United States v. Doe
662 F. App'x 515
| 9th Cir. | 2016Background
- Doe (a cooperating witness) and the government jointly moved to seal a district-court order denying Doe a further sentence reduction; district court denied sealing.
- District court cited both the common-law and First Amendment access standards but did not clearly separate analyses.
- District court concluded Doe failed to show actual, non-speculative danger from disclosure and found Doe had not proffered evidence of threats sufficient to justify sealing.
- Doe presented evidence that (1) Doe felt endangered while imprisoned and (2) Doe’s common-law spouse was physically threatened after Doe’s arrest.
- District court relied in part on (a) oral, protected disclosures of Doe’s identity to the defendant already in prison and (b) the practical accessibility of PACER records; the panel dissent contested both points.
- Ninth Circuit majority (mem.) reversed the denial of sealing (non-precedential); a concurring/dissenting opinion (Bybee, J.) argued the district court abused its discretion by conflating the two access tests and that Doe met either test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court applied correct legal standard for sealing judicial records | Doe: Court conflated common-law and First Amendment tests; Doe met either test based on safety threats | District court: Stated both tests and found Doe did not proffer sufficient evidence of real danger | Court (Bybee, J. dissent): District court conflated tests and thus misapplied law; Doe met standards to seal |
| Whether Doe showed compelling reasons under common-law right to access | Doe: Personal safety and spouse’s threats are compelling reasons outweighing public access | Opposing party: No concrete proof of actual danger; risk speculative | Held (dissent): Evidence of threats and in-prison risk suffices as compelling reason |
| Whether Doe showed "substantial probability" of harm under First Amendment standard | Doe: Electronic filing heightens risk; oral disclosures and spouse’s threats establish substantial probability | Opposing party: Identity already known; PACER made cooperation effectively public | Held (dissent): Oral/protected disclosures and practical limits of PACER do not defeat a showing of substantial probability of harm |
Key Cases Cited
- United States v. Hinkson, 585 F.3d 1247 (9th Cir.) (abuse-of-discretion review requires de novo determination whether correct legal rule was identified)
- Kamakana v. City & County of Honolulu, 447 F.3d 1172 (9th Cir.) (common-law right of public access and compelling-reasons standard for sealing)
- Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462 (9th Cir.) (First Amendment test for closure: compelling interest, substantial probability, no alternatives)
- U.S. v. Bus. of Custer Battlefield Museum & Store, 658 F.3d 1188 (9th Cir.) (distinguishes common-law and First Amendment rights of access)
- Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (1978) (recognizes common-law right to inspect judicial records)
- Press-Enter. Co. v. Superior Court of Cal., 478 U.S. 1 (1986) (First Amendment right of access to criminal proceedings)
- CBS, Inc. v. U.S. Dist. Court for Cent. Dist. of Cal., 765 F.2d 823 (9th Cir.) (older precedent on access and cooperators; discussed in light of changed electronic-filing risks)