Case o' The Week: FPD v. CJA, Sealing Survives Another Day: Boyd v. Sleugh and Sealing of Rule 17(c) Applications

  Donut decision tasty, to the Ninth.

United States, Shawndale Boyd, v. Sleugh, 2018 WL 3520404 (9th Cir. July 23, 2018), decision available here.

Players: Decision by D.J. Berg, joined by Judges Wallace and Berzon.

  Affirmance of decisions by M.J. Ryu and D.J. Gonzalez Rogers.

  Important win earning decision of first impression for N.D. Cal. AFPDs Ellen Leonida and Todd Borden.

  Hard-fought appeal by CJA Attorney Ethan Balogh.

Facts: Among other offenses, Boyd (FPD client) and Sleugh (CJA client) were charged with murder. Id. at *1.

  Before trial, Boyd’s attorney filed under-seal applications for Rule 17(c) subpoenas. Those applications and affidavits sought subpoenas to produce cell phone records and surveillance videos. Id.

  Boyd later pleaded guilty, cooperated, and testified against Sleugh, who was convicted after a trial. Id. at *2.

  On appeal, Sleugh’s CJA appellate counsel (Ethan Balogh) sought disclosure of the sealed affidavits in support of Boyd’s applications for Rule 17(c) subpoenas. Id. at *2. “[ ] Sleugh assert[ed] that Boyd’s testimony on behalf of the Government must have been inconsistent with any defense theory Boyd used to support the Rule 17(c) subpoena applications.” Id. at *2.

  Magistrate Judge Donna Ryu denied Sleugh’s motion to unseal, and was affirmed by ND Cal District Judge Yvonne Gonzalez Rogers. Id. at *2-*3. 
  Sleugh appealed the denial of his motion to unseal to the Ninth. Boyd intervened, seeking to keep the affidavits sealed. Id. at *3.

Issue(s): “The issue on appeal in this case – a question of first impression for this Circuit – is whether one defendant in a criminal case can get access to the Rule 17(c) subpoena applications and supporting documents that were filed under seal by another defendant’s attorney in the same criminal case, either because of the presumptive right of public access to court records or upon a showing of special need.” Id. at *1.

Held: “In view of the circumstances presented here, the district court properly denied the request for disclosure, and we affirm.” Id. at *1.

  “[W]e hold that there is no presumption of public access under the First Amendment or common law that attaches to Rule 17(c) subpoena applications and their supporting materials. Accordingly, parties can only justify accessing sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents by demonstrating a ‘special need.’ Kravetz, 706 F.3d at 56.” Id. at *6.

  “We hold that Sleugh failed to present a ‘special need’ to access Boyd’s sealed Rule 17(c) subpoena applications.” Id. at *7.

  “Unsealing Boyd’s Rule 17(c) subpoena applications could reveal Boyd’s defense theories to the state and federal governments for any future trial. The prospect of undermining the confidentiality of Boyd’s defense strategies justified sealing these materials in the first place, which Sleugh does not contest. It is no different now.” Id. at *8.   

Of Note: Boyd won here: the Rule 17(c) affidavits remained sealed. Sleugh does not, however, endorse perpetual sealing of all affidavits, in perpetuity. Importantly, Boyd still potentially faces state homicide charges that have no statute of limitations. As the Ninth emphasized, “This is not to say that all Rule 17(c) subpoena applications may or should remain under seal forever. There may be instances when there is no longer any need to protect a defendant’s theories of defense (e.g., upon the defendant’s death, or when the statute of limitations has run on all charges).” Id. at * 6 & n.7.

  Sleugh presented competing, compelling policy concerns –and its holdings leave plenty of unanswered questions that await further litigation.

How to Use: When your co-D flips, read Sleugh and mull deeply. The Ninth left windows for disclosure of Rule 17(c) applications and affidavits open, if there is a sufficient showing and a cooperating co-D has no future exposure. Id.

  By contrast, if you are submitting a Rule 17(c) subpoena application, read Sleugh and mull deeply. Future disclosure of sealed affidavits is possible (particularly if your client later flips). Affidavits should be carefully written with that potential future disclosure in mind.

                                               

For Further Reading: What does Dunkin’ Donuts have to do with attorney-client confidentiality?

  For the donut dispute that produced the Kravetz rule adopted by the Ninth in Sleugh, see “Glaze of Secrecy Kept in Donuts Sentencing Case,” available here.  

Image of Dunkin’ Donuts from https://www.qsrmagazine.com/news/why-dunkin-donuts-still-winning-breakfast-customers .

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.org

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