17-21 (L)
United States v. Basciano (Donato)

                                          UNITED STATES COURT OF APPEALS
                                             FOR THE SECOND CIRCUIT

                                                     SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this Court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 13th day of March, two thousand eighteen.

PRESENT:              JOSÉ A. CABRANES,
                      REENA RAGGI,
                             Circuit Judges,
                      LAWRENCE J. VILARDO,
                             District Judge.


UNITED STATES OF AMERICA,

                                     Appellee,                      17-21 (L), 17-45 (Con.)

                                     v.

ANTHONY DONATO, AKA LITTLE ANTHONY,

                                     Defendant-Appellant.



FOR APPELLEE:                                                David C. James, Amy Busa, Assistant United
                                                             States Attorneys, of Counsel, for Bridget M.
                                                             Rohde, Acting United States Attorney,
                                                             Eastern District of New York, Brooklyn, NY.


 Judge Lawrence J. Vilardo, of the United States District Court for the Western District of New
York, sitting by designation.
 The clerk of court is ordered to amend the caption of this case as shown herein.
FOR DEFENDANT-APPELLANT:                               Anthony Donato, pro se, Danbury, CT.

       Appeal from an order of the United States District Court for the Eastern District of New
York (Nicholas Garaufis, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the district court is VACATED and REMANDED for
further proceedings consistent with this order.

         Anthony Donato, proceeding pro se, appeals from the District Court’s order denying his
motions to unseal certain documents subject to a protective order. He sought release of these sealed
documents, arguing that they had been provided to a codefendant and that the Government had
failed to meet its burden to justify keeping them under seal under the common law and First
Amendment right of access. The District Court denied the motions to unseal based on the law
enforcement privilege and the privacy concerns of third parties. We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal.

         We review de novo whether a document is a judicial document “subject to a presumptive right
of public access, whether on common law or First Amendment grounds.” United States v. HSBC
Bank USA, N.A., 863 F.3d 125, 134 (2d Cir. 2017). The “ultimate decision to seal or unseal” is
reviewed for abuse of discretion. Id. (internal quotation marks omitted). To be a “judicial
document,” “the item filed must be relevant to the performance of the judicial function and useful
in the judicial process.” Id. (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir. 1995)).

        The District Court correctly held that documents Donato sought were judicial documents.
Documents exchanged during discovery are not judicial documents. United States v. Amodeo, 71 F.3d
1044, 1050 (2d Cir. 1995) (“Amodeo II”). But we have consistently held that documents filed in
criminal cases used to determine a litigant’s substantive legal rights are judicial documents. Id. at
1049 (“[T]he public has an especially strong right of access to evidence introduced in trials.”
(internal quotation marks omitted)). Here, the documents were attached to a codefendant’s motion
for a new trial, which determined the codefendant’s substantive legal rights. Thus, the attached
documents were judicial documents.

         We conclude, however, that the District Court abused its discretion by ruling that the
documents should remain under seal. There is both a common law and First Amendment right to
access to judicial documents; the First Amendment right is “stronger than its common law ancestor
and counterpart.” See United States v. Erie Cty., 763 F.3d 235, 238–39 (2d Cir. 2014). A qualified First
Amendment right of access applies to criminal proceedings. In re N.Y. Times Co., 828 F.2d 110, 116
(2d Cir. 1987). “[H]igher values,” however, such as “the privacy interests of those resisting
disclosure” or “the danger of impairing law enforcement” can justify sealing documents in a criminal
proceeding to which the public would normally have a right of access. Lugosch v. Pyramid Co. of
Onondaga, 435 F.3d 110, 120 (2d Cir. 2006) (quoting in re N.Y. Times Co., 828 F.2d at 116). “Once a
First Amendment right to access to judicial documents is found, the documents may be sealed [only]
if specific, on the record findings are made demonstrating that closure is essential to preserve higher


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values and is narrowly tailored to serve that interest.” Erie Cty., 763 F.3d at 239 (alterations in
original) (internal quotation marks omitted).

        Here, the District Court’s findings were too broad for wholesale sealing. Moreover, review
of the sealed documents at issue reveals that they are largely cumulative of the information discussed
in a District Court order and would require minimal redaction if unsealed. See Erie Cty., 763 F.3d at
239. In other words, the District Court did not “narrowly tailor[]” its decision to keep certain
sensitive information under seal by redacting that information from the documents. Id. And the
District Court still has the option of making more specific findings—under seal, if appropriate—to
allow for meaningful appellate review. See In re N.Y. Times Co., 828 F.2d at 116.

        We reaffirm that the “presumption of access is based on the need for the public monitoring
of federal courts.” Amodeo II, 71 F.3d at 1050. Thus, the appropriate focus of the inquiry of whether
to unseal the documents is on the public’s right to have access to judicial documents, which is
“integral to our system of government.” Erie Cty., 763 F.3d at 238–39. We note, however, that our
analysis applies only to the documents that were the subject of Donato’s motions. In making more
tailored findings regarding which information should remain sealed, the identities of witnesses in the
witness protection program that were subject to the existing protective order should not be
disclosed.

                                            CONCLUSION

         Accordingly, we VACATE and REMAND for further proceedings consistent with this
order.

                                                 FOR THE COURT:
                                                 Catherine O’Hagan Wolfe, Clerk of Court




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