UNITED STATES of America, Plaintiff-Appellee, v. John DOE, Defendant-Appellant.
No. 15-50259
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 12, 2017 Pasadena, California. Filed September 12, 2017
870 F.3d 991
OPINION
CHRISTEN, Circuit Judge:
Defendant-appellant Doe1 pleaded guilty to importing a controlled substance into the United States and provided detailed, verifiable information to the government about members of an international drug cartel. The government found the information so useful that it filed a motion to reduce Doe‘s sentence by five levels under
BACKGROUND
After pleading guilty to knowingly importing a large amount of methamphetamine into the United States, Doe provided the names, telephone numbers, addresses, and physical descriptions of others involved in importing and distributing methamphetamine. The government believed that the information was generally accurate and reliable, and at least one person Doe described was later arrested.
Based on Doe‘s cooperation, the government filed a motion to reduce his sentence under
The government also filed: (1) a motion to seal the memorandum in support of a downward departure, which cited
Doe moved to strike the public docket entry text for the government‘s filings and replace it with more generic descriptions of the documents. The district court denied Doe‘s motion in a written order, concluding that the First Amendment created a presumption of public access and Doe failed to rebut that presumption. Indeed, the district court expressed doubt that a defendant could ever rebut the presumption of openness concerning a motion seeking a
After his motion to strike was denied, Doe opted against further electronic filings and manually filed, under seal, a hard-copy motion to seal each publicly available document that referred to
The district court denied Doe‘s motion to seal immediately before his sentencing hearing, concluding, once again, that Doe failed to rebut the presumption of openness that arises pursuant to the First Amendment. In its oral ruling, the district court found it significant that neither Doe “nor the Government are aware of any specific threats to [Doe]” and “[t]here‘s no specific threats to family members.” The district court mentioned the possibility of a witness protection program, but it rejected the use of any alternatives to sealing absent “specific threats of harm.” The court did not discuss Doe‘s written statement, contained in the presentence report, that someone in the cartel told him, “Don‘t play us dirty because we know where your family is.” Nor did the district court discuss the implications of the fact that Doe had his three-year-old daughter with him when he crossed the border into the United States in possession of substantial amounts of methamphetamine.
The district court explained that, in its anecdotal experience, defendants are given credit for providing “information that goes nowhere” and “a lot of times ... the story is made up.” The district court suggested that Doe moved to seal simply “because 5K is mentioned,” but in the district court‘s view, “it‘s just silly. It‘s perpetuating a lie.”
Doe appeals the district court‘s refusal to seal several
STANDARD OF REVIEW
“We review de novo whether the public has a right of access to the judicial record of court proceedings under the First Amendment, the common law, or [the Federal Rules of Criminal Procedure], because these are questions of law.” United States v. Index Newspapers LLC, 766 F.3d 1072, 1081 (9th Cir. 2014). When a district court “conscientiously balances” the interests of the public and the party seeking to keep secret certain judicial records, we review a decision whether or not to seal the judicial records for abuse of discretion. See id.; United States v. Bus. of Custer Battlefield Museum & Store Located at Interstate 90, Exit 514, S. of Billings, Mont., 658 F.3d 1188, 1195 (9th Cir. 2011).
DISCUSSION
I. The Public Generally Has a Qualified First Amendment Right of Access to Court Documents and Proceedings.
“The law recognizes two qualified rights of access to judicial proceedings and records....” Custer Battlefield, 658 F.3d at 1192. There is “a First Amendment right of access to criminal proceedings and documents therein.” Id. (quoting Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press-Enter. II)). There is also “a common law right ‘to inspect and copy public
Courts must ask two questions to determine whether a qualified First Amendment right of public access applies to a particular proceeding or document: (1) “whether the place and process have historically been open to the press and general public“; and (2) “whether public access plays a significant positive role in the functioning of the particular process in question.” Press-Enter. II, 478 U.S. at 8, 106 S. Ct. 2735. This two-part test is commonly referred to as the “experience and logic” test. See id. at 9, 106 S. Ct. 2735; Index Newspapers, 766 F.3d at 1088. Even when the experience and logic test is satisfied, however, the public‘s First Amendment right of access establishes only a strong presumption of openness, and “the public still can be denied access if closure ‘is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest.‘” Times Mirror Co. v. United States, 873 F.2d 1210, 1211 n.1 (9th Cir. 1989) (quoting Press-Enter. Co. v. Super. Ct., 464 U.S. 501, 509-10, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (Press-Enter. I)).
