United States v. Thompson ( 2016 )

UNITED STA'I``ES I)ISTRICT COURT
FOR TI»IE DISTRIC'I`` OF COLUMBIA
uNiTar) sTA"riss or AMERICA,
"~ criminal N@. 14_49 (CKK)
ii§ri=nnv rnoi\/ii>soi\i,
Defendant.
izEi)ACTED MnMoRANDUi\/; oPn~uoN
(Atigust 1, 2016)
Presently before the Court is the Goveriiment’s [61] Motion 'lt``oi' Leave to Fiie Under Seal
the Governrneiit’s Addendurn to its Menioranduiii in Aid of Senteneirig and to File Portions of the
Addenduiii Ex Fcirl'e. The Governinent requests that the Court per'rnit it to tile under seal: (l) its
[61-1] Addendum to the Goverriiiieiit’s Meinorandurn in Aid of Sentencing ("Addeiiduiri"); (2) its
{61] Motion for Leave to Fiie Undei' Seal the Government’s Addendtiin to its Mernoraiidnin in Aid
of Sentenoing and to Fiie Portions o'l" the Addendurn Ex Par!e; and (3) the instant Meiiioranduni
t Opinion and accompanying Order. Moreover, the Goveriiiiient requests the Court’s perniission to
file certain portions of the Addendum ex pcirle. As such, the Goveriin"ient has provided two
versions ot``the Addenduni to the Court: one redacted version that does not inciude any iiitoririatioii
that the Goverriinerit seeks to provide ex parte only to the Court and not to Defendant, and one
unredacted version. The Governineiit indicated that a redacted version of the Addenduin has been
provided to Det``endant. Defendant consents to the Goveriiiiueiit’s request to i``iie the Addenduni
under seal and takes no position as to the request to tile portions ot`` the Addenduin ex pczr'te to the
Court. Govt.’s ]_\/Iot. at 8. Upon consideration of the pending motion and accompanying
docuinents,' the relevant authorities, and the record as a whole, the Court shall GRANT IN PART
and DENY ll\l PART the Governriieiit’s motion. Specii‘ically, the Court shall grant the
Governriieiit’s request to seal the Addendum and its motion to seal, and shall grant the
Governiiieiit’s request to provide some portions of the Addenduin e)cparte to the Court. The Court
shall also seal portions of this Meinoranduin Opinion that discuss the underlying information in
the Addendum and any legal analysis intertwined with these facts. l``lowever, the Court sees no
reason to seal the entirety of this l\/lenioraiiduiii Opinion or the accompanying Order which simply
indicate that the Court is granting the Governineiit’s request to seal and provide the legal reasoning
applied to the Goveriiiiieiit’s request As such, the Court shall issue a Redacted l\/leinoraiidum
Opinion on the public docket and shall place under seal an unredacted version of its l\/lenioranduiii
Opinion issued on this date.z
I. BACKG§ROUND
On l\/larch lO, 2014, pursuant to F ederal Rule of Criininal Procedure ll(c)(l)(C),
Defendant pled guilty to a two-count lnformation, charging Defendarit with conspiracy in violation
of l8 U.S.C. § 371 ("federal conspiracy offense") and conspiracy in violation of D.C. Code § 22~
lS05a(a)(l) ("D.C. conspiracy offense"). See lnforniation, ECF No. [l]. Defendant’s charges
l-
center around a conspiracy to violate federal and local campaign finance laws through conduit
l While the Court renders its decision today on the record as a whole, its consideration has
focused on the li``ollowing docuinents: Govt.’s I\/lot. for Lv. to File Under Seal the Govt.’s
Addenduni to its l\/lein. in Aid of Sent’ g & to File Portions of the Addenduni Ex Pcn'le ("Govt.’s
l\/lot."), ECF No. |:61]; Govt.’s Sld. Addeiidtini to its l\/Iein. in Aid of Sent’g ("Govt.’s Sld.
Adderiduiii"), ECF No. [61»2]; Govt.’s Sld. Addenduun to its l\/l``ein. in Aid of Sent’ g (Redacted)
("Govt.’s Redacted Sld. Addenduni"), ECF No [61-3].
