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United States v. Nersesyan

United States District Court, E.D. California

November 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOE NERSESYAN, Defendant.

          AMENDED ORDER GRANTING IN PART AND DENYING IN PART THE UNITED STATES OF AMERICA'S SEALING REQUESTS

          GERLAND E BURRELL, JR. SENIOR UNITED STATES DISTRICT JUDGE

         On November 9, 2017, the United States of America (“government”) filed on the public docket notice that it is requesting to “file under seal: (1) two exhibits to the government's Sentencing Memorandum filed with the Court in connection with the sentencing of defendant JOE NERSESYAN based upon the concerns articulated in the government's Request to Seal Documents; and (2) a Request to Seal Documents.” Notice at 1:16-20, ECF No. 85. The government submitted to the undersigned the documents it desires sealed for consideration in camera via an email addressed to the Courtroom Deputy Clerk. Five items were submitted: Exhibit A (a police report), Exhibit B (a computer compact disc), and Exhibit C (a one-page report memorializing an FBI interview), a Request to Seal Documents, and a Proposed Order.

         The Proposed Order is made public herein notwithstanding the government's submission of it for in camera consideration because the judicial sealing findings in it are too conclusory to justify withholding it from the public and it contains no information that could not have been filed on the public docket. The Proposed Order states:

Pursuant to Local Rule 141(b) and based upon the representation contained in the government's Request to Seal, IT IS HEREBY ORDERED that exhibits A and C to the government's Sentencing Memorandum pertaining to defendant JOE NERSESYAN, and the government's Request to Seal shall be SEALED until further order of this Court.
It is further ordered that access to the sealed documents shall be limited to the government and counsel for the defendant.
The Court has considered the factors set forth in Oregonian Publishing Co. v. U.S. District Court for the District of Oregon, 920 F.2d 1462 (9th Cir. 1990). The Court finds that, for the reasons stated in the government's request, sealing the government's motion serves a compelling interest. The Court further finds that, in the absence of closure, the compelling interests identified by the government would be harmed. In light of the public filing of its request to seal, the Court further finds that there are no additional alternatives to sealing the government's motion that would adequately protect the compelling interests identified by the government.

         The government's Request to Seal Documents is a two page document. The first page references this court's local rule applicable to sealing requests and sealing principles in a United States Supreme Court decision; the second page contains two assertions on which the government predicates its sealing request. The government is authorized to file under seal its Request to Seal Documents since the government indicates its referenced two assertions should be filed under seal.

         The government's public Notice of Request to Seal erroneously states that the government only seeks to seal “two exhibits to the government's Sentencing Memorandum.” Notice at 1:16-17 (emphasis added). The government's Request to Seal Documents is in accord, but it is internally inconsistent. The government states in its Request to Seal Documents that the government “requests an Order sealing exhibits A and C” (emphasis added), but also that “the government seeks to file Exhibits A and B under seal, ” (emphasis added). The proposed order would have the undersigned seal only “exhibits A and C.” (emphasis added). The government's publically docketed sentencing memorandum refers to a document “filed under seal as Exhibit A, ” Sentencing Memorandum at 2:12, ECF No. 84 (emphasis added), and one “filed under seal as Exhibit C, ” Id. at 3:5 (emphasis added), but then references a document as merely “submitted to the Court as Exhibit B, ” Id. at 2:21-22 (emphasis added).

         However, in the email the government submitted to the Courtroom Deputy Clerk concerning the sealing requests, the government's attorney states: “I have attached the Word version of the Proposed Order, Request to Seal, and the Sealed exhibits A-C in the above referenced case. Exhibit B [contains jail-telephone] audio recordings burned on a disk I will send up to you.” Following receipt of this email, on November 9, 2017, chambers received a 9½-by-12-inch pink envelope, taped shut, marked:

         To be opened by addressee only

         THE HONORABLE GARLAND E. BURRELL JR. UNITED STATES DISTRICT JUDGE

         DOCUMENTS TO BE SEALED

         This envelope contains a cover page bearing the title “EXHIBITS A, B AND C IN SUPPORT OF GOVERNMENT'S SENTENCING MEMORANDUM AND RESPONSE TO DEFENDANT'S MOTION TO CORRECT THE FINAL PRESENTENCE REPORT” and under which are the words “UNDER SEAL”.

         The procedural sealing requirements generally obligate the movant for a closure or sealing order to “‘provide [in the publicly docketed notice] a kind of index to the judicial documents' that the [party] desires to file under seal, [and that the party informs the public what has been provided to the judge for in camera consideration of the closure request] so as to ‘endow the public and press with the capacity to exercise a perceived right' to access all or part of said documents.” United States v. Morales, No. 2:13-CR-00335-GEB, 2016 WL 1375627, at *1 (E.D. Cal. Apr. 7, 2016) (quoting Hartford Courant Co. v. Pellegrino,380 F.3d 83, 93 (2d Cir. 2004)). Following this procedure should avoid the appearance that the court maintains a secret filing docket. Public “confidence [in the court's docketing system could be] erode[d] ...


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