From Judge Kevin Castel’s opinion Friday in United States v. Da Costa (S.D.N.Y.):
Non-party Leslie Nelson … moves to redact or anonymize all references to him contained in the government’s memorandum of law in opposition to defendant’s post-trial motions and the Court’s Opinion and Order of February 14, 2025 [available here -EV] …. Nelson also seeks an Order requiring the parties to anonymize future references to him in public filings and to seal his own filings in support of this motion…. [T]he Court concludes that the right of public access significantly outweighs the countervailing interests identified by Nelson. His sealing motion will be denied.
Familiarity with the charges against Wilson Da Costa and the underlying proceedings is assumed. On November 18, 2024, a unanimous jury found Da Costa guilty of one count of wire fraud and two counts of aggravated identity theft. On March 16, 2025, the Court sentenced Da Costa principally to a term of 84 months’ imprisonment. The charges against Da Costa related to the forgery of certain letter-agreements that were necessary to facilitate the so-called Angola Fast Power Deal. At the time, Da Costa was an executive at General Electric (“GE”), and one witness described him as GE’s “leader” in Angola.
Nelson was Da Costa’s manager at GE. The Opinion and the government’s memorandum of December 20, 2024 summarized some of the trial evidence concerning Nelson. Nelson and Da Costa participated in group text messages with the founder of AEnergia, Ricardo Machado. As recounted in the Opinion, the government submitted evidence that Da Costa and Nelson expected Machado to compensate them with side-payments for their work facilitating the Angola Fast Power Deal. Text messages received into evidence reflected frustration by Da Costa and Nelson that Machado did not pay them more than $5 million each. The Opinion quoted extensively from those messages.
Witnesses referenced Nelson throughout the trial, due in part to his position in GE’s corporate hierarchy, his involvement in the Angola Fast Power Deal, and his inclusion in group emails about the underlying transaction. By the Court’s count, eight trial witnesses referred to Nelson, and his name or image appeared in numerous trial exhibits. Da Costa also mentioned Nelson by name in his post-arrest interview and an audio recording of Nelson’s voice was received into evidence. The Court received into evidence portions of text messages between Da Costa, Nelson and Machado.
Nelson states that friends, acquaintances and business colleagues have questioned him about the references to him contained in the Opinion and the government’s post-trial memorandum. Nelson states that he previously had been contacted about his possible interest in seeking a position as a “high-level corporate officer” but that an attorney who conducted a background check on Nelson’s behalf recommended that he withdraw due to publicity about this case.
Nelson states that a reporter at a well-known African business publication has asked to interview him. He states that he is “concerned” that the references to him on the public docket will irreparably harm his reputation, damage his business and employment prospects and affect his family members. He urges that he has a strong privacy interest in redacting or anonymizing references to him in filings to the public docket, as well as a due process interest in not being associated with participation in an uncharged crime.
“Judicial documents are subject at common law to a potent and fundamental presumptive right of public access that predates even the U.S. Constitution.” “Circuit precedent further establishes that the public’s presumptive right of access to judicial records is also independently secured by the First Amendment.” … Indeed, “a presumption of openness inheres in the very nature of a criminal trial under our justice system.” “[S]uch access is critical as it enables the public to monitor the actions of the courts and juries to ensure ‘a measure of accountability’ and bolster ‘confidence in the administration of justice.'”
Nelson urges that the interests of privacy and due process outweigh any presumption of public access in this case. He principally relies on In re Smith (5th Cir. 1981), which ordered on a writ of mandamus the anonymization of a third party identified as the recipient of bribery payments in the government’s written submissions at defendant’s plea hearing. Media reports then identified the recipient and his employer refused him certain retirement benefits as a result. The Fifth Circuit concluded that the petitioner’s economic and reputational interests had been harmed, and that “no legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights.” “It is equally clear that Petitioner’s name was not implicated during either of the District Court’s procedural obligations under Rule 11 to determine the factual basis for the defendant’s pleas of guilty.” The Fifth Circuit characterized the use of the petitioner’s name as an “attack” on his “character” and “good name” that did not “afford[ ] him a forum for vindication.”
