United States v. Usdc-Cas ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: COPLEY PRESS, INC., 
Intervenor-appellee.
No. 07-72143
UNITED STATES OF AMERICA,
Plaintiff-Appellant,  D.C. No.
CR-97-02520-LAB
v. OPINION
ISMAEL HIGUERA-GUERRERO,
Defendant.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted
August 6, 2007—Pasadena, California
Filed March 4, 2008
Before: Alex Kozinski, Chief Judge, Dorothy W. Nelson and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Chief Judge Kozinski
2001
2004 IN RE COPLEY PRESS, INC.
COUNSEL
Vijay Shanker, Attorney, U.S. Department of Justice, Wash-
ington, DC; Karen P. Hewitt, U.S. Attorney and Laura E.
Duffy, Assistant U.S. Attorney, Los Angeles, California, for
the plaintiff-appellant.
Guylyn R. Cummins, Harold W. Fuson, Jr., Judith L. Fan-
shaw and Scott A. Wahrenbrock, Sheppard, Mullin, Richter &
Hampton LLP, San Diego, California, for the intervenor-
appellee.
OPINION
KOZINSKI, Chief Judge:
We consider the district court’s order unsealing the tran-
script of a plea colloquy, a plea agreement’s “cooperation
IN RE COPLEY PRESS, INC. 2005
addendum” and the documents supporting a motion to seal the
plea proceedings.
Facts
Ismael Higuera-Guerrero ran a drug cartel in Mexico along
with Javier Arrellano-Felix and Arturo Villareal-Heredia.
After U.S. authorities captured the three men, Higuera-
Guerrero agreed to plead guilty and to cooperate with the gov-
ernment, but the others, initially, declined.1 The government
and Higuera-Guerrero signed a plea agreement containing a
“cooperation addendum” in which Higuera-Guerrero pledged
to help the government build its case against the cartel. The
government filed the plea agreement with the district court,
along with a motion to seal the plea “proceedings.” The gov-
ernment argued that publicizing Higuera-Guerrero’s plea
would endanger him and others. Higuera-Guerrero joined the
government’s motion to seal.
The district court granted the government’s motion to seal
while the government took steps to reduce the danger to
Higuera-Guerrero and others. After those steps were taken,
the district court unsealed a redacted transcript of the plea col-
loquy and all of the plea agreement except the cooperation
addendum. This got the attention of Copley Press, Inc., which
intervened and asked that the court unseal all the other docu-
ments the government had filed in support of its motion to
seal, and the transcripts of the hearings on that motion. The
district court ordered everything unsealed except the names,
birthdates and addresses of the endangered people, but stayed
its order while the government sought review. Higuera-
Guerrero’s former partners join Copley Press in opposing the
government’s petition, but do not claim that sealing the docu-
ments has impeded their defense.
1
After we heard oral argument, Higuera-Guerrero’s former partners pled
guilty.
2006 IN RE COPLEY PRESS, INC.
Jurisdiction
Under the collateral order doctrine, we have jurisdiction
over a “narrow class of decisions that do not terminate the liti-
gation, but must, in the interest of achieving a healthy legal
system, nonetheless be treated as final.” Digital Equip. Corp.
v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994) (internal
quotation marks and citation omitted). In order to satisfy this
exacting standard, an order must “[1] conclusively determine
the disputed question, [2] resolve an important issue com-
pletely separate from the merits of the action, and [3] be
effectively unreviewable on appeal from a final judgment.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)
(bracketed numbers added). All three Coopers &
Lybrand factors are present here.
Secrecy is a one-way street: Once information is published,
it cannot be made secret again. An order to unseal thus “con-
clusively determine[s]” that the information will be public. Id.
For the same reason, such an order is “effectively unreview-
able on appeal from a final judgment.” Id. This case is distin-
guishable from United States v. Hickey, 185 F.3d 1064 (9th
Cir. 1999), where we concluded that we lacked jurisdiction to
hear the government’s appeal of an order sealing defendants’
financial affidavits. That order did not conclusively determine
the affidavits’ secrecy because the government could file a
renewed motion to unseal after the trial was over. Id. at 1067.
Whether the documents are unsealed is an issue “com-
pletely separate” from the government’s criminal case against
Higuera-Guerrero. Coopers & Lybrand, 437 U.S. at 468. The
order to unseal won’t affect Higuera-Guerrero’s defense
because he’s already pled guilty and, in any event, joined the
motion to seal. United States v. Hitchcock, 992 F.2d 236 (9th
Cir. 1993) (per curiam), involved an order that was entwined
with the merits: If defendants submitted the affidavits
unsealed, the government could use them at trial. Id. at 238.
