Case: 17-2644 Document: 003112807594 Page: 1 Date Filed: 12/20/2017 No. 17-2644 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT UNITED STATES OF AMERICA, Appellee v. KEONNA THOMAS, Defendant-Appellee and AUSTIN NOLEN and PHILLY DECLARATION, LLC, Intervenor-Appellants On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 15-cr-171) BRIEF OF INTERVENOR-APPELLANTS AUSTIN NOLEN AND PHILLY DECLARATION, LLC Michael Berry Paul Safier BALLARD SPAHR LLP 1735 Market Street, 51st Floor Philadelphia, Pennsylvania 19103 Telephone: (215) 665-8500 berrym@ballardspahr.com safierp@ballardspahr.com Attorneys for Intervenor-Appellants Case: 17-2644 Document: 003112807594 Page: 2 Date Filed: 12/20/2017 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 and L.A.R. 26.1, Philly Declaration, LLC, states that it is a limited liability company, and that Austin Nolen is its sole member. It has no parent corporation, and no publicly held corporation has a financial interest in the outcome of the litigation. Dated: December 20, 2017 s/ Michael Berry Michael Berry Case: 17-2644 Document: 003112807594 Page: 3 Date Filed: 12/20/2017 TABLE OF CONTENTS Page STATEMENT OF JURISDICTION..........................................................................1  STATEMENT OF THE ISSUES...............................................................................2  STATEMENT OF RELATED CASES AND PROCEEDINGS ..............................3  STATEMENT OF THE CASE ..................................................................................4  STATEMENT OF FACTS ........................................................................................6  I. THE PROSECUTION OF KEONNA THOMAS ................................6  II. THE DECLARATION’S MOTION TO INTERVENE AND UNSEAL......................................................................................7  III. PROCEEDINGS ON THE DECLARATION’S MOTION TO INTERVENE AND UNSEAL ............................................................10  IV. THE DISTRICT COURT’S OPINION AND ORDER ......................12  V. SUBSEQUENT PROCEEDINGS ......................................................12  SUMMARY OF ARGUMENT ...............................................................................14  STANDARD OF REVIEW .....................................................................................15  ARGUMENT ...........................................................................................................16  I. A PARTY SEEKING TO OVERRIDE THE PUBLIC’S FIRST AMENDMENT AND COMMON LAW RIGHTS OF ACCESS TO JUDICIAL RECORDS MUST MEET A HIGH BURDEN .....................................................16  II. THE DISTRICT COURT’S SEALING OF THE “PLEA DOCUMENT” DID NOT COMPORT WITH THE REQUIREMENTS OF THE FIRST AMENDMENT ........................19  III. THE DISTRICT COURT’S SEALING OF THE REPLY BRIEF AND EXHIBIT WAS WITHOUT PROPER JUSTIFICATION ................................................................................25  CONCLUSION ........................................................................................................32  i Case: 17-2644 Document: 003112807594 Page: 4 Date Filed: 12/20/2017 TABLE OF CITATIONS Cases Page(s) Chafin v. Chafin, 568 U.S. 165 (2013) ............................................................................................ 28 Constand v. Cosby, 833 F.3d 405 (3d Cir. 2016) ............................................................................... 28 Fair Lab. Practices Assocs. v. Riedel, 666 F. App’x 209 (3d Cir. 2016) ........................................................................ 22 Globe Newspaper Co. v. Super. Ct., 457 U.S. 596 (1982) .............................................................................................. 4 In re Capital Cities/ABC, Inc., 913 F.2d 89 (3d Cir. 1990) ..........................................................................passim In re Cendant Corp., 260 F.3d 183 (3d Cir. 2001) ...................................................................16, 18, 19 In re Grand Jury Investigation, 630 F.2d 996 (3d Cir. 1980) ............................................................................... 30 In re Grand Jury Matter, 682 F.2d 61 (3d Cir. 1982) ...........................................................................30, 31 In re Newark Morning Ledger Co., 260 F.3d 217 (3d Cir. 2001) .........................................................................25, 26 In re Providence Journal Co., 293 F.3d 1 (1st Cir. 2002) ................................................................................... 20 Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157 (3d Cir. 1993) .........................................................................29, 30 Littlejohn v. BIC Corp., 851 F.2d 673 (3d Cir. 1988) ............................................................................... 