United States District Court, E.D. California
ORDER DENYING WITHOUT PREJUDCIE DEFENDANT ARA G.
DOLARIAN’s EX PARTE APPLICATION TO UNSEAL SEIZURE
WARRANT PURSUANT TO FED. R. CRIM. P. 41(G) (DOC. 50)
K. OBERTO UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION AND BACKGROUND
October 9, 2015, Plaintiff Societe d’Equipments
Internationaux Nigeria, Ltd. (“SEI”) filed a
complaint against Defendants Dolarian Capital, Inc.
(“DCI”), and Ara G. Dolarian
“Defendants”). (Doc. 1
(“Complaint”).) On November 18, 2015, proceeding
pro se, Dolarian filed an answer “by and for
himself and on behalf of [DCI], ” a Counterclaim for
breach of contract against SEI, and a third-party complaint
against Amanda Giovanni, a defense contractor. (Docs. 11
(“Answer”); 12 (“Counterclaim”).) On
November 30, 2015, this Court struck the answer as to DCI
pursuant to Local Rule 183(a), which prohibits a corporation
or other business entity from appearing in federal court
without counsel, and entered default against DCI. (Docs. 15;
16.) On February 17, 2016, the Court dismissed the
Counterclaim. (Docs. 23; 26.)
26, 2016, Dolarian filed an “ex parte application to
unseal seizure warrant under FRCP 41(G) and U.S.
Constitution, ” seeking access to inspect and copy the
affidavit and other documents upon which a February 2015
warrant had been based. (Doc. 50 (Ex Parte Application
(“Application”).) The warrant was served upon
three banks in February 2015 and an unspecified number of
funds -- allegedly including those funds paid by SEI to DCI
in the underlying contracts -- were seized by the government.
(Doc. 51 (Declaration of Ara G. Dolarian).) Though a civil
forfeiture proceeding commenced against the seized funds, no
indictment proceedings have yet commenced against Dolarian.
(Appl., p. 2.)
district court has inherent power to seal affadavits filed
with the court in appropriate circumstances. Offices of
Lakeside Non-Ferrous Metals, Inc. v. U.S., 679 F.2d 778,
779 (9th Cir. 1982) (citing In re Sealed Affidavit(s) to
Search Warrants, 600 F.2d 1256 (9th Cir. 1979)). See
also In re Newsday, Inc., 895 F.2d 74, 79 (2d Cir.),
cert. denied, 498 U.S. 892 (1990) (whether to seal a
search warrant document lies within the discretion of the
court); Matter of Searches of Semtex Indus. Corp.,
876 F.Supp. 426, 429 (E.D.N.Y. 1995) (same). The court,
however, is obligated to entertain requests for access to
sealed documents. See Newsday, 895 F.2d at 79;
Semtex, 876 F.Supp. at 429.
Ninth Circuit has considered arguments under the First
Amendment, common law, and Fed. R. Crim. P. Rule 41(g) to
unseal warrant applications “during the pre-indictment
stage of an ongoing criminal investigation.” Times
Mirror Co. v. United States, 873 F.2d 1210, 1221 (9th
Cir. 1989), cert. denied, 498 U.S. 880 (1990). The Times
Mirror court refused to find any public
“right of access to search warrant proceedings and
materials when an investigation is ongoing but before
indictments have been returned.” Id. at 1218.
However, there exists a private “right of
access under the Fourth Amendment to the affidavit in support
of the search warrant” during the pre-indictment stage,
which vests in the individual or entity whose property was
seized. See In re Searches and Seizures, Nos.
08-SW-0361 DAD, 08-SW-0362 DAD, 08-SW-0363 DAD, 08-SW-0364
DAD, 2008 WL 5411772 (E.D. Cal. Dec. 19, 2008) (collecting
right of pre-indictment access to search warrant affidavits
is not absolute but may be denied where a compelling
governmental interest is demonstrated requiring that the
materials be kept under seal. Id. In this regard, it
has generally been recognized that in order to prevent the
search subject from inspecting the contents of the supporting
affidavit, the government must demonstrate to the court that
a compelling government interest requires the materials to be
kept under seal and that there is no less restrictive means,
such as redaction, capable of serving that interest. In
re Search Warrants Issued on April 26, 2004, 353
F.Supp.2d 584, 591 (D. Md. 2004) (citing United States v.
Oliver, 208 F.3d 211, 2000 WL 263954, *2 (4th Cir. 2000)
and In re Search Warrants Issued August 29, 1994,
889 F.Supp. 296, 299(S.D. Ohio 1995)).
asks this Court to order the unsealing of affidavit(s), and
supporting documents, filed in other matters within this
Courthouse (see Appl., Exh. A), that may or may not
be related to the underlying breach of contract in this
action. However, the mechanism for such relief is unclear.
than filing an application to unseal the affidavits submitted
in support of the search warrants executed at
Dolarian’s various banking institutions on the dockets
of those search warrants, Dolarian seeks to conflate the
various cases in which he is involved and is asking the
undersigned -- who is presiding over the civil action
proceeding against Dolarian and his corporation DCI -- to
order the affidavits unsealed. Dolarian has not offered any
authority compelling the Court to take such action and the
undersigned declines to do so.
undersigned does not make any finding as to whether Dolarian
is precluded from bringing such an application in any one of
the several warrant proceedings regarding the seizure of funds
from his various banking institutions or seizure of other
documents and materials from any properties. Nor does the
undersigned make any finding as to whether the Government has
an articulable need for continued secrecy in a complex
federal investigation prior to indictment or need to protect
the identities of undercover agents and persons cooperating
with the investigation sufficient to preclude disclosure of
the affidavit(s). See Semtex Indus., 876 F.Supp. at
429. Finally, the undersigned makes no finding that a renewed
request in this matter could be entertained at a later date
-- provided authority was cited to demonstrate the
undersigned could grant such relief -- as disclosure of
materials to which Defendants have a cognizable right of
access should not be postponed indefinitely. See id.
IT IS ORDERED that Defendant Ara Dolarian’s ex parte
application to unseal the warrant ...