Therefore, the district court’s order wasn’t completely sepa-
IN RE COPLEY PRESS, INC. 2007
rate from the merits and would have been reviewable on
appeal from a final judgment of conviction. Id.
While the government brought this case as a petition for a
writ of mandamus, we conclude that we have jurisdiction
under the collateral order doctrine, and so will treat this case
as an appeal under 28 U.S.C. § 1291. The clerk is directed to
alter the docket accordingly.
Merits
We must first consider whether the First Amendment gives
the public a right to access these documents. If we answer in
the affirmative as to any of the documents in question, we
must then determine whether any such right is overcome by
a compelling governmental interest. Finally, we consider
whether the common law gives the public a right of access
separate from the First Amendment.
[1] 1.a. Our case law gives the public a qualified First
Amendment right to access three types of documents at issue
here: (1) the cooperation addendum to Higuera-Guerrero’s
plea agreement, Appendix to Petition for a Writ of Mandamus
(“App.”) tab E; (2) the government’s motion, and the memo-
randa filed in support of it, to seal the plea agreement, App.
tab A, p.1; tab B; tab H pp.1-3; tab L, and (3) the district
court’s orders granting the government’s motion, App. tab C;
tab I. Oregonian Publ’ng Co. v. U.S. Dist. Court, 920 F.2d
1462, 1464 (9th Cir. 1990). As to these documents, the only
question is whether the right to access is overcome by a com-
pelling governmental interest, a question we consider below.
See pp.2011-2012 infra.
[2] b. We have not yet decided whether the public has a
First Amendment right to access a plea colloquy transcript. To
answer that question, we consider both “historical experience”
and “logic,” Times Mirror Co. v. United States, 873 F.2d
1210, 1213 (9th Cir. 1989), though logic alone, even without
2008 IN RE COPLEY PRESS, INC.
experience, may be enough to establish the right. See Seattle
Times Co. v. U.S. Dist. Court, 845 F.2d 1513, 1516, 1517 (9th
Cir. 1988) (even without an “unbroken history of public
access,” the First Amendment right exists if “public scrutiny”
would “benefit” the proceedings); see also Phoenix Newspa-
pers, Inc. v. U.S. Dist. Court, 156 F.3d 940, 948 (9th Cir.
1998) (“Even if the historic right of . . . access were not dispo-
sitive, the ‘logic’ prong of the [test] would be.”).2
[3] Every circuit to consider the issue has concluded that
logic favors public access to plea colloquy transcripts. See
United States v. Danovaro, 877 F.2d 583, 589 (7th Cir. 1989);
In re Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986);
see also Washington Post v. Robinson, 935 F.2d 282, 288
(D.C. Cir. 1991) (right of access to “plea agreements and
related documents”); United States v. Haller, 837 F.2d 84,
86-87 (2d Cir. 1988) (right of access to “plea hearings”).
“Public access to [plea colloquy transcripts] reveals the basis
on which society imposes punishment,” Danovaro, 877 F.2d
at 589, and also “serves the important function of discourag-
ing either the prosecutor or the court from engaging in arbi-
trary or wrongful conduct,” In re Washington Post, 807 F.2d
at 389; see also Haller, 837 F.2d at 87. Moreover, the
Supreme Court has held that the public is entitled to attend
criminal trials, Globe Newspaper Co. v. Superior Court, 457
U.S. 596, 605-06 (1982), so it stands to reason that plea collo-
quies, which “serve[ ] as a substitute for a trial,” should also
be open to the public. In re Washington Post, 807 F.2d at 389;
see Oregonian, 920 F.2d at 1465 (this reasoning supports the
public’s right to access plea agreements). We agree with the
other circuits to consider the matter that the public has a qual-
2
Though our cases refer to this as the “experience and logic” test, it’s
clear that these are not separate prongs to be weighed against each other.
Where access has traditionally been granted to the public without serious
adverse consequences, logic necessarily follows. It is only where access
has traditionally not been granted that we look to logic. If logic favors dis-
closure in such circumstances, it is necessarily dispositive.
IN RE COPLEY PRESS, INC. 2009
ified First Amendment right to access Higuera-Guerrero’s
plea colloquy transcript. App. tab F from p.11, line 19 to end.
We consider below whether this right is overcome by a com-
pelling governmental interest. See pp.2011-12 infra.
[4] c. Also at issue here are the transcripts of three hear-
ings on the government’s motion to seal. App. tab F from p.1
to p.11, line 18; tab K; tab N. We have not yet decided
whether the public has a First Amendment right to access
such transcripts, so we again apply the experience and logic
test. See pp.2007-2009 supra.
