950 F.3d 1286
10th Cir.2020Background
- In 2015 Michael A. Bacon pleaded guilty pursuant to a written plea agreement; a separate plea supplement (describing cooperation or lack thereof) was filed under seal pursuant to District of Utah local rule DUCrimR 11-1.
- Bacon refused to sign the plea supplement (his counsel signed for him) and objected that a sealed docket entry would endanger him in prison by creating an inference of cooperation.
- At resentencing (after a habeas-ordered reduction of supervised release), Bacon requested the sealed plea supplement be withdrawn/unsealed; the government and court defended the district’s policy of filing sealed supplements in every case to protect cooperators.
- The district court denied Bacon’s request, citing district policy, a national study, and habit rather than making case-specific findings or explicitly applying the common-law presumption of public access.
- Bacon appealed; the Tenth Circuit reviewed for plain error (because Bacon did not invoke the common-law right below) and vacated the sealing order, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument (Bacon) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the district court erred by keeping plea supplement sealed without considering common-law presumption of public access | District court failed to apply the strong common-law presumption of access and did not weigh public vs. private interests | Local rule and district practice justify automatic sealing; policy protects cooperators and benefits defendants | Court: Error — district court must apply presumption and require justification to keep records sealed |
| Whether the district court was required to make case‑specific findings on sealing | Sealings must be based on facts/circumstances of the particular case and a case‑specific balancing analysis | A blanket/local rule or categorical policy can govern sealing of plea supplements | Court: Error — district court must make case‑specific findings on the record; blanket rule cannot substitute for analysis |
| Whether any error was plain and affected Bacon’s substantial rights and the integrity of proceedings | Failure to apply presumption and make factual findings was contrary to settled Tenth Circuit law and likely affected outcome and fairness | No obvious error because local rules/policy authorize categorical approach and no directly on-point precedent forbidding it | Court: Plain error established — error was plain, affected substantial rights and judicial integrity; vacated and remanded |
Key Cases Cited
- United States v. Pickard, 733 F.3d 1297 (10th Cir. 2013) (district court must apply presumption of public access and require party seeking continued secrecy to justify it)
- United States v. Hickey, 767 F.2d 705 (10th Cir. 1985) (common-law right of access applies to details of plea bargains)
- Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (decision to restrict access rests in discretion exercised in light of facts and circumstances of particular case)
- Colony Ins. Co. v. Burke, 698 F.3d 1222 (10th Cir. 2012) (recognizing common-law right of access to judicial records and its non‑absolute nature)
- United States v. DeJournett, 817 F.3d 479 (6th Cir. 2016) (rejecting blanket policy as a substitute for case‑specific sealing findings)
- United States v. Burkholder, 816 F.3d 607 (10th Cir. 2016) (statute can abrogate a common‑law principle only if it speaks directly to the question addressed by the common law)