United States v. John Doe , 870 F.3d 991 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50259
Plaintiff-Appellee,
D.C. No.
v. 3:14-cr-03118-LAB-1
JOHN DOE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted May 12, 2017
Pasadena, California
Filed September 12, 2017
Before: Morgan Christen and Paul J. Watford, Circuit
Judges, and James Alan Soto,* District Judge.
Opinion by Judge Christen
*
The Honorable James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.
2 UNITED STATES V. DOE
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. DOE 3
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.
COUNSEL
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.
OPINION
CHRISTEN, Circuit Judge:
Defendant-appellant Doe1 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
1
We refer to defendant-appellant by the pseudonym “Doe” to protect
his identity and safety.
4 UNITED STATES V. DOE
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.
2
Judge Watford joins the court’s opinion in full, with the exception
of section II.A.2.
3
See Comm. on Ct. Admin. & Case Mgmt. of the Judicial
Conference of the U.S., Interim Guidance for Cooperator Information
(June 30, 2016), http://www.uscourts.gov/sites/default/files/2016-09-
criminal-agenda_book_0.pdf (CCACM Report).
UNITED STATES V. DOE 5
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
4
“Upon motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecution of
another person who has committed an offense, the court may depart from
the guidelines.” U.S.S.G. § 5K1.1.
6 UNITED STATES V. DOE
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 his family members, and the success of the
ongoing government investigation. The government did not
oppose Doe’s motion to seal.
UNITED STATES V. DOE 7
The district court denied Doe’s motion to seal
immediately before his sentencing hearing, concluding, once
again, that Doe failed to rebut the presumption of openness
that arises pursuant to the First Amendment. In its oral
ruling, the district court found it significant that neither Doe
“nor the Government are aware of any specific threats to
[Doe]” and “[t]here’s no specific threats to family members.”
The district court mentioned the possibility of a witness
protection program, but it rejected the use of any alternatives
to sealing absent “specific threats of harm.” The court did not
discuss Doe’s written statement, contained in the presentence
report, that someone in the cartel told him, “Don’t play us
dirty because we know where your family is.” Nor did the
district court discuss the implications of the fact that Doe had
his three-year-old daughter with him when he crossed the
border into the United States in possession of substantial
amounts of methamphetamine.
The district court explained that, in its anecdotal
experience, defendants are given credit for providing
“information that goes nowhere” and “a lot of times . . . the
story is made up.” The district court suggested that Doe
moved to seal simply “because 5K is mentioned,” but in the
district court’s view, “it’s just silly. It’s perpetuating a lie.”
The court also continued to emphasize that Doe’s
assistance to the government would become public during
sentencing, repeating the view that “the cat’s out of the bag.”
In the sentencing hearing that followed, the district court
mentioned only “5K” in open court; never “5K1.1.” Section
5K allows for downward and upward departures from the
guidelines based on factors unrelated to cooperation, such as
whether the defendant committed the offense to avoid a
greater perceived harm. See, e.g., U.S.S.G. § 5K2.11. It
8 UNITED STATES V. DOE
appears that the district court had no occasion to weigh
concrete interests of specific third parties seeking access to
the documents concerning § 5K1.1 in Doe’s case because no
members of the media expressed interest in Doe’s sentencing,
and no one has ever publicly sought access to Doe’s court file
or proceedings.
