United States District Court, E.D. California
ORDER DENYING DEFENDANT'S REQUESTS TO SEAL
GARLAND E. BURRELL, JR. Senior United States District Judge
November 1, 2017, Defendant Simone Aguilar filed on the
public docket a Notice of Request to Seal Documents in which
she states “she is requesting to file under seal: (1) a
twenty-one page document filed with the Court in connection
with the criminal prosecution of Simone Aguilar based upon
the concerns articulated in the Defendant's Request to
Seal Documents; and (2) a Request to Seal Documents.”
Notice at 1:16-19, ECF No. 101. Defendant submitted for in
camera consideration the documents she desires sealed via an
email addressed to the Courtroom Deputy Clerk.
November 3, 2017, Defendant filed on the public docket a
second Notice of Request to Seal Documents in which she
states “she is requesting to file under seal Findings
And [Proposed] Order Sealing Defendant's Request To Seal
And Sentencing Brief.” Second Notice at 1:16-18, ECF
No. 102 (alteration in original). The proposed order is made
public in this order notwithstanding Defendant's publicly
filed notice that she seeks to file it under seal. The
referenced proposed order reads:
Having considered the Defendant's Request to Seal,
Sentencing Brief, Local Rule 141(b) and the considerations
set forth in the case of Oregonian Publishing Co. v.
United States District Court for the District of Oregon,
920 F.2d 1462, 1466 (9th Cir. 1990).
THE COURT HEREBY FINDS THAT:
1. Defendant Simone Aguilar's privacy interest and right
to effective assistance of counsel are compelling interests;
2. In the absence of sealing these compelling interests would
3. There are no alternatives to sealing that would adequately
protect those compelling interests.
IT IS ORDERED THAT Defendant's Sentencing Brief and
Request to Seal be filed under seal These proposed judicial
sealing findings are too conclusory to justify
Defendant's closure request, and Defendant provides no
reason justifying why this conclusory order should be filed
under seal. Proposed judicial findings to be included in such
a sealing order are required to evince that the public's
presumed right of access under the First Amendment doctrine
is “overcome . . . by an overriding interest” and
“that closure is essential to preserve higher values
and is narrowly tailored to serve that interest. The interest
is to be articulated along with findings specific enough that
a reviewing court can determine whether the closure order was
properly entered.” Press-Enter. Co. v. Superior
Court of California, 478 U.S. 1, 9-10 (1986). Further,
it is pellucid that “[t]he trial court should only seal
that part of its findings that is necessary to protect
[legitimate compelling privacy or other interests], and it
must make every effort to explain as much of its decision as
possible on the public record to enable an interested person
to intelligently challenge the decision.”
Washington Post v. Robinson, 935 F.2d 282, 289 (D.C.
first sealing request (ECF No. 101) also references sealing
jurisprudence in a woefully conclusory manner. “Under
the first amendment, the press and the public have a presumed
right of access to court proceedings and documents.”
Oregonian Pub. Co. v. U.S. Dist. Court, 920 F.2d
1462, 1466 (9th Cir. 1990) (citing Press-Enterprise Co.
v. Superior Court, 464 U.S. 501, 510 (1985)). Further,
“the First Amendment right of access applies to
sentencing proceedings.” United States v.
Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012); but
see, e.g., United States v. Alcantara, 396 F.3d 189,
197 n. 6 (2d Cir. 2005) (“Courts have generally held .
. . that there is no First Amendment right of access to
pre-sentence reports.” (citing United States v.
Corbitt, 879 F.2d 224, 237 (7th Cir. 1989)).
considering such a sealing request, the Ninth Circuit has
We begin with the presumption that the public and the press
have a right of access to criminal proceedings and documents
filed therein. The right of access is grounded in the First
Amendment and in common law, and extends to documents filed
in pretrial proceedings as well as in the trial itself.
We find no principled basis for affording greater
confidentiality to post-trial documents and proceedings than
is given to pretrial matters. The primary justifications for
access to criminal proceedings, 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, apply with as much force to
post-conviction proceedings as to the trial itself.
CBS, Inc. v. U.S. Dist. Court, 765 F.2d 823, 825
(9th Cir. 1985) (citations omitted); but see United States v.
Doe, 870 F.3d 991, 997-98 (9th Cir. 2017) (distinguishing CBS
as decided before “electronic filing had . . . made
court documents so easily accessible” and based on the
context in which ...