706 F.3d 47 (1st Cir. 2013), 11-1718, United States v. Kravetz

Docket Nº:11-1718.
Citation:706 F.3d 47
Opinion Judge:HOWARD, Circuit Judge.
Party Name:UNITED STATES of America, v. Carolyn KRAVETZ and Boris Levitin, Defendants, Appellees Jim Edwards, Movant, Appellant.
Attorney:Jeremy Kutner, Yale Law School, Media Freedom & Information Clinic, with whom Douglas Curtis, Eliza M. Scheibel and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for appellant. Robert L. Peabody, with whom Collora LLP was on brief, for appellee Boris Levitin. Joseph J. Balliro, Sr., wi...
Judge Panel:Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.
Case Date:January 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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706 F.3d 47 (1st Cir. 2013)



Carolyn KRAVETZ and Boris Levitin, Defendants, Appellees

Jim Edwards, Movant, Appellant.

No. 11-1718.

United States Court of Appeals, First Circuit.

January 30, 2013

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Jeremy Kutner, Yale Law School, Media Freedom & Information Clinic, with whom Douglas Curtis, Eliza M. Scheibel and Wilmer Cutler Pickering Hale and Dorr LLP were on brief, for appellant.

Robert L. Peabody, with whom Collora LLP was on brief, for appellee Boris Levitin.

Joseph J. Balliro, Sr., with whom Balliro & Mondano was on brief, for appellee Carolyn Kravetz.

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Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for the United States.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Jim Edwards, a journalist, appeals from an order of the district court declining his request to make public various documents filed under seal in a criminal case. For the reasons set forth below, we vacate in part and remand.


In 2008, a federal grand jury indicted co-defendants Carolyn Kravetz and Boris Levitin on charges stemming from a scheme to defraud restaurant franchisor Dunkin' Brands Incorporated (" Dunkin' Brands" ). As charged in the indictment, Kravetz, a former Director of External Communications for Dunkin' Brands, agreed to steer Dunkin' Brands' business to Levitin's graphics firm in return for kickbacks of one-half of the gross receipts. Kravetz then authorized payments from Dunkin' Brands to Levitin's firm, including payment in full for multiple projects on which Levitin performed no work. Over the course of the scheme, the pair was alleged to have defrauded Dunkin' Brands of nearly $400,000.

Kravetz and Levitin pled guilty in February 2010. Kravetz's plea agreement stipulated that in exchange for her plea, the government would recommend a thirty-two month incarcerative sentence. Levitin's agreement stated that the government would recommend a sentence at the low end of the Sentencing Guidelines range, which resulted in a recommended term of eighteen months' imprisonment. Ultimately, the judge rejected these recommendations and sentenced both Kravetz and Levitin to thirty-two months of probation only.

The proceedings piqued the interest of Edwards, who specializes in coverage of the advertising industry for Bnet.com, a news website operated by CBS Interactive. Edwards regularly reports on events affecting major advertising firms, with a focus on stories involving corruption. He began covering the Kravetz and Levitin proceedings as early as October 2009. Citing Kravetz's former prominence in the public relations and advertising industries and references in the pleadings to additional victims of Kravetz's and Levitin's fraud, Edwards wrote periodic updates on the case and investigated the possible broader scope of the underlying scheme.

As he monitored the proceedings, Edwards noticed sealed documents appearing on the district court docket. After the court and the parties referred to Kravetz's sealed sentencing memorandum and attached letters of support during her July 2010 public sentencing hearing, Edwards sent a letter to the district court in October, requesting access to the sealed documents. At Levitin's public sentencing hearing in November, the court and the parties again made references to a sentencing memorandum and letters of support that were not available to the public.

After the entry of final judgment against both defendants, the court requested the parties to address whether the documents sought by Edwards should remain under seal. When none of the parties responded, Edwards again moved for unsealing. The court directed counsel to respond to Edwards' request within fourteen days. When the parties again failed to respond, Edwards filed a third motion and a proposed order.

In response, Kravetz submitted a two-sentence letter opposing the motion to unseal.

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The body of that letter stated, in its entirety: " The defendant, Carolyn Kravetz[,] respectfully objects to the motion to unseal the file in the above-referenced matter. In support thereof the defendant says the file contains matters that are personal to her and it would be inappropriate and unreasonably detrimental to permit a journalist to access the file." Levitin did not respond to Edwards' filings.