Doe appeals the district court’s refusal to seal several
§ 5K1.1-related documents: (1) the government’s motion for
a downward departure (Docket 35); (2) the government’s
motion to seal its memorandum in support of a downward
departure (Docket 36); (3) the government’s sentencing
summary chart (Docket 37); (4) the government’s amended
motion for a downward departure (Docket 42); (5) the district
court’s order denying the motion to strike and replace docket
text (Docket 44); and (6) the district court’s order granting
the government’s motion to seal its memorandum in support
of a downward departure (Docket 45). Doe also appeals the
district court’s denial of his motion to strike and replace the
docket entries for two filings: (1) the government’s motion
for a downward departure (Docket 35); and (2) the
government’s motion to seal (Docket 36). The docket text
itself identifies Doe as a defendant who substantially assisted
the government.5
5
The following district court docket entries are sealed pending appeal
and currently do not appear on the district court docket: docket entry 35
(Withdrawn “Motion for Downward Departure Under USSG 5K1.1 by
USA”), 36 (“Motion to Allow Sealing of Memorandum in Support of
Motion for Downward Departure Under USSG 5K1.1 by USA”), 37
(“Sentencing Summary Chart by USA”), 42 (“Motion for Downward
Departure by USA”), 44 (Order Denying “Motion to Strike and Replace”),
and 45 (Order Granting “Motion to Allow Sealing of Memorandum in
Support of Motion for Downward Departure”).
UNITED STATES V. DOE 9
STANDARD OF REVIEW
“We review de novo whether the public has a right of
access to the judicial record of court proceedings under the
First Amendment, the common law, or [the Federal Rules of
Criminal Procedure], because these are questions of law.”
United States v. Index Newspapers LLC, 766 F.3d 1072, 1081
(9th Cir. 2014). When a district court “conscientiously
balances” the interests of the public and the party seeking to
keep secret certain judicial records, we review a decision
whether or not to seal the judicial records for abuse of
discretion. See id.; United States v. Bus. of Custer Battlefield
Museum & Store Located at Interstate 90, Exit 514, S. of
Billings, Mont., 658 F.3d 1188, 1195 (9th Cir. 2011).
DISCUSSION
I. The Public Generally Has a Qualified First
Amendment Right of Access to Court Documents and
Proceedings.
“The law recognizes two qualified rights of access to
judicial proceedings and records . . . .” Custer Battlefield,
658 F.3d at 1192. There is “‘a First Amendment right of
access to criminal proceedings’ and documents therein.” Id.(quoting Press-Enter. Co. v. Super. Ct., 478 U.S. 1, 8 (1986)
(Press-Enter. II)). There is also “a common law right ‘to
inspect and copy public records and documents, including
judicial records and documents.’” Id. (quoting Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). “The
First Amendment is generally understood to provide a
stronger right of access than the common law.” Id. at 1197
n.7.
10 UNITED STATES V. DOE
Courts must ask two questions to determine whether a
qualified First Amendment right of public access applies to
a particular proceeding or document: (1) “whether the place
and process have historically been open to the press and
general public”; and (2) “whether public access plays a
significant positive role in the functioning of the particular
process in question.” Press-Enter. II, 478 U.S. at 8. This
two-part test is commonly referred to as the “experience and
logic” test. See id. at 9; Index Newspapers, 766 F.3d at 1086.
Even when the experience and logic test is satisfied, however,
the public’s First Amendment right of access establishes only
a strong presumption of openness, and “the public still can be
denied access if closure ‘is necessitated by a compelling
governmental interest, and is narrowly tailored to serve that
interest.’” Times Mirror Co. v. United States, 873 F.2d 1210,
1211 n.1 (9th Cir. 1989) (quoting Press-Enter. Co. v. Super.
Ct., 464 U.S. 501, 509–10 (1984) (Press-Enter. I)).
We have held that a qualified First Amendment right of
public access attaches to in-court sentencing proceedings.
See United States v. Rivera, 682 F.3d 1223, 1229 (9th Cir.
2012); United States v. Biagon, 510 F.3d 844, 848 (9th Cir.
2007); CBS, Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal.,
765 F.2d 823, 825 (9th Cir. 1985). In a case that was the
subject of significant media attention, CBS extended the
qualified right of public access to a motion to reduce a high-
profile defendant’s sentence under Federal Rule of Criminal
Procedure 35(b) for post-sentencing assistance in
investigating or prosecuting another person. 765 F.2d at 826.
