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Case 1:20-cr-00330-PAE Document594 _ Filed 02/04/22 Page3of5 Page 3 There is no need to litigate the Defense Motion under seal just because the Court and the parties are contemplating a hearing where Juror 50 may be a witness. Throughout the course of this case (as in most if not every case), the parties have publicly litigated evidentiary issues implicating witness testimony, such that witnesses or their counsel could access the briefing if they so wished. In this case, the parties publicly filed significant pre-trial briefing, including pre-trial motions and motions in /imine, that included details about witness testimony. For example, in motions in limine, the parties litigated the legal contours of the testimony of the witness who testified under the pseudonym Kate, as well as the circumstances of Carolyn’s identification of the defendant. See, e.g., Dkt. Nos. 387, 392, 397. Neither the Government nor the defendant sought to file such documents under seal; the defendant certainly did not claim that such documents should be temporarily sealed because Government witnesses could access such filings (or news articles about such filings) and accordingly tailor their trial testimony. There is no reason that the Defense Motion should be treated differently and litigated entirely under seal. The defendant’s argument that the public docketing of the Defense Motion will enable Juror 50 to “plan out and tailor his responses” is not only inconsistent with the foregoing practice in this (like every) case, but it is also unsupported by any legal authority. (Def. Letter at 2). The defendant’s reliance on cases involving pre-trial publicity is inapposite. Those cases concern the right to a fair trial, and, in those cases, sealing is proper upon specific findings that, inter alia, “there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity ....” United States v. Silver, No. 15 Cr. 93 (VEC), 2016 WL 1572993, at *8 (S.D.N.Y. Apr. 14, 2016) (quotations and citations omitted). But in such a posture, the potential prejudice is that the jury—the relevant finder of fact—will learn prejudicial information that they otherwise would not. /d. Here, by significant contrast, the Court is the relevant finder of fact, and the Court DOJ-OGR-00008895