2 The Court notes that the Goveriiinent filed a Notiee on the public docket indicating that
it filed an Addeiidtiin to its l\/Ieiiioranduiii in Aid of Seiiteiicing and the Motion at issue under seal.
Govt.’s Notice of Filing, ECF No. [60]. As such, the Court’s issuance of its Redacted
Meniorandtiin Opinion and Order on the ptiblic docket iiotii"ies the public that the motion has been
resolved and that the Addendurn will remain under seal until further Order' of the Court.
2
"[T]lie decision as to access (to judicial records) is one best left to the sound discretion of
the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the
particular case." h’trbbcrrd, 650 F.Zd at 316-17 (quoting Nz``xoiv v. Wc/rrzer' Coriiivvc’.nis'., Inc'., 435
U.S. 589, 599 (1978)). ln this Circuit, “thc starting point in considering a motion to seal court
records is a ‘strong presumption in 'li``avoi' ofpublic access to judicial proceedings."’ EEOC v. Nar ’l
Chiz’dr'eri ’.s' Clr. In'.c., 98 l*``.3d 1406, 1409 (D.C. Cir. 1996) (qtiotiiig Jc)}rnis~oii v. Greater Se. C»r)rly.
Ho.rji). Corj)., 951 F.Zd -1268, 1277 (D.C. Cir. 199])). in }Iuf)bczrci, the D.C. Circuit identified six
factors that inight act to overcome this presumption:
(l) the need for public access to the documents at issue; (2) the extent of previous
public access to the documents; (3) the fact that someone has objected to disclosure,
and the identity of that person; (4) the strength of any property and privacy interests
asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the
purposes for which the documents were introduced during the judicial proceedings.
Nar ’l Cliz``lc!rerr ’.s' C.``tr., 98 F.Bd at !409 (citing Hnbbard, 650 F.Zd at 317-22). The Court considers
each of the factors in turn.
l. The Need_ff)r' Pz¢bl:``c Acce.s's to the Dr)curiierrl.s' ar I.s‘.s'ue
"The presumption in favor of public access to judicial records is strongest when ‘the
documents at issue [are] . . . specifically referred to in a trial judge’s public decision."’ Zcrpj) ve
Zhenli Y» Gr)n, 746 l*``. Supp. 2d 145, 148 (D.D.C. 2010) (quoting f]ul)bari'd, 650 F.Zd at 3l8).
Here, the public has a strong need for the access to the Addendum. _
Defendaiit has pled guilty to two conspiracy
charges related to the violation of campaign finance laws. Given the nature of Defeiidant’s
off``enses, the Court finds that this is clearly a matter of pubfic interest. As such, the Court finds
that this factor weighs in favor of providing public access to the Addenduin.
2. Tfre Exrer:r c)j``P/"evir)z.r.s.' Pub!z``c Acce.s‘.s' to lite Docziiireri/.s'
ll
Previotis public access to the sealed filings "is a factor which may weigh in favor of
subsequent [public``_] access." I~Iztbbara', 650 F.2d at 3l8
Accordingly, this factors weighs in favor of granting the request
to sea!.
3. The Fact o_fOl)_/``ectio)i m Di.s'clo.s'ur'e and the identity of Thc).s'e Objecf'z``ng
"[T]lre fact that a party moves to seal the record weighs in favor of the party’s niotion."
Zapp, 746 F. Stipp. 2d at 149. Here, the Govern.meiit has objected to disclosure of the Addendurn
and with Def``eridant’s consent, requests that it be placed under seal. As such, the fact that both
parties seek to have the Addendtiin piaced under seal weighs in favor of iiondisclosttre.
4. The Strerigth cgf``Aivy Froperfy and Prii)crcy Int'ere.s'l.s‘ A.s'.s‘erled
"i_``iie fourth ]:Wubbard factor requires the Court to “assess the strength of any property or
privacy interests voiced by the moving party." U.S. ex rel. Dzrrhcz)rv v. Proisj)eci' Watery)roo_jing,
Iric., 8 l 8 F. Supp. 2d 64, 68 (D.D.C. 201 l). In I~Iubbard, the D.C. Circuit considered "the objecting
party’s privacy interest in the particular documents . . . rather than the effect that unsealing the
documents would have on the party’s property and privacy interests generally . . . ." Friedriiarz v.