In re Copley Press, Inc., 518 F.3d 1022 (9th Cir. 2008), held
that the public has a qualified First Amendment right of
access to: (1) a plea agreement cooperation addendum;
(2) the government’s motion to seal the plea agreement and
memorandum in support of it; (3) the district court’s orders
UNITED STATES V. DOE 11
granting the government’s motion to seal; (4) the defendant’s
plea colloquy transcript; and (5) the transcripts of those
portions of the hearings on the government’s motion to seal
that were open to the public. Id. at 1026–28. But Copley
Press also held that the public has no right of access to
declarations and documents attached to a motion to seal, id.,and neither this court nor the Supreme Court has ever
specifically addressed whether the public has a qualified First
Amendment right of access to written documents relating to
§ 5K1.1.
Doe argues that the public has neither a First Amendment
right nor a common law right of access to § 5K1.1-related
documents. The district court did not reach the common law
question because it concluded that the stronger First
Amendment right of public access applied. See United States
v. Bus. of Custer Battlefield Museum & Store Located at
Interstate 90, Exit 514, S. of Billings, Mont., 658 F.3d 1188,
1197 n.7 (9th Cir. 2011). There are substantial similarities
between the documents at issue in this case and the
documents to which a qualified First Amendment right of
access attaches pursuant to our holdings in CBS and Copley
Press. On the other hand, when we decided CBS and Copley
Press, electronic filing had not made court documents so
easily accessible, nor had the CCACM released its report
finding that new inmates are often required by other prisoners
to produce copies of their case dockets to prove they did not
cooperate with the government. See CCACM Report at 2.
Here, we find it unnecessary to apply the experience and
logic test to decide whether a qualified First Amendment
right of public access attaches to the documents that Doe
seeks to seal. We assume without deciding that there is such
a right, and conclude that the facts of this case rebut any
resulting presumption of openness.
12 UNITED STATES V. DOE
II. Doe Rebutted Any Presumption of Openness that
Arose from a Qualified First Amendment Right of
Public Access.
Where the public has a qualified First Amendment right
of access, “criminal proceedings and documents may be
closed to the public without violating the [F]irst
[A]mendment only if three substantive requirements are
satisfied: (1) closure serves a compelling interest; (2) there is
a substantial probability that, in the absence of closure, this
compelling interest would be harmed; and (3) there are no
alternatives to closure that would adequately protect the
compelling interest.” Oregonian Publ’g Co. v. U.S. Dist. Ct.
for Dist. of Or., 920 F.2d 1462, 1466 (9th Cir. 1990); see also
Times Mirror Co. v. United States, 873 F.2d 1210, 1211 n.1
(9th Cir. 1989). “The court must not base its decision on
conclusory assertions alone, but must make specific factual
findings.” Oregonian, 920 F.2d at 1466.
A. Absent Closure, the Record Establishes that There
Is a Substantial Probability of Harm to
Compelling Interests in Doe’s Case.
Because there is significant overlap as they pertain to the
facts of Doe’s case, we address together the first two prongs
of the test for overcoming the qualified First Amendment
right of public access. Doe argues that closure serves at least
three compelling interests: (1) protecting his life;
(2) protecting his family members’ lives; and (3) preserving
the government’s ongoing investigations based on the
information he provided. He argues that he established a
substantial probability of harm to these interests based on the
evidence that: (1) the cartel is wealthy enough to seek
retribution against him and his family if it learns of his
UNITED STATES V. DOE 13
cooperation; (2) retaliation is very likely because he provided
information about nine international drug-trafficking cartel
members; and (3) agents corroborated his information,
indicating it was credible enough to lead to prosecutions
against real people.
1. The Risks to Doe and His Family
In its briefing, the government echoes the argument it
made in its memorandum in support of a downward
departure. It acknowledges that the risks to cooperators and
their families “could, in many cases, constitute a ‘compelling
interest’ to justify sealing.” The government appears to
concede that closure would serve these interests in Doe’s
case, but it ultimately takes the position that the district
court’s orders should be affirmed.
