Opinion
BENJAMIN B. WAGNER, United States Attorney, MICHAEL FRYE, KEVIN P. ROONEY, Assistant U.S. Attorneys, Fresno, CA.
MYTHILI RAMAN, Acting Assistant Attorney General, JACABED RODRIGUEZ-COSS, Trial Attorney, Criminal Division, U.S. Department of Justice, Bridgeport, CT.
GOVERNMENT'S RESPONSE IN OPPOSITION TO MOTION TO SEAL
JOHN C. COUGHENOUR, District Judge.
COMES NOW the United States of America, by and through the undersigned attorneys, and respectfully prays and alleges as follows:
On December 2, 2013, the defendant filed a Motion Related to Number and Order of Anticipated Trial Phases and Regarding the Jury Selection Process. Dkt. No. 149. The defendant argues that in order to have a fair and impartial jury, for both the guilt and penalty phases, he needs two separate juries to consider his case. On that same date, pursuant to Local Rule 141, the defendant filed a Motion to File Ex Parte Proffer Under Seal. Dkt. No. 150. Local Rule 141(c) provides that an opposition to a request to seal a document may be submitted within three days of the date of service. The Government received the defendant's Motion to File Ex Parte Proffer Under Seal on December 2, 2013. Therefore, the instant opposition is timely.
The Government e-mailed the instant opposition to the Magistrate Judge's proposed order e-mail box listed in the Court's website.
The Court attaches the government's response as Exhibit A to this Order, to ensure that the response is a part of the record.
A. Criminal Judicial Proceedings Are Presumed to be Public.
As a general rule, all criminal judicial proceedings are to be open to the public. See, Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 10-11 (1986) (" PressEnterprise II "); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 505 (1984) (" Press-Enterprise I "); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980). See also Samuel B. Sokol, Comment, Trying Dependency Cases in Public: A First Amendment Inquiry, 45 UCLA L.Rev. 881, 884-901 (1998). Further, "(c)ourts have long recognized a common-law right of access to judicial records." Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) ( citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 599 (1978)).
In Barrett v. United States, 2009 WL 2982670, *1 (E.D.Okla. 2009), the Court ordered the unsealing of a number of documents the Government argued it needed to review in order to properly respond to the defendant's motion pursuant to section 2255. The Court in Barrett stated:
As the Government's Reply correctly notes, Petitioner has raised the issues to be addressed in this matter based upon sealed court documents in his underlying criminal case and this Court has the authority to order any document filed with the Court to be unsealed... Sealed documents.... may be approved by the Court only upon a showing that a legally protected interest of a party, non-party or witness outweighs the compelling public interest in disclosure of records.
See also Hinson v. United States, 2010 WL 3724869, *1 (E.D. Mo. 2010) (applying the Eighth Circuit compelling interest test to sealed documents in a § 2255 case).
The Government recognizes this Court's authority to seal documents before it, based upon the Court's inherent supervisory authority over its own files and records. See Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598 (1978); United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685, 689-90 (5th Cir. 2010); Gambale v. Deutsche Bank AG, 377 F.3d 133, 140-41 (2d Cir. 2004). The Government further understands that once a court orders documents before it sealed, the court continues to have authority to enforce its order sealing those documents, as well as authority to loosen or eliminate any restrictions on the sealed documents. See United Nuclear Corp. v. Cranford Ins. Co., 905 F.2d 1424, 1427-28 (10th Cir. 1990); see also Gambale, 377 F.3d at 141 (2d Cir.) (citing Poliquin v. Garden Way, Inc., 989 F.2d 527, 535 (1st Cir. 1993)). This is true even if the case in which the documents were sealed has ended. See United Nuclear Corp., 905 F.2d at 1427-28; see also Gambale, 377 F.3d at 141-42 (2d Cir.). United States v. Pickard, 733 F.3d 1297, 1300-01 (10th Cir. 2013).
However, the Court's exercise of this power is conditioned upon the moving party's ability to show "some significant interest that outweighs the presumption" in favor of open access to judicial records. Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir. 2012) (internal quotation marks omitted). See also In re Gitto Global Corp., 422 F.3d 1, 6 (1st Cir. 2005) (although the court is given this supervisory power [to seal documents], "only the most compelling reasons can justify non-disclosure of judicial records.") (internal brackets and quotations omitted); In re Neal, 461 F.3d 1048, 1053 (8th Cir. 2006) (same).
B. The Defendant Has Not Shown a "Significant Interest" in Sealing the Proposed Proffer.
The defendant has moved to file ex-parte and under seal a proffer of its trial strategy that he claims justifies this Court empanelling two separate juries. The defendant's request for two juries is, by his own admission, Dkt. No. 149, p. 11 n. 2, contrary to the mandate of the Federal Death Penalty Act ("FDPA"). Indeed, the defendant's interpretation of the FDPA has been rejected by three circuit courts. Thus, the defendant is essentially moving this Court to judicially rewrite the FDPA, and further, to exclude the Government from this decision. This Court should not allow the defendant's motion.
