Opinion
No. 2:07-cr-00366-GEB
02-28-2014
UNITED STATES OF AMERICA, Plaintiff, v. ROBERT EBERLE, BARBARA EBERLE, Defendants.
ORDER
This action is scheduled on March 7, 2014, for sentencing and for hearing on Defendants Robert Eberle and Barbara Eberle's request to substitute appointed counsel. In connection with these proceedings, Defendants, in propria persona, submitted correspondence directly to the undersigned judge. Further, Defendants have asked, through counsel, to vacate the sentencing hearing in light of their request for new counsel. These two matters are addressed below.
A. Defendants' In Pro Per Correspondence
On February 26, 2014, the Court received, via priority mail, correspondence from Defendants Robert Eberle and Barbara Eberle in propria persona. The correspondence consists of a two-page letter from Defendants addressed to the undersigned judge and a copy of a two-page letter sent by Defendant Robert Eberle to his counsel, Tim Warriner.
In essence, Defendants argue in the correspondence that their attorneys have provided "ineffective legal counsel" and that they were coerced into entering into their plea agreements. It appears Defendants ultimately seek either to withdraw their guilty pleas or mitigate the sentences imposed with the information and arguments contained in the correspondence. Accordingly, the referenced correspondence shall be filed on the public docket.
"[T]he public and the press have a right of access to criminal proceedings and documents filed therein." CBS, Inc. v. U.S. Dist. Ct. for C.D. of Cal., 765 F.2d 823, 825 (9th Cir. 1985). "The right of access is grounded in the First Amendment and in common law," and applies "to post-conviction proceedings." Id. "This right of access extends to materials submitted to the Court in connection with sentencing that the Court is asked to consider." United States v. King, No. 10 Cr. 122(JGK), 2012 WL 2196674, at *1 (S.D.N.Y. June 15, 2012); see also United States v. Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012) ("[T]he First Amendment right of access applies to sentencing proceedings."). The right of access also extends to materials that form the basis of a request for relief. See United States v. Gonzalez, 927 F. Supp. 768, 783 (D. Del. 1996) ("The public has a right to know the basis for [a motion] . . . , if [it] is granted. Similarly, the public has the right to know why [a motion is] not granted . . . ."); United States v. Harris, 707 F.2d 653, 662 (2d Cir. 1983) ("[O]ur legal system is rooted in the idea that facts are best determined in adversary proceedings . . . .").
Since it is clear Defendants submitted the referenced correspondence to influence the Court's decision making in this action, and no overriding right or interest outweighing the right to access has been shown, the correspondence shall be made public. Defendants' letter addressed to the undersigned judge has been redacted to remove Defendants' cellular telephone numbers.
B. Request to Vacate Sentencing Hearing
Defendants, through counsel, "request that the Sentencing Hearing . . . be vacated in light of the defendants' request for new counsel." (Defs.' Req. to Vacate Sentencing Hr'g, ECF No. 332.)
Defendants' request is denied since the current record does not show Defendants are entitled to new appointed counsel. See United States v. Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir. 2009) (stating legal standard in deciding whether to grant a motion for substitution of appointed counsel). Should Defendants' request for substitute counsel be granted, sentencing may be continued at that time. However, Defendants should be prepared to proceed with sentencing on March 7, 2014, in the event their request for substitute counsel is denied. Dated: February 28, 2014
/s/_________
GARIAND E. BURRELL, JR.
Senior United States District Judge