The court denied Edwards' motion to unseal in an order stating:

Petitioner Jim Edwards has requested that the sealed documents in this action be unsealed. Counsel for Defendant Carolyn Kravetz has opposed Petitioner's motions on Kravetz's behalf. The court has reviewed the documents in question and is persuaded from that review that the documents contain matters that are predominantly personal to Kravetz and that there is not apparent justification for their general publication. Therefore, the papers shall remain sealed.

Although the order appeared to address only the Kravetz documents, the parties do not dispute that the effect of the order was to also deny Edwards' request to unseal documents pertaining to Levitin.

Edwards appealed and simultaneously submitted to the district court a motion to intervene and an accompanying memorandum, in which he elaborated that the sealed documents were " judicial documents" to which he had a right of access under the First Amendment and common law. Kravetz opposed the motion, arguing that " [t]here are no documents that could be considered presumptively accessible to Mr. Edwards" and that, in any event, the contested documents " contain very personal information about Ms. Krav[e]tz to which she has a presumptive and absolute right of privacy." Edwards' motion to intervene remains pending in the district court.


" Courts have long recognized ‘ that public monitoring of the judicial system fosters the important values of quality, honesty and respect for our legal system.’ " In re Providence Journal, 293 F.3d 1, 9 (1st Cir.2002) (quoting Siedle v. Putnam Inv., Inc., 147 F.3d 7, 10 (1st Cir.1998)). This recognition is embodied in two related but distinct presumptions of public access to judicial proceedings and records: a common-law right of access to " judicial documents," and a First Amendment right of access to certain criminal proceedings and materials submitted therein. See id. at 9-10.

Edwards argues that the district court's refusal to release the sealed documents in this case contravenes both the First Amendment and the common law, claiming that the documents are presumptively public and that the district court failed to adhere to procedural requirements. These claims require that we determine first whether a presumption of public access attaches to the contested documents and then, if so, whether the district court's refusal to unseal those documents was sound.


On appeal, Edwards challenges the non-disclosure of three categories of documents: the defendants' sentencing memoranda; sentencing letters submitted by third parties on the defendants' behalf and attached as exhibits to the sentencing memoranda or sent directly to the district court; and pre-trial subpoenas duces tecum and related motions filed by Levitin during the course of pre-trial proceedings

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pursuant to Federal Rule of Criminal Procedure 17(c).1

We conclude that the Rule 17(c) materials are not entitled to a presumption of access under either the First Amendment or the common law. We also conclude, however, that the public availability of the sentencing memoranda and letters must be determined using a more searching standard under the common law right of access than the district court's standard. In light of that conclusion, we decline to reach Edwards' constitutional claim as to these documents. See generally Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

1. Rule 17(c)


Edwards claims a right of access to the Rule 17(c) pre-trial subpoenas duces tecum and related documents filed by Levitin.3 The scope of the public's presumptive right of access to this category of documents appears to be a matter of first impression among the circuits. In the district courts, this issue has most frequently been mentioned in the context of debates over the propriety of ex parte applications to the court to issue such subpoenas, with a number of courts suggesting that the public's right of access is implicated by such applications. See United States v. Peters, No. 03-CR-211S, 2007 WL 4105671, at *1 (W.D.N.Y. Nov. 14, 2007); United States v. Daniels, 95 F.Supp.2d 1160, 1163 (D.Kan.2000); United States v. Beckford, 964 F.Supp. 1010, 1029-30 (E.D.Va.1997); United States v. Hart, 826 F.Supp. 380, 382 (D.Colo.1993); United States v. Urlacher, 136 F.R.D. 550, 556-58 (W.D.N.Y.1991).4 Beyond citation to a " trend" in favor of recognizing a presumptive right of access to documents filed in conjunction with pretrial criminal proceedings not related to discovery, however, these decisions offer little explanation as to why Rule 17(c) subpoenas should be considered presumptively accessible by the public, and at least one court has suggested that they should not be. See United States v. Tomison, 969 F.Supp. 587, 595 (E.D.Cal.1997).

We base our assessment of whether there is a First Amendment right of public access to Rule 17(c) subpoenas on experience and logic. See Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8-9, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (explaining that in determining whether a...

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