     Case: 16-20562        Document: 00514124679          Page: 1     Date Filed: 08/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                              United States Court of Appeals
                                        No. 16-20562                                   Fifth Circuit

                                                                                     FILED
                                                                               August 21, 2017
UNITED STATES OF AMERICA,                                                       Lyle W. Cayce
                                                                                     Clerk
                                                    Plaintiff–Appellee
v.

SEALED SEARCH WARRANTS,

                                                    Defendants,

JUSTIN SMITH,

                                                    Appellant



                     Appeal from the United States District Court
                          for the Southern District of Texas


Before JOLLY and ELROD, Circuit Judges, and RODRIGUEZ,* District
Judge.
XAVIER RODRIGUEZ, District Judge:
      On the basis of sealed probable cause affidavits, the Government
obtained and executed three pre-indictment search warrants of Appellant
Justin Smith’s home, business, and storage unit in March and April of 2016.
Smith filed motions in the district court seeking to unseal the affidavits
supporting these warrants. The Magistrate Judge initially granted the


      *   District Judge of the Western District of Texas, sitting by designation.
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                                 No. 16-20562
motion in part, requiring the Government to submit proposed redacted
versions of the affidavits to be unsealed. The Government objected but
complied. The Magistrate Judge found that the Government redacted too
much from the affidavits and submitted its own redacted versions that would
be unsealed after fourteen days if the Government did not object. The
Government brought its objections to the district court, which reversed the
Magistrate Judge because unsealing the affidavits would compromise the
Government’s ongoing investigation. Smith appealed. He still has not been
indicted.
      Because the district court failed to specify its factual findings with
requisite detail in the context of the required balancing test, the judgment of
the district court is VACATED and REMANDED for further findings on the
decision to leave the affidavits under seal.
                               BACKGROUND
      The background of this appeal is almost entirely procedural. By his
appeal, Appellant Justin Smith challenges the district court’s denial of his
motions to unseal the probable cause affidavits supporting three pre-
indictment search warrants.

      Over several weeks in March and April 2016, as part of a criminal tax
investigation, IRS agents obtained and executed three search warrants at
properties related to Smith—the first at the commercial airplane hangar of
his business, the second at his home, and the third at his storage unit.
Relying on Federal Rule of Criminal Procedure 41, Smith filed three separate
motions shortly after each warrant was executed, primarily seeking to unseal
the probable cause affidavits supporting the warrants. On April 20, 2016, the
motions were consolidated before the Magistrate Judge who issued the first of
the three warrants.

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      On May 20, 2016, the Magistrate Judge issued a Memorandum,
Recommendation and Order, granting Smith’s motions in part and partially
unsealing the affidavits while allowing the Government to redact certain
information that would readily identify witnesses and other confidential
sources. The Government, indicating that it planned to object to the
Magistrate Judge’s order, sought to stay the order and later asked for
reconsideration. The Magistrate Judge denied both requests and ordered the
Government to file proposed redacted versions of the affidavits under seal,
along with supplemental briefing, by June 10. The Government complied.

      On July 18, the Magistrate Judge issued a Memorandum and Order in
which she found the Government’s redactions too extensive. The Magistrate
Judge issued her own redacted versions of the affidavits, to remain under
seal for fourteen days to allow the Government to object. On July 29, the
Government objected to the Magistrate Judge’s May 20 and July 18 decisions.

      On August 17, the district court sustained the Government’s objections
and reversed the Magistrate Judge, ordering that the affidavits remain fully
sealed during the pendency of the Government’s investigation. The district
court focused on the existence of a common law right of access to documents.
Amidst a circuit split on the precise scope of that right, the district court was
“reticent to create such a right, absent Fifth Circuit guidance.” The district
court, condoning the views of the Ninth Circuit, expressed hesitation over
creating such a right where it could impede pre-indictment investigations
and require a wasteful line-by-line review of affidavits by a magistrate judge.

      Smith filed a timely notice of appeal of the district court’s order.




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                                     DISCUSSION
           This Court first assesses the Government’s argument that there is no
 jurisdiction to hear this appeal. After concluding it has jurisdiction, the Court
 turns to the merits of Smith’s appeal by first determining the legal standard
 that applies to an individual’s request for pre-indictment search warrant
 materials under the common law right of access, and then assessing whether
 the district court properly applied this test. The Court concludes that such
 requests for access must be assessed on a case-by-case basis by balancing the
 public’s right of access with interests favoring nondisclosure and that the
 judgment of the district court must be vacated and remanded for further
 factual findings in the context of this balancing test.