[5] There’s no historical experience of public access to
these hearings or to their transcripts because the hearings
didn’t exist until quite recently. They were invented twenty-
five years ago in United States v. Brooklier, 685 F.2d 1162,
1167-68 (9th Cir. 1982), as part of our circuit’s procedure for
sealing criminal proceedings. See Oregonian, 920 F.2d at
1466 (to seal a plea agreement, the district court must follow
the procedure set forth in Brooklier).3 Because the hearings
are “entirely novel,” we have no historical experience of pub-
lic access to them. United States v. El-Sayegh, 131 F.3d 158,
161 (D.C. Cir. 1997).
[6] Even without historical experience, logic requires that
at least part of these hearings be open to the public, because
one of their purposes is to give the public an opportunity to
be heard. See Phoenix Newspapers, 156 F.3d at 949 (the hear-
ings give the “public and press” an “opportunity to object or
offer alternatives” to closure); see also United States v. Bia-
gon, No. 06-10479, slip op. at 16437, 16444 (9th Cir. Dec. 17,
2007) (procedure to close defendant’s allocution). If the pub-
lic has a right to attend the hearings, it necessarily follows that
it is entitled to read the transcript of those parts of the pro-
ceeding that were public. See Press-Enterprise Co. v. Supe-
3
We do not address whether the district court here complied with these
procedural requirements because the parties haven’t briefed the issue.
2010 IN RE COPLEY PRESS, INC.
rior Court (Press-Enterprise II), 478 U.S. 1, 12-13 (1986).
We conclude, therefore, that the public has a qualified right
to read the transcripts of those portions of the hearings on the
motion to seal that were open to the public. App. tab F from
p.1 to p.7, line 14; tab N from p.1 to p.6, line 17; tab N from
p.15, line 4 to end. We consider below whether this right is
overcome by a compelling governmental interest. See
pp.2011-2012 infra.
[7] But the public doesn’t have the right to attend such
hearings in their entirety. Here, for instance, the district court
quite sensibly closed portions of the hearings so it could hear
in private the government’s explanation of how unsealing the
plea would endanger Higuera-Guerrero and others. It would
be highly illogical to give the public a right to read the tran-
scripts of these portions of the hearings. The transcripts will
inevitably contain not only the facts the parties hope to keep
secret, but also their reasons for doing so, which are likely to
be just as private as the facts at issue. It’s rarely possible to
justify one secret without telling other secrets. So by publish-
ing these transcripts, we would force litigants to take a great
risk: If they move to seal and lose, they make public all the
additional secrets they have revealed to us in making a case
for sealing the proceedings.
[8] Opening these transcripts to the public would handicap
prosecutors in particular. To convince us to close a criminal
proceeding, prosecutors often must tell us about ongoing
investigations. That information is extremely sensitive, as we
have recognized in holding that the public is not entitled to
read, prior to indictment, affidavits supporting search war-
rants. Times Mirror, 873 F.2d at 1213. Openness here would
likewise “frustrate criminal investigations and thereby jeopar-
dize the integrity of the search for truth that is so critical to
the fair administration of justice.” Id. What’s more, disclosure
of this type of information would limit the ability of prosecu-
tors to offer plea bargains to cooperating witnesses who rea-
sonably fear retaliation from those they inform against. If the
IN RE COPLEY PRESS, INC. 2011
reasons for sealing pleas were presumptively public, prosecu-
tors couldn’t promise confidentiality in exchange for coopera-
tion.
[9] We conclude that the public has no First Amendment
right to access the transcripts of the closed portions of the
hearings on the motions to seal. App. tab F from p.7, line 15
to p.11, line 18; tab K; tab N from p.6, line 18 to p.15, line
4.
[10] d. The last group of documents at issue here are the
declarations and documentation appended to the govern-
ment’s motion to seal and to the memoranda supporting that
motion.4 Our analysis of these documents is the same as our
analysis of the closed portions of the hearings. See
pp.2010-2011 supra. There is no historical experience of
access to such documents, and logic militates against granting
such access. Id. The public therefore has no First Amendment
right to read them.
2. To sum up: The public has a qualified right to access
the plea agreement’s cooperation addendum, see p.2007
supra, the government’s motion to seal and the memoranda
supporting it, see id., the district court’s orders granting the
government’s request, see id., the transcript of Higuera-
Guerrero’s plea colloquy, see pp.2007-2009 supra, and the
transcripts of those portions of the hearings on the motion to
seal that were open to the public, see pp.2009-2010 supra.
This qualified right can be overcome if “(1) closure serves a
compelling interest; (2) there is a substantial probability that,
in the absence of closure, this compelling interest would be
4
These are the declarations and documentation appended to the govern-
ment’s March 16 motion to seal, App. tab A from p.2 to end; the declara-
tions appended to the government’s April 13 motion to extend the sealing
order, App. tab H from p.4 to end; and the entirety of the government’s
letter of April 23 requesting redactions to the unsealed version of the plea
colloquy transcript, App. tab J.
