A contrite U.S. Attorney Andrew Boutros told a federal magistrate judge Thursday he was confident that a murder and kidnapping case involving the Tren de Aragua gang would have been unsealed by the time he appeared for a news conference last with his bosses in Washington D.C.
But, as with the old adage known as Murphy’s Law, “the stars did not align,” Boutros told U.S. Magistrate Judge Laura McNally.
Instead, Boutros found himself on a stage with Acting Attorney General Todd Blanche and FBI Director Kash Patel on the morning of July 1 revealing details of a complaint — including names and photographs of two of the defendants — that McNally had ordered hidden from public view by request of Boutros’ office, citing risk of flight and potential danger to the community.
The way the episode unfolded, Boutros told McNally, was “very regrettable and very unfortunate, because like you I take very seriously the orders of the court. Always have and always will.”
“I didn’t ask for this press conference,” he said. “I wasn’t looking to go to D.C. I had a huge press conference here (in Chicago) the next day. But I was headed to D.C. with virtually no notice.”
The comments came after McNally took the highly unusual step of ordering Boutros into court to hear directly from her that he had violated her sealing order, however unintentionally, by going forward with that news conference. Boutros had personally filed a 14-page memo on Wednesday asking the judge to cancel the hearing, but she refused.
As Boutros stood at a lectern in her packed courtroom, McNally told him she “took the department at its word” that the case needed to remain sealed until all defendants were in custody.
“As a judge, I trust and I believe the representations of the department that those sealing orders are necessary,” McNally said. “Thank god no concrete harm came as a result of this violation.”
Despite the tongue lashing, McNally stopped short of issuing any sanctions, saying she took Boutros at his word that he acted in “good faith,” having his assistants attempt to get a redacted version of the complaint unsealed before he talked about it publicly.
“I am not making any findings that you acted in open defiance of a court order…but I conclude that there was a violation,” McNally said, later telling Boutros the purpose of having him come to court was to “look you in the eye” as she laid out her view of what happened.
The dust-up is the latest in a series where federal judges at the Dirksen U.S. Courthouse have called the credibility of the U.S. attorney’s office into question, beginning with the collapse of the Broadview Six case in late May.
The issue with McNally began on June 29, when she signed a criminal complaint and arrest warrants charging Josue Pacheco Torres, Kleiver Monasterio Briceno, and Julian Pachano with kidnapping resulting in death and kidnapping conspiracy.
According to the complaint, the defendants, all “high-ranking members” of Tren de Aragua, kidnapped a man as he walked near a South Side park on May 18, tied him up and brought him to a vacant Englewood apartment, where they shot him multiple times and left his body in a bathtub.
At the time, prosecutors asked McNally — and she agreed — to seal the complaint until further notice, as two of the defendants were not in custody. Prosecutors also cited boilerplate concerns about the destruction of evidence should the investigation go public too soon.
The next day, as one defendant remained at large, Boutros flew out to a last-minute news conference with Blanche and Patel. Before it began, he asked an assistant U.S. attorney on the case to redact the third defendant from the complaint and ask that it be unsealed immediately, according to his motion. That prosecutor went up to McNally’s chambers to hand-deliver the complaint with proposed redactions, but no formal motion was filed.
When Boutros entered the press event, he “believed in good faith that the case was being unsealed or had been unsealed in light of the government’s communications with and physical presence in chambers, which the government had described as time sensitive, as well as his past experience with the unsealing of criminal complaints at the government’s request,” he stated in the motion.
McNally, though, said in a docket order that she was busy with other matters at the time, and that the seal remained in place. At about 1:25 p.m. that day, prosecutors emailed a written motion to unseal, but it was never filed on the docket and was not taken up until July 2 — the day after the press conference — when the first of the three defendants appeared in court.
In his motion, Boutros said he “recognizes the last-minute nature of the unsealing request and certainly appreciates that the court had other matters on its schedule that day.”
In court Thursday, Boutros was apologetic as he walked the judge through what occurred in real time, beginning with an unexpected phone call from Washington asking him to join Blanche at the press conference early the next morning.
He described a frantic morning as he walked through the airport emailing members of his team in Chicago for updates on the unsealing attempt. At some point, Boutros said, he was in the “green room” readying to take the stage with his bosses and could no longer communicate with his team, but he believed the unsealing would happen within minutes.
“When I entered onto the stage I was like, ‘Thank god I’m going to talk last so that if there was a delay for some reason or another, it would buy me some additional time,'” Boutros said.
Boutros said he was also confident that there was “carveout language” in McNally’s sealing order saying it did not prevent “law enforcement personnel from disclosing the Complaint, Affidavit, and Arrest Warrants as necessary to facilitate the enforcement of criminal law.”
In his view, he said, public disclosure of the arrests and charges against violent gang members was part of the overall process of criminal law enforcement.
McNally told Boutros that she flatly disagreed with that assessment, noting there was nothing said in the news conference about needing help from the public to arrest any of the defendants or asking for information to assist the investigation.
“I certainly disagree that it is your prerogative to dissolve a court order without permission,” she said.
jmeisner@chicagotribune.com
