                                     PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               _____________

                   No. 17-2644
                  _____________

         UNITED STATES OF AMERICA
                    v.

               KEONNA THOMAS


      PHILLY DECLARATION, L.L.C., and AUSTIN
                 NOLEN,
                        Appellants

                 ______________

                   APPEAL FROM
    THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
     (D.C. Crim. Action No. 2-15-cr-00171-001)
    District Judge: Honorable Michael M. Baylson
                   ______________

    Submitted Under Third Circuit L.A.R. 34.1(a)
                  July 10, 2018
                ______________
   Before: GREENAWAY, JR., RESTREPO, and BIBAS,
                  Circuit Judges.

            (Opinion Filed: September 21, 2018)

Jennifer A. Williams
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
              Counsel for Plaintiff-Appellee

Kathleen M. Gaughen
Brett G. Sweitzer
Elizabeth Toplin
Federal Community Defender Office for the Eastern District
of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
              Counsel for Defendant-Appellee

Michael L. Berry
Paul J. Safier
Ballard Spahr
1735 Market Street
51st Floor
Philadelphia, PA 19103
               Counsel for Intervenors-Appellants
                       ______________

                         OPINION
                      ______________




                              2
GREENAWAY, JR., Circuit Judge.

        Philly Declaration, LLC and its managing editor Austin
Nolen (collectively, “The Declaration” or “the intervenors”)
appeal the District Court’s order denying their motion to unseal
certain court records in a criminal prosecution. For the reasons
that follow, we hold that while a presumptive right of access
under the First Amendment attaches to plea hearings and
documents related to plea hearings, the District Court properly
concluded that the compelling government interests of national
security and safety would be substantially impaired by
permitting full access to the plea document here. The proposed
redactions on appeal to the remaining documents at issue,
meanwhile, are more properly considered in the first instance
by the District Court. Accordingly, we will affirm in part and
vacate in part the District Court’s order and remand the case
for further proceedings.

I.     Background

        In April 2015, Keonna Thomas was arrested on charges
that she “knowingly attempted to provide material support and
resources . . . to a designated foreign terrorist organization” 1 in
violation of 18 U.S.C. § 2339B. A39. After a federal grand
jury returned an indictment, Thomas pled not guilty. She filed
several pre-trial motions, including a motion for a bill of
particulars and a motion to compel notice and discovery of

       1
           The criminal complaint and indictment specify the
designated foreign terrorist organization as the Islamic State of
Iraq and the Levant, also known as ISIS.




                                 3
surveillance, all of which the District Court ultimately denied.
In September 2016, Thomas pled guilty pursuant to a plea
agreement, and a sentencing hearing, although initially
postponed, was ultimately held in September 2017.

       As of November 2016, access to several documents on
the docket was restricted to the public. 2 That month, The
Declaration moved to intervene in the case and obtain access
to: “all records that [at that time] appear[ed] on the docket as
sealed or inaccessible”; transcripts of Thomas’s plea hearing
and her ex parte presentation to the court regarding the motion
to compel notice and discovery of surveillance; and “any
search warrant materials pertaining to the investigation and
prosecution of the Defendant.” A81.

       In response to The Declaration’s motion, the
Government agreed that certain records, such as the search
warrant materials, should be fully or largely unsealed. The
Government, however, maintained that, among other
documents not at issue on appeal, the “Plea Document” that
was docketed on the same day as the publicly-filed guilty plea
memorandum should remain under seal for reasons detailed in
a sealed addendum. The Government also objected to
unsealing a “Grand Jury exhibit” (“Exhibit”) attached to
Thomas’s reply brief in support of her motion for a bill of

       2
           Some documents, such as Thomas’s motion to
compel notice and discovery of surveillance and the
Government’s response to that motion, had been initially filed
under seal but were then followed by a redacted copy or
unsealed in full.




                               4
particulars (“Reply Brief”) and to unredacting “any quotes
thereof and citations thereto” that appeared in the Reply Brief
itself. A114.

