United States v. Sutton ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
UNITED STATES OF AMERICA )
)
v. ) Criminal No. 21-0598 (PLF)
)
TERENCE SUTTON, )
)
Defendant. )
OPINION AND ORDER
On October 21, 2021, the Court directed that all filings related to the United
States’ Motion to Disqualify Counsel [Dkt. No. 34] be submitted under seal because resolving
that motion “will necessarily require consideration and discussion of
GE (Oct. 21, 2021 Memorandum Opinion and Order (““Mem. Op.”) [Dkt. No. 44] at 5.
The Court concluded that some of the information in those filings could not be disclosed on the
public docket because of the grand jury secrecy provisions of Rule 6(e) of the Federal Rules of
Criminal Procedure. Id. The Court also directed the parties to submit agreed proposed
redactions for public versions of those filings. Id. at 6.
Defendant Terence Sutton has moved for reconsideration of the Court’s decision,
arguing that now that the grand jury materials at issue have been made available to defense
counsel and submitted to the Court in connection with the motion to disqualify counsel, the
framework established in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) and its
progeny rather than Rule 6(e) and associated case law controls public disclosure of such
materials. Officer Sutton’s Motion for Reconsideration of the Court’s Order of
October 20, 2021, Regarding Government’s Motion to Seal Records Related to the Motion to
Disquality Counsel (“Def. Mot.”) [Dkt. No. 51] at 4-9.' For the following reasons, the Court
will deny Mr. Sutton’s motion for reconsideration and will direct the parties to file on the public
docket redacted versions of the filings related to the motion to disqualify.
l, WHETHER MR. SUTTON’S ARGUMENT IS PROPERLY RAISED IN A MOTION FOR
» RECONSIDERATION
The United States contends that Mr. Sutton’s argument is not appropriate for a
motion for reconsideration. See Government’s Opposition to Defendant's Motion to Reconsider
the Court’s Order to Seal Rule 6(e) Material [Dkt. No. 54-1] at 1-2. Although the Federal Rules
of Criminal Procedure do not explicitly provide for motions for reconsideration, the Supreme
Court has recognized that district courts appropriately may consider such motions in criminal
cases. See United States v. Dieter, 429 U.S. 6, 8 (1970) (per curiam); United States v.
Healy, 370 U.S. 75, $0 (1964). Judges in this district have considcred motions for
reconsideration in criminal cases “by importing the standards of review applicable in motions for
reconsideration in civil cases.” United States v. Hassanshahi, 145 F. Supp. 3d 75, 80
(D.D.C. 2015). “In particular, reconsideration of an interlocutory decision is available under the
standard, ‘as justice requires.” United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009)
(quoting Jud. Watch v. Dep’t of the Army, 466 F. Supp. 2d 112, 1123 (D.D.C. 2006)).
In evaluating what “justice requires,” the Court considers “whether it ‘patently
misunderstood a party, has made a decision outside the adversarial issues presented to the Court
by the parties, has made an error not of reasoning but of apprehension, or [whether] a controlling
While the title of Mr. Sutton’s motion refers to “the Court’s Order of
October 20, 2021,” the substance of that motion clearly refers to the Court’s memorandum
opinion and order issued on October 21, 2021. See Def. Mot. at 1,3. The Court assumes that
the reference to “October 20” rather than “October 21” is a typographical error.
bo
or significant change in the law or facts [has occurred] since the submission of the issue to the
Court.” Umited States v. Hassanshahi. 145 F. Supp. 3d at 80 (quoting Singh v. George
Washington Uniy., 383 F. Supp. 2d 99, 101 (D.D.C. 2005)). “Arguments that could have been,
but were not, raised previously and arguments that the [C]ourt has already rejected are not
appropriately raised in a motion for reconsideration.” United States v. Booker, 613 F.
hi
ho
upp. 2d 32, 34 (D.D.C. 2009),
Mr. Sutton’s basis for seeking reconsideration is that upon “revisiting this issue,”
detense counsel developed “the view” that the question of sealing “is not entirely governed by
the dictates of “Rule] 6(e).” and that the Court should instead apply the framework established in
United States v. Hubbard, 650 F.2d 293. Def. Mot. at 4. Mr. Sutton himself acknowledges that
the parties in their prior briefing treated the “request for public disclosure of the relevant grand
jury materials as governed by Rule 6(e).” Def. Mot. at 6. Mr. Sutton could have raised
arguments conceming the Hubbard framework — which predates this case and of which defense
counsel] presumably were aware — but he chose not to do so. Id. This therefore is not an instance
where the Court “patently misunderstood a party, [or] made a decision beyond the adversarial
issues presented.” United States v. Hassanshahi, 145 F. Supp. 3d at 80. To the contrary, Mr.
