Tuesday, September 12, 2017

US v. Doe, No. 15-50259 (9-12-17)(Christen w/Watford & Soto). Do you represent defendants who cooperate? Do you represent defendants against whom there is cooperation? If so, and that should be everyone practicing federal criminal law, this is an important case.  It doesn't deal with substantive criminal law and procedure; rather, it deals with the issue of sealing filings and documents related cooperation departures.

The 9th reverses the district court's denial of a motion to seal those documents.  The court had refused to seal cooperation documents, including the departure memo. The court found a qualified first amendment right for public access that was not rebutted. The court also said that most cooperation was meaningless, and that the risks were small.

On appeal, the 9th reverses.  The 9th assumes without deciding that there is a qualified first amendment public right to access.  However, the defendant rebutted the presumption given his cooperation against the Mexican cartel, several other defendants both in and out of custody, and threats made to him and his family.

Of note is the discussion ongoing on whether courts should create dummy dockets, or have an entry that is sealed in every case, to prevent certain filings to red flag cooperation.  Cooperators are at risk in the BOP and the courts have been trying to protect them. The panel discussed the Court Committee on Administration and Court Management's (CCACM) report on cooperators and the grave risks they face.  CCACM advocates the process, in place in many districts, of having a sealed supplement or portion in filings and in sentencings to camouflage whether there has been cooperation. This procedure though is not without controversy, as it endorses sealed proceedings in every criminal matter, secrets information from the public and press, and creates misleading entries. It effectively hides cooperation in the dark.

The panel acknowledges that 9th precedent bars all the recommendations of CCACM. Specifically, In re Coply Press, Inc., 518 F.3d 1072. (9th Cir. 2008), states that the public has a qualified right of access to certain documents.  There must be an individualized assessment. That is a fight possibly down the road.

Watford here does not join the section of the opinion that deals with the government's interest in secreting its ongoing investigations.

The decision is here:



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