meldrum argument

7/30/2019 Meldrum Argument

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA

v. CRIMINAL NO. H-12-272-20

JAMES M. MELDRUM

MOTION TO UNSEAL GUILTY PLEA HEARING

James M. Meldrum, defendant, files this Motion to Unseal the Guilty

Plea Hearing held on January 31, 2013, and states:

Facts

1. Mr. Meldrum pleaded guilty to the indictment on January 31, 2013.

He did not have a plea agreement and is not in co-operation with the United

States. Present at Mr. Meldrums hearing was another defendant in this case

who also entered a plea. Mr. Meldrum and his counsel were not aware that

the other defendant was co-operating with the United States. Defendants

first knowledge of this was at the conclusion of his plea when the Court

continued with the colloquy relating to a plea agreement with the other

defendant. At the conclusion of the hearing the Assistant United States

Attorney moved to seal both pleas and the Motion was granted. No factual

findings were entered to support the motion. Defendant Meldrum did not

join in the governments motion.

Case 4:12-cr-00272 Document 463 Filed in TXSD on 02/20/13 Page 1 of 8


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2. After the Court retired, the Assistant United States Attorney told

defense counsel that it was his plan to seal all plea hearings without regard

to co-operation, or lack thereof, in this complex case. He further explained

that this would shield co-operators from retaliation in prison. During a later

telephone conversation about this motion, after defense counsel stated that

this plan would subject Mr. Meldrum to the same retaliation as co-operators,

the Assistant United States Attorney told defense counsel that he was

unconcerned about the effect on Mr. Meldrum because he was a member of

a violent criminal gang, and that his concern was only in protecting co-

operating defendants.

Argument

3. The sealing of the defendants guilty plea is a violation of the First

and Sixth Amendments to the United States Constitution. The right to an

open public trial is a shared right of the accused and the public. Press

Enterprise Co. v. Superior Ct. 478 U.S.1 (1986). A public trial encompasses

more than hearings in front of a jury. This right encompasses other hearings,

such as preliminary hearings, id., suppression hearings, Waller v. Georgia,

467 U.S. 39 (1984), and voir dire. Indeed, the absence of a jury, long

recognized as an inestimable safeguard against the corrupt of overzealous



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prosecutor and against the compliant, or eccentric judge, Duncan v.

Louisiana, 391 U.S. 145,156 (1968), makes public access to preliminary

hearings even more significant. A guilty plea is the ultimate resolution of

the contested issue, no different in effect than a jury trial and verdict or a

substantive pretrial motion such as a motion to suppress.

4. For the United States to prevail in its attempt to seal Mr. Meldrums

plea, its justification must be a weighty one. It must show that the sealing

and denial of public access to the hearing and record is necessitated by a

compelling governmental interest and is narrowly tailored to serve that

interest. Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 561 (1982),

citing Brown v. Hartledge, 456 U.S. 45, 53-54 (1982). In this case the

government has no compelling interest. Mr. Meldrum has no agreement

with the government. He is not a co-operating defendant providing secret

evidence to be used against others. The government may have an interest in

protecting such informer-defendants in their cases, but that is not the issue

here. However, in this case the United States has, by its violation of the

defendants Sixth Amendment public trial right, knowingly placed the

defendant at risk of harm in prison. The government believes that a sealed

plea will be interpreted by others as evidence of co-operation. By sealing



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every plea in this complicated case it hopes to confuse those that would

retaliate against informers. Mr. Meldrum has done nothing to justify this

added risk to his safety. He is, in effect, a human shield created by the

United States to protect its informants. This is an attempt to punish Mr.

Meldrum for not informing and is prohibited by U.S.S.G. 5K1.2.

5. Judge Alvin Rubin of the Fifth Circuit summed up the defendants

right best in Rovinsky v. McKaskle, 722 F.2d 1183, 1184 (1984), stating:

The right to a public trial is prophylactic. It is not merely a

safeguard against unfair conviction. Open trials play a

fundamental role in furthering the efforts of out judicial system

to assure the criminal defendant a fair and accurate adjudication

of guilt or innocence.[] A public trial protects the right of the

accused to have the public know what happened in court; to let

the citizenry weigh his guilt or innocence for itself, whatever

the jury verdict; to assure that the proceedings employed are

fair. Thus, the right is both primary and instrumental: not

merely a method to assure that nothing untoward is done

clandestinely but a guarantee against the very conduct of

private hearings. It is a check on judicial conduct and tends to

improve the performance of the parties and the judiciary.[]

Even absent a showing of prejudice, infringement of the right to

a public trial exacts reversal as a remedy. Citations omitted.

The United States has violated Mr. Meldrums Sixth Amendment right to a

public trial and interfered with the public scrutiny that is normal for the press

and private citizens in violation of the First Amendment. They have not

even attempted to offer the Court any facts necessary to justify a



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compelling government interest. Indeed the rationale advanced by the

Assistant United States Attorney violates the very principle that they claim,

keeping prisoners safe in custody. They have the same obligation to Mr.

Meldrum as they do to any co-operating witness.

WHEREFORE, James R. Meldrum requests that the Court unseal Mr.

Meldrums portion of the guilty plea hearing held on January 31, 2013.

Respectfully submitted,

/s/ Richard O. Ely II

RICHARD O. ELY II

Attorney for Defendant

Richard O. Ely II, P.L.L.C.

Southern District of Texas No. 1294

Texas Bar No. 06595500

5090 Richmond Avenue, Suite 539

Houston, Texas 77056

Telephone: 713-524-3443

E-mail [email protected]

CERTIFICATE OF CONFERENCE

I certify that I have discussed this motion with Assistant United States

Attorney Jay Hileman and he has indicated that the government is opposed

to this motion.


RICHARD O. ELY II



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CERTIFICATE OF SERVICE

I certify that on February 21, 2013, a copy of this Request for Travel

Permit was served by notice of electronic filing upon all parties of record.


RICHARD O. ELY II



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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA

v. CRIMINAL NO. H-12-272-20

JAMES M. MELDRUM

ORDER

The Motion to Unseal the Guilty Plea Hearing of JAMES M.

MELDRUM is GRANTED/DENIED/set for hearing on ____________,

2013.

SIGNED at Houston, Texas on ____________________, 2013.

______________________________

SIM LAKE

UNITED STATES DISTRICT JUDGE


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