United States v. Sleugh

• Decision Date: 23 July 2018
• Docket Number: No. 17-10424,17-10424
• Citation: 896 F.3d 1007
• Parties: UNITED STATES of America, Plaintiff-Appellee, Shawndale Boyd, Intervenor, v. Damion SLEUGH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

896 F.3d 1007

UNITED STATES of America, Plaintiff-Appellee,

Shawndale Boyd, Intervenor,

v.Damion SLEUGH, Defendant-Appellant.

No. 17-10424

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 15, 2018 San Francisco, California

Filed July 23, 2018

Ethan A. Balogh (argued) and Dejan M. Gantar, Coleman & Balogh LLP, San Francisco, California, for Defendant-Appellant.

Ellen V. Leonida (argued) and Todd M. Borden, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Intervenor.

Merry Jean Chan (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Division; United States Attorney’s Office, San Francisco, California; for Plaintiff-Appellee.

Before: J. Clifford Wallace and Marsha S. Berzon, Circuit Judges, and Terrence Berg,^* District Judge.

BERG, District Judge:

Criminal defendants sometimes seek to obtain evidence by filing applications asking the court to issue subpoenas for the production of documents or witnesses pursuant to Federal Rule of Criminal Procedure 17(c). These applications, supported by an attorney’s affidavit explaining the reasons the evidence is necessary, are often filed ex parte and under seal. The issue on appeal in this case—a question of first impression for this Circuit—is whether one defendant in a criminal case can get access to the Rule 17(c) subpoena applications and supporting documents that were filed under seal by another defendant’s attorney in the same criminal case, either because of the presumptive right of public access to court records or upon a showing of special need. In view of the circumstances presented here, the district court properly denied the request for disclosure, and we affirm.

I. THE PARTIES, TRIAL, AND SLEUGH’S APPEAL

In March 2014, Damion Sleugh and Shawndale Boyd were indicted together on charges of (1) conspiring to distribute or to possess with intent to distribute marijuana, and (2) attempted possession with intent to distribute marijuana, each in violation of 21 U.S.C. §§ 846, 841(a)(1) & (b)(1)(D) ; (3) robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951(a) ; (4) using or carrying a firearm during or in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) ; and (5) using a firearm during a drug trafficking crime and causing a murder, in violation of 18 U.S.C. § 924(j). Sleugh was also charged as being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The charges arose from a five-pound marijuana drug deal that Sleugh and Boyd arranged, which ended in the death of the man who was delivering the marijuana, Vincent Muzac.

While awaiting trial, Boyd filed ex parte applications with the court seeking several Rule 17(c) subpoenas. Boyd requested that these applications be filed under seal. The subpoenas sought records relating to multiple cell phone numbers from various service providers for the time period surrounding the date of the alleged crimes, along with some surveillance video from other sources. To support the Rule 17(c) subpoena applications, and as required by local rule, Boyd’s defense attorney submitted affidavits describing the need for the records.¹ Those affidavits were also filed ex parte and under seal.

On May 5, 2015, Boyd pleaded guilty to all counts except the murder charge. He agreed to cooperate with the government, and he testified against Sleugh at trial. Sleugh also testified.

Evidence was presented at trial that Sleugh and Boyd arranged to purchase five pounds of marijuana from Vincent Muzac—Boyd’s friend and co-worker—for $11,000. On the day of the deal, Boyd and Sleugh met at Sleugh’s house. They decided to drive separately, Boyd getting a ride from a neighborhood acquaintance known by the nick-name "Q," and Sleugh, carrying the purchase money, driving a white Ford Escape that had been rented by Boyd’s mother. They met at a Walmart parking lot, where there was also a Starbucks. Boyd met Muzac at the Starbucks. Video evidence showed Boyd and Muzac leaving the Starbucks together. Once in the parking lot, Boyd walked by himself up to the white Ford Escape where Sleugh was waiting. Boyd spoke to Sleugh for a few seconds. Boyd then walked away and entered "Q’s" vehicle. Boyd and Q drove off, leaving the area. Muzac then walked to the Ford Escape where Sleugh was waiting and got inside. Four minutes later, the Ford Escape drove off without Muzac. Muzac’s body was later found lying in the parking lot next to only one pound of marijuana, and without the $11,000.

