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Fourth Circuit Orders Sealing of North Carolina Court’s Order to “Protect Defendant from Harm”

“John Doe” moved a North Carolina federal district court in 2016 “for a sentence reduction under 18 U.S.C. § 3582(c)(2) and Guidelines Amendment 782, which lowered base offense levels for federal drug crimes.” Doe pleaded guilty in 2012 to conspiracy to distribute and possession with intent to distribute 28 grams or more of cocaine base and 500 grams or more of cocaine.

At sentencing, the government moved for a downward departure under U.S. Sentencing Guidelines § 5K1.1 in light of Doe’s substantial assistance to state authorities before he was federally indicted. As a result, the district court sentenced Doe to 252 months’ imprisonment, which was well below his 292 to 365 Guideline range.

In denying the motion for resentencing in July 2018, the district court referred to the government’s § 5K1.1 motion. Concerned about that reference, Doe in November 2018 moved to seal the district court’s order and remove it from online legal research services. He contended that the “district court’s reference to his cooperation threatened his safety because the order was available to other inmates through the prison law library,” wrote the Fourth Circuit. Doe appealed after the district court denied the motion in a text order issued in December 2018.

The Fourth Circuit noted it has held that the “First Amendment right applies to sentencing and plea hearings, as well as to documents filed in connection with those proceedings.” It concluded it did not need to decide if an order for sentence reduction is encompassed by the First Amendment, but it assumed it applied because “the Defendant’s compelling interests in sealing the district court’s order outweighs the public’s interest in accessing it either under common law or the more rigorous First Amendment standard.”

The order could be sealed “only if (1) closure serves a compelling interest; (2) there is a ‘substantial probability’ that, in the absence of closure, that compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” In re Wash Post Co., 807 F.2d 383 (4th Cir. 1986).

The court found that precedent established that sealing is appropriate to protect the “physical and psychological well-being of individuals related to the litigation.” This “is even more elevated if judicial records suggest that the defendant may have cooperated with law enforcement.” It was noted that five other “sister circuits have held that protecting cooperating inmates serves a compelling interest under the First Amendment.”

The Fourth Circuit found the record demonstrated that Doe faced a heightened risk of being physically harmed. “To start, Defendant was involved with, and provided information about, members of an interstate drug-trafficking organization and individuals committing home invasion robberies,” the court wrote. “The information he provided was used in multiple investigations, as well as in federal sentencing.”

The court noted that Eastern District of North Carolina Standing Order No. 09-SO-02 (Feb. 12, 2012) requires the automatic sealing of motions related to a defendant’s substantial assistance.

Additionally, a 2016 report by the Committee on Court Administration and Case Management of the Judicial Conference of the United States presented “alarming findings” of 571 instances of harms or threats, including 31 murders, between spring 2012 and spring 2015. As a result, it recommended that “courts restructure their practices so that documents or transcripts that typically contain cooperation information” are automatically placed in a sealed compartment.

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Related legal case

United States v. Doe