We have held that a qualified First Amendment right of public access attaches to in-court sentencing proceedings. See United States v. Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012); United States v. Biagon, 510 F.3d 844, 848 (9th Cir. 2007); CBS, Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 765 F.2d 823, 825 (9th Cir. 1985). In a case that was the subject of significant media attention, CBS extended the qualified right of public access to a motion to reduce a high-profile defendant‘s sentence under Federal Rule of Criminal Procedure 35(b) for post-sentencing assistance in investigating or prosecuting another person. 765 F.2d at 826. In In re Copley Press, Inc., 518 F.3d 1022 (9th Cir. 2008), we held that the public has a qualified First Amendment right of access to: (1) a plea agreement cooperation addendum; (2) the government‘s motion to seal the plea agreement and memorandum in support of it; (3) the district court‘s orders granting the government‘s motion to seal; (4) the defendant‘s plea colloquy transcript; and (5) the transcripts of those portions of the hearings on the government‘s motion to seal that were open to the public. Id. at 1026-28. But Copley Press also held that the public has no right of access to declarations and documents attached to a motion to seal, id., and neither this court nor the Supreme Court has ever specifically addressed whether the public has a qualified First Amendment right of access to written documents relating to
Doe argues that the public has neither a First Amendment right nor a common law right of access to
II. Doe Rebutted Any Presumption of Openness That Arose from a Qualified First Amendment Right of Public Access.
Where the public has a qualified First Amendment right of access, “criminal proceedings and documents may be closed to the public without violating the [First A]mendment only if three substantive requirements are satisfied: (1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Oregonian Publ‘g Co. v. U.S. Dist. Ct. for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir. 1990); see also Times Mirror Co. v. United States, 873 F.2d 1210, 1211 n.1 (9th Cir. 1989). “The court must not base its decision on conclusory assertions alone, but must make specific factual findings.” Oregonian, 920 F.2d at 1466.
A. Absent Closure, the Record Establishes That There Is a Substantial Probability of Harm to Compelling Interests in Doe‘s Case.
Because there is significant overlap as they pertain to the facts of Doe‘s case, we address together the first two prongs of the test for overcoming the qualified First Amendment right of public access. Doe argues that closure serves at least three compelling interests: (1) protecting his life; (2) protecting his family members’ lives; and (3) preserving the government‘s ongoing investigations based on the information he provided. He argues that he established a substantial probability of harm to these interests based on the evidence that: (1) the cartel is wealthy enough to seek retribution against him and his family if it learns of his cooperation; (2) retaliation is very likely because he provided information about nine international drug-trafficking cartel members; and (3) agents corroborated his information, indicating it was credible enough to lead to prosecutions against real people.
1. The Risks to Doe and His Family
In its briefing, the government echoes the argument it made in its memorandum in support of a downward departure. It acknowledges that the risks to cooperators and their families “could, in many cases, constitute a ‘compelling interest’ to justify sealing.” The government appears to concede that closure would serve these interests in Doe‘s case, but it ultimately takes the position that the district court‘s orders should be affirmed.
Nonetheless, in its memorandum in support of a downward departure and on appeal, the government describes why the risk to Doe was “heightened” in this case: (1) his offense involved a large international drug-trafficking organization; (2) he lost a load of methamphetamine with a conservative estimated street value of more than half a million dollars; (3) Doe was involved in multiple border crossings and delivered narcotics to numerous locations throughout Southern California; and (4) he cooperated while he was in pre-trial detention by providing incriminating information about others who were also incarcerated. Moreover, Doe provided information about other defendants whom he recognized during a court appearance. Presumably, these defendants recognized Doe as well, further jeopardizing his safety if his cooperation
When considering this same evidence, the district court was not persuaded that, absent closure, harm would befall Doe or his family. Its ruling primarily rested on the fact that neither Doe nor the government identified specific threats. Without direct evidence of retaliation, the district court concluded that the risk was “entirely speculative. There‘s nothing at all.” For several reasons, we respectfully disagree with the district court‘s assessment.
