08-4064-cr
United States v. Doe
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED B Y THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN WHICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN WHICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Theodore Roosevelt United States Courthouse, 225 Cadman Plaza East, Brooklyn, New
York, on the 14 th day of December, two thousand nine.

PRESENT:
                 JOSE A. CABRANES,
                 REENA RAGGI,
                                 Circuit Judges,
                 RAYMOND J. DEARIE,
                                 Chief District Judge.1
------------------------------------------------------------
UNITED STATES OF AMERICA,

                                 Appellee,
                       v.                                              No. 08-4064-cr

JOHN DOE,2


          1
        Chief District Judge Raymond J. Dearie of the United States District Court for the
Eastern District of New York, sitting by designation.
          2
        While pending, this case has been captioned as “United States v. John Doe” with all
briefing maintained under seal. Although we affirm the decision of the district court,

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                                 Defendant-Appellant.
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APPEARING FOR APPELLANT                           [SEALED]

APPEARING FOR APPELLEE:                        ELIZABETH KRAMER, Assistant United States
                                               Attorney (Peter A. Norling, Jo Ann M. Navickas,
                                               Assistant United States Attorneys, on the brief),
                                               for Benton J. Campbell, United States Attorney
                                               for the Eastern District of New York.

APPEARING AS AMICUS CURIAE:                    LEE G. DUNST (Anne M. Champion, Daniel J.
                                               Chirlin, Brian D. Mogck, Aaron Simowitz, on the
                                               brief), Gibson, Dunn & Crutcher LLP, New York,
                                               New York.

       Appeal from the United States District Court for the Eastern District of New York

(John Gleeson, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Defendant John Doe appeals from the district court’s denial of his motion for total and

permanent sealing of his sentencing transcript. Because the United States joins Doe in

urging reversal of the challenged denial, this court appointed amicus counsel to defend the

district court judgment so that the appeal could be considered in an adversarial context. We

assume the parties’ familiarity with the facts and the record of prior proceedings.

       In reviewing a district court’s decision on a motion to seal judicial proceedings or



pending further proceedings on remand that could result in partial sealing, we continue to
denominate appellant as “John Doe,” and we place the appellate record and the identity of
Doe’s counsel under seal. The United States is directed to report to this court at ninety (90)
day intervals from the date of this order as to the status of proceedings in the district court.

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records, we examine findings of fact for clear error, legal determinations de novo, and the

decision to grant or deny sealing for abuse of discretion. See United States v. Doe, 63 F.3d

121, 125 (2d Cir. 1995). Where First Amendment rights are implicated, our abuse-of-

discretion review of a decision granting sealing is “more rigorous” than usual. Id. But

where, as here, we review a district court decision denying sealing, the decision presents no

First Amendment concerns, and we will affirm unless the district court “based its ruling on

an erroneous view of the law or on a clearly erroneous assessment of the evidence, or

rendered a decision that cannot be located within the range of permissible decisions.” Sims

v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (internal quotation marks and citation omitted).

We identify no such abuse of discretion in this case.

       While acknowledging the public’s right of access to sentencing proceedings, see

United States v. Alcantara, 396 F.3d 189, 199 (2d Cir. 2005), and to the transcripts of such

proceedings, see Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 13 (1986), United States

v. Antar, 38 F.3d 1348, 1359-60 (3d Cir. 1994), Doe contends that the district court

committed legal error by treating this right as absolute rather than qualified. The record does

not support this contention. At the very start of its discussion of the law relevant to Doe’s

motion, the district court observed that the First Amendment grants the public and the press

a “‘qualified right of access’” to criminal court proceedings. Dist. Ct. Op. at 9 (quoting

Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004)).

       Moreover, the district court did not treat the public right of access as absolute in



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balancing it against competing interests as required by the four-step analysis articulated in

United States v. Doe, 63 F.3d at 128. In doing so, the district court correctly recognized that

the public right of access to criminal proceedings – deeply rooted in the common law and

guaranteed by the First Amendment – is presumptive.3 See Press-Enterprise Co. v. Superior

Court, 464 U.S. 501, 505-08 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596,

606-07 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569-70 (1980)

(Burger, C.J., plurality opinion). A party seeking to overcome this presumption bears a

heavy burden. See Press-Enterprise Co. v. Superior Court, 464 U.S. at 510 (observing that

presumption of open criminal proceedings may be overcome “only by an overriding interest

based on findings that closure is essential to preserve higher values and is narrowly tailored

to serve that interest”). Moreover, as we cautioned in Doe, the burden “increases the more

extensive the closure sought.” 63 F.3d at 129.

       Where, as in this case, a party seeks to seal the record of criminal proceedings totally

and permanently, the burden is heavy indeed. The district court’s calibration of the analytic

balance to reflect Doe’s particularly heavy burden hardly qualifies as legal error, much less

abuse of discretion. The district court determined that the first two Doe factors – (1) the

identification of a compelling interest subject to a substantial risk of prejudice and (2) the




       3
        The Sixth Amendment provides a distinct but related guarantee of public access to
criminal proceedings. See Gannett Co. v. DePasquale, 443 U.S. 368, 382 (1979).

                                              4
existence or absence of reasonable and adequate alternatives to sealing 4 – weighed in favor

of Doe, but it concluded that the weight these factors bore was insufficient to support the

requested permanent and total denial of public access to Doe’s sentencing transcript. This

conclusion fell well within the scope of the district court’s discretion. Indeed, at oral

argument, the parties effectively conceded that the identified interests did not require that any

sealing be either total or permanent.

       Nevertheless, even if total and permanent sealing is unjustified, it may be possible to

protect the “compelling interest” at issue here by sealing the sentencing transcript in a way

that is less than total and permanent. Accordingly, we AFFIRM the district court’s denial

of the application for a total and permanent sealing of the sentencing transcript, but we

REMAND the case to the district court to afford the parties an opportunity to apply for a

sealing of the sentencing transcript that is partial, non-permanent, or both. If the parties

make such an application, the district court should determine, in the first instance, whether

such a partial or non-permanent sealing is justified under the four-step analysis set forth in

United States v. Doe, 63 F.3d 121.5 Any renewed appeal following the disposition of the



       4
         While the district court found that no alternatives to sealing existed by which the
court itself might address the identified compelling interests, it properly recognized that such
alternatives were available to the executive branch, and it reasonably considered that fact in
reaching its ultimate decision to deny Doe’s sweeping application for sealing.
       5
         Because certain alternatives were discussed at oral argument, the court hereby
unseals the transcript of argument for the limited purpose of allowing the United States to
provide the district court with a copy. That transcript will otherwise remain sealed pending
further order of this court.

                                               5
remand shall be referred to this panel.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court


                                   By:_______________________




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