2012 IN RE COPLEY PRESS, INC.
harmed; and (3) there are no alternatives to closure that would
adequately protect the compelling interest.” Oregonian, 920
F.2d at 1466. Here, the district court at first found that the
government’s interest in the safety of Higuera-Guerrero and
others was compelling; at the time, closure was the only way
to protect them. Later, after the government took steps to
reduce the danger, the district court found that “compelling
reasons no longer exist[ed]” for sealing these documents and
ordered them unsealed. We review that order for abuse of dis-
cretion. Pintos v. Pac. Creditors Ass’n, 504 F.3d 792, 802
(9th Cir. 2007).
[11] The district court did not abuse its discretion in unseal-
ing those parts of the documents that describe Higuera-
Guerrero’s cooperation. Though the government’s interest in
keeping Higuera-Guerrero and others safe is “compelling,”
Oregonian also requires the government to show a “substan-
tial probability that, in the absence of closure, this compelling
interest would be harmed.” Oregonian, 920 F.2d at 1466. The
district court found that after the government took steps to
ensure these persons’ safety, there was no longer a substantial
probability that revealing Higuera-Guerrero’s cooperation
would endanger them. The court didn’t clearly err in so find-
ing and, in light of that finding, its decision to unseal these
portions of the documents was not an abuse of discretion.
[12] The district court did abuse its discretion, however, in
unsealing those parts of the documents that concern the other
people in danger. As we explain in a sealed addendum to this
opinion,5 there remains a substantial probability that unsealing
the information contained therein will endanger these people.
The district court clearly erred in finding otherwise, and we
remand for it to allow the government to redact these docu-
ments in accordance with the sealed addendum.
5
The sealed addendum will be made available to the government, to the
district court, to our colleagues on this court and to the Supreme Court,
should it choose to review our opinion.
IN RE COPLEY PRESS, INC. 2013
3. In addition to the public’s First Amendment right, the
public also has a “common-law” right “to inspect and copy
public records and documents,” including the documents at
issue here. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589,
597 (1978). However, this right “is not absolute,” id. at 598,
and doesn’t apply to “documents which have traditionally
been kept secret for important policy reasons.” Times Mirror,
873 F.2d at 1219.
As discussed above, there are good reasons to keep secret
the documents filed in connection with motions to seal.6 See
pp.2010-2011 supra. We agree with the D.C. Circuit that “af-
fording public scrutiny” to such documents “is logically
incompatible with the nature of the proceedings,” and we join
that circuit in holding that the public has no common-law
right to read the documents filed in connection with a motion
to seal. El-Sayegh, 131 F.3d at 162.
We need not consider whether the common law gives the
public a right to access the remaining documents because,
even if it does, the government’s interest in the safety of
Higuera-Guerrero and others is “sufficiently important” to
overcome the common-law “presumption in favor of access.”
San Jose Mercury News, Inc. v. U.S. Dist. Court, 187 F.3d
1096, 1102 (9th Cir. 1999).
* * *
The public has no right to access the declarations and docu-
mentation appended to the government’s March 16 motion to
seal, App. tab A from p.2 to end; the declarations appended
to the government’s April 13 motion to extend the sealing
order, App. tab H from p.4 to end; the government’s letter of
6
We refer here to the transcripts of the closed portions of the hearings
on the motions to seal, see p.2010 supra, and to the declarations and docu-
mentation appended to the government’s motion to seal and to the memo-
randa supporting that motion, see p.2011 supra.
2014 IN RE COPLEY PRESS, INC.
April 23, requesting redactions to the plea colloquy transcript,
App. tab J; and the transcripts of the closed portions of the
hearings on the motion to seal, App. tab F from p.7, line 15
to p.11, line 18; tab K; tab N from p.6, line 18 to p.15, line
4. We vacate the district court’s order unsealing these docu-
ments, and we instruct the district court to maintain them
under seal.
The public does have a First Amendment right to access the
cooperation addendum to Higuera-Guerrero’s plea agreement,
the unredacted transcript of Higuera-Guerrero’s plea collo-
quy, the transcripts of the public portions of the hearings on
the motions to seal and the government’s sealed May 21
memorandum. Though this right can be overcome by a com-
pelling interest in some circumstances, the district court did
not abuse its discretion in unsealing the portions of these doc-
uments that describe Higuera-Guerrero’s cooperation. How-
ever, the district court did abuse its discretion in unsealing
those portions that describe the other people in danger.
AFFIRMED in part, VACATED in part and
REMANDED. DOCKET AMENDED.