                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


                                                         )
UNITED STATES OF AMERICA                                 )
                                                         )
        v.                                               )         Criminal No. 08-274 (ESH)
                                                         )
KEVIN A. RING,                                           )
                                                         )
                Defendant.                               )
                                                         )


                                    MEMORANDUM OPINION

        Defendant Kevin A. Ring has moved to unseal portions of a government PowerPoint

presentation provided to him during a preindictment reverse proffer session on February 15,

2008. (Def.’s Mot. to Unseal, Dec. 23, 2013 [ECF No. 314] (“Mot.”).) Defendant moves to

unseal the document so that the public can obtain information about prosecutors’ charging

decisions and the plea bargaining process. For the reasons stated below, the Court denies

defendant’s motion.

                                           BACKGROUND

        The material facts and statutory framework relevant to this case were described in detail

in the Court’s prior opinion. United States v. Ring, 811 F. Supp. 2d 359, 361-62 (D.D.C. 2011).

Therefore, an abbreviated version will suffice. On September 5, 2008, a grand jury indicted

Kevin Ring, a lobbyist who worked with Jack Abramoff, for payment of an illegal gratuity

(Count II), honest services wire fraud (Counts III, IV, V, VI, VII, and VIII), and conspiracy

(Count I). A jury trial commenced on September 1, 2009, resulting in a hung jury on all counts. 1


1
 Because seven of the eight counts involved violations of the honest services wire fraud statute,
18 U.S.C. § 1346, the Court continued the retrial pending the Supreme Court’s decision in
                                                    1
A second trial commenced on October 18, 2010. Following two weeks of trial and four days of

deliberations, the jury returned a verdict of guilty on Counts I, II, III, VII, and VIII and a verdict

of not guilty on Counts IV, V, and VI. Thereafter, the Court sentenced defendant to 20 months

in prison. The D.C. Circuit affirmed the convictions. United States v. Kevin A. Ring, 706 F.3d

460 (D.C. Cir. 2013), cert. denied, 134 S. Ct. 175 (Oct. 7, 2013).

        During the course of a preindictment reverse proffer session on February 15, 2008,

defendant received a PowerPoint presentation provided by the government. (Mot. at 2.) The

document was produced under the restrictions of various protective orders issued by the Court.

(Order, Oct. 6, 2008 [ECF No. 19]; Order, Feb. 26, 2009 [ECF No. 40]; Order, May 12, 2009

[ECF No. 51].) The first of which provided that defendant “shall use discovery materials and

their contents solely for the preparation, trial, and direct appeal of this matter and for no other

purpose whatsoever.” (Order, Oct. 6, 2008 [ECF No. 19] at 1.)

        Defendant now moves to unseal parts of the PowerPoint presentation. 2 Defendant seeks

the unsealing “so that relevant portions of the PowerPoint can be provided to public interest

groups, legal academics, and others in order to educate the public about how pleas and charging

decisions can work and how prosecutors’ actions can affect the criminal justice process.” (Mot.

at 1.) Defendant does not dispute that unsealing would contravene the terms of the protective

orders issued by the Court. Rather, defendant contends that the presumption in favor of public

access to judicial proceedings applies to the PowerPoint presentation and that unsealing is proper

because the public’s interest in this document outweighs the government’s interest in keeping it

sealed. (See Mot. at 1-3.) The government argues that defendant’s motion should be denied for

Skilling v. United States, 130 S. Ct. 2896 (2010), which was handed down on June 24, 2010.
2
 Families against Mandatory Minimums and National Association of Criminal Defense Lawyers have
also moved for leave to file an amicus curiae brief in support of defendant’s motion to unseal. (Mot. for
Leave to File Amicus Curiae, January 29, 2014 [ECF No. 319]). This motion will be granted.
                                                    2
three reasons. First, because the PowerPoint presentation was never filed with the Court, it is not

a judicial record subject to a presumptive right of public access to judicial proceedings. Second,

even if a right of access attached to this document, defendant lacks standing to assert this right on

behalf of others. Third, unsealing would defeat the purpose of protective orders and result in an

“incomplete and unbalanced view of the issue on which [defendant] hopes to ‘educate the

public.’” (U.S. Resp. to Mot. to Unseal, Jan. 6, 2014 [ECF No. 315] (“Resp.”) at 2.)

                                            ANALYSIS

       A district court has authority to seal and unseal documents as part of its “supervisory

power over its own records and files.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598

(1978). A court exercises this authority on a discretionary basis “in light of the relevant facts and

circumstances of the particular case.” Id. at 599. In considering a request to unseal, a court

weighs a party’s interest in confidentiality against the public’s interest in accessing judicial

proceedings. See United States v. Hubbard, 650 F.2d 293, 315-18 (D.C. Cir. 1980).

