United States District Court, District of Columbia
ORDER REDACTED MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
before the Court is the Government's  Motion for
Leave to File Under Seal the Government's Addendum to its
Memorandum in Aid of Sentencing, The Government requests that
the Court permit it to file under sea! its [62-2] Addendum to
its Memorandum in Aid of Sentencing as well as the instant
Memorandum Opinion and accompanying Order. Defendant consents
to the Government's request to seal the Addendum.
consideration of the pending motion and accompanying
documents,  the relevant authorities, and the record
as a whole, the Court shall GRANT IN PART and DENY IN PART
the Government's motion. Specifically, the Court shall
grant the Government's request to seal the Addendum and
its motion to seal. The Court shall also seal portions of
this Memorandum Opinion that discuss the underlying
information in the Addendum and any legal analysis
intertwined with these facts. However, the Court sees no
reason to seal the entirety of this Memorandum Opinion or the
accompanying Order which simply indicate that the Court is
granting the Government's request to seal and provide the
legal reasoning applied to the Government's request. As
such, the Court shall issue a Redacted Memorandum Opinion on
the public docket and shall place under seal an unredacted
version of its Memorandum Opinion issued on this
10, 2012, Defendant pled guilty to a three-count Information,
charging Defendant with conspiracy to make a contribution in
the name of another and to destroy, alter, and falsify
records in a federal investigation in violation of 18 U.S.C.
§§ 371 and 1519, and 2 U.S.C. §§ 441f and
437g(d)(1)(D), fraud and false statements in violation of 26
U.S.C. § 7206(1), and conspiracy to make a contribution
in the name of another person in violation of D.C. Code
§ 22-1805a and D.C. Code § 1-1131.01(e).
See Information, ECF No. . Defendant's
charges center around a conspiracy to violate federal and
local campaign finance laws through conduit contributions in
relation to a campaign for a mayoral candidate. See
generally Stmt, of Offense, ECF No. .
to the terms of the Plea Agreement, Defendant was required to
cooperate in any criminal investigation or prosecution
conducted by the Office of the United States Attorney for the
District of Columbia ("U.S. Attorney's Office")
or by any other prosecutors and, if the Departure Committee
of the U.S. Attorney's Office determined that Defendant
provided substantial assistance in the investigation or
prosecution of others, then the Government would file a
motion pursuant to United States Sentencing Guideline §
5K 1.1, requesting a downward departure from the Guidelines.
Plea Agmt. at 5-6, ECF No. .
Government in its Memorandum in Aid of Sentencing has
notified the Court that Defendant has complied with the terms
of her Plea Agreement and, as such, the Government has moved
the Court to apply a downward departure to reduce
Defendant's offense level by 12 levels pursuant to
U.S.S.G. § 5K1.1 in light of Defendant's substantial
assistance in the investigation and prosecution of others.
Govt's Mem. in Aid of Sent'g & Mot. for Downward
Departure at 17, ECF No. . Specifically, the Government
recommends a sentence of three years of probation with six
months of home confinement imposed at the beginning of that
period. Id., at 13. In support of this sentencing
recommendation, the Government filed an Addendum
"discussing areas of the defendant's substantial
assistance that did not result in public charges."
Id. at 17 n.ll. The Government now requests that the
Addendum be placed under seal.
public right to access documents in criminal proceedings is
grounded both in the First Amendment and the common law. The
Court shall analyze the Government's request to seal its
Addendum in light of both standards and shall discuss each in
First Amendment Qualified Right of Access
determining whether a First Amendment right to public access
exists for a particular criminal proceeding or court
document, the court must consider two factors, known commonly
as the "experience" and "logic" test;
"(1) whether the place and process have historically
been open to the press and general public, and (2) whether
'public access plays a significant positive role in the
functioning of the particular process in question.'"
In re New York Times Co., 585 F.Supp.2d 83, 87
(D.D.C. 2008) (quoting Press-Enterprise Co. v. Superior
Court, 478 U.S. 1, 8-9 (1986)). "Even where such a
right exists, however, this right is 'qualified' and
is not absolute.'" Matter of the Application of
WP Co. LLC, No. 16-mc-351 (BAH), 2016 WL 1604976, at * 1
(D.D.C. Apr. 1, 2016) (quoting In re New York Times,
585 F.Supp.2d at 90). "Thus, criminal proceedings or
documents may remain under seal where the government meets
its 'burden of showing that it has a compelling interest
in keeping the materials secret.'" Id.
(quoting Globe Newspaper Co. v. Superior Court for
Norfolk Ciy., 457 U.S. 596, 606 (1982)). Indeed, if a
qualified First Amendment right attaches, "the
presumption of public access to these materials may be
overridden only if the government demonstrates that '(1)
closure serves a compelling interest; (2) there is a
substantial probability that, in the absence of closure, this
compelling interest would be harmed; and (3) there are no
alternatives to closure that would adequately protect the
compelling interest.'" Id. at *2 (quoting
Washington Post. v. Robinson, 935 F.2d 282, 290
(D.C. Cir. 1991)).
the Government seeks to seal its Addendum to its Memorandum
in Aid of Sentencing which "discusses in detail areas of
cooperation by the defendant that did not result in public.
Charge.” Govt.'s Mot. at 4.
order to determine whether there is a First Amendment
qualified right of access to the Addendum, the Court must
first consider whether sentencing memoranda have historically
been open to the press and the general public. Generally,
"there is an historic common law right of access to
judicial records and documents that has been recognized in
United States courts for well over a century." In re
New York Times, 585 F.Supp.2d at 89 (citing Nixon v.
Warner Communications, 435 U.S. 589, 597, n.7 (1978)).
Moreover, other courts addressing the issue have held that
sentencing memoranda are "judicial records"
entitled to the common law presumption of access. United
States v. Kravetz, 706 F.3d 47, 56-57 (1 st Cir. 2013);
United States v. Dare, 568 F.Supp.2d 242, 244
(N.D.N.Y. 2008); c.f. United Slates v. Armstrong,
__F.Supp.3d __, No. 11-cr-681, 2016 WL 2643041, at *2
(E.D.N.Y.May 9, 2016) (accepting for the purposes of
its analysis that the First Amendment presumption of access
applies to Government letters filed in connection with a
defendant's sentencing); United States v.
Cannon, No. 3:14-cr-00087-FDW, 2015 WL 3751781, at *4
(W.D. N.C. Jun. 16, 2015) (finding that there was a First
Amendment and common law right to access portions of the
defendant's sentencing memorandum that referenced
information in the pre-sentence report); United States v.
Chanthaboury, Na. 2:12-cr-00188-GEB, 2013 WL 6404989, at
* 1 (E.D. Cal. Dec. 6, 2013) (recognizing a First
Amendment right to access of sentencing memoranda). As such,
the Court concludes that sentencing memoranda historically
have been open to the press and general public. While
the-Court reaches this holding, it notes that sentencing
memoranda that include information regarding a
defendant's cooperation are often filed under seal.
Armstrong, 2016 WL 2643041, at *2.
Court next considers whether public access to sentencing
memoranda plays a significant and positive role in the
functioning of a particular process. As the United States
Court of Appeals for the First Circuit recognized, public
access to sentencing memoranda permits public oversight at
sentencing and serves to "'check any temptation that
might be felt by either the prosecutor or the court... to
seek or impose an arbitrary or disproportionate
sentence'; promote accurate fact-finding; and in general
stimulate public confidence in the criminal justice system by
permitting members of the public to observe that the
defendant is justly sentenced." Kravetz, 706
F.3d at 57 (internal ...