I.      This Court has jurisdiction.
           The Government argues that there is no jurisdiction under 28 U.S.C.
 § 1291, which gives circuit courts jurisdiction over “appeals from all final
 decisions of the district courts of the United States.” The Government asserts
 that the district court’s rulings on Smith’s motions were interlocutory and not
 final because orders “granting or denying a pre-indictment motion to
 suppress do[ ] not fall within any class of independent proceedings otherwise
 recognized by [the Supreme Court].” Di Bella v. United States, 369 U.S. 121,
 129 (1962). Under Di Bella, the Government argues that Smith’s motions are
     functionally pre-indictment motions to suppress, and the suppression issue is
     interlocutory because it is subsumed by the overarching possibility of a
     forthcoming criminal trial.
           Notably, however, the general rule of Di Bella—that orders granting or
     denying pre-indictment motions to suppress are not a part of independent,
     immediately appealable proceedings—is not absolute: “Only if the motion is
     solely for return of property and is in no way tied to a criminal prosecution in

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esse against the movant can the proceedings be regarded as independent.” Id.
at 131–32.
      As Smith correctly points out, numerous cases have found that similar
motions to unseal documents (contrasted with suppression motions) are final
and appealable. In In re Search Warrant for Secretarial Area Outside Office of
Gunn, the Government executed numerous search warrants, and a
newspaper publisher filed Rule 41 motions with the district court to unseal
affidavits in support of these warrants. 855 F.2d 569, 571 (8th Cir. 1988). The
district court denied the motions and allowed the affidavits to remain sealed
for up to thirty additional days. Id. On appeal, the Eighth Circuit squarely
addressed the immediate appealability of orders such as the district court’s,
concluding that they were final orders:
      The district court order denied appellants’ motion to unseal and
      thus conclusively rejected appellants’ asserted right to immediate
      access to these documents. Deferral of appellate review pending
      district court reconsideration after 30 days, or until after
      additional extensions of time have expired, would effectively deny
      appellants much of the relief they seek, that is, immediate access.
Id. After concluding that the orders were final and appealable, the court
noted that the collateral order exception did not apply to make the orders
immediately appealable on this basis because “there is no ‘underlying’
proceeding in this case. The district court order is not a component of another
proceeding.” Id. at 572.
      More squarely to the Government’s position that Smith’s motions are
de facto motions to suppress and unappealable under Di Bella, Smith cites
United States v. Pantelidis, 335 F.3d 226 (3d Cir. 2003). There, the Third
Circuit held that it had jurisdiction to hear an appeal of a district court’s
denial of a Rule 41 motion to return property based on the exception set forth
in Di Bella. Id. at 233–34. The court recognized that the movant sought

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strictly the return of the property rather than the suppression of its
evidentiary value. Id. Smith cites several other cases similar to Pantelidis
and Office of Gunn on the jurisdictional question. See, e.g., Times Mirror Co.
v. United States, 873 F.2d 1210, 1212 (9th Cir. 1989) (“This court’s
jurisdiction to review the district courts’ orders denying access rests on 28
U.S.C. § 1291 . . . Each of the orders denying access ‘finally adjudicated the
matter presented to the district court and was not a mere component of a
different proceeding.’”).
      Finally, the cases cited by the Government in support of its application
of Di Bella are distinct. In United States v. Furina, 707 F.2d 82, 84 (3d Cir.
1983), the court dismissed an appeal of an order denying a Rule 41 motion for
lack of jurisdiction where “[a]ppellants . . . made it very clear that they seek
more than return of property. Suppression of evidence is the primary aim of
their motions, and that is enough under Di Bella to require that on this
record the appeal be dismissed.” Other Third Circuit cases relied upon by the
Government reached similar conclusions about an appellant’s Rule 41 motion
for the return of property based in large part on the implicit, if not express,
intention of suppressing evidence. In Meister v. United States, 397 F.2d 268,
269 (3d Cir. 1968), the court found that where an appellant sought the return
of documents and an injunction preventing their future use against him, “the
whole tenor of the amended complaint ma[de] it abundantly clear that the
prime, if not sole, purpose of the amended complaint was to prevent the use
of such records in potential criminal or civil proceedings against plaintiff.”
See also In re Grand Jury, 635 F.3d 101, 105 (3d Cir. 2011) (“Although the
appellant’s motion could have sought solely the return of property, in fact it
did not: it sought both the return of property and the suppression of evidence.
Accordingly, the order denying the motion is not final and appealable under
Di Bella.”).
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            Under the exception of Di Bella, this Court has jurisdiction. 369 U.S. at
  131–32 (“Only if the motion is solely for return of property and is in no way
  tied to a criminal prosecution in esse against the movant can the proceedings
  be regarded as independent.”). A warrant issued pre-indictment is, by
  definition, issued before criminal charges are filed—there were no criminal
  charges pending against Smith when he filed his initial motions, when the
  district court denied his motions, when he appealed these motions, and at
  present. Furthermore, Smith expressly does not seek the suppression of
  evidence. Nor could he—as stated, no prosecution presently exists in which
  he could seek suppression (even a year after the initial execution of the
  warrants). For these reasons, the exception of Di Bella applies and
  jurisdiction exists.
II.      The judgment of the district court is vacated and remanded for
         further factual findings.
            Turning to the merits of his appeal, Smith argues that he has a
      common law right to access the affidavits supporting the pre-indictment
      warrants. Blue Br. at 9–23. Notably, he does not argue that the First
      Amendment grants him a right of access to the documents, which is an issue
      frequently litigated in similar cases. 1 See, e.g., Baltimore Sun Co. v. Goetz,