Sutton’s contention that the Hubbard framework applies is the quintessential argument that
“could have been, but w[{as] not, raised previously.” United States v. Booker, 613 F.
Supp. 2d at 34.
The United States therefore is correct that this argument is not properly advanced
in a motion for reconsideration. At the same time, the issue that Mr. Sutton raises implicates a
potential conflict between two particularly important interests: the public’s interest in accessing
judicial records and the public’s interest in grand jury secrecy, the purpose of which is to
tacilitate “the proper functioning of our grand jury system” by encouraging prospective
witnesses to testify “fully and frankly,” without fear of retaliation, and by “assur[ing] that
persons who are accused but exonerated by the grand jury will not be held up to public ridicule.”
Douglas Oil Co. of. Cal. v. Petrol Stops Nw., 441 U.S. 211, 218-19 (1979): see also United
States v. Procter & Gamble Co., 350 U.S. 677, 081-82, 681 n.6 (1958), Given the importance of
these interests and of resolving any conflict between them in this case, the Court will address the
merits of Mr. Sutton’s motion.
Il. FRAMEWORK FOR SEALING FILINGS THAT DISCUSS MATTERS OCCURRING
BEFORE THE GRAND JURY
Even if Mr. Sutton had properly raised his argument concerning the Hubbard
framework in his initial brief in opposition to sealing, this argument would fail because it
misconstrues the applicable law. Rule 6(e) of the Federal Rules of Criminal Procedure
establishes a detailed framework that “preserve[s]” “[t]he secrecy of grand jury proceedings,” In
re Motions of Dow Jones & Co., 142 F.3d 496, 499 (D.C. Cir. 1998), while enumerating limited
exceptions to the general presumption of secrecy, see In re Sealed Case, 250 F.3d 764, 768 (D.C.
Cir. 2001). The Hubbard framework, by contrast, is a six-factor test “for evaluating motions to
seal or unseal judicial records” pursuant to the common law right of public access to judicial
records. In re Leopold to Unseal Certain Elec. Surveillance Applications and Ords. (“In re
Leopold”), 964 F.3d 1121, 1127 (D.C. Cir. 2020); see also id. at 1129.
The D.C. Circuit recently explained that “the common-law inquiry [under
Hubbard] must yield ‘when Congress has spoken directly to the issue at hand.” Inre
Leopold, 964 F.3d at 1129 (quoting MetLife, Inc. v. Fin. Stability Oversight Council, 865
F.3d 661, 669 (D.C. Cir. 2017)). The court of appeals illustrated this principle by invoking
Rule 6(e), which “displaces the common-law right of access” to judicial records because it
“expressly directs secrecy as the default position.” Id. at 1130. In addition, because Rule 6(e)(6)
“specifics a standard for scaling” that “is different from the interests balanced in the Hubbard
test,” it “displaces that test as well.” Id.; see also In re Motions of Dow Jones & Co., 142
F.3d at 504 (“[E]ven if there were once a common law right of access to [materials relating to
grand jury proceedings], the common law has been supplanted by Rule 6(e)(5) and Rule 6(e)(6)
of the Federal Rules of Criminal Procedure.”); McKeever v. Barr, 920 F.3d 842, 847 (D.C.
Cir. 2019) (“Rule 6(e)(2) ‘provides that disclosure of matters occurring before the grand jury is
prohibited unless specifically permitted by one of the exceptions set forth in Rule 6(e)(3).””
(quoting In re Sealed Case, 801 F.2d 1379, 1381 (D.C. Cir. 1986))). Because Congress has
created a tailored framework to govern closure of matters occurring before the grand jury, the
general right of public access to judicial records and the Hubbard framework do not apply to
materials covered by Rule 6(e).
The fact that these materials have becn submitted to the Court in connection with
a pending motion does not transport them outside the realm of Rule 6(e) and into the realm of
Hubbard. “‘[A]Jny disclosure of grand jury [materials] is covered’ by Rule 6(e).” McKeever v.
