United States v. HSBC Bank USA, N.A.
2017 U.S. App. LEXIS 12412
| 2d Cir. | 2017Background
- In December 2012 the Department of Justice and HSBC entered a five-year Deferred Prosecution Agreement (DPA) resolving alleged Bank Secrecy Act and sanctions violations; the DPA required an independent Monitor to prepare confidential periodic reports.
- The government filed a four-count information and asked the district court to exclude the DPA period from the Speedy Trial Act clock under 18 U.S.C. § 3161(h)(2).
- The district court (E.D.N.Y.) sua sponte invoked its supervisory power, "approved" the DPA, and conditioned approval on the court’s continued monitoring, ordering quarterly filings and the submission of the Monitor’s Report to the court.
- The government filed the Monitor’s Report under seal; a member of the public moved to unseal. The district court treated the Monitor’s Report as a "judicial document," ordered partial unsealing with redactions, and stayed its order pending appeal.
- The government and HSBC appealed, arguing the district court improperly intruded on executive prosecutorial discretion and that the Monitor’s Report is not a judicial document subject to presumptive public access.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Moore / Public) | Held |
|---|---|---|---|
| Whether the district court may exercise a freestanding supervisory power to monitor implementation of a DPA | District court lacks authority to supervise prosecutors’ out-of-court implementation of a DPA absent evidence of impropriety; presumption of regularity protects prosecutorial decisionmaking | Court may invoke supervisory power to ensure DPA implementation remains lawful and to protect court integrity | District court erred: no freestanding supervisory power to monitor a DPA absent unusual showing of misconduct |
| Whether § 3161(h)(2) authorizes ongoing judicial oversight of DPAs when approving a speedy-trial exclusion | § 3161(h)(2) permits only a limited, initial inquiry into whether the DPA is bona fide (a genuine diversion), not substantive ongoing oversight | The statute’s "approval" language supports court involvement and ongoing supervision to prevent circumvention of speedy-trial limits | Held for limited view: courts may determine a DPA is bona fide for Speedy Trial Act purposes but may not exercise ongoing substantive oversight absent clear congressional direction |
| Whether the Monitor’s Report is a "judicial document" subject to presumptive public access | The Monitor’s Report is an executive prosecutorial document; it informs executive charging/dismissal decisions and is not presently relevant to the court’s functions | Public interest and the court’s potential future role (Rule 48 motions, breach adjudication) make the report judicial and subject to access | The Monitor’s Report is not a judicial document now and thus not subject to presumptive public access |
| Whether speculative future relevance (e.g., Rule 48 motions or breach litigation) makes the Report judicial now | Government: speculative relevance insufficient; filing was compelled by an improper exercise of supervisory power | Moore: future proceedings (dismissal with court leave or breach adjudication) could make the Report central to judicial decisionmaking | Court: speculative future relevance does not convert the Report into a judicial document at present; unsealing order reversed |
Key Cases Cited
- Zedner v. United States, 547 U.S. 489 (Speedy Trial Act trial-timing rule)
- Wayte v. United States, 470 U.S. 598 (prosecutorial charging discretion and nonjusticiability of certain prosecutorial choices)
- Armstrong v. United States, 517 U.S. 456 (presumption of regularity for prosecutorial decisions)
- United States v. Payner, 447 U.S. 727 (scope of supervisory power to supervise administration of criminal justice)
- McNabb v. United States, 318 U.S. 332 (historical supervisory authority regarding administration of criminal justice)
- Lugosch v. Pyramid Co. of Onondaga, 436 F.3d 110 (2d Cir.) (test for when a filed item is a "judicial document")
- Amodeo v. United States (Amodeo I), 44 F.3d 141 (2d Cir.) (when court-related reports are judicial documents)
- United States v. Erie County, New York, 763 F.3d 235 (2d Cir.) (compliance reports judicial where settlement empowered court oversight)
- United States v. Fokker Servs. B.V., 818 F.3d 733 (D.C. Cir.) (§ 3161(h)(2) does not authorize courts to second-guess executive charging decisions or to impose ongoing oversight of DPAs)