First, “[i]t is the government that is in the position to know the effects of defendants’ provided information.” United States v. Ressam, 679 F.3d 1069, 1092-93 (9th Cir. 2012). When it filed its memorandum in support of a downward departure and outlined the risks to Doe, the government had access to more complete information than the district court to assess the likelihood of harm. That being the case, the fact that the government did not identify specific threats on the record did not make the risk “entirely speculative.” Second, direct threats are not “a strict condition precedent to a district court‘s granting of a closure motion.” United States v. Doe, 63 F.3d 121, 130 (2d Cir. 1995). Finally, the district court‘s conclusion that the risks to Doe and his family were speculative is contradicted by the evidence in the record about Doe‘s involvement with a wealthy, international cartel that threatened his family if he “play[ed] ... dirty,” and which lost roughly half a million dollars as a result of Doe‘s arrest, and the government‘s confirmation of the legitimacy of his information.
The district court did not have the benefit of the CCACM Report, which sheds considerable light on the dangers faced by those who agree to cooperate with government investigations. The report summarizes the results of a 2015 national survey of district judges, U.S. attorneys, federal defenders, and others involved in the criminal justice system.6 District judges reported 571 instances of harm or threats, either physical or economic, to defendants and witnesses between the spring of 2012 and the spring of 2015. CCACM Report at 2. This included 31 murders of defendant cooperators. Id. District judges also reported 363 instances of court records being used to identify cooperators. Id. The report cautions: “This is a particular problem in our prisons, where new inmates are routinely required by other inmates to produce dockets or case documents in order to prove whether or not they cooperated. If the new inmates refuse to produce the documents, they are punished.” Id. Notwithstanding the lack of more specific threats to Doe and his family, the court erred when it failed to find a substantial risk to compelling interests under the facts of this case.
The district court also found that there was no significant risk of harm absent closure because Doe‘s cooperation inevitably would be made public during the oral sentencing. Doe argues that in prison an essential difference exists between unsubstantiated claims that someone cooperated with prosecutors and actual “paper” proof, in the form of official court filings, confirming cooperation. The CCACM Report verifies that orally pronouncing a sentence, including references to
In an effort to defend the district court‘s ruling, the government suggests that there may not be a substantial risk of harm to Doe and his family because at the time of sentencing, Doe‘s cooperation “had not produced tangible results, so no one was facing charges who would have had an axe to grind with [Doe] (at least based on his cooperation).” But Doe provided information about the criminal activity of people whom he recognized in court, and at least one person he identified was subsequently arrested. On appeal, the government argues this arrest was made for unrelated reasons — the discovery of methamphetamine during a routine traffic stop — but that individual might view Doe‘s cooperation, if it were made public, as something more than mere coincidence. That is a risk Doe should not have to bear.
2. The Risks to Ongoing Investigations
The district court concluded that the government‘s interest in ongoing investigations was not compelling or likely to be harmed absent closure because, “most of the time, the 5K credit is given for information that goes nowhere.” But its assessment of the threat to Doe and his family, the district court‘s finding in regard to the government‘s interest in ongoing investigations was contradicted by the evidence in the record. In the government‘s memorandum in support of a downward departure, the government described how it confirmed that almost all of Doe‘s information was accurate, that he had provided information about people in and out of custody, and that agents believed future arrests based on this information remained possible. The government was in a better position to assess the risks to its ongoing investigations, and it decided that Doe‘s cooperation warranted a five-level downward departure.
On appeal, the government further acknowledges its institutional imperative to protect its ongoing investigations: “The United States maintained a legitimate, structural interest in sealing the evidence of [Doe‘s] cooperation in order to protect the integrity of future criminal investigations and the willingness of future defendants to provide substantial assistance to the government.” “Substantial weight should be given to the government‘s evaluation of the extent of the defendant‘s assistance, particularly where the extent and value of the assistance are difficult to ascertain.”