Nonetheless, in its memorandum in support of a
downward departure and on appeal, the government describes
why the risk to Doe was “heightened” in this case: (1) his
offense involved a large international drug-trafficking
organization; (2) he lost a load of methamphetamine with a
conservative estimated street value of more than half a
million dollars; (3) Doe was involved in multiple border
crossings and delivered narcotics to numerous locations
throughout Southern California; and (4) he cooperated while
he was in pre-trial detention by providing incriminating
information about others who were also incarcerated.
Moreover, Doe provided information about other defendants
whom he recognized during a court appearance. Presumably,
these defendants recognized Doe as well, further jeopardizing
his safety if his cooperation became public. The government
also describes the potential risk to Doe’s family, crediting the
statement in the presentence report that a member of the
14 UNITED STATES V. DOE
cartel told Doe: “Don’t play us dirty because we know where
your family is.”
When considering this same evidence, the district court
was not persuaded that, absent closure, harm would befall
Doe or his family. Its ruling primarily rested on the fact that
neither Doe nor the government identified specific threats.
Without direct evidence of retaliation, the district court
concluded that the risk was “entirely speculative. There’s
nothing at all.” For several reasons, we respectfully disagree
with the district court’s assessment.
First, “[i]t is the government that is in the position to
know the effects of defendants’ provided information.”
United States v. Ressam, 679 F.3d 1069, 1092–93 (9th Cir.
2012). When it filed its memorandum in support of a
downward departure and outlined the risks to Doe, the
government had access to more complete information than
the district court to assess the likelihood of harm. That being
the case, the fact that the government did not identify specific
threats on the record did not make the risk “entirely
speculative.” Second, direct threats are not “a strict condition
precedent to a district court’s granting of a closure motion,”
United States v. Doe, 63 F.3d 121, 130 (2d Cir. 1995).
Finally, the district court’s conclusion that the risks to Doe
and his family were speculative is contradicted by the
evidence in the record about Doe’s involvement with a
wealthy, international cartel that threatened his family if he
“play[ed] . . . dirty,” and which lost roughly half a million
dollars as a result of Doe’s arrest, and the government’s
confirmation of the legitimacy of his information.
The district court did not have the benefit of the CCACM
Report, which sheds considerable light on the dangers faced
UNITED STATES V. DOE 15
by those who agree to cooperate with government
investigations. The report summarizes the results of a 2015
national survey of district judges, U.S. attorneys, federal
defenders, and others involved in the criminal justice system.6
District judges reported 571 instances of harm or threats,
either physical or economic, to defendants and witnesses
between the spring of 2012 and the spring of 2015. CCACM
Report at 2. This included 31 murders of defendant
cooperators. Id. District judges also reported 363 instances
of court records being used to identify cooperators. Id. The
report cautions: “This is a particular problem in our prisons,
where new inmates are routinely required by other inmates to
produce dockets or case documents in order to prove whether
or not they cooperated. If the new inmates refuse to produce
the documents, they are punished.” Id. Notwithstanding the
lack of more specific threats to Doe and his family, the court
erred when it failed to find a substantial risk to compelling
interests under the facts of this case.
The district court also found that there was no significant
risk of harm absent closure because Doe’s cooperation
inevitably would be made public during the oral sentencing.
Doe argues that in prison an essential difference exists
between unsubstantiated claims that someone cooperated with
prosecutors and actual “paper” proof, in the form of official
court filings, confirming cooperation. The CCACM Report
verifies that orally pronouncing a sentence, including
references to § 5K1.1, does not jeopardize defendants in the
same way as memorializing someone’s cooperation in
publicly accessible documents that easily may be viewed
6
See Fed. Judicial Ctr., Survey of Harm to Cooperators (Feb. 12,
2016), https://www.fjc.gov/content/310414/survey-harm-cooperators-
final-report.
16 UNITED STATES V. DOE
online. See CCACM Report at 1–2 (“Remote electronic
access dramatically increased the potential for illicit use of
case information regarding cooperators . . . .”). The district
court’s order did not recognize this distinction.