16 Mokhiber v. Davis, 537 A.2d 1100 (D.C. 1988) ................................................................................ 30 ii Case: 17-2644 Document: 003112807594 Page: 5 Date Filed: 12/20/2017 N. Jersey Media Grp. Inc. v. United States, 836 F.3d 421 (3d Cir. 2016) ........................................................................passim N.Y. Times v. Sullivan, 376 U.S. 254 (1964) ............................................................................................ 15 Oregonian Publ’g Co. v. Dist. Ct., 920 F.2d 1462 (9th Cir. 1990) ...................................................................... 19, 23 Phoenix Newspapers, Inc. v. Dist. Ct., 156 F.3d 940 (9th Cir. 1998) .............................................................................. 21 Press-Enterprise Co. v. Super. Ct., 478 U.S. 1 (1986) ..........................................................................................17, 20 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ........................................................................................4, 22 United States v. Antar, 38 F.3d 1348 (3d Cir. 1994) ........................................................................passim United States v. Aref, 533 F.3d 72 (2d Cir. 2008) ................................................................................. 22 United States v. Chang, 47 F. App’x 119 (3d Cir. 2002) .......................................................................... 31 United States v. Criden, 648 F.2d 814 (3d Cir. 1981) ............................................................................... 18 United States v. Criden, 675 F.2d 550 (3d Cir. 1982) ............................................................................... 16 United States v. DeJournett, 817 F.3d 479 (6th Cir. 2016) ........................................................................19, 23 United States v. Haller, 837 F.2d 84 (2d Cir. 1988) ................................................................................. 19 United States v. Martin, 746 F.2d 964 (3d Cir. 1984) ............................................................................... 18 iii Case: 17-2644 Document: 003112807594 Page: 6 Date Filed: 12/20/2017 United States v. Moussaoui, 65 F. App’x 881 (4th Cir. 2003) ......................................................................... 20 United States v. Salerno, 796 F. Supp. 1099 (N.D. Ill. 1991) ..................................................................... 29 United States v. Smith, 123 F.3d 140 (3d Cir. 1997) ...............................................................1, 15, 16, 26 United States v. Smith, 776 F.2d 1104 (3d Cir. 1985) .......................................................................16, 26 United States v. Smith, 787 F.2d 111 (3d Cir. 1986) ............................................................................... 18 United States v. Wecht, 484 F.3d 194 (3d Cir. 2007) .............................................................16, 17, 18, 30 In re Wash. Post Co., 807 F.2d 383 (4th Cir. 1986) .............................................................................. 19 Wash. Post v. Robinson, 935 F.2d 282 (D.C. Cir. 1991) ...................................................................... 19, 28 Statutes & Other Authorities 18 U.S.C. § 3231 ........................................................................................................ 1 28 U.S.C. § 1291 ........................................................................................................ 1 Federal Rule of Criminal Procedure 6(e) ..........................................................passim iv Case: 17-2644 Document: 003112807594 Page: 7 Date Filed: 12/20/2017 STATEMENT OF JURISDICTION This is an appeal from a June 28, 2017 order denying a motion to unseal. A1-2. The District Court had jurisdiction over the underlying criminal proceeding under 18 U.S.C. § 3231, while this Court has jurisdiction over this appeal under 28 U.S.C. § 1291 because orders “denying access to court proceedings or records are appealable as final orders.” United States v. Smith, 123 F.3d 140, 145 (3d Cir. 1997). Intervenor-Appellants filed their Notice of Appeal on July 27, 2017. A1-2. 1 Case: 17-2644 Document: 003112807594 Page: 8 Date Filed: 12/20/2017 STATEMENT OF THE ISSUES 1. Did the District Court’s sealing of a complete document filed by a criminal defendant in connection with her guilty plea violate the public’s First Amendment right to access that document? (This issue was raised below at A9095, 123-26, 168-69, and ruled upon in the District Court’s June 28 opinion at A810.) 