Sel)elz``irs, 672 F. Supp. 2d 54, 60 (D.D.C. 2009) (ernphasis added). As such, "under this factor, the
party seeking to avoid disclosure must identify specific privacy interests in the documents at
issue." Gz.rttenberg v. En'.r.ery, 26 F. Stlpp. 3d 88, 94 (D.D.C. 2014).
12
ln light of the strong privacy interests advanced by the
Governinent in support of its request to seal the Addendtini, the Court finds that this factor weighs
liea.vily in favor of maintaining the Addenduni under seal.
5. Tl')e I’r)rssz``b:``lily c)_f[’rejudfce to Tiro.re Oppo.s'ing Dz``ls'cglr)rs'ur'e
"l``lie possibility of prejudice refers to "Wlietliei' disclosure of the documents will lead to
prejudice in future litigation to the party seeking the seal." Friednrczrr, 672 F. Supp. 2d at 60. Here,
neither party alleges that disclosure of the Addelidtini would have an effect on future litigation As
such, the Court finds that this factor is iieutral.
6. The Pzrxjpo.s‘e,s‘_for' W/vz``ch fha Dc)czrriier)l'.s' vvere Irrlrodtrced
Finally, the Court inust consider the purpose for which the documents in question were
introduced. The more relevant a pleading is to the central claims of the litigation, the stronger the
presumption of tinsealing the pleading becomes See Dtri'hcrrn, 818 F. Supp. 2d at 69 (explaiiiilig
that "tliere is less of a pressing concern to unseal pleadings if they are not relevant to the clairns,"
for example, if they were not used at trial or relied upon by the trial judge in his or her decision).
13
This factor "foctises on the [lnovant’s] purpose of filing his pleadings and iiotltiiig further." Ic).’.
Here, the Governtiiettt has filed the Addenduin to support its position as to Defendant’s sentence
and the Atlderidutii is central to this issue. As such, the Court finds that this factor weighs in favor
of perniittiiig public access to the Addenduin.
7. Corvc:'tiis'z``c)rz
Aftei' weighing the six I~Iub!)arci faetors, the Court concludes that the Governinent has
overcome the presumption in favor of public access to the Addendtlin. indeed, ltiere the
Governnient has advanced several strong and coinpelliiig interests that outweigh the common law
qualified ri ght of access to the Addeirduiii.
fn sum, after considering both the First Altiendiiieiit qualified right to access and the
common law qualified right to access, the Court shall grant the Goveritinertt’s request to seal its
Addenduin, in addition to its request to seal, the Governmeiit also requests perinissiori to provide
certain portions of the Addendum ex parle, Defendant takes no position as to this request
The Court has reviewed the redacted version of the Addendttm and
shall perniit the Governtnent to provide the redacted inforinatioii ex parte to the Court.
14
Fiiially, as the Governnieiit points out, there is ongoing litigation pending bef``ore Chief
Jiidge Beryl A. l-lowell brought by one media entity seeking disclosure of search warrant inaterials
related to Defendant’s investigation and prosecution See fn fha Mcrlt'er oflhe Apj)licalion o/``WP
Coriipciriy LLC cz’/b/cz The Wcz.s'hr'ngron Pos'r _}?)r' Acce.s'.s' m Cer‘l¢ir``n Sealed Recc)/'cz'.s', l6~mc-35l
(BAl"l). The Court notes that it shall reconsider its decision in the event that information also
present in the Addendtim is unsealed during the course of that proceeding.
lII. CONCLUSION
For the foregoing reasons, the Coult GRANTS lN PART and DENIES lN PAR'l`` the
Governnnent’s [61] Motion for Leave to File Under Seal the Governmerit’s Addenduin to its
l\/leinoranduln in Aid of Seiiteneing and to File Portions of the Addenduni Ex Parte. Specil'ically,
the Gov.erlinient’s [61-2] Sealed Addenduni to Its l\/leniora.ndtiiii in Aid of Seritencing shall be
entered on the docket exparle and under seal. Moreover, the following documents shall be entered
on the docket under seal: the Goveriiinent’s {6¥] Motion for Leave to File Under Seal Its
Addendtiin to Governinent’s l\/lemoranduni in Aid of Senteiicing and to File Portions of Its
Addendtiin Ex Pcrr'le; the Governinent’s [61-3] Sealed Addendum to Its Meinorandtiin in Aid of
Seiiteiiciiig (with redactions); and the unredacted version of the instant I\/lenioranduni Opinion. A
redacted version of the iiistant l\/leinorandurn Opinion and the accompanying Order shall be
entered on the public docket
An appropriate Order accolnpanies this Me;norandlnn Opinion.