In an effort to defend the district court’s ruling, the
government suggests that there may not be a substantial risk
of harm to Doe and his family because at the time of
sentencing, Doe’s cooperation “had not produced tangible
results, so no one was facing charges who would have had an
axe to grind with [Doe] (at least based on his cooperation).”
But Doe provided information about the criminal activity of
people whom he recognized in court, and at least one person
he identified was subsequently arrested. On appeal, the
government argues this arrest was made for unrelated
reasons—the discovery of methamphetamine during a routine
traffic stop—but that individual might view Doe’s
cooperation, if it were made public, as something more than
mere coincidence. That is a risk Doe should not have to bear.
2. The Risks to Ongoing Investigations
The district court concluded that the government’s
interest in ongoing investigations was not compelling or
likely to be harmed absent closure because, “most of the time,
the 5K credit is given for information that goes nowhere.”
But like its assessment of the threat to Doe and his family, the
district court’s finding in regard to the government’s interest
in ongoing investigations was contradicted by the evidence in
the record. In the government’s memorandum in support of
a downward departure, the government described how it
confirmed that almost all of Doe’s information was accurate,
that he had provided information about people in and out of
custody, and that agents believed future arrests based on this
UNITED STATES V. DOE 17
information remained possible. The government was in a
better position to assess the risks to its ongoing
investigations, and it decided that Doe’s cooperation
warranted a five-level downward departure.
On appeal, the government further acknowledges its
institutional imperative to protect its ongoing investigations:
“The United States maintained a legitimate, structural interest
in sealing the evidence of [Doe’s] cooperation in order to
protect the integrity of future criminal investigations and the
willingness of future defendants to provide substantial
assistance to the government.” “Substantial weight should be
given to the government’s evaluation of the extent of the
defendant’s assistance, particularly where the extent and
value of the assistance are difficult to ascertain.” U.S.S.G.
§ 5K1.1, appl. n.3. Under the circumstances of this case, it
was error to second-guess the government’s asserted interest
in future criminal investigations and the potential harm that
disclosing Doe’s cooperation could cause to those
investigations.
The fact that the government did not join Doe’s motion to
seal factored into the district court’s analysis of whether
ongoing investigations would be harmed absent closure. But
the government did not receive Doe’s motion to seal until the
morning of sentencing and merely stated that it had “not had
a chance to skim through it.” Doe had no objection to
continuing the proceedings for another week, but the district
court went forward with ruling on the motion. Notably, the
government did not object to Doe’s motion to seal and it had
already moved to seal the underlying reasons for a § 5K1.1
departure. The government’s failure to join Doe’s motion to
seal was not a proxy for the substantial probability of harm to
ongoing investigations.
18 UNITED STATES V. DOE
In sum, the evidence in the record establishes a significant
probability of harm to compelling interests absent closure.
Doe satisfied the first and second prongs of the test for
overriding a qualified First Amendment right of public
access.
B. The Record Establishes That There Are No
Adequate Alternatives to Closure in Doe’s Case.
The district court did not seriously consider any
alternatives to closure because it found no substantial
probability of harm to compelling interests. But even if the
district court had considered such alternatives, the evidence
in the record establishes their inadequacy. Redacting portions
of the motions, orders, sentencing chart, and docket entries
would not sufficiently protect Doe. In fact, under the
circumstances here, doing so would flag the filings in his
case. The publicly available and remotely accessible filings
would immediately look different from the filings in non-
cooperators’ cases, so this well-intentioned measure would
result in docket entries that readily signal Doe’s cooperation.
Moreover, as the government acknowledges, using “5K”
as opposed to “5K1.1” would not help because it is
implausible that someone—especially any one of the people
Doe recognized in court or the person he identified who was
subsequently arrested—would assume “5K” means
something other than substantial cooperation in Doe’s case,
given the context and Doe’s sentencing reduction. The record
amply demonstrates the inadequacy of alternatives to closure.