           The First Amendment right of access and the common law qualified right of access
            1

  differ in significant ways. The First Amendment right of access stems from the historical
  practice of opening criminal trials to the public. “[T]he circumstances under which the press
  and public can be barred from a criminal trial are limited; the State’s justification in
  denying access must be a weighty one. Where . . . the State attempts to deny the right of
  access in order to inhibit the disclosure of sensitive information, it must be shown that the
  denial is necessitated by a compelling governmental interest, and is narrowly tailored to
  serve that interest.” Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 509–10 (1984)
  (quoting Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–07 (1982)). To guide the
  determination of whether a First Amendment right of access exists, the Supreme Court has
  established a two-part inquiry: “(1) whether the proceeding has historically been open to
  the public and press; and (2) ‘whether public access plays a significant positive role in the
  functioning of the particular process in question.’” In re Hearst Newspapers, LLC, 641 F.3d

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886 F.2d 60, 64–66 (4th Cir. 1989) (finding that a newspaper publisher
seeking to unseal pre-indictment search warrant affidavits could not invoke
the qualified First Amendment right of access but recognizing the publisher’s
common law right of access).
       We hold that the qualified common law right of access can extend to an
individual seeking to access pre-indictment search warrant materials, and
the decision of whether access should be granted must be left to the discretion
of the district court, upon the court’s consideration of “the relevant facts and
circumstances of the particular case.” Nixon, 435 U.S. at 599. Though the
district court purported to conduct this case-specific analysis, its findings
evade meaningful appellate review because they are too conclusory and lack
detail, as this circuit and other circuits have required in similar situations.
For these reasons, the judgment of the district court is vacated and remanded
for further factual clarification.
       a. The qualified common law right of access must be assessed
          on a case-by-case basis.
              i. Standard of Review
       Defining the precise scope of the common law right to access judicial
records is a question of law, which is reviewed de novo. Times Mirror Co., 873
at 1212 (“[T]he question[ ] whether the common law provides the public with



168, 175 (5th Cir. 2011) (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8–9
(1986)).
       Even absent a finding of a First Amendment right of access, the Supreme Court has
articulated a qualified right of access to judicial documents that is born from the common
law. In Nixon v. Warner Communications, Inc., 435 U.S. 589, 597–99 (1978), the Court
recognized that the public has a right “to inspect and copy public records and documents,
including judicial records and documents” which “is not absolute.” Further, “[a]lthough the
common law right of access to judicial records is not absolute, ‘the district court’s discretion
to seal the record of judicial proceedings is to be exercised charily.’” S.E.C. v. Van
Waeyenberghe, 990 F.2d 845 (5th Cir. 1993) (quoting Fed. Sav. & Loan Ins. Corp. v. Blain,
808 F.2d 395, 399 (5th Cir. 1987)).

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a qualified right of access to warrant materials . . . [is] . . . [a] question[ ] of
law, requiring de novo review.”).
            ii. Case Law
      There is a general, common law right to inspect and copy public records
and documents, including judicial records and documents, but this right is
not absolute. Nixon, 435 U.S. at 597–99. The scope of this qualified right of
access is the primary issue in this appeal, as the parties dispute whether it
encompasses      access    to   warrant   materials   during    a   pre-indictment
investigation.
      We have not squarely addressed the precise scope of the qualified
common law right of access to judicial records as it applies to pre-indictment
warrant materials. Other circuits that have addressed the question have
reached conflicting conclusions. Despite not speaking to this precise issue, the
Fifth Circuit has decided several cases on the qualified right of access in more
general terms, and these decisions are instructive for analyzing the
application of that right in this case.
                   1. Times Mirror Co. v. United States
      The Ninth Circuit takes a bright line position on the public’s common
law qualified right of access to judicial records: the right simply does not
extend to pre-indictment warrant materials. In Times Mirror, district courts
in California issued five warrants related to a national fraud and bribery
investigation based on sealed probable cause affidavits. 873 F.2d at 1211.
Several media organizations filed separate civil actions in the respective
district courts seeking to unseal the warrant materials. Id. at 1211–12. The
district courts ultimately denied the requests and the media organizations
appealed, arguing that the warrant materials should be unsealed under
either Rule 41(g), a First Amendment qualified right of access, and most


