United States v. Thomas

• Decision Date: 21 September 2018
• Docket Number: No. 17-2644,17-2644
• Citation: 905 F.3d 276
• Parties: UNITED STATES of America v. Keonna THOMAS Philly Declaration, L.L.C., and Austin Nolen, Appellants
• Court: U.S. Court of Appeals — Third Circuit

905 F.3d 276

UNITED STATES of America

v. Keonna THOMASPhilly Declaration, L.L.C., and Austin Nolen, Appellants

No. 17-2644

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit L.A.R. 34.1a July 10, 2018

Opinion Filed: September 21, 2018

Jennifer A. Williams, Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Plaintiff-Appellee

Kathleen M. Gaughen, Brett G. Sweitzer, Elizabeth Toplin, Federal Community Defender Office for the Eastern District of Pennsylvania, 601 Walnut Street, The Curtis Center, Suite 540 West, Philadelphia, PA 19106, Counsel for Defendant-Appellee

Michael L. Berry, Paul J. Safier, Ballard Spahr, 1735 Market Street, 51st Floor, Philadelphia, PA 19103, Counsel for Intervenors-Appellants

Before: GREENAWAY, JR., RESTREPO, and BIBAS, Circuit Judges.

OPINION

GREENAWAY, JR., Circuit Judge.

Philly Declaration, LLC and its managing editor Austin Nolen (collectively, "The Declaration " or "the intervenors") appeal the District Court’s order denying their motion to unseal certain court records in a criminal prosecution. For the reasons that follow, we hold that while a presumptive right of access under the First Amendment attaches to plea hearings and documents related to plea hearings, the District Court properly concluded that the compelling government interests of national security and safety would be substantially impaired by permitting full access to the plea document here. The proposed redactions on appeal to the remaining documents at issue, meanwhile, are more properly considered in the first instance by the District Court. Accordingly, we will affirm in part and vacate in part the District Court’s order and remand the case for further proceedings.

I. Background

In April 2015, Keonna Thomas was arrested on charges that she "knowingly attempted to provide material support and resources ... to a designated foreign terrorist organization"¹ in violation of 18 U.S.C. § 2339B. A39. After a federal grand jury returned an indictment, Thomas pled not guilty. She filed several pre-trial motions, including a motion for a bill of particulars and a motion to compel notice and discovery of surveillance, all of which the District Court ultimately denied. In September 2016, Thomas pled guilty pursuant to a plea agreement, and a sentencing hearing, although initially postponed, was ultimately held in September 2017.

As of November 2016, access to several documents on the docket was restricted to the public.² That month, The Declaration moved to intervene in the case and obtain access to: "all records that [at that time] appear[ed] on the docket as sealed or inaccessible"; transcripts of Thomas’s plea hearing and her ex parte presentation to the court regarding the motion to compel notice and discovery of surveillance; and "any search warrant materials pertaining to the investigation and prosecution of the Defendant." A81.

In response to The Declaration ’s motion, the Government agreed that certain records, such as the search warrant materials, should be fully or largely unsealed. The Government, however, maintained that, among other documents not at issue on appeal, the "Plea Document" that was docketed on the same day as the publicly-filed guilty plea memorandum should remain under seal for reasons detailed in a sealed addendum. The Government also objected to unsealing a "Grand Jury exhibit" ("Exhibit") attached to Thomas’s reply brief in support of her motion for a bill of particulars ("Reply Brief") and to unredacting "any quotes thereof and citations thereto" that appeared in the Reply Brief itself. A114.

On March 8, 2017, after oral argument, the District Court granted in part and denied in part The Declaration ’s motion, permitting intervention and ordering that only the documents that the Government deemed appropriate to unseal should be unrestricted. In the same order, the lower court permitted the intervenors time to review the materials unsealed by the Government and file a supplemental memorandum if they believed any continued sealing was improper. The Declaration renewed its request to unseal the Plea Document, the Reply Brief and Exhibit, and another motion and order.³

Following a supplemental hearing, the District Court issued an opinion and order on June 29, 2017 denying the request on the basis that: (1) "Intervenors have no right of access to grand jury material [contained in or referenced by the Reply Brief and Exhibit], and Thomas’[s] individual restrictions, with respect to Rule 6 [of the Federal Rules of Criminal Procedure] and pursuant to a protective order, do[ ] not change that fact," A8; and (2) concerning the remaining documents, including the Plea Document:

[T]he Government’s pursuit of ongoing law enforcement activities outweighs the public’s right of access to the [Plea Document and order and motion regarding courtroom security] under both federal and common law. The Government’s investigation related to this case involves national security issues and its non-public nature is critical to its success. Additionally, unsealing these documents could jeopardize the safety of numerous individuals.