Nearly thirty years later, the Fifth Circuit distinguished Smith in affirming a district court’s ruling that denied sealing or redaction of a non-party applicant named in briefing over the admission of out-of-court statements by co-conspirators under United States v. Holy Land Foundation for Relief & Development (5th Cir. 2010). Though the district court concluded that the applicant’s due process rights had been violated, it declined to expunge references to the applicant. The Fifth Circuit affirmed, noting that it had never adopted the proposition that a person could not be implicated as a possible co-conspirator in another’s criminal case. In the context of briefing about the admissibility of co-conspirator statements, the third-party applicant was identified “in furtherance of a legitimate purpose,” supporting the conclusion that the right of public access outweighed the privacy interests of co-conspirators.
Of course, these Fifth Circuit decisions are not binding on this Court, and are afforded persuasive weight. Nelson cites no comparable decisions from the Second Circuit, which has repeatedly emphasized the robust right of public access to judicial documents. “Without monitoring … the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions.” Public access to a criminal trial has especially significant value.
But even applying the Fifth Circuit’s decisions in Smith and Holy Land Foundation, Nelson has not demonstrated a compelling interest that outweighs the presumption of public access. The text exchanges involving Nelson were received into evidence as co-conspirator statements made in furtherance of an uncharged honest services fraud conspiracy and were admitted under Rule 801(d)(2)(E). The Fifth Circuit’s Holy Land Foundation decision held that briefing on the admissibility of such statements had a legitimate purpose and that the presumption of public access outweighed the applicant’s privacy interests.
Here, the right of public access is even weightier because evidence regarding Nelson was presented to a jury as part of a public trial. The summary of this evidence contained in the government’s memorandum and the Opinion were important to the adjudication of Da Costa’s post-trial motion brought pursuant to Rules 29 and 33, Fed. R. Crim. P. Nelson’s name was used for a legitimate purpose as part of the judicial function, as opposed to the stray references constituting a public smear, as described in Smith. The privacy and due process interests invoked by Nelson do not outweigh the strong right of public access to the full contents of the government’s post-trial briefing and the Court’s adjudication of Da Costa’s motion.
While Nelson has not demonstrated that redaction or anonymization is appropriate, the Court emphasizes that the government brought no charge against Nelson in this case and that the jury’s finding of guilt as to Da Costa ought not be understood as a finding of criminal conduct on the part of Nelson.
I asked Mr. Nelson’s lawyer for a response, and he wrote:
I think Judge Castel’s decision was logical and fair. Notwithstanding that the decision went against Mr. Nelson, the last paragraph of the opinion was a victory for him. The reason I made the motion was that the government’s opposition to Da Costa’s post-trial motions discussed alleged wrongdoing that Nelson did with Da Costa, and the judge’s decision on those motions made it look like he made factual findings as to acts Nelson did that can be considered wrongdoing. I maintained that wasn’t fair because Nelson never had an opportunity to contest the facts as he wasn’t a party to the case. As a result his reputation will be damaged especially among laypersons who don’t know that the factual findings apply only to DaCosta, not Nelson. The judge made that fact crystal clear in the penultimate paragraph:
While Nelson has not demonstrated that redaction or anonymization is appropriate, the Court emphasizes that the government brought no charge against Nelson in this case and that the jury’s finding of guilt as to Da Costa ought not be understood as a finding of criminal conduct on the part of Nelson.
If you’re interested in Mr. Nelson’s side of the anonymization argument, you can see the memorandum supporting the motion; an excerpt:
Public allegations by the government that an unindicted party engaged in criminal wrongdoing implicates due process concerns for that party. As one court observed, “no legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights.” In re Smith (5th Cir. 1981). The Department of Justice recognizes that salient principle and admonishes its prosecutors “to remain sensitive to the privacy and reputation interests of uncharged parties.” “In the context of public plea and sentencing proceedings, this means that, in the absence of some significant justification, it is not appropriate to identify (either by name or unnecessarily specific description), or cause a defendant to identify, a party unless that party has been publicly charged with the misconduct at issue.”
