United States v. Sleugh, No. 17-10424 (Berg (EDMI) with Wallace and Berzon) --- The Ninth Circuit affirmed an order denying one codefendant's motion to unseal applications filed under Rule 17(c) by another codefendant for subpoenas. These applications are not subject to the common-law right of public access to court records, and on the facts of this case the codefendant did not show a special need to see the subpoena applications.　

The appellant here and his codefendant (who intervened in the appeal) were charged with a drug-trafficking conspiracy in which the delivery person was killed. As part of pretrial discovery, the codefendant applied for subpoenas to obtain certain cell phone records and surveillance videos. These applications were filed ex parte and under seal as required by local rules. But then the codefendant pleaded guilty to everything but the murder and agreed to testify against the appellant at his trial. The appellant lost at trial and received a life sentence; the codefendant got three years for his cooperation. The appellant then appealed his conviction and sentence; his efforts to investigate potential appellate arguments in that case led to the events that are the basis for this appeal. (This main appeal remains unresolved; it was stayed pending the resolution of the issue in this appeal.)　

The appellant returned to the district court to ask to unseal the supporting materials attached to the codefendant's subpoenas; in light of the codefendant's cooperation, he wanted to argue that the codefendant's trial testimony was inconsistent with statements he may have made in connection with the applications for the subpoenas. The magistrate judge who issued the subpoenas denied the request to unseal the applications, and the district court affirmed. The codefendant intervened in this appeal to protect the confidentiality of his subpoena applications.　

Subpoena applications can be made under seal in criminal cases to protect a defendant's right to keep his defense strategy secret. The court agreed with the First Circuit's conclusion that this right trumps the public's common-law and First Amendment rights of access to court documents. Only a showing of special need can overcome the defendant's right, but here there was no special need. Appellate counsel's need to investigate was not enough, and the appellant did not identify any aspect of the codefendant's testimony that he believed was false. The possibility that the supporting materials might be impeaching was not relevant to the pending appeal; the materials were not in front of the jury, and the appellate court is not a fact-finding body. Plus the supporting materials pre-dated the codefendant's decision to cooperate. However, the court did admonish the district court that if the need to keep the supporting materials under seal has passed, "then perhaps they should be unsealed." 　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/23/17-10424.pdf