Barr, 920 F.3d at 846 (emphasis added) (quoting Pittsburgh Plate Glass Co. v. United States, 360
U.S. 395, 398 (1959)). The D.C. Circuit has clearly held that district courts must “hew strictly to
the list of exceptions to grand jury secrecy” articulated in Rule 6(e), id., and Rule 6(e) does not
exempt from its coverage “‘records’ related to litigation of [a] motion,” Def. Mot. at 4.
Nothing in Mr. Sutton’s motion for reconsideration supports a contrary
conclusion. Mr. Sutton cites Dennis vy. United States, 384 U.S. 855 (1966), for the general
principle that “disclosure, rather than suppression, of relevant materials ordinarily promotes the
proper administration of criminal justice.” Def. Mot. at 7 (quoting Dennis v. United States, 384
U.S. at 870). Dennis is distinguishable because it involved the defendants’ access to grand jury
testimony of government witnesses who had testified on direct examination at trial, and whose
grand jury testimony defendants sought for the purpose of cross-examination. Id. at 871-73, 875.
Here, Mr. Sutton
EE {h\s motion for reconsideration seeks the
disclosure of those grand jury materials to the public. There is no such right.
Mr. Sutton suggests that the potential harms that flow from disclosure of grand
jury materials are not present here because the indictment has already returned and the person
secking disclosure is the defendant. Def. Mot. at 9. Yet even “after the grand jury has ended its
activities .... disclosure is still granted reluctantly if at all, and courts evaluating a request will
balance the need for disclosure against the public interest in secrecy.”. CHARLES ALAN WRIGHT
& ANDREW D. LEIPOLD, FEDERAL PRACTICE AND PROCEDURE: CRIMINAL § 106 (4th ed. 2008).
In particular, “{t]he primary reason for secrecy after the investigation is over is the need to
encourage future grand jury witnesses to come forward and provide information about crimes.”
Id. For this reason, “there is no time limit on the secrecy of grand jury proceedings.” Murphy v.
Exec. Office for U.S. Att’ys, 789 F.3d 204, 211 (D.C. Cir. 2015).
Mr. Sutton also invokes In re Unseal Dockets Related to the Indep. Counsel’s
1998 Investigation of President Clinton, 308 F. Supp. 3d 314 (D.D.C. 2018), for the proposition
that the Court has “inherent authority” to unseal and authorize the public disclosure of grand jury
materials even outside the scope of the exceptions enumerated in Rule 6(e). Officer Sutton’s
Reply in Support of his Motion for Reconsideration (“Def. Reply”) [Dkt. No. 59] at 6. As Mr.
Sutton acknowledges, however, the D.C. Circuit explicitly rejected that proposition in McKeever
vy. Barr, 910 F.3d $42. Regardless of any “strong dissent” in McKeever, Det. Reply at 6, this
Cour is bound by the court of appeals’ conclusion that “the district court has no authority
outside Rule 6(e) to disclose grand jury matter.” McKeever v. Barr. 910 F.3d at 850.
Mr. Sutton’s argument that the Court should consider public disclosure of the
grand jury material under the Hubbard framework, rather than under the strictures of Rule 6(e),
is without merit. The Court therefore will deny his motion for reconsideration.
III. PUBLIC REDACTED VERSIONS OF FILINGS
While there is no general right of public access to grand jury material such as the
intormation discussed in the motion to disqualify, there is a right of public access to judicial
proceedings generally, “including judicial records.” In re Leopold, 964 F.3d at 1127. The Court
therefore wiil direct the parties to file public versions of the filings that are currently sealed
because they relate to the motion to disqualify. with the following categories of intormation
redacted: (1) any intormation that could reveal the nature of matters occurring before the grand
jury, Which is protected from public disclosure by Rule 6(e); (2) any information that could
re ea re
Co
GE protected trom public disclosure by Rule 6(e): and (3) any personally
identifying information of any individual, redaction of which is necessary to comply with
Rule 49,1(a) of the Federal Rules of Criminal Procedure (collectively, “Sealed Information”).
On November 2, 2021. the United States filed a Status Report [Dkt. No. 50]
setting forth agreed proposed redactions for public versions of the motion to disqualify counsel
and the opposition and reply thereto.” The United States also proposed certain additional
redactions to which Mr. Sutton does not agree. Id. Upon reviewing the proposed redactions, the
Court concludes that the agreed redactions that both sides jointly proposed in the
November 2, 2021 Status Report and those proposed only by the United States are all
appropriate. It also concludes that certain other redactions are necessary to ensure that the
Sealed Information identified above is not publicly disclosed.