The defendant has elected, by filing his motion requesting the empanelment of two juries, to put his "trial strategy" at issue. Therefore, any interest he has in protecting his "trial strategy" prior to trial must yield to the interest of the Government to effectively participate in this Court's decision-making process. The Government cannot properly address the defendant's argument without receiving disclosure of the ex-parte proffer the defendant is making to the Court.
Numerous courts have held that a defendant's rights and privileges yield when he places matters at issue with the court. For example, courts have concluded that a defendant's attorney-client privilege can be waived when the client places the attorney's representation at issue. In United States v. Pinson, 584 F.3d 972 (10th Cir. 2009), cert. denied, 130 S.Ct. 1548 (2010), the Court stated:
When a habeas petitioner claims that he received ineffective assistance of counsel, he puts communications between himself and his attorney directly in issue, and thus by implication waives the attorney-client privilege with respect to those communications. The Supreme Court's pathmarking ineffective-assistance case, Strickland v. Washington, itself hinted at this requirement. 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)("[I]nquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's... litigation decisions."). Many of our sister circuits have recognized this rule.
Id. at 977-978 ( citing cases from various Circuits recognizing this principal). The Court concluded, "[g]iven the ample, unanimous federal authority on point, we hold that when a habeas petitioner claims ineffective assistance of counsel, he impliedly waives attorney-client privilege with respect to communications with his attorney necessary to prove or disprove his claim." Id.
Likewise, a plaintiff waives the psychotherapist-patient privilege by placing his or her medical condition at issue. Schoffstall v. Henderson, 223 F.3d 818, 823 (8th Cir. 2000). See also Sarko v. Penn-Del Directory Co., 170 F.R.D. 127, 130 (E.D.Pa. 1997); Vann v. Lone Star Steakhouse & Saloon, Inc., 967 F.Supp. 346, 349-50 (C.D.Ill. 1997); EEOC v. Danka Indus., Inc. , 990 F.Supp. 1138, 1142 (E.D.Mo. 1997); Jackson v. Chubb Corp., 193 F.R.D. 216, 225 (D.N.J. 2000).
The court in Bittaker v. Woodford, 331 F.3d 715, (9th Cir. 2003) properly explained the need for a waiver of privilege when protected information is put at issue as a matter of fairness:
The rule that a litigant waives the attorney-client privilege by putting the lawyer's performance at issue during the course of the litigation dates back to at least Hunt v. Blackburn, 128 U.S. 464, 9 S.Ct. 125, 32 L.Ed. 488 (1888), where the Court stated: "When Mrs. Blackburn entered upon a line of defense which involved what transpired between herself and Mr. Weatherford [her lawyer], and respecting which she testified, she waived her right to object to his giving his own account of the matter." Id. at 470-71, 9 S.Ct. 125. The Court thought this proposition so self-evident it felt no need to support it with either citation to authority or further analysis. In the intervening years, courts and commentators have come to identify this simple rule as the fairness principle. (citations omitted) The principle is often expressed in terms of preventing a party from using the privilege as both a shield and a sword. (citations omitted).
Bittaker, 331 F.3d at 718-719.
The court in Bittaker recognized a distinction between an express waiver and an implied waiver. "An express waiver occurs when a party discloses privileged information to a third party who is not bound by the privilege, or otherwise shows disregard for the privilege by making the information public." Id., at 719.
[T]he doctrine of implied waiver allocates control of the privilege between the judicial system and the party holding the privilege. (citation omitted) The court imposing the waiver does not order disclosure of the materials categorically; rather, the court directs the party holding the privilege to produce the privileged materials if it wishes to go forward with its claims implicating them. The court thus gives the holder of the privilege a choice: If you want to litigate this claim, then you must waive your privilege to the extent necessary to give your opponent a fair opportunity to defend against it.
Id., at 720.
Similarly, here, the defendant has placed his trial strategy at issue. We assume the defendant would claim that his trial strategy is protected by the work product doctrine. However, by placing his trial strategy at issue, the defendant has impliedly waived any privilege that protects his trial strategy prior to trial. Therefore, if he wishes for the Court to consider the proffered information, he must waive any privilege protecting it from disclosure to the Government or withdraw his motion. The Government submits that disclosure of any information to be considered by the Court when deciding the defendant's motion (Dkt. No. 149) is necessary to give the Government a fair opportunity to defend against said motion.
C. In the Alternative the Court Should Designate a Taint Team.
The Government submits that the issue here is not whether the defendant's trial strategy will be disclosed, but rather when it will be disclosed. Clearly once the trial begins, the defendant's trial strategy, to the extent it is not already, will become evident. Therefore, the defendant will hardly be prejudiced by waiving any privilege.
In the alternative, if this Court is inclined to permit the defendant to file such a proffer ex parte and under seal, the Government respectfully submits that, at a minimum, the Government should have an opportunity to have a taint team put into place that would receive the defendant's proffer and adequately respond to the defendant's motion. The defendant cannot by virtue of claiming "trial strategy" deny the Government a voice in a decision-making process that will significantly affect the Government's right to seek and obtain what it understands is the proper punishment in this case.