Moreover, the Court now finds, as it has previously found (ECF 99), that the sealing of these records was narrowly tailored to protect the law enforcement interests at stake in this matter, and was the least restrictive means possible to safeguard the interests at issue. There is no reasonable alternative to keeping these documents under seal that would adequately protect the compelling interests of both Thomas and the Government. If these documents were to be made public, significant law enforcement activities could be thwarted and lives placed at risk.

A10 (citations omitted).

This timely appeal followed.

II. Jurisdiction

The District Court had jurisdiction over the underlying action pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291. See United States v. Smith , 123 F.3d 140, 145 (3d Cir. 1997) ("Orders either granting or, as in this case, denying access to court proceedings or records are appealable as final orders under § 1291.").

III. Discussion

On appeal, The Declaration argues that the District Court’s sealing decisions infringe upon its right of access to the judicial documents under the First Amendment and/or common law. First, Appellants claim that the continued sealing of the Plea Document is improper given the absence of "specific, individualized findings as to the necessity" of that restriction by the District Court, in addition to the lower court’s failure to "adequately consider[ ] alternatives to wholesale sealing" and "provid[e] The Declaration with a meaningful opportunity to oppose sealing." Appellants’ Br. 14. Second, The Declaration contends that the District Court erred in holding that Rule 6(e) bars the disclosure of the grand jury materials in the Reply Brief and Exhibit. In particular, the intervenors state not only that Rule 6(e) does not apply to the materials that had been provided to Thomas in discovery and developed outside of the grand jury process, but also that "the substance of the sealed material already appears to have been disclosed in other public filings." Id. at 14-15.

In their joint response brief, the Government and Thomas maintain that, while the "press and public have a First Amendment presumptive right of access to plea documents generally," the District Court here properly sealed the Plea Document. Appellees’ Br. 22-25. Appellees, though, concede that "most of the sealed content [in the Reply Brief and Exhibit] is substantively already part of the public record." Id. at 36. They therefore "agree to unseal the [Reply Brief] with only light redactions to [the Exhibit]." Id.

"We exercise plenary review over whether the First Amendment or the common law creates a presumptive right of access to judicial documents or proceedings." Smith , 123 F.3d at 146. In considering a First Amendment right of access claim, "we exercise independent appellate review of the record"; our scope of review of factual findings is therefore "substantially broader than that for abuse of discretion." Id. (quoting United States v. Antar , 38 F.3d 1348, 1357 (3d Cir. 1994) ). With respect to the common law right of access claim, we review for abuse of discretion. Id.

A. Plea Document

The First Amendment "provides a public right of access to criminal trials," other aspects of criminal proceedings such as voir dire, and "the records and briefs that are associated with those proceedings."⁴ Id. The Supreme Court of the United States has articulated a two-prong "experience and logic" test to apply in determining whether there is a presumptive right of public access to a particular aspect of a criminal trial. United States v. Wecht , 537 F.3d 222, 233-34 (3d Cir. 2008) (quoting Press-Enterprise II , 478 U.S. at 8-9, 106 S.Ct. 2735 ). As we have summarized:

Under the "experience" prong, a court considers "whether the place and process have historically been open to the press and general public." Under the "logic" prong, a court considers "whether public access plays a significant positive role in the functioning of the particular process in question" by, inter alia , enhancing "both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system."

Id. at 234 (citation omitted) (quoting Press-Enterprise II , 478 U.S. at 8-9, 106 S.Ct. 2735 ).

Plea hearings have usually been open to the press and public, and public access to those hearings furthers several societal interests, including promoting the "public perception of fairness," "exposing the judicial process to public scrutiny," and "providing the public with the more complete understanding of the judicial system"—especially where a substantial majority of criminal cases are resolved by guilty pleas. Smith , 123 F.3d at 146-47 (quoting United States v. Smith , 787 F.2d 111, 114 (3d Cir. 1986) ).

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