Law Of Unintended Consequences As To Protecting Cooperators

As widely recognized, individuals who cooperate with law enforcement risk harm or, more often, the threat of harm. One way third parties identify cooperators is from court dockets, specifically publicly filed documents that speak to their assistance or agreements (for example, cooperation agreements). In an effort to protect cooperators, district courts take various steps to shield materials substantiating a defendant’s assistance to law enforcement from public view.

Historically, a common method is ordering cooperation agreements sealed. However, to most criminal defense practitioners and defendants, such sealed filings and related requests (multiple motions to continue sentencing) indicate the moving party’s cooperation. Courts have thus undertaken alternative methods, including enacting rules directing sealed pleadings in every case. The District of Utah is one such court. Pursuant to Local Rule DUCrimR 11-1, when a defendant pleads guilty to a federal offense, a separate, sealed “plea supplement” is docketed in conjunction with the plea agreement—the theory being that if every defendant’s docket contains a sealed filing than one cannot readily distinguish those who cooperated from those who did not.

Today, the Tenth Circuit affirmed a defendant’s objection to that practice. Michael Alexander Bacon did not cooperate with authorities and objected to a sealed supplement being docketed in his case. In refusing to sign the supplement, Mr. Bacon “explained to the court that ‘[w]hen you go off to prison and you’ve got something sealed inside your paperwork and the yard gets the paperwork and they see you’ve got a sealed document, they think you cooperated, and they want to hurt you.’” In other words, Mr. Bacon argued that he is the victim of the local rule’s unintended consequences: the rule subjected him to the potential harms associated with cooperation despite his providing no assistance to law enforcement.

The district court was unmoved: “We’re trying to get uniformity among the districts so that everybody has a sealed supplement.” But, analyzing the issue under a plain error standard (the appeal advanced a new theory), the Tenth Circuit sided with Mr. Bacon.

“The record demonstrates that the district court did not consider this presumption of access to judicial records. As such, there is a reasonable probability that, but for the district court’s error, Mr. Bacon’s plea supplement would not have been filed under seal. Moreover, the district court did not conduct any case-specific balancing to determine whether the government’s interest ‘heavily outweigh[ed]’ the public interest in access. Had the district court considered the government’s interest in the context of the specific case (including the undisputed evidence that Mr. Bacon was endangered by the sealed plea supplement) rather than relying solely on the local rule, there is a reasonable probability that Mr. Bacon’s plea supplement would not have been filed under seal.”

The full opinion is well worth a read.

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