Doe therefore satisfied the third prong of the test for
overriding a qualified First Amendment right of public
access. See CBS, Inc. v. U.S. Dist. Ct. for Cent. Dist. of Cal.,
765 F.2d 823, 826 (9th Cir. 1985) (“We do not foreclose the
UNITED STATES V. DOE 19
possibility that in an extreme case [alternatives to closure
such as redaction] would be untenable and that court files and
proceedings on post-conviction matters would therefore be
closed . . . .”). The district court abused its discretion by
denying Doe’s motion to seal docket entries 35–37, 42, 44,
and 45, and to strike references to the sentencing guidelines
in the docket text of entries 35 and 36. Here, closure is
warranted.
III. A Sealed Supplement in All Dockets Would
Prevent the Fact of Cooperation From Becoming
Immediately Apparent, and Also Deter the Illicit
Use of Court Documents to Harm Cooperators.
The CCACM Report highlights the grave threats faced by
defendants who cooperate with the government in the era of
remote electronic access to court files, but the threat to
cooperators “also interferes with the gathering of evidence”
and “the presentation of witnesses.” CCACM Report at 7.
The CCACM Report concludes that “[b]ecause criminal case
dockets are being compared in order to identify cooperators,
every criminal case is implicated.” Id. at 3.
Pending the development of a national rule for cooperator
information, the CCACM Report “recommends that, in all
criminal cases, courts restructure their practices so that
documents or transcripts that typically contain cooperation
information—if any—would include a sealed supplement.
Any discussion of defendants’ cooperation—or lack
thereof—would then be limited to these sealed supplements.”
Id. All plea agreements and sentencing memoranda would
have a public portion and a sealed supplement, and all
transcripts of guilty pleas would include “a sealed portion
containing a conference at the bench that w[ould] either
20 UNITED STATES V. DOE
contain any discussion of or references to the defendant’s
cooperation, or simply state that there is no agreement for
cooperation.” Id. at 8. Similarly, under the CCACM
Report’s recommendation, all sentencing transcripts would
“include a sealed portion containing a conference at the
bench, which reflects either (a) any discussion of or
references to the defendant’s cooperation, including the
court’s ruling on any sentencing motion relating to the
defendant’s cooperation; or (b) a statement that there has
been no cooperation.” Id. Finally, all Rule 35(b) motions
would be sealed, and if district courts received requests for
criminal docket entries, a letter explaining that all cases
contain sealed supplements would accompany the requested
documents. Id. at 8–9. The upshot of the CCACM Report’s
recommendation is that, if accessed by a member of the
public, electronically or otherwise, cooperating defendants’
dockets would not include red flags signaling their
cooperation.
We do not decide here whether our precedent allows
district courts to follow the CCACM Report’s guidance in its
entirety. See In re Copley Press, Inc., 518 F.3d 1022,
1026–27 (9th Cir. 2008) (holding that a qualified First
Amendment right of public access attaches to, among other
documents, a plea colloquy transcript); CBS, Inc. v. U.S. Dist.
Ct. for Cent. Dist. of Cal., 765 F.2d 823, 825–26 (9th Cir.
1985) (holding that a qualified First Amendment right of
public access attaches to a Rule 35 motion). For its part, the
CCACM Report expresses concern that Copley Press “may
impact court efforts to implement” its recommendations in
our circuit, correctly recognizing that a presumption of
closure for all court filings would not be consistent with our
circuit’s case law. CCACM Report at 4 n.6.
UNITED STATES V. DOE 21
But 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. See Copley Press, 518 F.3d at 1029(“The public has no right to access the declarations and
documentation appended to the government’s March 16
motion to seal . . . .”). As we have noted: “Secrecy is a one-
way street: Once information is published, it cannot be made
secret again.” Id. at 1025. In light of the CCACM Report’s
revelations about the risks posed by remote electronic access
to court filings, caution is warranted. By reference to the
CCACM Report, however, we do not suggest that district
courts should take one course of action over another. The
CCACM Report simply describes one alternative. District
courts may wish to consider employing other alternatives,
consistent with our case law, to protect cooperators from
retaliation and to safeguard ongoing investigations.
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.