The Court therefore will direct each side to file on the public docket redacted
versions of their respective briefs submitted in connection with the motion to disqualify counsel.
Each briet should reflect the redactions jointly proposed by both sides, the redactions proposed
only by the United States, and anv additional redactions that are necessary to remove any Sealed
Information not covered by the parties” proposed redactions.
The Court will also direct the parties to file public versions of all other filings that
are currently sealed because they relate to the motion to disqualify counsel with all Sealed
Intormation redacted. The Court will issue public versions of its opinions and orders that have
previously been sealed because they relate to the motion to disqualify counsel with all Sealed
Information redacted. Finally. the Court will direct the parties to file under seal any future
tilings that relate to the motion to disqualify and, within five days of any such filing, to file
public versions of such filings with all Sealed Information redacted.
The Court will direct the parties to meet and confer at least three days prior to the
deadline for filing any of the public versions of filings identified in the foregoing paragraphs, in
According to the United States, while Mr. Sutton took the position in his motion
to reconsider that the filings should be unsealed in their entirety, defense counsel also “proposed
redactions to the sealed pleadings ‘should the Court believe redactions are necessary.’”
Nov. 2, 202] Status Report [Dkt. No. 50] at 4.
an effort to agree upon the redactions that are necessary to ensure that Sealed Information in
those filings is not publicly disclosed. If, after conferring, the parties cannot agree on the
necessary redactions, in lieu of filing public versions of those filings, the parties shall file under
seal a joint status report setting forth with particularity their areas of disagreement concerning
redactions.
IV. CONCLUSION
In light of the foregoing, it is hereby
ORDERED that Officer Sutton’s Motion for Reconsideration of the Court’s Order
of October 20, 2021, Regarding Government’s Motion to Seal Records Related to the Motion to
Disqualify Counsel [Dkt. No. 51] is DENIFD; it is
FURTHER ORDERED that on or before December 13, 2021, the United States
shall file on the public docket redacted versions of the Government's Motion to Disqualify
Counsel [Dkt. No. 34] and the Government's Reply in Support of Motion to Disqualify Counsel
[Dkt. No. 45] that reflect the redactions jointly proposed by both sides and the redactions
proposed only by the United States, as set forth in Exhibit 2 [Dkt. No. 50-2] and Exhibit 4 [Dkt.
No. 50-4] to the November 2, 2021 Status Report [Dkt. No. 50], and any additional redactions
that are necessary to remove any Sealed Information not covered by the parties’ proposed
redactions: it is
FURTHER ORDERED that on or before December 13, 2021, Mr. Sutton is
directed to file on the public docket a redacted version of his Opposition to Government’s
Motion to Disqualify Counsel [Dkt. No. 43] that reflects the redactions jointly proposed by both
sides and the redactions proposed only by the United States, as set forth in Exhibit 3 [Dkt.
No. 50-3] to the November 2, 2021 Status Report [Dkt. No. 50], and any additional redactions
that are necessary to remove any Sealed Information not covered by the parties’ proposed
redactions: it is
FURTHER ORDERED that on or before December 13, 2021, the parties shall file
public versions of all other filings that are currently sealed because they relate to the motion to
disqualify counsel, from which the parties shall redact all Sealed Information; it is
FURTHER ORDERED that the parties shall file under seal any future filings that
relate to the motion to disqualify counsel, and within five days of any such filing, the parties
shall file public versions of such filings with all Sealed Information redacted; it is
FURTHER ORDERED that at least three days prior to the deadline for filing any
of the public versions of filings identified in the foregoing paragraphs, the parties shall meet and
confer in an effort to agree upon the redactions that are necessary to ensure that Sealed
Intormation in those filings is not publicly disclosed; and it ts
FURTHER ORDERED that if, after conferring, the parties cannot agree on the
necessary redactions, on or before the deadline for filing public versions of the filings, and in licu
of filing public versions, the parties shall file under seal a joint status report setting forth with
particularity their areas of disagreement concerning redactions.
SO ORDERED.
Var ee
PAUL L. FRIEDMAN
United States District Judge
DATE: /3\ las
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