       On March 8, 2017, after oral argument, the District
Court granted in part and denied in part The Declaration’s
motion, permitting intervention and ordering that only the
documents that the Government deemed appropriate to unseal
should be unrestricted. In the same order, the lower court
permitted the intervenors time to review the materials unsealed
by the Government and file a supplemental memorandum if
they believed any continued sealing was improper. The
Declaration renewed its request to unseal the Plea Document,
the Reply Brief and Exhibit, and another motion and order. 3

        Following a supplemental hearing, the District Court
issued an opinion and order on June 29, 2017 denying the
request on the basis that: (1) “Intervenors have no right of
access to grand jury material [contained in or referenced by the
Reply Brief and Exhibit], and Thomas’[s] individual
restrictions, with respect to Rule 6 [of the Federal Rules of
Criminal Procedure] and pursuant to a protective order, do[]
not change that fact,” A8; and (2) concerning the remaining
documents, including the Plea Document:

       [T]he Government’s pursuit of ongoing law
       enforcement activities outweighs the public’s
       right of access to the [Plea Document and order
       and motion regarding courtroom security] under

       3
          This motion and order, ECF Nos. 24 and 26, related
to courtroom security precautions and were unsealed following
Thomas’s sentencing; they are not at issue in this appeal.




                               5
       both federal and common law. The Government’s
       investigation related to this case involves national
       security issues and its non-public nature is critical
       to its success. Additionally, unsealing these
       documents could jeopardize the safety of
       numerous individuals.

               Moreover, the Court now finds, as it has
       previously found (ECF 99), that the sealing of
       these records was narrowly tailored to protect the
       law enforcement interests at stake in this matter,
       and was the least restrictive means possible to
       safeguard the interests at issue. There is no
       reasonable alternative to keeping these
       documents under seal that would adequately
       protect the compelling interests of both Thomas
       and the Government. If these documents were to
       be made public, significant law enforcement
       activities could be thwarted and lives placed at
       risk.

A10 (citations omitted).

       This timely appeal followed.

II.    Jurisdiction

        The District Court had jurisdiction over the underlying
action pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291. See United States v.
Smith, 123 F.3d 140, 145 (3d Cir. 1997) (“Orders either
granting or, as in this case, denying access to court proceedings
or records are appealable as final orders under § 1291.”).




                                6
III.   Discussion

        On appeal, The Declaration argues that the District
Court’s sealing decisions infringe upon its right of access to the
judicial documents under the First Amendment and/or
common law. First, Appellants claim that the continued
sealing of the Plea Document is improper given the absence of
“specific, individualized findings as to the necessity” of that
restriction by the District Court, in addition to the lower court’s
failure to “adequately consider[] alternatives to wholesale
sealing” and “provid[e] The Declaration with a meaningful
opportunity to oppose sealing.” Appellants’ Br. 14. Second,
The Declaration contends that the District Court erred in
holding that Rule 6(e) bars the disclosure of the grand jury
materials in the Reply Brief and Exhibit. In particular, the
intervenors state not only that Rule 6(e) does not apply to the
materials that had been provided to Thomas in discovery and
developed outside of the grand jury process, but also that “the
substance of the sealed material already appears to have been
disclosed in other public filings.” Id. at 14-15.

       In their joint response brief, the Government and
Thomas maintain that, while the “press and public have a First
Amendment presumptive right of access to plea documents
generally,” the District Court here properly sealed the Plea
Document. Appellees’ Br. 22-25. Appellees, though, concede
that “most of the sealed content [in the Reply Brief and
Exhibit] is substantively already part of the public record.” Id.
at 36. They therefore “agree to unseal the [Reply Brief] with
only light redactions to [the Exhibit].” Id.

       “We exercise plenary review over whether the First
Amendment or the common law creates a presumptive right of
access to judicial documents or proceedings.” Smith, 123 F.3d




                                7
at 146. In considering a First Amendment right of access
claim, “we exercise independent appellate review of the
record”; our scope of review of factual findings is therefore
“substantially broader than that for abuse of discretion.” Id.
(quoting United States v. Antar, 38 F.3d 1348, 1357 (3d Cir.
1994)). With respect to the common law right of access claim,
we review for abuse of discretion. Id.

