencing, but there are items in those reports that are never
disclosed to the public, and legitimate reasons exist for such
confidentiality.
It may be inappropriate and unnecessary for
the public to know sensitive information about a defendants

involvement with innocent third parties.
And it may even be
inappropriate and unnecessary for the public to know personal

details about a defendants past, such as whether he was abused,
how
he
Thus,
was
the
treated
Court
by
has
his
the
parents,
authority
or
to
his
medical
history.
legitimately
restrict
public access to certain information even if it is reviewed by

the sentencing judge prior to sentencing a defendant.
The Court also has an interest in reasonably assuring that
it
has
the
best
available
sentencing discretion.
public
could
have
information
when
exercising
its
Requiring that character letters be made

chilling
effect
on
the
willingness
of
individuals to provide candid assessments about a defendants

character,
insight
thus
into
the
depriving
the
defendants
sentencing
character,
judge
which
of
the
valuable
sentencing
judge must evaluate as part of the sentencing process.
See 18
U.S.C. 3553(a)(1).
II.
The Privacy Interest of the Letter Writers

Although
the
Court
has
not
asked
the
authors
of
the
character letters if they object to the public disclosure of

their
letters,
Defendants
counsel
does
object.
And
it
is
reasonable to conclude that a private citizen may not wish for

his candid assessment of the character of someone convicted of a
crime to become part of the public domain.
Even if the authors
stand steadfastly by their letters, they may not look forward to

the prospect of their identities being disclosed to every selfappointed critic who has access to the internet.
The Court has re-read all of the character letters in this
case and finds that they do not include information that would
be unduly embarrassing or personally intrusive to the authors of
the letters or third parties.
The absence of such information
diminishes the privacy interest that the authors may have in the
letters.
The Court further finds that the four public officials
who wrote letters in support of Defendant have an even lesser

expectation of privacy.
III. Balancing the Interests
A
strong
interest
exists
in
assuring
district court is open and transparent.

for
the
public
to
know
what
information
that
the
federal
It is also important
a
sentencing
judge
relies on in reaching his sentencing decision.
That importance
is heightened when elected officials provide character letters

in an attempt to influence a sentencing decision.1
Balancing
these
important
interests
with
the
interests
associated with keeping the character letters confidential, the

Court finds that the public should have access to the contents
of the character letters and that the identities of the public
officials who authored letters should be revealed.
The Court
finds, however, that the identities of the private citizens who

authored letters should not be disclosed.
The public will be
able to read what these private citizens said about Defendant

and the basis for their assessment of his character, including
their association with him.
This provides the public with the
information that was supplied to the Court when it sentenced

Defendant.
By
redacting
the
names
of
the
private
citizen
authors, the Court protects their privacy and also reduces the
potential
cause.
future
chilling
effect
that
broader
order
could
The Court does recognize that an elected public official
occupies a position different than a private citizen, and that a

public
officials
expectation
of
privacy
is
significantly
diminished compared to that of a private citizen.
Therefore, it
is appropriate for their identities to be revealed.

1
The Court hastens to add that it does not imply that these public
officials did anything wrong by submitting letters regarding their
personal knowledge of the Defendants character. But the public does
have the right to know that they did so.
CONCLUSION
Under
the
particular
circumstances
of
this
case,
the
publics interest in transparent sentencing procedures outweighs

the interests of the authors of the character letters in keeping
their letters private, particularly given that the identities of
the private citizen authors will not be disclosed.
further
finds
that
disclosure
of
the
letters
in
The Court
the
manner
prescribed here will not otherwise have an adverse impact on the

sentencing process.
Therefore, the Court has included as an
Appendix to this Order the character letters with the identities

of the authors who are not public officials redacted.
IT IS SO ORDERED, this 4th day of February, 2016.

S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
Case 4:15-cr-00037-CDL-MSH Document 27-1 Filed 02/04/16 Page 1 of 29

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Case 4:15-cr-00037-CDL-MSH Document 20 Filed 01/27/16 Page 1 of 1

pi.:..... ....., "'- ,\.it.--,.-,

U.S. District Court Judge Clay D. Land

Re: UNITED STATES OF AMERICA v. SHAH

Case 4:15-cr-00037-CDL-MSH Document 27 Filed 02/04/16 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

CASE NO. 4:15-CR-37

A reporter for the Columbus Ledger-Enquirer has requested

This request raises

Does the publics right to know what a

sentencing judge relies on in his sentencing decision outweigh

answer this question, the Court first places it in context by

identifies the various interests at stake.

Finally, the Court

balances these interests and determines that the balance tilts

As a result of the fraud, the

United States treasury lost $1,357,476.18.

For his services,

Defendant received fees ranging from ten to thirty-percent of

Case 4:15-cr-00037-CDL-MSH Document 27 Filed 02/04/16 Page 2 of 9

violation of 18 U.S.C. 1960.

The Court sentenced Defendant to

The Court also ordered Defendant to pay restitution to

Consistent with the Courts practice, the

PSR and the sentencing memoranda were only accessible to the

In his sentencing memorandum and at the

In support of the probation request, Defendants

counsel included twenty-four

letters (character letters) as

attachments to his sentencing memorandum and provided the Court

character letters were from Defendants family members, business

Four of the letters were from

All of the character letters recite a

common themethat Defendant is a good man, that he generously

Case 4:15-cr-00037-CDL-MSH Document 27 Filed 02/04/16 Page 3 of 9

Only two of these letter writers, one of whom

statement at Defendants sentencing hearing.

The Government filed a motion to reduce Defendants sentence to

Defendants substantial assistance pursuant to 5K1.1 of the

Governments motion for a three level downward departure.

Defendants departure advisory guideline range became twenty-one

Defendant sought an additional downward

In support of this downward variance,

Defendant relied in part on the character letters submitted with

sentencing factors set forth in 18 U.S.C. 3553(a), the Court

Case 4:15-cr-00037-CDL-MSH Document 27 Filed 02/04/16 Page 4 of 9

departure advisory guideline range to a term of imprisonment of

The reporter was aware of the support that

officials because they were present at the sentencing hearing

The reporter also was aware of the letters

because the Court and Defendants counsel referred to them at

The Clerk accepted the reporters letter and

docketed it as a motion to obtain access to the letters (ECF No.

The Court provided the Government and Defendant with an

The Government is in favor of public

disclosure, while Defendants counsel is not.

The Interests of the Public and the Court

Case 4:15-cr-00037-CDL-MSH Document 27 Filed 02/04/16 Page 5 of 9

court is a public institution.

Its business should be conducted

proceedings in which the people of the United States through

punishment he receives certainly has the most direct impact on

But it also impacts