COLLEEN K()LLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
16
contributions and shadow campaigns in relation to carnpaigns for niayoral candidates, candidates
for the D.C. Council, and a Presidential candidate, and a related conspiracy to violate lnternal
Revenue laws. See generally Stmt. ofOffeiise, ECF No [6].
l"urstiant to the terms of the Plea Agreeirient, the parties agreed that any sentence of
incarceration on the federal conspiracy offense should not exceed 18 nionths, followed by three
years of supervised reiease, and any sentence of incarceration on the D.C. conspiracy offense
should not exceed six inonths, followed by three years of supervised release Furtiierinore, the
Governinent indicated that it would dismiss the federal conspiracy offense if Defendant complied
with his obligations under the terms of the Plea Agreernerit. Notably, Defendant was required to
cooperate with the Ofiice of the United States Attorney for the District of Coluinbia and other
federal and District of Columbia law enforcement authorities into any and all rnatters that the
Governrnent deemed cooperation to be relevant as part of the terms of the parties’ Plea Agreemeiit.
The Governnient in its Meinorandum in Aid of Sentericing has irotified the Court that
[)efendant has coinplied with the terms of his Plea Agreeinent and, as such, shall move the Court
to disniiss the federal conspiracy charge and sentence Defendant on the D.C. conspiracy charge
S}t)ecifically, the Governtnent reconnnends a sentence of six months horne conl'inement, followed
by three years of supervised release, and a niaxirnuni fine of $IOQOOO. in support of its sentencing
recoinmeiidation, the Goveriiirient filed an Addendurn "otitlining areas of the del"endant’s
substantial assistance that did not result in public charges." Govt.’s l_\/lein. in Aid of Sent’g at 16
n.8, ECF No. [59]. The Governrneiit now requests that the Addendtnn be placed tinder seal and
that certain portions of the Addendum be provided ex pci/ute to the Court
II. I)ISCUSSION
T he public right to access of documents in criminal proceedings is grounded both in the
First Aiiiendineiit and the common law. The Court shall analyze the Goverrnnent’s request to seal
its Addendurn in light of both standards and shall discuss each in turn.
A. Fir'.s'l A)izeiid)irenf Qiraiified Righf o_f``Acc'e.s".s'
When determining whether a first Ainendrnerit right to public access exists for a particular
criminal proceeding or court document, the court must consider two tactors, known eomniorily as
the "experience" and "logic" test: "(l) whether the place and process have historically been open
to the press and general public, and (2) whether ‘public access plays a significant positive role in
the functioning of the particular process in question."’ la re Nen» l’c)rk Tr'zive.s' Co., 585 F. Supp. 2d
83, 87 (D.D.C, 2008) (quoting Fre.r.s-Enfe:‘j)r"r'.s‘e Cr). v. Super'ior' Cozrr"f', 478 U.S. l, 8-9 (1986)).
“Even where such a right exists, however, this right is ‘qualiicied’ and is not absolute.’" M``czzrez' of
the Appliccrlr'oii o_f``WP Co. LLC``, No. l6~1ne-35l (BAl~l), 20] 6 Wl_. 1604976, at *l (D.D.C. Apr. l,
2016) (qtioting fn re New Yo)'k Tr``nze.s', 585 F. Supp. 2d at 90). "Thus, criminal proceedings or
documents may reniailt under seal where the government meets its ‘burden of showing that it has
a compelling interest in keeping the niaterials secret."’ Ia’. (quoting Globe Nei»vs'pcrper' Co. v.
