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Ninth Circuit Orders Sealing of Court Documents that Reveal Informant

by Matt Clarke

On September 12, 2017, the Ninth Circuit Court of Appeals reversed a federal district court’s denial of a defendant’s motion to seal all documents related to the lower sentence he received because he informed on a drug cartel.

John Doe is the pseudonym of a defendant who pleaded guilty to smuggling meth into the United States and received a five-level downward departure when he was sentenced in exchange for providing information about a drug cartel to federal prosecutors. According to a motion for downward departure filed by the government pursuant to U.S.S.G. § 5K1.1, Doe supplied the names, addresses, phone numbers and physical descriptions of cartel members and informed the government of the presence of cartel members in court during one of his appearances, detailing their roles in the drug smuggling operation.

The motion described Doe’s information as generally reliable and accurate. It led to the arrest of at least one other cartel member; the motion also stated that, after Doe’s arrest, a cartel member told him, “Don’t play dirty with us because we know where your family is.”

Based upon that threat, the government filed a motion to seal the downward departure motion and related documents. Prosecutors later filed an amended motion for a downward departure under § 5K1.1, but failed to file a motion to seal. Since § 5K1.1 only applies to informants and the motions used § 5K1.1 in their titles, which appeared on the court’s publicly-accessible electronic docket, Doe’s attorney moved to seal the documents, strike the docket entry describing the pleadings related to § 5K1.1 and replace them with more generic descriptions.

In denying the motion, the district court reasoned that since it would refer to the downward departure under § 5K1.1 during Doe’s sentencing hearing, that information would be made public anyway and it would make little sense to strike references to it from the docket. Doe appealed the denial of the motions to seal and strike.

The Ninth Circuit noted the district court had mentioned only “5K” – a section that allows for downward and upward departures for a variety of reasons – and not “5K1.1” – a section which applies only to informants – during Doe’s sentencing hearing. Thus, the fact that Doe was an informant was not revealed publicly during the hearing. Further, having Doe’s status as an informant mentioned in a sentencing hearing was qualitatively different from having it constantly available to the public on an electronic court docket.

The Court of Appeals held there were qualified First Amendment and common law rights of access to judicial documents, and assumed without deciding that the stronger of the two, the First Amendment right, applied to § 5K1.1 records. However, under the facts in this case Doe had “successfully rebutted the presumption of openness” in those records.

The appellate court accepted the government’s position that Doe had provided useful information against a large drug cartel and that he and his family would be endangered should his cooperation become known. Citing the Interim Guidance for Cooperator Information from the Committee on Court Administration and Case Management of the Judicial Conference of the United States, the Ninth Circuit noted that informants are frequently threatened, harmed or murdered, and new prisoners are sometimes required to prove they have not cooperated by presenting copies of their sentencing documents.

The Interim Guidance recommended that, “pending the development of a national rule” for informants, every criminal case should include a sealed supplement containing all information as to whether a defendant cooperated with the government or not. [See, e.g.: PLN, June 2009, p.24]. Accordingly, the Court of Appeals reversed the denial of the motions to seal and strike, and ordered the district court on remand to seal the documents related to Doe’s downward departure under § 5K1.1. See: United States v. Doe, 870 F.3d 991 (9th Cir. 2017). 

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Related legal case

United States v. Doe