A.     Plea Document

        The First Amendment “provides a public right of access
to criminal trials,” other aspects of criminal proceedings such
as voir dire, and “the records and briefs that are associated with
those proceedings.” 4 Id. The Supreme Court of the United

       4
            The Supreme Court, in Richmond Newspapers, Inc.
v. Virginia, 448 U.S. 555, 580 (1980), recognized a First
Amendment right of access to criminal trials, and it then
extended that holding to voir dire, see Press-Enterprise Co. v.
Superior Court of Cal. (Press-Enterprise I), 464 U.S. 501, 505-
10 (1984), and “preliminary hearings as they are conducted in
California,” Press-Enterprise Co. v. Superior Court of Cal.
(Press-Enterprise II), 478 U.S. 1, 13 (1986). Our Court has
expanded the presumptive First Amendment right of access to
other contexts. See, e.g., United States v. Simone, 14 F.3d 833,
840 (3d Cir. 1994) (post-trial hearings to investigate juror
misconduct); In re Capital Cities/ABC, Inc.’s Application for
Access to Sealed Transcripts, 913 F.2d 89, 95 (3d Cir. 1990)
(transcripts of chambers and sidebar conferences); United
States v. Smith, 776 F.2d 1104, 1112 (3d Cir. 1985)
(indictments, informations, and bills of particulars); Publicker
Industries, Inc. v. Cohen, 733 F.2d 1059, 1070 (3d Cir. 1984)
(civil trials); United States v. Criden, 675 F.2d 550, 557 (3d
Cir. 1982) (pre-trial suppression, due process, and entrapment




                                8
States has articulated a two-prong “experience and logic” test
to apply in determining whether there is a presumptive right of
public access to a particular aspect of a criminal trial. United
States v. Wecht, 537 F.3d 222, 233-34 (3d Cir. 2008) (quoting
Press-Enterprise II, 478 U.S. at 8-9). As we have summarized:

       Under the “experience” prong, a court considers
       “whether the place and process have historically
       been open to the press and general public.”
       Under the “logic” prong, a court considers
       “whether public access plays a significant
       positive role in the functioning of the particular
       process in question” by, inter alia, enhancing
       “both the basic fairness of the criminal trial and
       the appearance of fairness so essential to public
       confidence in the system.”




hearings). But see, e.g., N. Jersey Media Grp., Inc. v. United
States, 836 F.3d 421, 434 (3d Cir. 2016) (rejecting in a criminal
case a claim of First Amendment right of access to pre-trial
discovery materials); N. Jersey Media Grp., Inc. v. Ashcroft,
308 F.3d 198, 220 (3d Cir. 2002) (rejecting a claim of First
Amendment right of access to “deportation cases that are
determined by the Attorney General to present significant
national security concerns”); Capital Cities Media, Inc. v.
Chester, 797 F.2d 1164, 1175-76 (3d Cir. 1986) (rejecting a
claim of First Amendment right of access to the administrative
records of a state agency).




                               9
Id. at 234 (citation omitted) (quoting Press-Enterprise II, 478
U.S. at 8-9).

        Plea hearings have usually been open to the press and
public, and public access to those hearings furthers several
societal interests, including promoting the “public perception
of fairness,” “exposing the judicial process to public scrutiny,”
and “providing the public with the more complete
understanding of the judicial system”—especially where a
substantial majority of criminal cases are resolved by guilty
pleas. Smith, 123 F.3d at 146-47 (quoting United States v.
Smith, 787 F.2d 111, 114 (3d Cir. 1986)).

        We therefore hold, in accord with our sister circuits that
have reached this issue, that the First Amendment right of
access applies to plea hearings and, by extension, to documents
related to those hearings. See United States v. DeJournett, 817
F.3d 479, 485 (6th Cir. 2016) (“[P]lea agreements are the
quintessential judicial record, entitled to the protection of the
First Amendment right to public access of judicial records.”);
Wash. Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991)
(“[T]here is a first amendment right of access to plea
agreements . . . .”); Oregonian Pub. Co. v. U.S. Dist. Court for
Dist. of Or., 920 F.2d 1462, 1465 (9th Cir. 1990) (“Just as there
exists a first amendment right of access in the context of
criminal trials, it should exist in the context of the means by
which most criminal prosecutions are resolved, the plea
agreement.” (citation omitted)); United States v. Haller, 837
F.2d 84, 86-87 (2d Cir. 1988) (holding that there is a right of
access to plea hearings and “documents filed in connection
with those hearings,” and noting that “[p]lea hearings have
typically been open to the public, and such access . . . serves to
allow public scrutiny of the conduct of courts and prosecutors”
(citation omitted)); In re Wash. Post Co., 807 F.2d 383, 390




                               10
(4th Cir. 1986) (“[W]e hold that the First Amendment right of
access applies to documents filed in connection with plea
hearings . . . , as well as to the hearings themselves.”); see also
United States v. Smith, 776 F.2d 1104, 1111-12 (3d Cir. 1985)
(stating that the First Amendment right of access extends not
only to judicial proceedings, but also to judicial documents).

