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Federal Prison Handbook

Tenth Circuit Vacates District Court’s Order Sealing Plea Supplement, Explaining Local Court Rule Doesn’t Abrogate Common Law Right of Access to Judicial Records

Bacon pleaded guilty to multiple counts, including bank robbery. At issue in this appeal was the district court’s decision to file under seal Bacon’s supplement to his plea agreement.

Bacon had refused to cooperate with the Government, and he informed the trial court that his life would be in danger when other prisoners read that his supplement was under seal because fellow prisoners would wrongly conclude the sealed record meant he had cooperated.

The Government argued the supplement should be sealed pursuant a local rule of the District of Utah that required all supplements to plea agreements be filed under seal, for the sake of uniformity.

The district court, relying on the local rule, sided with the Government. On appeal, Bacon argued that the district court erred by failing to consider the common law right of access to judicial records and by failing to make case-specific findings regarding sealing of the record.

Because Bacon had objected to the sealing of the record only on the ground that sealing endangered his life, the Tenth Circuit determined his common-law right of access argument was raised for the first time on appeal. United States v. A.B., 529 F.3d 1275 (10th Cir. 2008). Consequently, the Court reviewed for plain error. Id. To prevail, Bacon had to show (1) an error occurred (2) that was plain (3) which affected his substantial rights and which (4) seriously affected the fairness, integrity, or public reputation of the judicial proceedings. United States v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005).

As to the first and second factors, there was plain error because the Court had previously held “[i]t is clearly established that court documents are covered by a common law right of access,” United States v. McVeigh, 119 F.3d 806 (10th Cir. 1997). There is a strong presumption in favor of public access that can be overcome only where “countervailing interests heavily outweigh the public interests in access.” Colony Ins. Co. v. Burke, 698 F.3d 1222 (10th Cir. 2012). The burden is on the party opposing disclosure “to articulate a sufficiently significant interest that will justify” overriding the presumption of public access. United States v. Pickard, 733 F.3d 1297 (10th Cir. 2013).

When deciding whether to seal specific documents, courts “must consider the relevant facts and circumstances of the particular case and weigh the relative interests of the parties.” United States v. Hickey, 767 F.2d 705 (10th Cir. 1985). Basing a decision to seal or unseal a record on a blanket policy does not satisfy either constitutional or common law standards. United States v. DeJournett, 817 F.3d 479 (6th Cir. 2016).

In the instant case, the Court explained that the district court erred because it failed to recognize the strong presumption in favor of public access; based its decision to seal the record on a blanket policy authorized by local rule; failed to require the Government to articulate specific reasons in favor of sealing the plea supplement; and failed to weigh Bacon’s safety argument and the public’s interest against any argument advanced by the Government.

As to the third factor, Bacon demonstrated that the error affected his substantial rights because there was a reasonable probability that, had the district court considered the strong presumption of public access to judicial records, the plea supplement would not have been filed under seal. United States v. Andrews, 447 F.3d 806 (10th Cir. 2006). Finally, Bacon demonstrated that the error seriously affected the integrity of the judicial proceedings because public access to court records is fundamental to a democratic state. United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). The unnecessary sealing of records breeds public mistrust of the judiciary. Sealing, Judicial Transparency and Judicial Independence, 53 Vill. L. Rev. 939 (2008).

The Court concluded Bacon established plain error.

Accordingly, the Court vacated the district court’s decision to keep Bacon’s plea supplement filed under seal and remanded for further proceedings consistent with the Court’s opinion. See: United States v. Bacon, 950 F.3d 1286 (10th Cir. 2020).

Related legal case

United States v. Bacon

 

 

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