2. Did the District Court’s decision to partially seal a brief and appended exhibit on the basis of grand jury secrecy violate the public’s First Amendment or common law rights to access court records when the brief and exhibit were filed by a criminal defendant seeking a bill of particulars, and the sealed material (a) appears to have been disclosed in other public filings, (b) had been provided by the Government to the defendant in discovery, and (c) appears to have been collected by the Government independently, not through the grand jury? (This issue was raised below at A90-95, 121-23, 165-68, and ruled upon in the District Court’s June 28 opinion at A5-8.) 2 Case: 17-2644 Document: 003112807594 Page: 9 Date Filed: 12/20/2017 STATEMENT OF RELATED CASES AND PROCEEDINGS This case has not been before this Court previously. The sole related case or proceeding of which the Intervenor-Appellants are aware is Defendant-Appellee’s pending appeal to this Court. See United States v. Thomas, 17-3041 (3d Cir. 2017). 3 Case: 17-2644 Document: 003112807594 Page: 10 Date Filed: 12/20/2017 STATEMENT OF THE CASE This is an appeal from an order denying the public access to sealed filings in a criminal case. Nearly 40 years ago, in Richmond Newspapers, Inc. v. Virginia, the Supreme Court recognized that the First Amendment affords the public a right to access criminal trials and proceedings. Chief Justice Burger’s plurality opinion observed that “[t]o work effectively, it is important that society’s criminal process ‘satisfy the appearance of justice,’ and the appearance of justice can best be provided by allowing people to observe it.” 448 U.S. 555, 572-73 (1980) (internal citation omitted). As the Supreme Court has explained, the right to access criminal proceedings “permits the public to participate in and serve as a check upon the judicial process – an essential component in our structure of self-government.” Globe Newspaper Co. v. Super. Ct., 457 U.S. 596, 606 (1982). This right is at its zenith in criminal matters where the most serious powers of government are at stake. Thus, as the Supreme Court and this Court have made clear, the public’s First Amendment right of access, and the accompanying common law right to access judicial records, can only be overcome in certain, narrow circumstances, and only when the party seeking to seal proceedings or records can meet a high burden. Appellants Philly Declaration, LLC and its Managing Editor Austin Nolen (collectively, “The Declaration”) intervened in the proceedings below to vindicate 4 Case: 17-2644 Document: 003112807594 Page: 11 Date Filed: 12/20/2017 the public’s right to access records in the criminal case against Keonna Thomas, which involved matters of significant public interest – the investigation and prosecution of a United States citizen accused of cooperating with a foreign terrorist organization. A81-100. Prior to The Declaration’s intervention, the District Court had permitted the sealing of nearly a dozen records with no public explanation for why those records were sealed. A86-88, 102. In response to The Declaration’s motion, the Government agreed that all but five of the records should be unsealed. A113-16. After The Declaration withdrew its request to unseal one record that contained classified material, the District Court upheld the sealing of the four remaining records at issue. A3-11. Subsequently, the Government agreed to the unsealing of two of those records, leaving just two records in dispute. A123. Those records are a fully sealed document (ECF 87)1 identified on the docket only as a “plea document” (the “Plea Document”), and a reply brief in support of the defendant’s motion for a bill of particulars (ECF 47), where the reply brief is partially under seal and an exhibit to that brief is wholly sealed (collectively, the “Reply Brief and Exhibit”). 1 References to “ECF __” are to the ECF numbers of records on the District Court docket. 5 Case: 17-2644 Document: 003112807594 Page: 12 Date Filed: 12/20/2017 STATEMENT OF FACTS I. THE PROSECUTION OF KEONNA THOMAS The underlying case involves the prosecution of Keonna Thomas, a mother of two residing in North Philadelphia, on charges that she attempted to provide material support and resources to the Islamic State of Iraq and the Levant (ISIL), a designated foreign terrorist organization, in violation of 18 U.S.C. § 2339B. A39, 156. She was arrested on that charge on April 3, 2015. A14, 39-40. Initially, Thomas was arrested pursuant to a Criminal Complaint alleging that she “attempted to travel overseas in order to join, fight with, and martyr herself on behalf of ISIL.” A40. The probable cause for Thomas’s arrest was based on surveillance of her social media posts and her “electronic communication[s]” with three co-conspirators, identified