BENJAMIN B. WAGNER, United States Attorney, MICHAEL FRYE, KEVIN P. ROONEY, Assistant U.S. Attorneys, Fresno, CA.
MYTHILI RAMAN, Acting Assistant Attorney General, JACABED RODRIGUEZ-COSS, Trial Attorney, Criminal Division, U.S. Department of Justice, Bridgeport, CT.
GOVERNMENT'S RESPONSE IN OPPOSITION TO MOTION TO SEAL
JOHN C. COUGHENOUR, District Judge.
COMES NOW the United States of America, by and through the undersigned attorneys, and respectfully prays and alleges as follows:
On December 2, 2013, the defendant filed a Motion Related to Number and Order of Anticipated Trial Phases and Regarding the Jury Selection Process. Dkt. No. 149. The defendant argues that in order to have a fair and impartial jury, for both the guilt and penalty phases, he needs two separate juries to consider his case. On that same date, pursuant to Local Rule 141, the defendant filed a Motion to File Ex Parte Proffer Under Seal. Dkt. No. 150. Local Rule 141(c) provides that an opposition to a request to seal a document may be submitted within three days of the date of service. The Government received the defendant's Motion to File Ex Parte Proffer Under Seal on December 2, 2013. Therefore, the instant opposition is timely.
A. Criminal Judicial Proceedings Are Presumed to be Public.
As a general rule, all criminal judicial proceedings are to be open to the public. See, Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10-11 (1986) (" PressEnterprise II "); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505 (1984) (" Press-Enterprise I "); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980). See also Samuel B. Sokol, Comment, Trying Dependency Cases in Public: A First Amendment Inquiry, 45 UCLA L.Rev. 881, 884-901 (1998). Further, "(c)ourts have long recognized a common-law right of access to judicial records." Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) ( citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 599 (1978)).
In Barrett v. United States, 2009 WL 2982670, *1 (E.D.Okla. 2009), the Court ordered the unsealing of a number of documents the Government argued it needed to review in order to properly respond to the defendant's motion pursuant to section 2255. The Court in Barrett stated:
As the Government's Reply correctly notes, Petitioner has raised the issues to be addressed in this matter based upon sealed court documents in his underlying criminal case and this Court has the authority to order any document filed with the Court to be unsealed... Sealed documents.... may be approved by the Court only upon a showing that a legally protected interest of a party, non-party or witness outweighs the compelling public interest in disclosure of records.
See also Hinson v. United States, 2010 WL 3724869, *1 (E.D. Mo. 2010) (applying the Eighth Circuit compelling interest test to sealed documents in a § 2255 case).
The Government recognizes this Court's authority to seal documents before it, based upon the Court's inherent supervisory authority over its own files and records. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978); United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685, 689-90 (5th Cir. 2010); Gambale v. Deutsche Bank AG, 377 F.3d 133, 140-41 (2d Cir. 2004). The Government further understands that once a court orders documents before it sealed, the court continues to have authority to enforce its order sealing those documents, as well as authority to loosen or eliminate any restrictions on the sealed documents. See United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427-28 (10th Cir. 1990); see also Gambale, 377 F.3d at 141 (2d Cir.) (citing Poliquin v. Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993)). This is true even if the case in which the documents were sealed has ended. See United Nuclear Corp., 905 F.2d at 1427-28; see also Gambale, 377 F.3d at 141-42 (2d Cir.). United States v. Pickard, 733 F.3d 1297, 1300-01 (10th Cir. 2013).
However, the Court's exercise of this power is conditioned upon the moving party's ability to show "some significant interest that outweighs the presumption" in favor of open access to judicial records. Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir. 2012) (internal quotation marks omitted). See also In re Gitto Global Corp., 422 F.3d 1, 6 (1st Cir. 2005) (although the court is given this supervisory power [to seal documents], "only the most compelling reasons can justify non-disclosure of judicial records.") (internal brackets and quotations omitted); In re Neal, 461 F.3d 1048, 1053 (8th Cir. 2006) (same).
B. The Defendant Has Not Shown a "Significant Interest" in Sealing the Proposed Proffer.
The defendant has moved to file ex-parte and under seal a proffer of its trial strategy that he claims justifies this Court empanelling two separate juries. The defendant's request for two juries is, by his own admission, Dkt. No. 149, p. 11 n. 2, contrary to the mandate of the Federal Death Penalty Act ("FDPA"). Indeed, the defendant's interpretation of the FDPA has been rejected by three circuit courts. Thus, the defendant is essentially moving this Court to judicially ...