4:17-cr-00866-RBH Date Filed 08/03/18 Entry Number 206 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

)
UNITED STATES OF AMERICA ) Criminal No. 4:17-CR-00866-RBH
)
v. )
)
BRANDON MICHAEL COUNCIL )
)

MOTION TO SEAL AND MEMORANDUM

Pursuant to Local Court Rule 49.01: Filing Documents Under Seal, the government

requests that this Court allow for the sealing of the government’s response to defendant’s motion

to suppress both his statement and a search warrant, Docket Entries 193 and 197, as well as the

attachments to that response.

Under Local Rule 49.01(B), the party seeking to file under seal shall (a) identify with

specificity the documents or portions thereof for which sealing is requested; (b) state the reasons

sealing is necessary; (c) explain (for each document or group of documents) why less drastic

alternatives to sealing will not afford adequate protection; and (d) address the factors governing

sealing of documents reflected in controlling case law. The Rule also requires (1) an

accompanying (a) non confidential descriptive index of the documents at issue and (b) counsel’s

certification of compliance with this rule; and (2) a separately sealed attachment labeled

“Confidential Information to be Submitted to the Court in Connection with Motion to Seal”

submitted with the motion. This attachment shall contain the documents at issue for the court’s in

camera review and shall not be filed.

I. The Documents for Which Sealing is Requested, 49.01(b)(1)(a).

The government’s response to defendant’s motion to suppress his statement, and a search

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warrant based on his statement, is due August 4, 2018. In defendant’s motions, he argues that his

statement was involuntary, and a search warrant incorporating information from that statement

was invalid. In order to respond to defendant’s allegation, and to establish the voluntariness of

defendant’s statement, the government must fully detail defendant’s confession in their response.

The argument in response to the search warrant motion also requires an analysis of defendant’s

statement. Both responses involve a thorough discussion of the content of defendant’s statement

and the circumstances surrounding it, including an audio and video recording of the statement as

well as a transcript of the statement.

II. The Reasons Why Sealing is Necessary, 49.01(B)(1)(b).

Defendant’s case has gotten extensive media attention and electronic filings often are

printed in the news. Defendant has jury selection scheduled to start in 2018. Because the evidence

described in the government’s response has not yet been admitted into evidence, should it be

suppressed its publication could easily influence the jury pool. Likewise, if the evidence is not

suppressed, the content of defendant’s statement will be made public and potential jurors can begin

formulating opinions about the evidence prior to its admission. Sealing the response and

attachments will ensure a fair and impartial jury pool that has not already started to consider the

evidence against defendant.

III. Why Less Drastic Alternatives Will Not Afford Adequate Protection,
49.01(B)(1)(c).

Redacting the government’s filing will not completely obscure the content of the filing, or

the filing will be redacted to the extent that it is effectively sealed. The response discusses potential

evidence in one form or another throughout, and where specific evidence is not discussed, case

law or other information that reveals the nature of the evidence is. Should the Court grant the

government’s request, the materials could be unsealed immediately after any final verdict, or when

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the materials are presented at trial.

IV. Factors Governing Sealing Documents, 49.01(B)(1)(d).

Under the First Amendment, the public has a right, though not an unlimited one, of access

to pre-trial criminal proceedings. In re Time, 182 F.3d 270, 271 (4th Cir. 1999). In essence, the

Court must determine whether the sealing of the documents serves a compelling interest and is

narrowly tailored to that interest. Rushford v. New Yorker Magazine, Inc., 846 F.2d 249, 253 (4th

Cir. 1988). In making that determination, this Court must follow the procedures set forth in In re

Charlotte Observer, 882 F.2d 850, 852 (4th Cir. 1989). “That is, the court must (1) provide public

notice that the sealing of documents may be ordered, (2) provide interested persons an opportunity

to object before sealing is ordered, (3) state the reasons, supported with specific findings, for its

decision if it decides to seal documents, and (4) state why it rejected alternatives to sealing.” In

re Time, 182 F.3d at 271. See also Ashcraft v. Conoco, 218 F.3d 288, 302 (4th Cir. 2000).

In this case, as outlined earlier, there are specific reasons that mandate sealing in this case,

particularly the risk of harm to the jury pool and the risk that jurors will come to an opinion about

the case should they be exposed to the evidence discussed in the government’s response brief.

For the above reasons, and the information otherwise provided by the government, the

Court should seal the government’s response brief and attachments to that brief.

Respectfully submitted,

SHERRI A. LYDON
UNITED STATES ATTORNEY

BY: s/Nathan Williams

J.D. ROWELL (ID#9802)
Assistant United States Attorney
1441 Main Street, Suite 500
Columbia, SC 29201

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803-929-3000

NATHAN S. WILLIAMS (ID#10400)

Assistant United States Attorney
151 Meeting Street, Suite 200
Charleston, SC 29401
843-727-4381

EVERETT E. MCMILLIAN (ID#11791)

Assistant United States Attorney
401 W. Evans Street, Suite 222
Florence, SC 29501
843-667-0295

August 3, 2018

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 4:17-cr-00866-RBH Date Filed 08/03/18 Entry Number 206-1 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION

)
UNITED STATES OF AMERICA ) Criminal No. 4:17-CR-00866-RBH
)
v. )
)
BRANDON MICHAEL COUNCIL )
)

LOCAL RULE 49.01(B)(2) INDEX AND CERTIFICATE

The government has requested that certain documents be filed under seal in this case.

Local Rule 49.01(B)(2) requires that the government file a descriptive index of the items sought

to be filed under seal and a certificate of compliance with Rule 49.01.

I. Descriptive Index

a. A 14 page substantive response to defendant’s motion to suppress defendant’s

statement and a search warrant.

b. An Exhibit consisting of an audio and video recording of defendant’s

statement.

c. An Exhibit consisting of a transcript of the above recording.

d. An Exhibit consisting of a document executed by defendant at the time he

gave his statement.

e. An Exhibit consisting of a search warrant, affidavit and return relating to

defendant’s car, which details in the affidavit evidence against defendant and

his statement.

II. Certificate of Compliance

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a. The undersigned certifies that he has complied with the requirements for

requesting sealing as set forth in Local Rule 49.01.

Respectfully submitted,

SHERRI A. LYDON
UNITED STATES ATTORNEY

BY: s/Nathan Williams

J.D. ROWELL (ID#9802)
Assistant United States Attorney
1441 Main Street, Suite 500
Columbia, SC 29201
803-929-3000

NATHAN S. WILLIAMS (ID#10400)

Assistant United States Attorney
151 Meeting Street, Suite 200
Charleston, SC 29401
843-727-4381

EVERETT E. MCMILLIAN (ID#11791)

Assistant United States Attorney
401 W. Evans Street, Suite 222
Florence, SC 29501
843-667-0295

August 3, 2018