as “a known Somalia-based violent jihadi fighter originally from Minnesota,” “a known overseas ISIL fighter,” and “a radical Islamic cleric located in Jamaica.” A41, 43. Subsequently, Thomas was indicted by a grand jury, and she entered a plea of not guilty. A26-27 (ECF 12, 16). During the course of proceedings, Thomas moved – unsuccessfully – for a bill of particulars, arguing that the Government’s allegations against her left her unable to discern the basis on which the Government was accusing her of actually “attempting to provide herself as 6 Case: 17-2644 Document: 003112807594 Page: 13 Date Filed: 12/20/2017 personnel to ISIL,” as opposed simply to communicating via email and social media with members of ISIL. A153-54 (emphasis in original); see also A62-63. On September 20, 2016, Thomas amended her plea to guilty. A34 (ECF 88). On September 11, 2017, Thomas was sentenced to 96 months imprisonment, along with 10 years of supervised release. A36 (ECF 122). She then appealed to this Court. A37 (ECF 124). II. THE DECLARATION’S MOTION TO INTERVENE AND UNSEAL The Declaration is an online news magazine based in Philadelphia that focuses on reporting about city, state, and federal government activities through means of public records requests. See A88; http://phillydeclaration.org. Following Thomas’s arrest The Declaration, like other local and national media, wrote extensively about the case against her.2 2 See A88; see also, e.g., Austin Nolen, Philadelphia Woman Faces Charges for Allegedly Attempting to Join ISIS, The Declaration (Apr. 7, 2015), https://phillydeclaration.org/2015/04/07/philadelphia-woman-faces-charges-forallegedly-attempting-to-join-isis; Austin Nolen, Keonna Thomas Indicted: What We Know About the Investigation So Far, The Declaration (Apr. 24, 2015), https://phillydeclaration.org/2015/04/24/keonna-thomas-indicted-what-we-knowabout-the-investigation-so-far/; Pete Williams & Tracy Connor, Keonna Thomas, Philadelphia Mom, Charged With Plan to Join ISIS, NBC News (Apr. 4, 2015), https://www.nbcnews.com/storyline/isis-terror/philadelphia-woman-keonnathomas-charged-plan-join-isis-n335226; Scott Calvert & Andrew Grossman, Philadelphia Woman Keonna Thomas Charged With Attempting to Join ISIS, Wall St. J. (Apr. 3, 2015), https://www.wsj.com/articles/philadelphia-woman-keonnathomas-charged-with-attempting-to-join-isis-1428078216; Philly Woman Accused of Trying to “Martyr Herself” for ISIS, CBS News (Apr. 3, 2015), 7 Case: 17-2644 Document: 003112807594 Page: 14 Date Filed: 12/20/2017 On November 16, 2016, The Declaration moved to intervene in the proceedings below for the purpose of asserting the public’s right to access an array of records that had been placed under seal. A81-102. At the time, a significant number of records filed in the case were completely closed from public view. Specifically, according to the docket, the District Court had fully sealed at least ten individual records bearing on five different motions or matters:  The Government’s “sealed motion.” On July 22, 2015, the Government filed a document identified on the docket as a “sealed motion.” A16 (ECF 24).3 The court entered a “sealed order,” ostensibly granting that motion, on August 19, 2015. A16 (ECF 26). The docket provided no further explanation as to either document.  The Government’s motion for a protective order. On November 13, 2015, the Government moved, ex parte and entirely under seal, for a protective order under section 4 of the Classified Information Procedures Act (“CIPA”) and Rule 16(d)(1) of the Federal Rules of Criminal Procedure. A16-17 (ECF 31). The Court granted the Government’s motion in a sealed order, which https://www.cbsnews.com/news/philadelphia-woman-keonna-thomas-accused-oftrying-to-martyr-herself-for-isis. 3 The copy of the District Court docket found at pages A12-22 of the Appendix is the docket as it existed when The Declaration initially filed its motion to intervene. The copy of the District Court docket at pages A23-38 of the Appendix is the current docket, which reflects the fact that a number of records were subsequently unsealed. 8 Case: 17-2644 Document: 003112807594 Page: 15 Date Filed: 12/20/2017 appeared on the docket as “Judicial Document as to Keonna Thomas,” on December 1, 2015. A17 (ECF 35).  Thomas’s motion for a bill of particulars. On April 1, 2016, Thomas moved to require the Government to provide her with a bill of particulars, pursuant to Federal Rule 7(f). A17 (ECF 40). Thomas’s April 25, 2016, reply brief in support of that motion, A18 (ECF 47), as well as a court order entered that day, A18 (ECF 48), were then filed under seal.  