United States District Court, S.D. California
ORDER DENYING MOTION TO STRIKE AND REPLACE [Doc. #43]
LARRY ALAN BURNS, District Judge.
Counsel for defendant Alayh Yomar Morales has filed a motion to strike certain docket entries relating to a government motion for downward departure under § 5K1.1 of the Sentencing Guidelines and to replace the entries with nondescript language that disguises the nature of the motion. The sparse one paragraph motion offers no explanation or legal basis for the requested action but the Court surmises that the purpose is to camouflage the fact that the government is recommending that the defendant receive leniency for providing "substantial assistance."
Courts today play a major role in defining rights and liberties and in shaping public opinion. Because of this, access to court proceedings has grown increasingly important and there has been a corresponding recognition of the right of the general public and the media under the First Amendment to attend and to bear witness to what happens in court. The trend has been especially evident in criminal cases, and the Supreme Court and the Ninth Circuit have extended the First Amendment right of access to include the right to inspect and copy judicial documents and records pertaining to criminal sentencing. See Nixon v. Warner Communications, 435 U.S. 589, 597 (1978) ("[C]ourts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."). Oregonian Publ'g Co. v. U.S. Dist. Court, 920 F.2d 1462, 1466 (9th Cir. 1990) (recognizing First Amendment right of access to plea agreements); CBS, Inc. v. U.S. Dist. Court for the Cent. Dist. Of Cal., 729 F.2d 823, 826 (9th Cir. 1985) (finding a right of access to document filed in connection with a motion to reduce a sentence). There is now "a strong presumption" in favor of general public access to records, Phoenix Newspapers v. U.S. Dist. Court, 156 F.3d 940, 946 (9th Cir. 1998); Associated Press v. U.S. District Court, 705 F.2d 1143, 1145-46 (9th Cir. 1983); United States v. Brooklier, 685 F.2d 1162, 1170 (9th Cir. 1982), although the right is not absolute and can be denied if there are compelling countervailing reasons for keeping records secret. Press Enterprise Co. v. Superior Court, 464 U.S. 501, 510 (1984). But access may be denied only when there has been a showing that non-disclosure "is strictly and inescapably necessary" to protect a compelling interest. Brooklier, 685 F.2d at 1171. The interest which overrides the presumption of openness must be specified with particularity, and a court must make findings that the closure remedy is narrowly confined to protect that interest. CBS, Inc., 765 F.2d at 865. The proponent of non-disclosure must show that: (1) disclosure will cause irreparable harm or that some other compelling interest is at stake; (2) there is no alternative to non-disclosure that will adequately protect the right or interest; and (3) non-disclosure will adequately protect against the perceived harm. Oregonian Publ'g Co., 920 F.2d at 1466.
No such showing has been made in this case, and it is not clear whether it can be. The Ninth Circuit is one of many courts to recognize that the First Amendment right of access applies to sentencing proceedings. U.S. v. Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012); U.S. v. Biagon, 510F.3d 844, 848 (9th Cir. 2007). When sentencing a defendant, a federal judge in our circuit is required to first correctly calculate the applicable Sentencing Guidelines range and then keep the range in mind throughout the sentencing process. U.S. v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc) ("All sentencing proceedings are to begin by determining the applicable Guidelines range. The range must be calculated correctly."). It is procedural error for a judge to fail to explain the basis for any sentence that he or she imposes, including any departure from the Guidelines range. Id. at 993 ("It would be procedural error for a district court to fail to calculate - or to calculate incorrectly - the Guidelines range.... or to fail to explain the sentence selected, including any deviation from the Guidelines range."); United States v. Blinkinsop, 606 F.3d 1110, 1114-15 (9th Cir. 2010); U.S. v. Miqbel, 444 F.3d 1173, 1181 (9th Cir. 2006) (sentencing court must state specific reasons for imposing a sentence that deviates from the Guidelines range). This necessarily means that the judge must explain in open court how he arrived at the applicable Guidelines range. There is no wholesale exemption to this requirement in cases where the basis for departure is substantial assistance under § 5K1.1. Nor can there be because a judge's Sentencing Guideline calculations must be part of the sentencing record so that they can be reviewed by the court of appeals. While there may be a way to cryptically articulate Guideline calculations using code language or Masonic rituals, that's beside the point. Unless compelling reasons are shown, a court should not secrete or deliberately camouflage the legal basis for a departure because doing so is at odds with the rule that sentencing proceedings are to be open to the public and sentences are to be imposed and pronounced in open court. See CBS, Inc., 765 F.2d at 285 ("[t]he primary justification for access to criminal proceedings [is] first that criminal trials historically have been open to the press and to the public, and, second, that access to criminal trials plays a significant role in the functioning of the judicial process and the governmental system..."); U.S. v. Alcantara, 396 F.3d 189, 198-99 (2nd Cir. 2005) ("[T]he ability to see the application of sentencing laws in person is important to an informed public debate over these laws. Observing the effect of laws that expand or contract the discretion of judges in imposing sentences in individual cases may provide a valuable perspective.").
To comply with the First Amendment right of access at sentencing, this Court generally requires the government and the defendant to file their Sentencing Summary Charts publicly, unless they make a particularized showing that the mere mention of a substantial assistance departure is likely to cause irreparable harm. On the other hand, given the obvious need for secrecy of the reasons behind a § 5K1.1 motion, the Court invariably permits the government to file the declaration outlining the grounds for the motion under seal. Likewise, to comply with the requirement to explain how the Court arrived at its Guideline calculations, in cases where § 5K1.1 motions are made, the Court will mention § 5K1.1 during its oral pronouncement of sentence (without discussing except in general terms why the departure is warranted). So the § 5K1.1 departure "cat" is typically out of the bag at a defendant's sentencing, unless good cause has been shown to keep the nature of the departure secret.
In this case, 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. It cannot be said on this record that there is a compelling need to redact or disguise information that will be made public. See Virginia Dep't of State Police v. Washington Poet, 386 F.3d 567, 579 (4th Cir. 2004) (interest in protecting integrity of ongoing murder investigation was insufficiently compelling to overcome qualified First Amendment right of access when bulk of information under seal was already public knowledge); In re Charlotte Observer, 921 F.2d 47, 50 (4th Cir. 1990) ...