FILED

NOT FOR PUBLICATION

OCT 21 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50344

Plaintiff-Appellee, D.C. No. 3:12-cr-00768-LAB-1 v.

DOE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted September 1, 2016 Pasadena, California

Before: TASHIMA, WARDLAW, and BYBEE, Circuit Judges.

Doe appeals the district court’s denial of the parties’ joint motion to seal an

order denying a further reduction in sentence. We have jurisdiction pursuant to

28 U.S.C. § 1291, and we reverse.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

FILED

UNITED STATES OF AMERICA v DOE 15-50344

OCT 21 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

BYBEE, Circuit Judge, Dissenting

I respectfully dissent. In denying the motion to seal the order, the district

court did not abuse its discretion by applying the “[in]correct legal rule” or

applying the legal standard in a way that was “(1) illogical, (2) implausible, or (3)

without support in inferences that may be drawn from facts in the record.” United

States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc) (citation

omitted).

The district court stated both the common law standard from Kamakana v.

City & County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), and the First

Amendment test from Oregonian Publishing Co. v. United States District Court

for District of Oregon, 920 F.2d 1462 (9th Cir. 1990), and therefore did not apply

the incorrect legal rule. Although the district court did not clearly separate its

analysis of the First Amendment and common law rights regarding public access to

judicial documents, the district court applied both tests and did not abuse its

discretion.

The district court did not reach an outcome that was illogical, implausible, or

without support in inferences that could be drawn from facts in the record. The

1 district court rejected sealing the order because it believed there was not “any

evidence that [Doe] has been threatened, harassed, or intimidated . . . even though

the [person] against whom [Doe] agreed to testify is now in federal prison . . . ,

knows [Doe’s] identify, and knows that [Doe] was willing to be a witness against

[them].” The district court did not abuse its discretion when it found that Doe had

failed to proffer evidence to substantiate Doe’s claims and that any danger to Doe

was “at best hypothetical and conjectural rather than real or actual.”

2 The district court abused its discretion by applying the incorrect rule of law

in denying the motion to seal the order. See United States v. Hinkson, 585 F.3d

1247, 1261–62 (9th Cir. 2009) (en banc) (“[T]he first step of our abuse of

discretion test is to determine de novo whether the trial court identified the correct

legal rule to apply to the relief requested. If the trial court failed to do so, we must

conclude it abused its discretion.”). Our precedent delineates two lines of analysis

regarding public access to judicial documents. U.S. v. Bus. of Custer Battlefield

Museum & Store Located at Interstate 90, Exit 514, S. of Billings, Mont., 658 F.3d

1188, 1192 (9th Cir. 2011). First, there is “a common law right ‘to inspect and

copy public records and documents, including judicial records and documents.’”

Id. (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). Second,

there is “‘a First Amendment right of access to criminal proceedings’ and

documents therein.” Id. (quoting Press-Enter. Co. v. Superior Court of Cal. for

Cty. of Riverside, 478 U.S. 1, 8 (1986)). The district court did not make clear

under which analysis it proceeded, and it erroneously conflated the two tests.

Under either standard, we conclude that Doe made the required showing to seal the

order.

1. To overcome the common law right of access to judicial records and

documents, Doe must “articulat[e] compelling reasons . . . that outweigh the

2 general history of access and the public policies favoring disclosure.” Custer

Battlefield, 658 F.3d at 1195 (internal quotation marks omitted). Doe’s personal

safety is a “compelling reason[ ],” and Doe proffered evidence showing that Doe

felt at risk of personal harm while imprisoned and that Doe’s common-law spouse

had been physically threatened during a pertinent time. The district court

erroneously required Doe to specifically prove that Doe was “actually” in danger.

2. To overcome the First Amendment right of access, Doe must show

that “(1) closure serves a compelling interest; (2) there is a substantial probability

that, in the absence of closure, this compelling interest would be harmed; and (3)

there are no alternatives to closure that would adequately protect the compelling

interest.” Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Or., 920 F.2d 1462,

1466 (9th Cir. 1990). Under the First Amendment’s heightened standard, Doe was

required to show a “substantial probability” of harm to Doe’s safety.

The district court relied on its determination that the person against whom

Doe agreed to cooperate was already aware of Doe’s identity and that the

information Doe sought to seal was already in the public domain. Neither

justification survives close examination.

Any disclosure to the person against whom Doe agreed to testify was merely

oral, not written, and was made pursuant to a protective order preventing further

3 dissemination of that information. As Doe and the government emphasized

repeatedly, in prison an essential difference exists between unsubstantiated claims

that someone has cooperated with prosecutors and actual “paper” proof, in the

form of official court filings, so confirming. Persons who would retaliate against

cooperators may refrain from harming or threatening a suspected cooperator absent

“paper” confirmation, from courts, that the alleged cooperation took place. That

the person against whom Doe agreed to testify was made aware of Doe’s identity

does not alone justify denying the motion to seal where such disclosure was made

orally, under a protective order, and could not be revealed without risking a finding

of criminal contempt.

The district court further erred in finding that at the time it issued its order,

the electronic public docket revealed the fact of Doe’s cooperation to the general

public. As a practical matter, this information was not actually publicly available.

A non-party using Public Access to Court Electronic Records (“PACER”) to

unearth information about Doe’s case might have found a document generically

filed, under seal, as a “Sentencing Memorandum.” Only a party to the case would

then be able to click on the document to access the title of the motion, which, to the

knowledgeable user, would have alluded to the fact of Doe’s cooperation. But a

non-party seeking information about Doe could not have gone so far; instead, he

4 would have had to physically travel to a courthouse and request the document

there, whereupon he would have received a copy of a shell motion or order, blank

except for the title of the motion. It is extremely unlikely that any prison inmate

could have executed these steps. Thus it was simply not true, as a practical matter,

that the fact of Doe’s cooperation was already publicly available through PACER

at the time the district court issued its order.

Finally, the district court disregarded evidence directly relevant to Doe’s

showing of a substantial probability of harm to Doe’s safety. Doe’s common law

spouse was physically threatened shortly after Doe’s arrest by persons Doe

believes were motivated to prevent Doe’s cooperation with the government.

Although this incident was brought to the district court’s attention in the hearings

below, the district court did not address it in denying the motion to seal.

Our decision is consistent with the growing nationwide realization among

courts and law enforcement offices that electronic filing has significantly increased

the risk of harm cooperators face in prison. To that end, the Judicial Conference of

the United States has asked courts to “consider avoiding the use of cooperators’

names in your opinions and orders, whenever practicable, or to consider taking

additional actions as you see fit, consistent with the law, to obscure cooperators’

identities to ensure their safety.” Protecting Cooperation Information,

5 Memorandum, Judicial Conference of the United States (Sept. 17, 2014). These

circumstances demonstrate that the potential harms and risks that attend

cooperating witnesses have changed dramatically in the decades since we decided

CBS, Inc. v. United States Dist. Court for Cent. Dist. of Cal., 765 F.2d 823 (9th

Cir. 1985). Whether under the common law or the First Amendment, Doe has

made a showing sufficient to justify non-disclosure. Accordingly, we order that

the district court place under seal its order denying Doe a further sentencing

reduction.

REVERSED.

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