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relevant for present purposes, the common law qualified right of access. Id. at
1212.
        The Ninth Circuit affirmed the district courts. Id. at 1221. The Ninth
Circuit noted that, based on its precedent, the right does not extend to all
judicial and quasi-judicial documents. Id. at 1219. The court added that none
of its previous cases “recognized a common law right of access to judicial
records when there is neither a history of access nor an important public need
justifying access.” Id. After announcing this standard, the court concluded
that it could never be satisfied in the pre-indictment context: “Under this
important public need or ‘ends of justice’ standard, appellants’ claim must be
rejected. We believe this threshold requirement cannot be satisfied while a
preindictment investigation is ongoing.” Id.
        To justify its per se ban on using the common law right of access to
unseal pre-indictment warrant materials, the Ninth Circuit incorporated its
reasoning regarding the First Amendment qualified right of access. Id. That
discussion focused on the potential for public access to hinder rather than
facilitate the warrant process and any accompanying criminal investigations.
Id. at 1215. Analogizing to grand jury proceedings, which were held in secret,
the court identified three main risks of allowing warrant proceedings and
pre-indictment warrant materials to be made public. Id. at 1215–16. First,
those under investigation could “destroy evidence, coordinate their stories
before testifying, or even flee the jurisdiction.” Id. at 1215. Second, those who
provided testimony in support of a warrant’s issuance might be placed in
danger or chilled from providing this testimony in the first place. Id. Finally,
those named in a warrant may never be charged with a crime, but publicizing
warrant materials could tarnish their reputations in the public’s view and
leave them without a forum in which to exonerate themselves. Id. at 1215–
16. In sum, the Ninth Circuit stated “the ends of justice would be frustrated,
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                                  No. 16-20562
not served, if the public were allowed access to warrant materials in the
midst of a preindictment investigation into suspected criminal activity.” Id.
at 1219.
                   2. Baltimore Sun Co. v. Goetz
      The Fourth Circuit requires a case-by-case determination of how the
common law qualified right of access applies to pre-indictment warrant
materials. The facts of Baltimore Sun are similar to those of Times Mirror—a
newspaper publisher filed a motion with the district court to unseal a search
warrant affidavit. 886 F.2d at 62. While the appeal was pending, a grand jury
returned indictments based on the warrant and a magistrate judge unsealed
the affidavit at the Government’s request. Id. at 63.
      After first concluding that the appeal was not moot in light of the
unsealing of the affidavit, the Fourth Circuit then made the threshold finding
that the warrant affidavit was a judicial record because a judicial officer must
review the affidavit, the judicial officer’s review is then subject to challenge
through a motion to suppress, and the Rules of Criminal Procedure require
the resulting warrant and all related papers to be filed with the clerk of the
district court. Id. at 63–64. From there, the court agreed with the Ninth
Circuit in Times Mirror and determined that the press did not have a First
Amendment right of access to the warrant affidavit, even though a warrant
affidavit was a judicial record. Id. at 64–65.
      As in Times Mirror, the Fourth Circuit in Baltimore Sun then
conducted a separate analysis as to whether the affidavit should be unsealed
based on the common law qualified right of access. Id. at 65–66. Here, the
Fourth Circuit departed from the Ninth Circuit by vacating the district




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court’s decision not to unseal the affidavit. 2 Id. The Fourth Circuit
distinguished grand jury proceedings from the disclosure of warrant
materials, pointing out that the Rules of Criminal Procedure expressly
govern the secrecy of grand jury proceedings but the same is not true of
warrant proceedings. Id. at 65. Relying on the Supreme Court’s decision in
Nixon, the court adopted a case-by-case approach to the unsealing of pre-
indictment warrant materials:
        [T]he common law qualified right of access to the warrant papers
        is committed to the sound discretion of the judicial officer who
        issued the warrant. Taking into consideration, as Nixon requires,
        all of the relevant facts and circumstances, the officer may file all
        or some of the papers under seal for a stated time or until further
        order. Or, as frequently is done, he may conclude that the
        circumstances do not justify secrecy. The judicial officer’s decision
        to seal, or to grant access, is subject to review under an abuse of
        discretion standard.
Id.
        The court then explained the standard that the district court should
apply in any given case for determining whether to unseal a warrant
affidavit. Id. The court stated that the Government may properly ask to seal
warrant materials, and the district court may properly grant that request by
adopting the Government’s facts where appropriate. Id. And on a subsequent
request to unseal, “[t]he judicial officer may deny access when sealing is
‘essential to preserve higher values and is narrowly tailored to serve that
interest.’” Id. at 65–66 (quoting Press–Enterprise Co., 464 U.S. at 510). In
appropriate circumstances, narrow tailoring may require providing access to
some documents or redacted documents. Id. at 66.