WHEREFORE the United States respectfully requests that this Honorable Court deny the defendant's Motion to File Ex Parte Proffer Under Seal.
ORDER
DESTH PENALTY CASE
This matter comes before the Court on Defendant's motion to file an ex parte proffer under seal. (Dkt. No. 150.) Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS IN PART and DENIES IN PART the motion for the reasons explained herein.
I. BACKGROUND
Defendant is accused of murdering Michael Anita, his cellmate at the time of the alleged crime. Because this is a death penalty case, the trial will be bifurcated, with a guilt phase and a penalty phase. Defendant moves to impanel two juries, one for the guilt phase and one for the penalty phase, (Dkt. No. 149), arguing-at least in part-that because certain evidence of Defendant's prior bad acts has been excluded from the guilt phase but not the penalty phase, ( see Dkt. No. 116), unless the jury is bifurcated, Defendant will be unable to properly voir dire the penalty-phase jury about those acts without alerting the guilt-phase jury to them. Defendant also makes additional requests related to that issue.
Defendant moves to supplement that motion with a proffer filed ex parte and under seal. (Dkt. No. 150.) He wants to make arguments that will reveal his trial strategy, but does not want to disclose that strategy to the government. The government opposed Defendant's motion in a document emailed to the Court and Defendant, but did not actually file its response on CM/ECF.1 Defendant replied. (Dkt. No. 157.)
II. DISCUSSION
As a preliminary matter, the parties are DIRECTED to file all future motions, responses, replies, and similar documents on the Court's docket, via CM/ECF. Because Defendant had timely notice of the government's response and the arguments contained therein, and the Court timely received the document, the Court will consider it. However, in the future, the Court will not consider documents that have not been properly filed. Proper filings facilitate the work of the attorneys and the Court and allow for effective appellate review, should such review be necessary.
As both parties agree, there is a general presumption that documents filed in criminal cases should be available to the public. (Ex. A, at 2-3; Dkt. No. 157, at 2-4.) In this case, however, those concerns are weaker: to the extent there is still a desire to make the documents publicly available after the trial has concluded, a renewed application to unseal the documents at that time may mitigate those concerns. Moreover, the government "lacks third-party standing to assert" the public's right of access to documents filed within the Court. United States v. Hickey, 185 F.3d 1064, 1066 (9th Cir. 1999). "The government is the prosecutor, not a third party whose sole interest in the litigation is access to documents." Id. In any case, given the privilege issues involved, the Court finds that Defendant's interest in keeping his case strategy private is significant enough to outweigh the public's interest in immediate access to the documents.
However, that is not the only concern raised by the government: if the Court allows Defendant to file a document ex parte, the government argues that it will be unable to effectively respond to Defendant's arguments. Accordingly, the remaining question is whether Defendant's interest in being able to effectively argue for a bifurcated jury while not waiving his work-product privilege outweighs the government's interest in effectively responding to Defendant's arguments.
Defendant's interests arise out of his Sixth Amendment rights to the effective assistance of counsel and to a trial by an impartial jury: should the Court disallow the ex parte offer, counsel will not be able to both effectively make every available pretrial argument on behalf of Defendant to ensure that he is tried by an impartial jury, and effectively pursue his trial strategy. Cf. Bittaker v. Woodford, 331 F.3d 715, 723 (9th Cir. 2003) ("[R]equiring petitioner to enter such a broad waiver would force him to the painful choice of, on the one hand, asserting his ineffective assistance of counsel claim... and, on the other hand, retaining [] privilege but give up his ineffective assistance claim."). Of course, in Bittaker, the Ninth Circuit found that the petitioner had waived his privilege, if narrowly, and the equivalent of a "taint team" was designated: "[t]he district court entered a protective order precluding the use of the privileged materials for any purpose other than litigating the federal habeas petition, and barring the Attorney General from turning them over to any other persons or offices, including, in particular, law enforcement or prosecutorial agencies." Id. at 717. Defendant also notes that criminal defendants are generally allowed to request subpoenas, and submit motions for funding, ex parte. (Dkt. No. 157, at 7.)
The government's concerns arise out of the adversarial structure of our justice system, and a sense of fairness: that "if you want to litigate [a] claim, then you must waive your privilege to the extent necessary to give your opponent a fair opportunity to defend against it." Bittaker, 331 F.3d at 720.
The Court concludes that a taint team is necessary. While denying Defendant's request outright would result in an overly broad waiver of privilege, which might constitute an abuse of discretion, see id. at 728 (stating that the district court would have abused its discretion had it failed to enter a protective order), the Court is unwilling to address Defendant's arguments without the benefit of adversarial briefing, as Defendant's motion involves legal arguments unique to this case. Within one week of the date of this Order, assuming Defendant still wants to supplement his motion, Defendant should submit a proposed protective order concerning the ex parte proffer. The government's taint team should be ready at that time.
III. CONCLUSION
For the foregoing reasons, Defendant's motion to file an ex parte proffer concerning his previous motion (Dkt. No. 150) is GRANTED IN PART and DENIED IN PART.