In this case, before trial, the government identified Mr. Nelson as an unindicted coconspirator, but never by name in public filings. In all pretrial filings, the government scrupulously referred to Mr. Nelson as “GE Employee-1,” consistent with the Justice Manual’s guidance. At trial, however, the government publicly identified Mr. Nelson as an unindicted coconspirator in order to admit Mr. Nelson’s out-of-court statements, including in text messages and emails, at trial. In addressing whether a remedy is warranted for a third party publicly identified as an unindicted coconspirator, courts generally have balanced the interests of the third party against the government’s interests. If there is a legitimate government interest in publicly naming the uncharged party, such as at trial for evidentiary purposes, courts generally deny the third party any remedy. Where, as here, the government has no legitimate reason to identify the third party in non-trial public filings, or its interest is outweighed by the third party’s privacy and reputational interests, courts have stricken references to the third party.
Given the important governmental interest in proving its case at trial, which includes the admitting co-conspirator statements into evidence under Fed. R. Evid. 801(d)(2)(e), Mr. Nelson does not seek to redact or anonymize his name in trial transcripts or exhibits. Instead, he requests that his name be redacted or anonymized in post-trial filings, including in the Government’s Opposition Brief and in the Court’s Opinion. The Government’s Opposition Brief refers to Mr. Nelson 11 times, each publicly implicating him in specific criminal conduct. The government has no articulable interest in publicly accusing Mr. Nelson of wrongdoing in its post-trial motion papers. Indeed, Mr. Da Costa’s post-trial motion papers do not mention Mr. Nelson even once, and none of the government’s arguments in its Opposition Brief require specifically mentioning Mr. Nelson’s name. Indeed, ten of the eleven references to Mr. Nelson in the Government’s Opposition brief appear in the factual background section.
The fact that Mr. Nelson’s name has already appeared in trial exhibits or was previously referred to in witness testimony should not affect the analysis here. Republicizing the allegation that Mr. Nelson engaged in criminal wrongdoing, whether in post-trial motions or at sentencing, unwarrantedly causes damage to Mr. Nelson’s reputation and impacts his ability to do business, earn a living, and support his family. The newly publicized allegations of Mr. Nelson’s wrongdoing can reach new audiences who did not attend or follow the trial. Moreover, there is no explanation in the Government’s Opposition Brief that: (i) Mr. Nelson was not charged with any crime; (ii) as a result, Mr. Nelson has no forum to contest or otherwise address the allegations in the Government’s Opposition Brief; and (iii) the allegations in that brief are relevant only to the case against Mr. Da Costa and in responding to Mr. Da Costa’s motions, but have no legal significance whatsoever as to Mr. Nelson.
The government’s specific references to Mr. Nelson in its Opposition Brief resulted in Mr. Nelson being named in the Court’s Opinion, which reflects the Court’s finding that Mr. Nelson received a $5 million kickback for his involvement in the Angola Fast Power Deal. While this and other findings involving Mr. Nelson in the Court’s Opinion concern Mr. Da Costa’s motion only, laypersons who review the Court’s Opinion likely will not understand that Mr. Nelson: (i) was not charged with the offense; (ii) has no forum in which to contest the government’s allegations or the Court’s findings; and (iii) the Court’s findings have no legal significance whatsoever as to Mr. Nelson.
The Court’s Opinion and the Government’s Opposition Brief has been disseminated in Mr. Nelson’s business circles, and Mr. Nelson’s associates and colleagues have expressed concern about the Court’s findings and the government’s arguments. Furthermore, after reviewing the Court’s Opinion and the Government’s Opposition Brief, a close friend and advisor of Mr. Nelson recommended that he not pursue a position as a corporate officer because a background investigation by the prospective employer will uncover those documents. In addition, since last week, a reporter has repeatedly contacted Mr. Nelson for comment regarding the references to him in the Court’s Opinion and the Government’s Opposition Brief. Mr. Nelson is understandably troubled by the potential injury to his reputation from being identified in those documents as having participated in criminal wrongdoing with Da Costa. He fears that any future filings in this case might further besmirch his reputation and adversely impact his business and employment prospects.
Now that the trial is over and the government was able to use Mr. Nelson’s statements to prove its case against Mr. Da Costa, the republishing of evidence that Mr. Nelson participated in crimes—without any present government interest in doing so—militates in favor of redacting or anonymizing all references to Mr. Nelson in the post-trial documents that already have been filed, and in the parties’ future filings in this case, including sentencing submissions.