        2Because the affidavit had already been unsealed, however, the court found that
further proceedings in the district court were unnecessary. Baltimore Sun, 886 F.2d at 66.

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       The Fourth Circuit noted that the district court erred by refusing to
grant access to the Government’s proposed redacted version of the affidavit.
Id. The court criticized the district court for not citing the affidavit with
specificity and instead making only conclusory assertions that the public
interest of the investigation outweighed the newspaper publisher’s right of
access. Id. 3
                     3. Fifth Circuit Guidance
       As noted, the Fifth Circuit has not spoken to the precise question
addressed in Times Mirror and Baltimore Sun—whether the common law
right of access to judicial documents extends to pre-indictment warrant
materials. This Court has, however, spoken to different questions implicating
that qualified right in other situations, and substantial guidance can be
gleaned from these decisions.
       S.E.C. v. Van Waeyenberghe involved the SEC’s civil injunctive action
against a defendant for violations of federal securities laws. 990 F.2d at 847.
During a settlement hearing, the parties successfully settled but disagreed as
to whether the resulting settlement agreement should be sealed. Id. After the
parties unsuccessfully tried to resolve this dispute, the district court sua
sponte sealed the entire case and the parties finalized their settlement with
the SEC objecting to the sealing. Id. The district court signed a final order of
permanent injunction and attached the consent decree to it before indicating
that it would entertain the SEC’s motion to unseal all of the case except for
the final order. Id. The SEC filed such a motion, which the district court
granted. Id. Later, the district court sealed the transcript of the settlement


       3In Office of Gunn, the Eighth Circuit also took a case-specific approach to a request
to unseal pre-indictment search warrant affidavits, though its analysis applied only the
standard for the First Amendment right of access without differentiating the standard for
the common law right of access. 885 F.2d at 574–75.

