Metropolitan News-Enterprise

 

Wednesday, November 10, 2021

 

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Ninth Circuit:

Maintaining Old Press Releases on Website Telling of Crimes Doesn’t Invade Privacy

 

By a MetNews Staff Writer

 

The Ninth U.S. Circuit Court of Appeals yesterday denied the bid by a Los Angeles County resident for reinstatement of his action to force the U.S. Department of Justice and the Federal Bureau of Investigation to remove from their websites four press releases issued between 2007 and 2011 telling of the prosecution, conviction, and sentencing of him for mortgage fraud.

Identified in the civil action as “John Doe,” he contended that maintaining the press releases on the websites invades his right to privacy. That contention and others were rejected in an opinion by District Court Judge David A. Ezra of the District of Hawaii, sitting by designation.

“Doe” said in his complaint, filed by Pasadena attorney Richard G. Novak:

“Plaintiff pled guilty over a decade ago to allegations of non-violent federal crimes related to purported mortgage fraud, the conduct at issue itself occurring nearly twenty (20) years ago. Plaintiff served a brief term of imprisonment, which ended with his release in 2014. His post-release supervision ended in 2017. Plaintiff paid all restitution ordered by this Court. Both before and since his alleged fraudulent criminal conduct nearly twenty (20) years ago. Plaintiff has not been implicated in any other criminal behavior of any sort at any time in his life. Plaintiff indisputably has fully paid his debt to society.”

It continues:

“However, as a result of the ubiquitous nature of the internet, and the ease of availability to anyone of the preserved digital information—the subject press releases—related to those long-ago events, Plaintiff has been unfairly subjected to arbitrary, oppressive, unfair and unintended stigma and impairment of his right and ability to lead a productive life. The stale press releases regarding Plaintiffs indictment, unilaterally issued by a press officer for the federal government years ago, are still continuously maintained in an open digital space easily accessible to anyone with a Wi-Fi connection, without any applicable legal standards or requirements as to their maintenance, preservation and availability to the public at large. As a result, a simple Google search of Plaintiff by any person interested in any aspect of Plaintiff s life yields immediately the decades-old press releases about Plaintiffs alleged conduct, long-since fully punished, yet immortalized as a functional scarlet letter and a form of ‘digital punishment,’ despite the absence of any intention by the sentencing court that he be subjected to such punishment at all. let alone for the rest of his life.” The complaint says the plaintiff has suffered emotional distress, humiliation, and loss of business opportunities as a result.

Carney’s Ruling

His claims were dismissed without leave to amend by District Court Judge Cormac J. Carney of the Central District of California. Carney said of the privacy claim:

“Plaintiff’s conviction and sentencing here are public records of official acts. Accordingly, they are not protected by a constitutional right to privacy.”

Earlier, Cormac ordered “that Plaintiff may proceed in this litigation under the pseudonym ‘JOHN DOE.’ ”

Ninth Circuit Decision

Ezra wrote:

“While individuals may have a constitutional privacy interest in certain, highly sensitive information, Appellant simply does not have such an interest in the information at issue in this case. Tellingly, Appellant never challenged the constitutionality of the Press Releases at the time they were published. And he cites no authority supporting his claim that a press release, after being available for years, can somehow transform into an unconstitutional disclosure simply because it is now ‘stale.’ ”

He also agreed with Cormac that maintaining the press releases on websites does not constitute cruel and unusual punishment in contravention of the Eighth Amendment, saying:

“Because the Press Releases’ continued availability is not punishment at all, it cannot amount to cruel and unusual punishment under the Eighth Amendment. However, even if we found Appellant was being punished, that punishment would not be the type of government action forbidden by the Eighth Amendment.”

Identity Unknown

Although the opinion does not identify Doe, it does allude to his sentence in 2011 to 18 months in prison. A person who received an 18-month sentence in 2011 for mortgage fraud was Jonathan J. Garcia whose sentencing is a subject of a Feb. 18, 2011 press release issued by the U.S. Attorney’s Office for the Southern District of California.

The press release says:

“United States Attorney Laura E. Duffy announced today the sentencing of four defendants who were convicted in connection with a $55 million mortgage fraud scheme. The four defendants, Maria Echeverria, Ivan Gil, Laneka Chatton, and Jonathan J. Garcia, are among 19 defendants named in a 51-count indictment that alleges wire fraud, mail fraud, and criminal forfeiture.”

It adds:

“Jonathan Garcia was involved in 32 fraudulent loan applications, representing approximately $7 million in fraudulent loans, and which resulted in losses of between $400,000 and $1 million when the borrowers defaulted, the loans were foreclosed, and the properties were sold.”

Whether Garcia is the same person as “John Doe” could not be ascertained with certainty.

The opinion does not present a rational for safeguarding the identity of a person whose right to privacy is being declared non-existent.

The case is Doe v. Garland, 20-56063.

 

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