I.     STANDING

       As a threshold matter, defendant has standing to pursue this claim. Standing requires

“the litigant to prove that he has suffered a concrete and particularized injury that is fairly

traceable to the challenged conduct, and is likely to be redressed by a favorable judicial

decision.” See Hollingsworth v. Perry, 133 S. Ct. 2652, 2661 (2013). A party’s “injury in fact”

must have arisen from “an invasion of a judicially cognizable interest which is (a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical.” Bennett v. Spear, 520

U.S. 154, 167 (1997). A party has a “judicially cognizable interest” in being able to use

information in its possession. “That interest is the same interest justifying standing to myriad

litigants who have brought First Amendment claims challenging restrictions on their speech.” In



                                                   3
re Special Grand Jury 89-2, 450 F.3d 1159, 1172 (10th Cir. 2006). Members of the public have

standing to move to unseal criminal proceedings. See Press-Enterprise Co. v. Superior Court of

California for Riverside County, 478 U.S. 1 (1986).

        The government contends that defendant lacks standing because he “has made no

showing of personal prejudice or injury based on the public’s lack of access” to the PowerPoint

presentation. (Resp. at 6.) Defendant counters by arguing that “he has suffered an actual injury,

since he cannot use the sealed documents as a result of the protective order,” and that this injury

will be redressed by granting this motion. (Def.’s Reply in Supp. of Mot. to Unseal, Jan. 23,

2014 [ECF No. 317] (“Reply”) at 10.) Defendant also argues that the facts in this case are

similar to United States v. Pickard, 733 F.3d 1297 (10th Cir. 2013). There, the Tenth Circuit

found that criminal defendants seeking to unseal discovery materials produced under a protective

order had standing to pursue their motion to unseal. Id. at 1301. While admittedly the Tenth

Circuit decision is not binding on this Court and the purpose for the unsealing in this case is

different than that in Pickard, 3 the protective order is a restriction on defendant’s speech that is

likely to be redressed by the granting of his motion to unseal. As a result, defendant has standing

to pursue this claim.

II.     RIGHT OF ACCESS

        Defendant asserts that the PowerPoint presentation is subject to this Circuit’s “strong

presumption in favor of public access to judicial proceedings.” EEOC v. Nat’l Children’s Ctr.,

98 F.3d 1406, 1409 (D.C. Cir. 1996). The presumptive public right of access to judicial

proceedings flows from two distinct rights: a common law right of access to judicial documents

and a First Amendment right of access to criminal proceedings. As recognized by the D.C.

3
  The defendants in Pickard sought to use the sealed documents to, inter alia, attack their convictions and
in conjunction with future Freedom of Information Act (FOIA) litigation. 733 F.3d at 1301 n.3 (10th Cir.
2013).
                                                     4
Circuit, the common law right of access, however, only applies to documents that are part of the

judicial record. See United States v. Hani El-Sayegh, 131 F.3d 158 (D.C. Cir. 1997). A

document is part of the judicial record if it is filed with the court and plays a role in the

adjudicatory process. Id. at 163. If a document is not filed with the court, it is not part of the

judicial record and is not subject to a common law right of access. See S.E.C. v. American

International Group, 712 F.3d 1, 3 (D.C. Cir. 2013) (confidential reports prepared pursuant to

consent decree not subject to common law right of access). A First Amendment right of access

attaches to a particular document if the document has “historically been open to the press and

general public” and if “public access plays a significant positive role in the functioning of the

particular process in question.” Press-Enterprise Co., 478 U.S. at 8. A First Amendment right

of access does not attach to criminal discovery materials not admitted into evidence, since these

documents are not a “traditionally public source of information.” Seattle Times Co. v. Rhinehart,

467 U.S. 20, 33 (1984).

        Because the PowerPoint presentation was not filed with the court, was not admitted into

evidence, and did not play a role in the adjudicatory process, neither a common law nor First

Amendment right of access attaches. In response, defendant merely points to this Court’s

Memorandum Opinion, which mentions information similar to that contained in the PowerPoint

presentation, to argue that the presentation is part of the judicial record and therefore subject to a

presumptive right of access. (Reply at 4-5 (citing Ring, 811 F. Supp. 2d at 359).) This is

incorrect. The Court could not have based its decision on the PowerPoint presentation because

the Court had not seen it until it was filed with the instant motion. Instead, the Court based its

decision on information obtained from the trial and sentencing hearing. The fact that the

Memorandum Opinion referred to information that may also appear in the PowerPoint



                                                   5
presentation does not make the presentation part of the record. Defendant also argues that, under

Primus v. District of Columbia, 719 F.3d 693, 698 (D.C. Cir. 2013), discovery documents

produced subject to a protective order are subject to a presumptive right of access. But

defendant’s reliance on Primus is misplaced. The sealed documents at issue there were produced

during civil discovery and contained information that was potentially integral to ongoing

litigation. Id. at 695-98. Here, the presentation was part and parcel of plea negotiations and was

not part of the adjudicatory process.

                                        CONCLUSION

       For the foregoing reasons, the motion is DENIED. A separate Order accompanies this

Memorandum Opinion.




                                                                 /s/
                                                     ELLEN SEGAL HUVELLE
                                                     United States District Judge

Date: June 10, 2014




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