Thomas’s motion to compel disclosure of methods of surveillance. On June 30, 2016, Thomas moved to compel the Government to disclose the methods of surveillance it used in its investigation. Although that motion and the Government’s response were filed under seal initially, they were later made available to the public. A20 (ECF 72).4 Nevertheless, at the time The Declaration intervened, several records relating to the motion remained under seal: (1) two court orders dated June 30, A20 (ECF 64, 66); (2) the undocketed record of an ex parte presentation Thomas made to the District Court on August 12, 2016 in support of her motion, A102, 108; and (3) a court order entered on July 26, 2016, A20 (ECF 70). 4 Those records were unsealed in response to a letter request Nolen submitted to the Court prior to The Declaration’s formal intervention. See A104. 9 Case: 17-2644 Document: 003112807594 Page: 16 Date Filed: 12/20/2017  Thomas’s plea. On September 20, 2016, the day Thomas pleaded guilty, she filed a document under seal. That document was identified on the public docket only as a “Plea Document.” A21 (ECF 87). For each of these sealed records, no other information was publicly available about what the record was or the basis for its sealing. The only information provided to the public were the bare descriptions of the items found on the docket. In its motion, The Declaration sought public access to each of the ten sealed docket items, the record of Thomas’s ex parte presentation to the District Court in support of her motion seeking information about the Government’s surveillance methods, and search warrant materials pertaining to the Government’s investigation and prosecution of Thomas. A81-83, 99, 102. III. PROCEEDINGS ON THE DECLARATION’S MOTION TO INTERVENE AND UNSEAL In its Opposition to The Declaration’s Motion, the Government conceded that there was no basis to seal most of the records at issue. A107-09 (Government’s proposed order); A113-15 (Government’s brief). Accordingly, the Government agreed that six of the ten records should be fully or partially unsealed, and that The Declaration should be provided with access to Thomas’s ex parte presentation and the search warrant materials. A107-09. The Government opposed the unsealing of, among other records, the Plea Document, the Government’s “sealed motion” and the resulting “sealed order” 10 Case: 17-2644 Document: 003112807594 Page: 17 Date Filed: 12/20/2017 (ECF 24 and 26), and portions of documents that Thomas filed in support of her motion for a bill of particulars. A113-16. The Government argued that the Plea Document, “sealed motion,” and “sealed order” should remain under seal in their entirety for reasons the Government set out in an “Addendum,” which the Government filed under seal. A115-16. Because the Government’s justification for seeking to maintain the seal over those records was itself sealed, The Declaration was not provided with any information as to the nature of those records or the purported grounds for their continued sealing. With respect to the papers that Thomas filed in support of her motion for a bill of particulars, the Government agreed the filings should be unsealed with two exceptions: a “Grand Jury exhibit” attached to Thomas’s reply brief in support of her motion, and “any quotes thereof and citations thereto” contained in that reply brief. A113-14. On March 8, 2017, the District Court issued an order granting in part and denying in part The Declaration’s motion. A129-30. The Court granted The Declaration’s motion to intervene and ordered that the records the Government had agreed should be unsealed – and only those records – be unsealed. The District Court then ordered The Declaration to review the unsealed materials and file a supplemental memorandum to address the records still under seal. A130. 11 Case: 17-2644 Document: 003112807594 Page: 18 Date Filed: 12/20/2017 In its Supplemental Memorandum, The Declaration maintained that the Plea Document, “sealed motion,” “sealed order,” and Reply Brief and Exhibit had been sealed improperly. A165-70. Neither the Government nor Thomas filed a response. IV. THE DISTRICT COURT’S OPINION AND ORDER On June 28, 2017, the District Court issued an order and opinion in which it denied The Declaration’s motion as to the remaining records at issue. See A3-11. With respect to the Plea Document (ECF 87), “sealed motion” (ECF 24), and “sealed order” (ECF 26), the District Court acknowledged that those records were subject to a First Amendment or common law right of access, but nevertheless held that considerations of national and personal security justified their continued sealing in full. A8-10. With respect to the Reply Brief and Exhibit (ECF 47), the District Court concluded that each contained information subject to the secrecy requirements imposed by Federal Rule of Criminal Procedure 6(e). A5-8. On that basis, the District Court held