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hearing. Id. The SEC appealed the district court’s sealing of the final order
and transcript. Id.
      This Court recognized that “[a]lthough the common law right of access
to judicial records is not absolute, ‘the district court’s discretion to seal the
record of judicial proceedings is to be exercised charily.’” Id. at 848. In
addition, the Court acknowledged that “access has been denied where court
files might have become a vehicle for improper purposes.” Id. In exercising
discretion to seal judicial records, this Court advised that district courts
“must balance the public’s common law right of access against the interests
favoring nondisclosure.” Id. In conducting this balance, the Court said, a
district court should take stock of “[t]he presumption in favor of the public’s
common law right of access to court records,” which applies so long as a
document is a judicial record. See id. at 849 (finding that the settlement
agreement filed with the court was a judicial document and therefore was
entitled to this presumption of public access). For clarity, though, the Court
pointed out that the Fifth Circuit has not assigned a particular weight to the
presumption in favor of access, unlike some other circuits which have
characterized it as “strong” or others which reduce it to “one of the interests
to be weighed.” Id. at 848 n.4.
      Applying these principles, the Fifth Circuit found that the district court
abused its discretion, reversing and remanding for further proceedings. Id. at
850. Initially, this Court briefly pointed out that the district court did not
apply the presumption in favor of public access to judicial records. Id. at 849.
In addition, the Court criticized the district court’s failure to “articulate any
reasons that would support sealing the final order.” Id. The district court
acknowledged that the public had a right to know that the defendant had
been enjoined from certain conduct as a result of the SEC’s action, but the
defendant argued that this right would be protected by regulations requiring
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the defendant himself to disclose the injunction. Id. The Fifth Circuit found
this reliance on regulatory disclosures misplaced because the right of access
applies to the records which contain information, not simply the information
itself: “The public’s right to information does not protect the same interests
that the right of access is designed to protect. ‘Public access [to judicial
records] serves to promote trustworthiness of the judicial process, to curb
judicial abuses, and to provide the public with a more complete
understanding of the judicial system, including a better perception of its
fairness.’” Id. (quoting Littlejohn v. Bic Corp., 851 F.2d 673, 682 (3d Cir.
1988) (alterations in original)).
      Later, in United States v. Chavis, this Court found that the district
court did not abuse its discretion in balancing the public’s common law right
of access against the interests favoring nondisclosure by redacting portions of
a sentencing memorandum, pointing to the “very specific” nature of the
district court’s order. 111 F.3d 892 (5th Cir. 1997) (unpublished) (citing Van
Waeyenberghe, 990 F.2d at 848).
      Even more recently, this Court applied Van Waeyenberghe to a third-
party movant’s appeal from a district court’s order, in which the movant
argued that because the order was issued under seal, it did not afford the
movant a sufficient remedy for the violation of its rights. In United States v.
Holy Land Foundation for Relief and Development, 624 F.3d 685, 688 (5th
Cir. 2010), a grand jury issued an indictment charging the defendants with
engaging in a criminal conspiracy to provide support to Hamas. Attached to
its pre-trial brief, the Government provided a list of “Unindicted Co-
conspirators and/or Joint Venturers,” which included the North American
Islamic Trust (the “Trust”), the aforementioned third-party movant. Unlike
the order, the list of unindicted co-conspirators was not filed under seal. Id.
The Trust, which was not indicted and took issue with being named a co-
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conspirator, filed a motion with the district court, arguing that its Fifth
Amendment rights were violated by the unsealed list of co-conspirators; the
Trust’s motion further sought relief, including “a public declaration that its
rights had been violated [and] the expungement of its name from any public
document filed or issued by the Government identifying [the Trust] as an
unindicted coconspirator . . . .” Id. The district court granted the Trust’s
motion in part in an opinion filed under seal. The court found that the Trust’s
Fifth Amendment rights had been violated and ordered the sealing of the list
of unindicted co-conspirators, but it declined to expunge the Trust’s name
from the list of co-conspirators. The Trust appealed, contending that the
district court abused its discretion by sealing this opinion. Id. at 689.
      Emphasizing that the common law right of access promotes the
trustworthiness of the judicial system, this Court reversed the district court’s
order which sealed its opinion. Id. at 690–91. Though both parties speculated
as to the district court’s motivations for sealing the opinion, the effect of the
court’s order “was to leave [the Trust] hamstrung in its ability to mitigate the
damage done by its public identification as a possible coconspirator in the
activities of the [indicted defendants].” Id. at 690. And because there were no
countervailing government interests favoring the opinion being sealed, the
Court reversed. Id. at 691.
           iii. Discussion
      In the Fifth Circuit, the common law right of access to judicial records
has consistently been addressed on a case-by-case basis, indicating that this
Court should adopt such an approach in the context of pre-indictment
warrant materials. In all of the major cases discussed above, the Fifth Circuit
has left the decision to seal judicial records to the discretion of the district
court. And in so doing, the Fifth Circuit has consistently required the district
court to explain its decisions to seal or unseal. Van Waeyenberghe, 990 F.2d
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at 849 (“We find no evidence in the record that the district court balanced the
competing interests prior to sealing the final order. First, the district court
made no mention of the presumption in favor of the public’s access to judicial
records. Second, the district court did not articulate any reasons that would
support sealing the final order.”); Holy Land Foundation, 624 F.3d at 690
(“Here, the district court did not explain why it chose to seal its opinion and
order holding that [the Trust’s] rights were violated.”).
      Underscoring this conclusion, the policy justifications that concerned
the Ninth Circuit in Times Mirror are not at all diluted by a case-specific
approach. In any given case, the discretion of the district court protects these
interests, as this Court has repeatedly emphasized; in other words, this Court
has consistently trusted district courts to exercise their discretion to
determine when court files “might . . . become a vehicle for improper
purposes.” Van Waeyenberghe, 990 F.2d at 848. If the unsealing of pre-
indictment warrant materials would threaten an ongoing investigation, the
district court has discretion to make redactions prior to unsealing or, where
necessary, to leave the materials under seal. The same is true where
unsealing such materials might endanger or discourage witnesses from
providing evidence or testimony, or where the publication of a warrant could
damage an unindicted target’s reputation while leaving no judicial forum to
rehabilitate that reputation.
      The final reasons for extending the Fifth Circuit’s general approach
and adopting the Fourth Circuit’s reasoning from Baltimore Sun are the
affirmative policy justifications behind the common law right of access to
judicial documents. This Court in Van Waeyenberghe acknowledged that the
right of access promotes the trustworthiness of the judicial process, curbs
judicial abuses, and provides the public with a better understanding of the
judicial process, including its fairness. Id. at 849. The right serves as a
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                                     No. 16-20562
“check[ ] on the integrity of the system.” Id. at 849–50 (quoting Wilson v.
American Motors Corp., 759 F.2d 1568, 1571 (11th Cir. 1985) (alterations
original)); see also Holy Land Foundation, 624 F.3d at 690 (“‘Public
confidence [in our judicial system] cannot long be maintained where
important judicial decisions are made behind closed doors and then
announced in conclusive terms to the public, with the record supporting the
court’s decision sealed from public view.’” (quoting In re High Sulfur Content
Gasoline Prods. Liab. Litig., 517 F.3d 220, 230 (5th Cir. 2008) (alterations in
original)). A case-by-case approach to pre-indictment warrant materials gives
the district court discretion in balancing the legitimate interests against
public access against the public’s interests supporting access.
      In sum, we extend the case-by-case approach previously used by this
Court for assessing the common law qualified right of access to judicial
records to situations involving an individual’s request to access pre-
indictment warrant materials such as the affidavits in this case. In cases
involving a request to unseal affidavits in support of pre-indictment search
warrants, district courts should exercise their discretion by balancing the
public’s right to access judicial documents against interests favoring
nondisclosure. Van Waeyenberghe, 990 F.2d at 848.
      b. The district court abused its discretion by finding that the
         pre-indictment warrant materials here should remain sealed
         without making sufficient factual findings.
      Having extended a qualified right of access to pre-indictment warrant
materials, the Court now turns to whether the district court properly found
that the pre-indictment warrant affidavits in this case should remain sealed. 4