        This right of access, though, is presumptive and not
absolute, and it can be overcome where there is “cause shown
that outweighs the value of openness.” Smith, 123 F.3d at 147
(quoting Press-Enterprise I, 464 U.S. at 509). A district court
sealing a criminal record must make “particularized findings .
. . on the record in each case, (1) establishing the existence of
a compelling governmental interest, and (2) demonstrating that
absent limited restrictions upon the right of access, that other
interest would be substantially impaired.” Id. (quoting United
States v. Antar, 38 F.3d 1348, 1359 (3d Cir. 1994)).

       First, the intervenors maintain that the District Court’s
findings regarding the continued sealing of the Plea Document
are not sufficiently specific or individualized. We disagree.
The District Court determined that the Government’s law
enforcement activities, which involved national security issues
and hinged on their non-public nature, and the safety of certain
individuals constituted compelling interests that would be
substantially harmed by unsealing. These findings are
“specific enough [to allow us to] determine whether the
[sealing] order was properly entered.” Press-Enterprise I, 464
U.S. at 510; accord United States v. Raffoul, 826 F.2d 218,
225-26 (3d Cir. 1987) (finding no error with “the district
court’s somewhat brief findings”); see United States v.
Kooistra, 796 F.2d 1390, 1391 (11th Cir. 1986) (“The findings
need only be sufficient for a reviewing court to be able to
determine, in conjunction with a review of the sealed




                                11
documents themselves, what important interest or interests the
district court found sufficiently compelling to justify the denial
of public access.”). Moreover, we have noted similar interests
as appropriate reasons to restrict access to judicial records and
proceedings. See Raffoul, 826 F.2d at 223 (“The right [of
access to criminal trials] is limited by the . . . needs of the
government to . . . preserve the confidentiality of sensitive
information . . . .”); Smith, 776 F.2d at 1105 (“[T]he risk of
serious injury to third parties from disclosure outweighs the
interest of the public in access to this limited segment of the
bill of particulars.”). Requiring the District Court to provide
extensive detail on the public record, meanwhile, would impair
“the very secrecy which sealing was intended to preserve.”
Kooistra, 796 F.2d at 1391.

       Our independent review of the record satisfies us that
the District Court’s statements were not mere assertions or
speculation. In addition, despite the intervenors’ argument to
the contrary, that the same interests supported the continued
sealing of the Plea Document and the courtroom security
motion and order does not detract from the individualized
consideration of the nature of each specific document at issue.

        Second, The Declaration argues that there is no
indication that the lower court considered alternative measures
to wholesale sealing of the Plea Document. The District Court,
however, expressly stated “that the sealing of these records was
narrowly tailored to protect the law enforcement interests at
stake in this matter, and was the least restrictive means possible
to safeguard the interests at issue.” A10. In the same sentence,
it referred to a sealed order docketed as ECF No. 99, suggesting
that it had previously made the same determination and
undertaken the alternative measures consideration. Our own
review of the Plea Document leads us to find no error with the




                               12
District Court’s approach. Here, redacting only a portion of
the document, as the intervenors suggest, would not
sufficiently protect Appellees’ interests in confidentiality of
sensitive information and individuals’ safety.