The fact that the government did not join Doe‘s motion to seal factored into the district court‘s analysis of whether ongoing investigations would be harmed absent closure. But the government did not receive Doe‘s motion to seal until the morning of sentencing and merely stated that it had “not had a chance to skim through it.” Doe had no objection to continuing the proceedings for another week, but the district court went forward with ruling on the motion. Notably, the government did not object to Doe‘s motion to seal and it had already moved to seal the underlying reasons for a
In sum, the evidence in the record establishes a significant probability of harm to compelling interests absent closure. Doe
B. The Record Establishes That There Are No Adequate Alternatives to Closure in Doe‘s Case.
The district court did not seriously consider any alternatives to closure because it found no substantial probability of harm to compelling interests. But even if the district court had considered such alternatives, the evidence in the record establishes their inadequacy. Redacting portions of the motions, orders, sentencing chart, and docket entries would not sufficiently protect Doe. In fact, under the circumstances here, doing so would flag the filings in his case. The publicly available and remotely accessible filings would immediately look different from the filings in non-cooperators’ cases, so this well-intentioned measure would result in docket entries that readily signal Doe‘s cooperation.
Moreover, as the government acknowledges, using “5K” as opposed to “5K1.1” would not help because it is implausible that someone — especially any one of the people Doe recognized in court or the person he identified who was subsequently arrested — would assume “5K” means something other than substantial cooperation in Doe‘s case, given the context and Doe‘s sentencing reduction. The record amply demonstrates the inadequacy of alternatives to closure. Doe therefore satisfied the third prong of the test for overriding a qualified First Amendment right of public access. See CBS, Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 765 F.2d 823, 826 (9th Cir. 1985) (“We do not foreclose the possibility that in an extreme case [alternatives to closure such as redaction] would be untenable and that court files and proceedings on post-conviction matters would therefore be closed....“). The district court abused its discretion by denying Doe‘s motion to seal docket entries 35-37, 42, 44, and 45, and to strike references to the sentencing guidelines in the docket text of entries 35 and 36. Here, closure is warranted.
III. A Sealed Supplement in All Dockets Would Prevent the Fact of Cooperation From Becoming Immediately Apparent, and Also Deter the Illicit Use of Court Documents to Harm Cooperators.
The CCACM Report highlights the grave threats faced by defendants who cooperate with the government in the era of remote electronic access to court files, but the threat to cooperators “also interferes with the gathering of evidence” and “the presentation of witnesses.” CCACM Report at 7. The CCACM Report concludes that “[b]ecause criminal case dockets are being compared in order to identify cooperators, every criminal case is implicated.” Id. at 3.
Pending the development of a national rule for cooperator information, the CCACM Report “recommends that, in all criminal cases, courts restructure their practices so that documents or transcripts that typically contain cooperation information — if any — would include a sealed supplement. Any discussion of defendants’ cooperation — or lack thereof — would then be limited to these sealed supplements.” Id. All plea agreements and sentencing memoranda would have a public portion and a sealed supplement, and all transcripts of guilty pleas would include “a sealed portion containing a conference at the bench that w[ould] either contain any discussion of or references to the defendant‘s cooperation, or simply state that there is no agreement for cooperation.” Id. at 3. Similarly, under the CCACM Report‘s recommendation, all sentencing transcripts would “include a sealed portion containing
We do not decide here whether our precedent allows district courts to follow the CCACM Report‘s guidance in its entirety. See In re Copley Press, Inc., 518 F.3d 1022, 1026-27 (9th Cir. 2008) (holding that a qualified First Amendment right of public access attaches to, among other documents, a plea colloquy transcript); CBS, Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal., 765 F.2d 823, 825-26 (9th Cir. 1985) (holding that a qualified First Amendment right of public access attaches to a
But nothing in our precedent prevents district courts from adopting some variation of the practices recommended by the CCACM Report, as long as district courts decide motions to seal or redact on a case-by-case basis. Without running afoul of Copley Press, district courts could include cooperation information in a sealed supplement if the presumption of openness is overcome. Our precedent also allows the presumptive sealing of documents attached to a motion to seal while district courts consider whether the documents should be made public. See Copley Press, 518 F.3d at 1029 (“The public has no right to access the declarations and documentation appended to the government‘s March 16 motion to seal....“). As we have noted: “Secrecy is a one-way street: Once information is published, it cannot be made secret again.” Id. at 1025. In light of the CCACM Report‘s revelations about the risks posed by remote electronic access to court filings, caution is warranted. By reference to the CCACM Report, however, we do not suggest that district courts should take one course of action over another. The CCACM Report simply describes one alternative. District courts may wish to consider employing other alternatives, consistent with our case law, to protect cooperators from retaliation and to safeguard ongoing investigations.
Assuming that a qualified First Amendment right of public access attached to the