United States v. Sleugh, 072318 FED9, 17-10424
|Opinion Judge:||BERG, DISTRICT JUDGE.|
|Party Name:||United States of America, Plaintiff-Appellee, v. Damion Sleugh, Defendant-Appellant. Shawndale Boyd, Intervenor,|
|Attorney:||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,...|
|Judge Panel:||Before: J. Clifford Wallace and Marsha S. Berzon, Circuit Judges, and Terrence Berg, District Judge.|
|Case Date:||July 23, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
There is no presumption of public access under the First Amendment or common law that attaches to Federal Rule of Criminal Procedure 17(c) subpoena applications and their supporting materials. Accordingly, parties can only justify accessing sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents by demonstrating a "special need." The Ninth Circuit held that, in... (see full summary)
Argued and Submitted March 15, 2018 San Francisco, California
Appeal from the United States District Court No. 4:14-cr-00168-YGR-2 for the Northern District of California Yvonne Gonzalez Rogers, District Judge, Presiding
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.
The panel affirmed the district court's affirmance of a magistrate judge's order denying Damion Sleugh's motion to unseal codefendant Shawndale Boyd's applications to issue subpoenas pursuant to Fed. R. Crim. P. 17(c).
The panel held that there is no presumption of public access under the First Amendment or common law that attaches to Rule 17(c) subpoena applications and their supporting materials; and that parties can only justify accessing sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents by demonstrating a "special need."
The panel held that Sleugh failed to demonstrate a "special need" for Boyd's Rule 17(c) subpoena materials, and that there is a continuing need to seal them.
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...
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