       Third, the intervenors assert that the District Court’s
sealing decision, based on reasons articulated in the
Government’s sealed addendum, deprived them of their
meaningful opportunity to respond. In support of its argument,
The Declaration relies on language in In re Capital Cities,
where we vacated the lower court’s order denying the media
access to sealed transcripts and notes of chambers and sidebar
conferences. 913 F.2d at 90. We explained that the media
“was at a severe disadvantage in trying to show that its First
Amendment and common law rights of access. . . overcame the
government’s interest” where: (1) “at the time of its application
to unseal . . . , [it] had absolutely no information concerning
[the documents’] particular subject matter . . . [or] the
government interests that would enter into the . . . analysis, and
so it could not directly rebut the reasons that led the district
court to seal the . . . documents”; and (2) it was denied a hearing
to move for “access to sealed transcripts of a closed
proceeding.” Id. at 95 (quoting Raffoul, 826 F.2d at 225).

       The Declaration, however, was in a substantially
different position than the media entity in In re Capital Cities.
The docket made clear that the document at issue was a “Plea
Document” that was filed along with the publicly-accessible
guilty plea memorandum. The District Court here also held
two hearings on the issue of unsealing the documents requested
by the intervenors, and the Government at the supplemental
hearing specifically referred to “safety, security, national
security” and “the interest in preserving life and safety of
individuals” as its reasons for sealing the Plea Document in its




                                13
entirety. ECF No. 129, at 13. While a more thorough
discussion of the Government’s rationale for continued sealing
appeared only in its sealed addendum, that alone does not
violate First Amendment principles given the circumstances.
See In re Copley Press, Inc., 518 F.3d 1022, 1027-28 (9th Cir.
2008) (“It’s rarely possible to justify one secret without telling
other secrets.”). Accordingly, we are not persuaded by The
Declaration’s argument or the comparison to In re Capital
Cities.

        The intervenors’ claim as to their common law right “to
inspect and copy public records and documents, including
judicial records and documents,” such as the Plea Document
here, fares no better. Smith, 123 F.3d at 155 (quoting United
States v. Criden, 648 F.2d 814, 819 (3d Cir. 1981)); see In re
Cendant Corp., 260 F.3d 183, 194 (3d Cir. 2001) (explaining
that the common law right can be overcome if “the party
seeking the . . . sealing of part of the judicial record . . .
[‘]show[s] that the material is the kind of information that
courts will protect’ and that ‘disclosure will work a clearly
defined and serious injury to the party seeking closure’”
(alteration added) (quoting Miller v. Ind. Hosp., 16 F.3d 549,
551 (3d Cir. 1994))). The District Court’s order denying
access to the Plea Document was not an abuse of discretion.

B.     Reply Brief and Exhibit

       Appellees concede on appeal that the Reply Brief
should be publicly available because the portions currently
under seal are “substantively already part of the public record.”
Appellees’ Br. 36. 5 For the same reason, they agree to only

       5
          We are flummoxed that Appellees have only now—
after the intervenors’ filing and briefing of their appeal—




                               14
lightly redact the Exhibit. In response, The Declaration argues
that the Exhibit should also be fully unsealed and that, by not
making the same argument below, Appellees have waived
justifying any redactions on grounds other than grand jury
secrecy.

        The intervenors are correct that “[t]heories not raised
squarely [before the district court] cannot be surfaced for the
first time on appeal.” Doe v. Mercy Catholic Med. Ctr., 850
F.3d 545, 558 (3d Cir. 2017); see also United States v. Joseph,
730 F.3d 336, 337 (3d Cir. 2013) (“We hold that for parties to
preserve an argument for appeal, they must have raised the
same argument in the District Court—merely raising an issue
that encompasses the appellate argument is not enough.”).

       The circumstances here, however, are unlike the typical
waiver case in light of Appellees’ significant concession and
newly-proposed redactions on appeal. The issue to be resolved
now is to what extent the Exhibit should be redacted, if at all.
Given the factual—as opposed to purely legal—nature of the
inquiry presented, we deem it more appropriate for the District
Court to initially determine whether the proposed targeted
redactions are justified and narrowly tailored in a manner that
does not impinge upon the public’s right of access.
Accordingly, the District Court’s order as to the Reply Brief
and Exhibit will be vacated and the case remanded for
consideration of the proposed redactions to the Exhibit.




conceded that the materials in question should be mostly
unsealed.




                              15
IV.   Conclusion

       For the foregoing reasons, we will affirm the order of
the District Court as it pertains to the Plea Document, vacate
the order as it relates to the Reply Brief and Exhibit, and
remand the case for further proceedings consistent with this
opinion.




                             16