Super~z``or Coz.rrl ``fc'))~ Nc)rjfo[k C.'y., 457 U.S. 596, 606 (1982)). Indeed, if a qualified First
Amendineiit right attaches, "the presumption of public access to these inaterials may be overridden
only if the government demonstrates that ‘(l) closure serves a compelling interest; (2) there is a
substantial probability that, in the absence of closure, this coinpelliiigiinterest would be harined',
and (3) there are no alternatives to closure that would adequately protect the compelling interest."’
Id. at ’*‘2 (quoting l'/Vaslir'rvgrori Po.rl v. Robfn.s'oli, 935 F.Zcl 282, 290 (D.C. Cir. 1991)).
Here, the Governntent seeks to seal its Addeiicltirii to its l\/l``eiiioraiidtiiii in Aid of Senteneing
which "discusses in detail areas of cooperation by the defendant that did not result in public
@h@»r@@S-" G@rf»’s M@t- at 4
ln order to determine whether there is a First A:neiidineiit qualified right oi`` access to the
Addendtnn, the Court rnust first consider whether sentencing rnenioranda have historically been
open to the press and the general public.?’ Generally, "there is an historic connnon law right of
access to judicial records and documents that has been recognized in United States courts l``or well
over a centtiry." 1a re Nei/v York Tz``rwe.s', 585 F. Supp. 2d at 89 (citing Nz``xori v. Wcrrrzer'
Cc)rzzrrrzrrvz``ccrlz``omg 435 U.S. 589, 597, n.?’ (1978)). Moreover, other courts addressing the issue
have held that sentencing inemoranda are "judicial records" entitled to the common law
presuniptioii ofaccess. Um``led Sfare.s' v. Krcrvetz, 706 F.Sd 47, 56-57 (1 st Cir. 2013)', United Stafes
v. Dcrre, 568 F. Su.pp. 2d 242, 244 (N.D.N.Y. 2008); cf United Sfales v. Arrr)is'!r'ong, `` F. Supp.
3d --, No. ll-cr-68l, 2016 WL 2643041, at *2 (E.D.N.Y. l\/lay 9, 2016) (accepting for the purposes
ol"its analysis that the First Amendinent presumption of access applies to Goveriiinent letters filed
in connection with a defendant’s sentencing)', United Slcrles v. Caruron, No. 3:14-cr-00087-FDW,
2015 WL 3751781, at "‘4 (W.D.N.C. Jun. 16, 2015) (l'iiiding that there was a First Aii‘rerrdineiit and
coinmoli law right to access portions o'l`` the defendant’s sentencing inernoranduni that referenced
information in the pre-sentence report); United £S'l'ale.s' v. Ci?anfhcrl)otrry, l\lo. 2:l2-cr-00188-GEB,
2013 WL 6404989, at *l (E.D. Cal. Dec. 6, 2013) (recognizing a First Aineiidnierrt right to access
3 For the purposes of its analysis, the Court treats the Addenduni as a sentencing
ineinoranduni. 1n essence, the Addenduin, while a separate docurnent, provides the information
that would otherwise be provided in the Goveriinient’s Merrioranduin in Aid of Senteiicirig.
I~Iowever, the Governrneiit submitted this inl"oriiia.tioii in the Addenduln and requests that the
whole Addeiidurri be sealed rather than incorporating the irii"oriiiatioii into one document and
asking that the public version of that document be redacted.
5
of sentencing rnernorarida). As such, the Colirt concludes that seiitericiiig memoranda historically
have been open to the press and general prlblic. While the Couit reaches this lioldirlg, it notes that
sentencing rneinoraricla that include information regarding a defendants cooperation are often filed
under seat Arvn.s'ti'ong, 2016 WL 2643041, at *2.
'l``he C.``ourt next considers whether ptxhlic access to sentencing inenioraiida plays a
significant and positive role in the frnictioriing of a particular process. As the United States Court
of Appeals for the First Circtrit recognized, public access to sentencing inenrorarida permits public
oversight at sentencing and serves to "‘clieck a11y temptation that rnight 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 st``nnulate public confidence in the criminal justice system by
penuittirig rrienrbers of the public to observe that the defendant is justly sentenced." Krcive!.':, 706
F.?)d at 57 (irrteinal citations oniitted). As such, the Court concludes that there exists a First
Aiiieiidriierlt qualified right to public access of the Goverriiiierit’s Addeiicliirii to its Merxiorarrdiliii
of Seirtericing.
