Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Doe

United States Court of Appeals, Ninth Circuit

September 12, 2017

United States of America, Plaintiff-Appellee,
v.
John Doe, Defendant-Appellant.

          Argued and Submitted May 12, 2017 Pasadena, California

         Appeal from the United States District Court No. 3:14-cr-03118-LAB-1 for the Southern District of California Larry A. Burns, District Judge, Presiding

          Kurt D. Hermansen (argued), Law Office of Kurt David Hermansen, San Diego, California, for Defendant-Appellant.

          Daniel E. Zipp (argued), Assistant United States Attorney; Peter Ko, Chief, Appellate Section, Criminal Division; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: Morgan Christen and Paul J. Watford, Circuit Judges, and James Alan Soto, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel reversed the district court's order denying the defendant's motion to seal all documents relating to, or disclosing the existence of, the government's motion under U.S.S.G. § 5K1.1 to reduce the defendant's sentence for substantial assistance in the prosecution of other offenders.

         The panel assumed without deciding that the public's qualified First Amendment right of access to court documents and proceedings attached to the documents that the defendant sought to seal, and concluded that the facts of this case rebutted any resulting presumption of openness. The panel concluded that absent closure, the record established that there was a substantial probability of harm to compelling interests in the defendant's case. These interests included risks to the defendant and his family and (as discussed in section II.A.2) risks to ongoing investigations. The panel also concluded that there were no adequate alternatives to closure.

         Considering the report and recommendations from the Committee on Court Administration and Case Management of the Judicial Conference of the United States concerning the protection of ongoing government investigations, cooperators, and their families, the panel wrote that a sealed supplement in all criminal dockets would prevent the fact of cooperation from becoming immediately apparent, and also deter the illicit use of court documents to harm cooperators.

         The panel reversed the denial of the defendant's motion to seal and the denial of his motion to strike and replace the docket entry text mentioning § 5K1.1, and remanded for sealing in accordance with the panel's opinion.

         Judge Watford joined the court's opinion in full, with the exception of section II.A.2.

          OPINION

          CHRISTEN, Circuit Judge.

         Defendant-appellant Doe[1] 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 U.S.S.G. § 5K1.1, which allows the government to request sentencing reductions for defendants who provide substantial assistance in the prosecution of other offenders. Fearful that his cooperation with the government endangered his life and the lives of his family members, Doe moved to seal all documents related to, or disclosing the existence of, the § 5K1.1 motion. The district court denied the motion to seal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.[2] The circumstances here required the district court to seal all documents revealing Doe's cooperation and to strike references to § 5K1.1 in the docket entry text. We take this occasion to consider the report and recommendations from the Committee on Court Administration and Case Management of the Judicial Conference of the United States (CCACM) concerning the protection of ongoing government investigations, cooperators, and their families.[3]

         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 U.S.S.G. § 5K1.1 for "substantial assistance, "[4] including mention of § 5K1.1 in the title of its motion ("Motion for Downward Departure Under USSG § 5K1.1"). In its memorandum in support of a § 5K1.1 downward departure, the government described how Doe recognized other defendants in court during one of his appearances and provided information about their involvement in smuggling methamphetamine into the United States. The government acknowledged that the risk of retaliation or harm to Doe was, "perhaps, greater than in some other circumstances" because he provided information about others in and out of custody. The government's memorandum did not reveal any specific threats against Doe or his family, but the government asserted "that a meaningful risk of harm exists."

         The government also filed: (1) a motion to seal the memorandum in support of a downward departure, which cited § 5K1.1 in its title and (2) a sentencing summary chart that included a five-level downward departure for "5K1.1." The government later filed an amended motion for a downward departure under § 5K1.1 due to an incorrect case number in its first motion. As is typical, the public docket reflected the title of the government's filings, including several references to § 5K1.1.

         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 § 5K1.1 departure. The court noted that although the government is "invariably" allowed to file under seal its reasons for concluding that a § 5K1.1 motion is warranted, the court always mentions § 5K1.1 in its oral pronouncement of sentences when the government makes such motions. The district court reasoned that "the § 5K1.1 departure 'cat' is typically out of the bag at a defendant's sentencing" and "striking references in the docket to a motion and section of the Guidelines that will undoubtedly be mentioned in open court during the defendant's sentencing makes little sense." In addition to filing this order in the publicly and electronically accessible record, the district court filed an order granting the government's motion to seal its memorandum in support of the motion for a § 5K1.1 downward departure.

         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 § 5K1.1 and his substantial assistance. This motion alternatively requested that the district court redact any references to § 5K1.1 and substantial assistance. Doe's motion to seal argued that the public references to his cooperation with the government unnecessarily risked his life, the lives of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.