Court Discusses Standard for Sealing Documents That Show Cooperation

US v. Doe: In 2012, Doe was convicted of a drug conspiracy. At sentencing, he received a downward departure based on a substantial assistance motion from the Government (apparently an oral one). In 2016, Doe sought a reduced sentence under 18 USC 3582(c)(2) due to retroactive changes in the Guidelines. The district court denied them motion in an order that explained that Doe’s original sentence was based partly on his cooperation. In 2018, Doe moved to have the order sealed, arguing that “the district court’s reference to his cooperation threatened his safety because the order was available to other inmates through the prison library.” The district court denied the motion in a brief order without any real analysis.

The Fourth Circuit reversed that decision, 2-1. The court first held that an order denying a motion to seal is a final order that can be appealed by the defendant seeking to seal documents. On the merits, the court first concluded that the proper standard to apply was the public’s right to access court records under the First Amendment. Under that standard, the court must make a decision on sealing a document on “specific factual findings” rather than “conclusory assertions.” The court noted that the district court’s order in this case “made no specific findings at all.” After reviewing the various competing interests, the court ultimately concluded that, generally, “protecting cooperators from harm is a compelling interest that can justify sealing” and sealing was justified here because “the record demonstrates that Defendant faces a heightened risk” of retaliation.

Judge Richardson dissented, arguing that regardless of the proper analytical standard, Does “motion is fatally underinclusive” because Doe’s cooperation was not secret at the time he sought to have the order sealed.

Congrats to the Defender office in EDNC on the win!

Restricted Access to Any Sexual Material OK Due to Individual Assessment of Defendant

US v. Van Donk: Van Donk was on supervised release arising from a conviction for possession of child pornography. Through several violations and revocations he had always been required to participate in sex offender counseling and avoiding various forms of sexually explicit material. His most recent violation (and revocation) resulted in the district court imposing a condition that Van Donk abstain from child pornography specifically (after the parties agreed that a blanket ban on pornography would be too broad). However, it also required him to continue sex offender counseling with a provider, who testified at the revocation hearing, which required Van Donk to abstain from any pornography (she claims that pornography "isn't healthy" for anyone), which she defined to include "anything that aroused [Van Donk] enough . . . even a scene in a mainstream movie or television show." Thus, while the pornography condition itself was narrowed, Van Donk's requirement that he complete the sex offender program also required him accessing any kind of sexually explicit material. While this appeal was pending, Van Donk was released from prison back to supervised release, was discharged from the sex offender program, and for that (and other) reason was revoked and returned to prison once again.

On appeal, the Fourth Circuit affirmed the treatment condition, which included the broad ban on sexual material. After concluding that the appeal was still ripe, even though Van Donk was no longer in the sex offender program (he might be in the future), the court first held that the requirements of 18 USC 3583(d) for imposing special conditions of supervised release applied to the treatment program's pornography ban. The court pointed out that a treatment plan could not order a supervisee to do something that the court could not (it's example - learn to ride a unicycle!). Next, the court found that the condition was not unconstitutionally vague because, unlike general conditions dealing with pornography or sexually explicit materials, this condition came from a treatment program and was part of a dialog with Van Donk during his treatment. Therefore, there was no danger that he was unaware of the materials he was forbidden from accessing. Next, the court rejected an overbreadth challenge, holding that a condition that meets the requirements of  3583(d) could not be overbroad. Finally, the court held that the district court did not improperly delegate its function to the treatment program because it was the court, ultimately, that would conclude if Van Donk violated the conditions of his supervised release.

Special SR Conditions Must Be Imposed at Sentencing Hearing

US v. Rogers: Rogers was on supervised release when he was convicted of state charges involving drugs. At the revocation hearing, the district court imposed a sentence of 24 months in prison, plus an additional term of supervised release. It did not mention anything about conditions of supervised release. Weeks later, in the written judgement order, the district court imposed 26 conditions of supervised release - four mandated by statute and 22 "standard" conditions that had been adopted by the court in a standing order.

On appeal, the Fourth Circuit vacated Rogers' sentence. It held that imposing conditions of supervised release in a written judgment, without first announcing them orally at sentencing, violated the defendant's right to be present. While the oral pronouncement of a term of supervised release was enough to cover the mandatory conditions (the four set forth in the statute), it could not cover the other 22 conditions which were, in spite of the standing order, "special" conditions of supervised release that have to be tailored to the specific needs of the defendant upon whom they are imposed. The court suggested that sentencing courts could incorporate such conditions by reference at sentencing, but there was no such reference made in this case so the sufficiency of that incorporation was not before the court.

Congrats to the Defender office in Western NC on the win!