      4 A gateway question—whether the warrant materials are judicial records—is not an
issue on this appeal. See Baltimore Sun, 886 F.2d at 63–64 (concluding that pre-indictment
search warrant materials are judicial records); Van Waeyenberghe 990 F.2d at 849

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                                   No. 16-20562
             i. Standard of Review
      Because the decision as to access is one left to the sound discretion of
the trial court, the Fifth Circuit reviews the district court’s decision to keep
the search warrant affidavits under seal for abuse of discretion. Id. at 848
(citing and quoting Nixon, 435 U.S. at 598–600).
            ii. The District Court’s Opinion
      The district court’s opinion discussed many of the cases cited above.
Without making clear which of these standards it purported to apply, the
district court stated:
      [T]he court has reviewed the unsealed affidavit in Cause Number
      16-mj-409 and the corresponding affidavits that were redacted by
      either the Government or, line by line, by the Magistrate Judge,
      and the court finds that there is a substantial probability that the
      investigation will be compromised if the affidavit is unsealed.
Going further, the district court noted the unsettled nature of the law in the
Fifth Circuit on the common law right of access to pre-indictment warrant
materials, along with the circuit split between the Ninth and Fourth Circuits.
The district court “like the Ninth Circuit, ha[d] concerns that ‘the ends of
justice would be frustrated, not served, if the public were allowed access to
warrant materials in the midst of a preindictment investigation into
suspected criminal activity.” Additionally, the district court believed that a
magistrate judge’s line-by-line review to determine which information in a
warrant affidavit should be unsealed was a waste of judicial resources,
“particularly since the government officials conducting the investigation are
better equipped to determine what disclosures could be detrimental to the
investigation.”



(concluding that the settlement documents, final order, and transcript were judicial
records).

