March 13, 2008 · A federal appeals court held that documents relating to a secret guilty plea of a drug cartel defendant, including the summary of what he was pleading to, are presumed open, yet ruled that portions of hearings conducted to determine whether to make public or keep sealed those documents are closed.
The U.S. Circuit Court of Appeals (9th Cir.) also issued a brief, unpublished memorandum the same day, March 4, on a separate matter regarding the guilty plea of a New York businessman charged with money laundering that is in line with its published opinion.
The convoluted legal battle stems from an effort by Copley Press Inc., publisher of The San Diego Union-Tribune, to gain access to information about secret guilty pleas in both cases.
In July, the Reporters Committee filed a friend-of-the-court brief in support of opening up the hearings and transcripts of businessman Thomas Kontogiannis’ guilty plea agreement, after prosecutors appealed a judge’s decision to unseal the documents. The New York financer was involved with the scandal surrounding former California GOP Rep. Randy “Duke” Cunningham, and was cooperating with federal prosecutors in the continuing investigation.
In the three-judge panel’s unanimous opinion, Chief Judge Alex Kozinski wrote that the experience and logic test gives the public a qualified First Amendment right of access to the documents related to the secret plea agreement, including the “plea colloquy” of Ismael Higuera Guerrero in the drug cartel case. A plea colloquy is a discussion between the judge and defendant about whether the defendant understands what he is pleading guilty to and what the punishment is.
“As to these documents, the only question is whether the right to access is overcome by a compelling governmental interest,” Kozinski wrote in the 12-page opinion.
Applying the “compelling interest” standard, Konzinski wrote that the government’s interest in ensuring the safety of those involved in the case overrides the presumption of openness regarding the hearings and the related transcripts where prosecutors explained why they want to keep secret the plea agreement.
“So by publishing these transcripts, we would force litigants to take a great risk,” Kozinski wrote. “If they move to seal and lose, they make public all the additional secrets they have revealed to us in making a case for sealing the proceedings.”
In the unpublished opinion, the same panel stated that the same type of hearings and transcripts in the Kontogiannis case will also remain sealed by following the same “compelling interest” standard.
Both cases began cloaked with much more secrecy, with U.S. District Court Judge Larry Burns agreeing to temporarily seal the entire proceedings to maintain the safety of those involved in both cases. As months went on, however, Burns deemed the safety risk was much lower and ordered most of the plea transcript and documents unsealed. Burns eventually released even more documents and portions of the hearings where prosecutors explained their reasons for wanting secrecy.
Guylyn Cummins, a lawyer representing the Tribune, said that although not all the records sought were released in the drug cartel case, simply taking the step to seek out the records helps open up the litigation process.
“Just knocking at secrecy’s door we got more information than we would have otherwise,” Cummins said. “The court ruled you cannot proceed in secret so that the public doesn’t know what is occurring.”
The court has also kept sealed some documents in the Kontogiannis case at the appellate level, such as the government’s brief on appeal, which includes a memorandum supporting the original motion to seal, and the media amicus briefs.
Laura Handman, a lawyer at Davis, Wright, Tremaine LLP who represents the media organizations supporting the Tribune‘s fight to unseal the records in this case, said they plan to ask the court to address their additional requests.
Handman said she hopes the court will apply the “compelling interest” standard in the Kontogiannis case to open the appellate documents. Following these criteria, she said, the court should unseal those documents consistent with the drug cartel case.
Even the appellate docket in the case was hidden from public view, although it became available after the court’s decision was announced, Handman said.
“It’s a modest success,” she said. “The docket was unsealed. Keeping it sealed in my view is most egregious because you don’t even know what you’re not seeing. The court unsealed it but with no discussion.”
(U.S. v. Higuera-Guerrero; U.S. v. U.S. District Court for the Southern District of California; Media counsel: Guylyn Cummins, Sheppard, Mullin, Richter & Hampton LLP, San Diego) — Amy Harder