Sunday, September 17, 2017

Case o' The Week: Ninth Seals the Deal - Doe and Closed Dockets for 5K Sentencings

  “Snitches get stitches sealed dockets.”

 United States v. John Doe, 2017 WL 3996799 (9th Cir. Sept. 12, 2017), opinion available here.

Players: Decision by Judge Christen, (mostly) joined by Judge Watford and DJ Soto.

Facts: John Doe (name changed for security) cooperated to work down a meth importation sentence. Id. at *2. He gave info on a narcotics conspiracy; it lead to at least one arrest. Id. Doe received a § 5K1.1 departure at sentencing, and moved to strike the 5K references in the docket and seal entries relating to his cooperation and sentencing. Id. at *2. The district court refused, concluding Doe had failed to rebut the “presumption of openness that arises pursuant to the First Amendment.” Id. at *3.

Issue(s): “Doe argues that the public has neither a First Amendment right nor a common law right of access to § 5K1.1-related documents.” Id. at *4.

Held: “We assume without deciding that there is such a right, and conclude that the facts of this case rebut any resulting presumption of openness.” Id. at *4.
  “Nothwithstanding the lack of more specific threats to Doe and his family, the court erred when I failed to find a substantial risk to compelling interests under the facts of this case.” Id. at *6. “Absent closure, the record establishes that there is a substantial probability of harm to compelling interests in Doe’s case.” Id. at *5. “Here, closure is warranted.” Id. at *7.
   “Assuming that a qualified First Amendment right of public access attached to the § 5K1.1 documents in this case, Doe successfully rebutted the presumption of openness. Accordingly, we REVERSE the denial of Doe's motion to seal and denial of Doe's motion to strike and replace the docket entry text mentioning § 5K1.1. We REMAND for sealing in accordance with this opinion.” Id. at *9.

Of Note: Big issues, swirling about this brief opinion. The subtext is a 2016 report of the Judiciary’s Committee on Court Administrationand Case Management (CCACM). The Committee detailed the harms suffered by cooperators, and reported the “show me your docket” gauntlet that our clients have to run in federal prisons. Id. at *6. The Committee has admirable concern for cooperator safety, but CCACM has also cooked up some radical new proposals – including shifting to a sealed sentencing supplement for all cases (including non- cooperators). Id. at *8.
  CCACM has been pushing for adoption of its controversial proposals by district courts, even before they’ve been approved by the Judicial Conference. In Doe, Judge Christen lauds CCACM’s general intentions, but notes the Committee’s proposals won’t fly given Ninth Circuit First Amendment precedent. Id. at *8, discussing In re Copley Press, Inc., 518 F.3d 1022, 1026-27 (9th Cir. 2008)).

How to Use: As noted above, CCCACM’s “seal it all” proposal won’t work in light of Copley Press. However, Judge Christen explains, “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.” Id. at *8.
   Anticipate district courts mulling Doe in cooperator cases – the opinion is a must read before a § 5K1.1 sentencing. 
  And if your client is the target of cooperation (and you’re skeptical of the government’s Brady / Giglio compliance), worry about what the Judiciary’s good-hearted efforts to protect cooperators will mean for your efforts to investigate the government’s witnesses against your client.
For Further Reading: Why does CCACMS’s obsession with sentencing secrecy make the defense bar nervous? 
  There are at least six million reasons . . .  See Matt Apuzo, “’I Smell Cash’: How the A.T.F. Spent Millions UncheckedA pair of Informants got $6 million and agents spent freely. The Justice Department fought to keep records of the operation secret,” available here. 

   How did the NYT break such this remarkable story of federal law enforcement abuse, dirty informants (and, by all appearance, corruption)? “The Times intervened in an ongoing fraud lawsuit over the activity and successfully argued that a judge should unseal them.” Id. (emphasis added)
   A sobering reminder of why the First Amendment matters, and an (outrageous) example of the dangers of sealing.

Image of Big South Wholesale LLC from

Steven Kalar, Federal Public Defender ND Cal. Website at


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