The Conrt must iiext consider whether the Governnierit lias demonstrated a cornpelliiig
interest that warrants sealing the Adderidrliri. Here, the Govennrieiit identifies four such iiiterests:
- The Court shall address each Goveriiiiieirt interest in turn.
6
Tlie Court agrees that
the Goveizuxieltt’s interest in maintaining the cont'xdelitiality of those assisting law enfox‘ceineiit is
a colnpeililig oue. Rovirzro v. Unifed Smfes, 353 U.S. 53, 59 (1957) (assexting that the
Govern.ineilt’s privilege to \vitliliold the identity of those furnishing information to law
ellforceuieiit "zrec.ogiiizes the obligation _ of citizens to communicate their knowledge of the
connuission oi``criiiies to law-enfoi'ceniexlt officials and, by preser@.ring their anox).yniity, encourages
then tv Pe't``@“v that Ob1ig@t``1<>11-">
For the reasons described, the Court concludes that the Governnient has set forth four
coinpefliiig reasons that warrant granting its request to seal the Addenduin and overriding the First h
Anieiidinent qualified right to public acccss. Specifically, the Court linds that sealing the
Governirieiit’s Addenduin to its l\/lernoi‘andurn in Aid of Seiiteiicing serves the 'four conipelling
interests laid out above, that there is a substantial probability that, in the absence of sealing, these
compelling interests would be harmed, and that there are no alternatives to sealing that would
adequately protect these coinpelliiig interests.
The Court recognizes that it must protect the conipelling interests set forth by the
Government through the least restrictive ineans possible. Here, the Government requests that
instead of filing redacted versions, that the Court seal the Addenduin and the underlying motion
to seal in their entirety. As an initial inatter, the Court notes that unlike in the instant Meinoraiiduiii
Opinion, the factual background provided by the Government in its Addendum and the motion to
seal are intertwined such that redacting these documents would render them nieaningless. _
While
this information is important for the Court’s determination as to an appropriate sentence, the
Goveriiinent has separated out from its publicly filed l\/lenioraiiduin in Aid of Sentencing the
iiiforinatioii that it has demonstrated conipelliiig interests in sealing and placed it in the Addendurn.
As such, the Court agrees that it is riecessary to seal the Addenduin as a whole given that redactions
would render the document :neanirigless and the Governiiierit purposefully isolated the sensitive
material into its Addendum presumably so as to eliminate the necessity to lieavily redact its
l\/lernoranduni in Aid of Seiitencing. Gardner v. Ne'wsdczy, Inc., 895 F.2d 74, 80 (2d Cir. 1990)
("[A} district court has the authority to redact a document to the point of rendering it ineaningless,
or not to release it at all."). .Siinilarly, the instant motion requesting that the Addenduin be sealed
would be rendered meaningless if it were redacted given that the document contains sensitive
inl"orinatioii throughout its discussion However, the Court has separated out its legal analysis in
some instances front the specific facts of this case, such that the sealed information in this
Menioranduin Opinion may be redacted and the document can be placed on the public docket
B. C'c)nnrroir Lczn» Rz'gh/ c)_f``/lc:ce.s'.s'
"l``he Court next turns to the issue of whether public disclosure of the Addeitdttni is
warranted in light of the comnion law right of access. In fn re New Yc)rk T'z``nve.s' Cr)., 585 F. Supp,
2d 83 (D.D.C. 2008), th_en-Chief judge Royce C. Lainberth recognized that public right to access
may be grounded both in the First Ainendinent and in the coinmon law. See New l’or~'k Tinres C'c).,
585 F. Supp. 2d at 92. As such, in the interest of completeness, the Court shall address whether
the public has a common law right of access to the Addendurn. As the Court noted in its earlier
discussion, sentencing ineinoraiida are "judicial records" entitled to the common law presumption
of access. Given that the presumption of access is applicable to the Addendum, the Court must
iie>650 F.2d 293 (D.C. Cir. 1981). Nei»i» York Tiniets' Co., 585 F. Supp.
2d at 92. The Court agrees that this is the appropriate test in this instance.
lO