United States District Court, E.D. California
ORDER DENYING OVERBROAD SEALING REQUEST
GARLAND E. BURRELL SENIOR UNITED STATES DISTRICT JUDGE
August 28, 2019, Defendant Jose Vasquez filed on the public
docket a motion for a sealing order which would authorize him
to file his Sentencing Memorandum under seal. Motion, ECF No.
35. On the same day, Vasquez emailed his sentencing
memorandum and certificates he earned (Exh. A to the
sentencing memorandum) to chambers for in camera
consideration of his sealing request.
has not shown that the extent of secrecy he seeks is
authorized under federal sealing jurisprudence, and certain
redactions he seeks are already authorized redactions
prescribed in Federal Rule of Criminal Procedure 49.1(a).
the content of the sentencing memorandum Vasquez seeks to
seal is not typically kept secret. Therefore, the
“starting point” of the analysis on whether the
sealing request should be granted begins with “a strong
presumption in favor of access.” Kamakana v. City
and County of Honolulu, 447 F.3d 1172, 1178-1179 (9th
Cir. 2006) (“Unless a particular court record is one
traditionally kept secret, a strong presumption in favor of
access is the starting point.”) (internal citation
omitted). “A party seeking to seal a judicial record
then bears the burden of overcoming this strong presumption
by meeting the compelling reasons standard. That is, the
party must articulate compelling reasons supported by
specific factual findings, that outweigh the general history
of access and the public policies favoring disclosure, such
as the public interest in understanding the judicial
process.” Id. at 1178-79 (internal citations
explained in United States v. Kravetz:
[A]dvocacy memoranda, commonly submitted by the parties to
the court in advance of sentencing, are “judicial
records” entitled to a common law presumption of access
. . . [S]entencing memoranda . . . bear directly on criminal
sentencing in that they seek to influence the judge's
determination of the appropriate sentence, [and] fall
squarely into the category of materials that a court relies
on in determining central issues in criminal litigation.
Public access to sentencing memoranda is consonant with the
values animating the common law right. ‘Access to
judicial records and documents allows the citizenry to
monitor the functioning of our courts, thereby insuring
quality, honesty and respect for our legal system.” The
presence of such oversight serves several values when a court
is called upon to exercise its discretion to impose a
criminal sentence. Public access in this context may serve to
“check any temptation that might be felt by either the
prosecutor or the court ... to seek or impose an arbitrary or
disproportionate sentence, ” promote accurate
fact-finding, and in general stimulate public confidence in
the criminal justice system by permitting members of the
public to observe that the defendant is justly sentenced[.]
These salutary effects of access to sentencing hearings also
serve to support public access to sentencing memoranda.
U.S. v. Kravetz, 706 F.3d 47, 56-57 (1st Cir. 2013)
(internal citations omitted).
“the First Amendment right of access also applies to
[certain sealing requests in] sentencing proceedings.”
United States v. Rivera, 682 F.3d 1223, 1229 (9th
Cir. 2012). This access right imposes “the burden [on]
the party seeking closure, here [Vasquez], to present facts
supporting closure and to demonstrate that available
alternatives will not protect [the interests he desires to
argue in a secret proceeding].” Oregonian Pub. Co.
v. U.S. Dist. Court, 920 F.2d 1462, 1467 (9th Cir.
1990). Vasquez has not satisfied this burden.
The Supreme Court has made clear criminal proceedings and
documents may be closed to the public without violating the
first amendment only if three substantive requirements are
satisfied: (1) closure serves a compelling interest; (2)
there is a substantial probability that, in the absence of
closure, this compelling interest would be harmed; and (3)
there are no alternatives to closure that would adequately
protect the compelling interest.
Oregonian Pub. Co., 920 F.2d at 1466. “[E]ven
if [certain] privacy rights of [Vasquez] in [his sentencing
memorandum and his referenced certificates] constitute a
compelling interest, ” Vasquez has not shown that there
are no “alternatives” to the degree of
“closure” or secrecy he seeks “that can
protect these interests.” United States v.
Guerrero, 693 F.3d 990, 1003 (9th Cir. 2012) (discussing
certain “alternatives” to “full
disclosure” and finding since “alternatives to
closure” existed “it was not clear error to
conclude that [the movant's] privacy interests do not
override the First Amendment right of access.”).
Vasquez has not provided justification for the degree of
sealing he seeks, his sentencing memorandum and certificates
are deemed returned to him so that he could decide how to
proceed in light of this ruling. See Local Rule 141 (e) (1)
(“If a [sealing] Request is denied in full or in part,
the Clerk ...