that the relevant portions of the Reply Brief and the Exhibit were not subject to a right of access and should remain under seal. A8. The Declaration timely appealed from that order. A1-2. V. SUBSEQUENT PROCEEDINGS Even after The Declaration moved to intervene, the District Court continued its practice of sealing filings in the absence of public, on-the-record findings. A 12 Case: 17-2644 Document: 003112807594 Page: 19 Date Filed: 12/20/2017 total of nine documents were filed under seal on the docket since February 2017. See A34-36. Several of these documents (ECF 95, 96, 99, 100) appear to relate to The Declaration’s motion to unseal itself. A34-35. Others (ECF 110, 115, 119, 120, 121) appear to bear on Thomas’s sentencing. A35-36. All of these are sealed in their entirety, and no information about them has been provided other than what appears in each docket entry: “Sealed Addendum” (ECF 95), “Sealed Order” (ECF 99, 100), “Sentencing Document” (ECF 110), “Sealed Exhibits” (ECF 115), or “Judicial Document” (ECF 119, 120, 121). A34-36. After Thomas was sentenced, at the Government’s request, the District Court unsealed two records that The Declaration had sought to unseal: the “sealed motion” and “sealed order” (ECF 24 and 26). A36-37 (ECF 123). Those were two of the three records that the Government had previously maintained should be sealed for reasons it refused to disclose publicly. The unsealing revealed that the “sealed motion” (ECF 24) was a request by the Government that the Court impose certain common security precautions that were publicly known to anyone seeking to attend the proceedings, such as requiring that individuals proceed through a metal detector and show identification before entering the courtroom, and that they leave cellular telephones with courthouse security. A46-53. The “sealed order” (ECF 26) is an order granting that request. A55-57. 13 Case: 17-2644 Document: 003112807594 Page: 20 Date Filed: 12/20/2017 Thus, in this appeal, only two records are at issue – the Plea Document (ECF 87) and the Reply Brief and Exhibit (ECF 47). SUMMARY OF ARGUMENT The continued sealing of the Plea Document and Reply Brief and Exhibit is inconsistent with the fundamental principles governing access to court records. First, the District Court sealed the Plea Document without (a) providing specific, individualized findings as to the necessity of continued sealing, (b) adequately considering alternatives to wholesale sealing, or (c) providing The Declaration with a meaningful opportunity to oppose sealing. Each of those errors constitutes an independent ground for vacating that portion of the District Court’s order. Second, the District Court’s sealing of the Reply Brief and Exhibit was based on its erroneous conclusion that the grand jury secrecy imposed by Federal Rule of Criminal Procedure 6(e) barred their disclosure. In fact, the substance of the sealed material already appears to have been disclosed in other public filings. Moreover, in the circumstances presented by this case, Rule 6(e) does not apply to the records because (a) the underlying material was provided in discovery to Thomas, a criminal defendant who is not bound by the secrecy requirements imposed by Rule 6(e); and (b) the information in the materials was developed 14 Case: 17-2644 Document: 003112807594 Page: 21 Date Filed: 12/20/2017 outside of the grand jury process. Thus, Rule 6(e) does not bar their disclosure, and the District Court erred in holding otherwise. Accordingly, The Declaration respectfully requests that this Court vacate the District Court’s order and either direct the District Court to unseal all the records, or direct it to consider whether and to what extent these records may be sealed consistent with the constitutional and common law rights of access. STANDARD OF REVIEW This Court exercises “plenary review” over whether a judicial record is subject to a First Amendment or common law right of access. Smith, 123 F.3d at 146 (citing United States v. Antar, 38 F.3d 1348, 1356-57 (3d Cir. 1994)). This Court reviews the denial of access to records subject to the First Amendment right of access with a scope “substantially broader than that for abuse of discretion.” Id. (quoting Antar, 38 F.3d at 1357). That is because “in the First Amendment context,” there is a “duty of reviewing courts to engage in an independent factual review of the full record.” Antar, 38 F.3d at 1357 (citing N.Y. Times v. Sullivan, 376 U.S. 254, 285 (1964)). This “broader review includes independent consideration of the district court’s order and the factual findings inferred from the evidence before it.” Id. (quoting In re Capital Cities/ABC, Inc., 913 F.2d 89, 92 (3d Cir. 1990)). Where a common law right of access is at stake, this Court reviews an order denying access for abuse of discretion. Smith, 123 F.3d at 146. 