United States v. John Doe
870 F.3d 991
9th Cir.
2017

Background

  • Doe pleaded guilty to importing methamphetamine and provided detailed, corroborated information about members of an international drug cartel; the government moved for a five‑level downward departure under U.S.S.G. § 5K1.1 for substantial assistance.
  • Doe feared retaliation against himself and his family and moved to seal all documents that disclosed the § 5K1.1 motion or otherwise revealed his cooperation; the government filed motions that referenced § 5K1.1 on the public docket and also moved to seal its supporting memorandum.
  • The district court denied Doe’s motion to seal and to strike/replace public docket text, concluding Doe failed to overcome the First Amendment presumption of public access and expressing skepticism that secrecy was warranted absent specific threats.
  • The district court did, however, grant the government’s motion to seal the memorandum itself; several docket entries were later sealed pending appeal.
  • The Ninth Circuit assumed, without deciding, that a qualified First Amendment right of access could apply to § 5K1.1 materials but held that Doe rebutted any presumption of openness because disclosure posed substantial risks to his safety, his family, and ongoing investigations, and alternatives (redaction or use of “5K”) were inadequate.
  • The Ninth Circuit reversed the district court’s denials and remanded with instructions to seal the relevant filings and strike references to § 5K1.1 in docket text, citing the CCACM report on risks to cooperators in the era of remote electronic access.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether a qualified First Amendment right of access applies to § 5K1.1 filing materials Doe: if such a right exists, he can rebut the presumption by showing compelling harms District court/Gov: First Amendment presumption of openness applies and Doe failed to rebut it Court assumed the right without deciding; found Doe rebutted any presumption on these facts
Whether disclosure would threaten Doe’s or his family’s safety Doe: cartel is wealthy, credible threats exist (including statement "we know where your family is"), assistance was corroborated District court: no specific threats identified; risk speculative Court: record and CCACM report show substantial probability of harm; district court erred to dismiss risk as speculative
Whether disclosure would harm ongoing investigations and law‑enforcement interests Doe/Gov: disclosure would jeopardize ongoing investigations and deter future cooperators; government evaluated and sought closure measures District court: most § 5K referrals “go nowhere,” so interest not compelling here Court: government’s assessment was persuasive; ongoing‑investigation interest is compelling and likely to be harmed
Whether less‑restrictive alternatives (redaction, using “5K”) suffice Doe: redaction or euphemisms would flag cooperation and be ineffective; sealed supplements needed District court: alternatives like oral pronouncement or partial redaction adequate Court: alternatives inadequate here; redaction or use of “5K” would signal cooperation and fail to protect cooperator or investigations

Key Cases Cited

  • Press-Enter. Co. v. Superior Court, 478 U.S. 1 (1986) (establishes First Amendment right of access test for criminal proceedings)
  • CBS, Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 765 F.2d 823 (9th Cir. 1985) (extends qualified access to certain post‑conviction sentencing materials)
  • In re Copley Press, Inc., 518 F.3d 1022 (9th Cir. 2008) (qualified access attaches to plea colloquy transcript; attachments to motions to seal may be sealed)
  • United States v. Index Newspapers LLC, 766 F.3d 1072 (9th Cir. 2014) (standards for First Amendment and common law access to judicial records)
  • United States v. Custer Battlefield Museum & Store, 658 F.3d 1188 (9th Cir. 2011) (discusses First Amendment vs. common law access and strength of rights)
  • Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989) (closure requires compelling interest and narrow tailoring)
  • United States v. Rivera, 682 F.3d 1223 (9th Cir. 2012) (public has qualified right of access to sentencing proceedings)
  • United States v. Biagon, 510 F.3d 844 (9th Cir. 2007) (qualified access to sentencing proceedings)
  • United States v. Ressam, 679 F.3d 1069 (9th Cir. 2012) (government best positioned to assess threats from disclosure)
  • Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978) (common law right to inspect judicial records)
  • United States v. Doe, 63 F.3d 121 (2d Cir. 1995) (direct threats not strictly required to justify closure)
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