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                                 No. 16-20562
          iii. Discussion
      As an initial matter, it is unclear whether the district court applied the
proper case-by-case standard. The court briefly noted that “there is a
substantial probability that the investigation will be compromised if the
affidavit is unsealed” based on a review of the affidavits and redacted
versions before a longer discussion of why a case-by-case assessment of the
materials seemed inappropriate. Notwithstanding its brief reference to the
specific investigation from which this case stems, the district court did not
apply the Van Waeyenberghe factors by conducting a case-specific balancing
of the public’s qualified right of access against the interests favoring non-
disclosure.
      Assuming that the district court assessed the affidavits in this case
under Van Waeyenberghe, its opinion does not contain the requisite
specificity. The Fourth Circuit’s opinion in Baltimore Sun advised that a
district court must review the individual affidavits in order to “make findings
and conclusions specific enough for appellate review.” 886 F.2d at 66. This
requirement of specificity from district courts is consistent with the value
that the Fifth Circuit has placed on detailed, clear, and specific findings made
by a district court in sealing or unsealing an order. See, e.g., Chavis, 111
F.3d at 892 (finding that a district court did not abuse its discretion because,
in large part, “[t]he district court’s order [was] not general in nature, but
[was] very specific to particular information, in one particular document, in
this defendant’s sentencing proceeding”).
      This is not to say that a district court must go to painstaking lengths to
review pre-indictment warrant materials, detailing factual findings on each
line of every affidavit. This Court is sensitive to the district court’s concern
over the judicial resources that would have to be expended if that much detail
were unilaterally required. As a result, the requisite degree of specificity will
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                                      No. 16-20562
vary from case to case, but in most cases, a district court should at least
“articulate any reasons that would support sealing [a judicial document],”
Van Waeyenberghe, 990 F.2d at 849, or “explain why it chose to seal [a
judicial document],” Holy Land Foundation, 624 F.3d at 690.
       The findings made by the district court in this case are bare—the entire
case specific balance of the right of access against interests favoring non-
disclosure is the statement that “there is a substantial probability that the
investigation will be compromised if the affidavit is unsealed.” While the
district court need not conduct an exhaustive assessment, it must generally
articulate its reasons to support sealing the affidavits with a level of detail
that will allow for this Court’s review. 5
       Where a district court’s lack of factual findings has left this Court
“unable to discern . . . whether it was an abuse of discretion” to leave a
judicial document under seal, this Court has previously remanded so that the
district court could “make explicit findings as to the necessity of keeping”
that document sealed. Test Masters, slip op. at 3-4. Given the district court’s
failure to conduct the balancing required by Van Waeyenberghe, a remand for
similar purposes is appropriate here. Accordingly, the judgment of the
district court is vacated and this case is remanded for further factual findings
under the Van Waeyenberghe balancing test.



       5 To the extent that the district court would have difficulty explaining its reasoning
without disclosing sensitive information from the affidavits, it may file its reasoning under
seal. See Baltimore Sun, 866 F.2d at 65 (“The judicial officer may explicitly adopt the facts
that the government presents to justify sealing when the evidence appears creditable. But
the decision to seal the papers must be made by the judicial officer; he cannot abdicate this
function. If appropriate, the government’s submission and the officer’s reason for sealing
the documents can be filed under seal.” (internal citations omitted)). Alternatively, the
district court may find it appropriate to unseal some of the warrant materials or unseal
redacted versions. Id. at 66; Test Masters Educ. Servs., Inc. v. Robin Singh Educ. Servs.,
Inc., No. 13-20250, slip op. at 3 (5th Cir. Oct. 22, 2015).

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                                  No. 16-20562
      Vacating and remanding the district court’s judgment is Smith’s second
choice, as he would rather have the district court’s order reversed and the
affidavits unsealed outright. In this regard, he relies on Breidenbach v.
Bolish, 126 F.3d 1288 (10th Cir. 1997), overruled on other grounds as stated
in Currier v. Doran, 242 F.3d 905 (10th Cir. 2001). The plaintiffs, whose
homes were the targets of search warrants, sued an FBI agent, alleging that
he recklessly or knowingly made false statements in affidavits supporting the
warrants. Id. at 1290–91. The Tenth Circuit affirmed the district court’s
qualified immunity-based dismissal of the Bivens claim against the agent,
reasoning that the plaintiffs did not allege sufficient facts (many of which
were unavailable because they appeared in the sealed affidavits) regarding
the objective reasonableness of the agent’s actions. Id. at 1292–93. The court
also recognized the “Catch–22” caused by this result: without access to the
sealed warrant materials, the plaintiffs could not be expected to make more
detailed allegations relating to those affidavits (and may even subject counsel
to sanctions for presenting pleadings without evidentiary support). Id. at
1293–94. According to the court, the plaintiffs did not, however, “pursue
every possible avenue to obtain the necessary facts to support their legal
claims prior to filing a complaint in federal court.” Id. at 1294. For this
reason, the court suggested an alternative procedural path: seek “an order
from the judge who sealed the affidavit to allow an unsealing or limited
unsealing of the affidavit for use in preparing their civil complaint,” and
appeal any denial of that request. Id. at 1294.
      Bolish does not warrant outright unsealing in this case. The procedural
route Smith chose here is precisely what the Bolish court recommended—ask
the district court to unseal the affidavit and appeal a denial of that decision if
necessary. As discussed above, without more detailed findings from the
district court regarding the reasons for keeping the warrant materials sealed,
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                                     No. 16-20562
this Court cannot properly assess those materials and the impact of
unsealing them; the district court is in the best position to conduct the
required balancing test. As a result, Smith’s procedural path to obtaining the
affidavits may be slowed by a remand of this action, but the ultimate relief he
seeks is still entirely available.
                                 CONCLUSION
      For the foregoing reasons, the judgment of the district court is
VACATED and this case is REMANDED for a case-by-case analysis and a
sufficiently detailed factual assessment.




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