Boyd testified that, after he and Q left the Starbucks parking lot, he tried repeatedly to contact Muzac on his cell phone, with no success. Later that day, Boyd met Sleugh at Sleugh’s apartment, and asked Sleugh if everything was okay. Sleugh told Boyd that he and Muzac argued about the quality of the marijuana, that Muzac punched Sleugh in the mouth, and that Sleugh then shot Muzac in the arm. Boyd testified that Sleugh told him that after he shot Muzac, he pushed him out of the car and left.

Muzac ultimately died from his wounds

. Boyd testified that he did not become aware that Muzac had died until he and Sleugh were arrested on February 22, 2014 and charged in California state court with Muzac’s murder.² Sleugh testified to a different version of events. He claimed that Q—the man who drove off with Boyd in another vehicle—shot Muzac.

On July 17, 2015, the jury convicted Sleugh of all charges. Sleugh was sentenced on November 4, 2015 to life in prison. Boyd received a three-year prison sentence. Sleugh appealed his conviction. See United States v. Damion Sleugh , No. 15-10547 (9th Cir.). At Sleugh’s request, we stayed the briefing schedule of Sleugh’s direct appeal while he sought permission from the district court to unseal Boyd’s Rule 17(c) subpoena applications.

Sleugh argued to the district court that he needed access to Boyd’s Rule 17(c) subpoena applications for his appeal because of the "possibility" that Boyd testified inconsistently with Boyd’s counsel’s assertions in those applications. Sleugh did not specify any particular portion of Boyd’s testimony as problematic, and did not articulate how he thought counsel’s assertions in support of obtaining the cell phone and other records were likely to contain any inconsistent or otherwise impeaching statements. Sleugh reasoned that Boyd’s shift from defending the case to pleading guilty and testifying for the Government suggested that Boyd either misrepresented facts in the Rule 17(c) subpoena applications, or lied during his testimony. Put differently, Sleugh asserts that Boyd’s testimony on behalf of the Government must have been inconsistent with any defense theory Boyd used to support the Rule 17(c) subpoena applications. Standing on that assumption, Sleugh concluded that he could have used the statements of Boyd’s counsel in the Rule 17(c) subpoena applications to cross-examine Boyd at trial. Sleugh also contended that he had a right to access the Rule 17(c) subpoena applications as judicial records. The magistrate judge who originally granted Boyd’s Rule 17(c) subpoena applications denied Sleugh’s motion to unseal them. The district court affirmed.

When Sleugh appealed the district court’s decision denying disclosure, Boyd intervened, arguing that his Rule 17(c) subpoena applications should remain under seal. Sleugh’s direct appeal of his conviction remains stayed, pending the instant appeal.

II. STANDARD OF REVIEW

A district court’s denial of a motion to unseal is reviewed for abuse of discretion. Ctr. for Auto Safety v. Chrysler Grp., LLC , 809 F.3d 1092, 1096 (9th Cir 2016). As part of that review, this court must first determine under de novo review whether the district court applied the correct legal rule. United States v. Hinkson , 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc). If the district court applied the wrong rule, the district court abused its discretion. Id. The application of the correct legal standard may nonetheless constitute an abuse of discretion if the application "was (1) illogical, (2) implausible, or (3) without support in inferences that may be drawn from the facts in the record." Id. at 1262 (quotations, citation, and footnote omitted).

III. ANALYSIS

a. No Presumptive Right of Public Access Attaches to Rule 17(c) Subpoena Applications

A criminal defendant has a constitutional right to compulsory process in building a defense. Pennsylvania v. Ritchie , 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (holding that "criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt").

While Rule 16 of the Federal Rules of Criminal Procedure generally governs discovery procedures in criminal cases, Rule 17(c) allows parties to a criminal trial to use the district court’s subpoena power to request materials or testimony from witnesses. Fed. R. Crim. P. 17(c)(1). The Supreme Court has made it clear that a party seeking production of materials under a Rule 17(c) subpoena must demonstrate to the court "(1) relevancy; (2) admissibility; [and] (3) specificity." United States v. Nixon , 418 U.S. 683, 700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). If the grounds articulated in support of the subpoena request were made part of the public record, such a showing could reveal counsel’s trial strategies or defense theories to the opposing party, here, the government. This concern about revealing defense strategies to the government could also apply to revelations of such confidential theories to co-defendants, who may have adverse interests—the issue implicated in this appeal. Recognizing this potential conundrum, some courts, like the district court here, have local rules that permit defendants to file their Rule 17(c) applications under seal for "good cause." N.D. Cal....