United States District Court, N.D. California
ORDER RE: OBJECTIONS TO MAGISTRATE JUDGE'S ORDER
ON ADMINISTRATIVE MOTION FOR DISCLOSURE OF SEALED MATERIALS
TO APPELLATE COUNSEL RE: DKT. NO. 223, 225
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.
Damion Sleugh filed an administrative motion for an order
authorizing the disclosure to his appellate counsel of all
materials filed under seal in this case. (Dkt. No. 210.) The
government did not oppose the disclosure of materials it
filed under seal, but Shawndale Boyd, Sleugh's
co-defendant, opposed the motion with respect to his ex parte
applications for Federal Rule of Civil Procedure 17(c)
subpoenas. Boyd did not oppose unsealing the court orders on
his applications and the corresponding subpoenas. Thus, on
December 29, 2016, the magistrate judge issued on order
granting in part and denying in part Sleugh's
administrative motion. Specifically, the magistrate judge
denied Sleugh's motion for disclosure only with respect
to the disclosure of Boyd's ex parte subpoena
applications. (Dkt. No. 223.)
before the Court are Sleugh's objections to the
magistrate judge's order. (Dkt. No. 225.) Specifically,
Sleugh asks this Court to set aside the portion of the
magistrate judge's order denying his motion for
disclosure of Boyd's ex parte subpoena applications.
Having carefully reviewed the magistrate judge's order
and the objections thereto, the Court Overrules Sleugh's
objections and Affirms the magistrate judge's order at
Docket Number 223.
2014, Boyd and Sleugh were indicted on several counts in this
district. (Dkt. No. 1.) Boyd pleaded guilty to four counts
and the government dismissed the murder charge. (Dkt. No.
183.) Subsequently, Boyd testified at trial against Sleugh,
and in July 2015, a jury found Sleugh guilty of all counts,
including use of a firearm during a drug trafficking crime
causing murder. (Dkt. No. 146, 175.) Sleugh was sentenced to
a total term of life plus 120 months. (Dkt. No. 175 at 2.)
to the instant objections, Boyd filed several subpoena
applications pursuant to Rule 17(c). Under such rule, a party
may subpoena a witness to produce “any books, papers,
documents, data, or other objects the subpoena
designates.” Fed. R. Crim. P. 17(c)(1). The proponent
of a Rule 17(c) subpoena must demonstrate relevancy,
admissibility, and specificity. See United States v.
Nixon, 418 U.S. 683, 700 (1974). As such, courts have
recognized that criminal defendants may face a dilemma
between revealing their defense to the government by
supporting their Rule 17(c) applications or not acquiring
necessary evidence for their case. See United States v.
Tomison, 969 F.Supp. 587, 593-94 (E.D. Cal. 1997).
Accordingly, courts have allowed defendants to file Rule
17(c) applications under seal. Id. (recognizing that
the “need to preserve a defendant's constitutional
right to obtain and use relevant evidence suggests that Rule
17(c) affords the defendant the right to pre-trial production
in secrecy”). Here, the Court allowed Boyd to file such
subpoena applications under seal.
13, 2016, Sleugh filed a motion for disclosure of sealed
materials to his appellate counsel, including, among others,
Boyd's Rule 17(c) subpoena applications. (Dkt. No. 210.)
On August 8, 2016, the Court referred such motion to
Magistrate Judge Ryu. (Dkt. No. 218.) Magistrate Judge Ryu
issued her order on December 29, 2016 (Dkt. No. 223), to
which Sleugh filed objections on January 10, 2017 (Dkt. No.
party has fourteen days from the date of service to object to
a Magistrate Judge's nondispositive order.”
United States v. Pacific Gas & Elec. Co., No.
14-CR-175-TEH, 2016 WL 3185008, at *2 (N.D. Cal. June 8,
2016). Federal Rule of Criminal Procedure 59(a) provides that
when a party files objections to a magistrate judge's
order on a nondispositive matter, the district judge
“must consider timely objections and modify or set
aside any part of the order that is contrary to law or
clearly erroneous.” A party's failure to object
waives the party's right to review. Id.; see
also Pacific Gas & Elec. Co., 2016 WL 3185008, at
raises two objections to the magistrate judge's order
denying him access to Boyd's Rule 17(c) subpoena
applications, namely that he: (i) has a presumptive right to
access such sealed materials; and (ii) has, nevertheless,
demonstrated a special need to review such materials. The
Court addresses each contention below.
Presumptive Right to Access Sealed Materials
ruling against Sleugh with regard to the Rule 17(c) subpoena
applications, the magistrate judge found that no presumptive
right of access to Rule 17(c) subpoena materials exists,
under either the First Amendment or the common law, and,
thus, Sleugh would need to demonstrate a special need to
access such materials. Sleugh, on the other hand, contends
that he has a presumptive right of access to such materials,
and should thus be entitled to the materials unless a
compelling need for closure of the same exists.
does not persuade in this regard. The magistrate judge
discussed the extant case law related to disclosure of sealed
Rule 17(c) subpoena materials, and found that such authority
does not support a presumptive right of access to the same.
The Ninth Circuit has not yet addressed the issue
specifically, and thus, the magistrate judge relied on the
First Circuit's opinion in United States v.
Kravetz, 706 F.3d 47 (1st Cir. 2013). There, the First
Circuit explained that the “scope of the public's
presumptive right of access to this category of documents
appears to be a matter of first impression among the
circuits.” Id. at 53. The First Circuit then
proceeded to hold that no such right of public access to such
documents existed either under the First Amendment or the
common law. Id. at 53-56. Thus, the First Circuit
held that the disclosure of such documents “may be
obtained only upon a showing of special need.”
Id. at 56 (citing United States v. Corbitt,
879 F.2d 224, 237-39 (7th Cir. 1989) and United States v.