15 Case: 17-2644 Document: 003112807594 Page: 22 Date Filed: 12/20/2017 ARGUMENT I. A PARTY SEEKING TO OVERRIDE THE PUBLIC’S FIRST AMENDMENT AND COMMON LAW RIGHTS OF ACCESS TO JUDICIAL RECORDS MUST MEET A HIGH BURDEN Judicial records in criminal proceedings are subject to both a First Amendment and common law right of access. See United States v. Smith, 776 F.2d 1104, 1112-13 (3d Cir. 1985); In re Cendant Corp., 260 F.3d 183, 192, 198 n.13 (3d Cir. 2001). These rights are “firmly established,” Smith, 123 F.3d at 146, and “well-settled,” Cendant Corp., 260 F.3d at 192. This Court has emphasized that the right to access court records and proceedings enhances “the quality of justice dispensed by the court,” “diminishes possibilities for injustice, incompetence, perjury, and fraud,” and “provide[s] the public with a more complete understanding of the judicial system and a better perception of its fairness.” Cendant Corp., 260 F.3d at 192 (quoting Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988)). These considerations are particularly pressing in criminal proceedings because “the process by which the government investigates and prosecutes its citizens is an important matter of public concern.” United States v. Wecht, 484 F.3d 194, 210 (3d Cir. 2007); id. (“[T]he public has a ‘vital interest in evaluating the public officials who work in the criminal justice system.’” (quoting United States v. Criden, 675 F.2d 550, 557 (3d Cir. 1982))). 16 Case: 17-2644 Document: 003112807594 Page: 23 Date Filed: 12/20/2017 Whether a First Amendment right of access attaches to a particular record is determined by applying the two-prong “experience” and “logic” test. N. Jersey Media Grp. Inc. v. United States, 836 F.3d 421, 428-29 (3d Cir. 2016). Under that test, a court first examines “whether there has been a tradition of opening to the press the matter in question” and then considers “whether public access plays a positive role in the judicial process 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 429 (quoting Wecht, 537 F.3d at 233-34). When a First Amendment right attaches to a record, the public has a “presumptive right of access” to that record that “may not be abridged absent the satisfaction of substantive and procedural protections.” Antar, 38 F.3d at 1359. As a matter of substance, a First Amendment right of access can be “overcome only by an overriding interest based on findings that closure is essential to preserve higher values.” N. Jersey Media Grp., 836 F.3d at 429 (quoting Press-Enterprise Co. v. Super. Ct., 478 U.S. 1, 9 (1986)). Any closure must be “narrowly tailored to serve” that overriding interest. Id. And, the sealing must be “the least restrictive means” – there must be no “alternative measures” available. Antar, 38 F.3d at 1359. As a matter of procedure, if a court finds closure is warranted, that finding must be “specific, individualized,” and “articulated on the record before closure is effected.” Id. As this Court has emphasized, these “procedural requisites to 17 Case: 17-2644 Document: 003112807594 Page: 24 Date Filed: 12/20/2017 closure are crucial in order to protect against erroneous restrictions upon the right of access.” Id. at 1362. Even where the First Amendment right of access does not apply, the common law right of access attaches to all judicial records. Wecht, 484 F.3d at 207-08. For these purposes, a judicial record is a document that is meant to “aid . . . the judge in rendering a decision” or serves “some other judicial purpose.” N. Jersey Media Grp., 836 F.3d at 436; accord Cendant Corp., 260 F.3d at 192 (explaining that a judicial record is a “document [that] has been filed with the court” or is “otherwise somehow incorporated or integrated into a district court’s adjudicatory proceedings”). The common law right of access “encompasses all ‘judicial records and documents,’” including “‘transcripts, evidence, pleadings, and other materials submitted by litigants.’” United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984) (citations omitted)). The existence of a common law right of access gives rise to a “strong presumption” of public access. United States v. Smith, 787 F.2d 111, 115 (3d Cir. 1986) (citing United States v. Criden, 648 F.2d 814, 823-29 (3d Cir. 1981)). That right can be overcome only if “the party . . . seeking sealing” meets its “‘burden of showing that the material is the kind of information that courts will protect’ and that ‘disclosure will work a clearly defined and serious injury.’” In re Cendant Corp., 260 F.3d at 194 (citation omitted). Prior to sealing a record subject to the 18 Case: 17-2644 Document: 003112807594 Page: 25 Date Filed: 12/20/2017 common law right of access, a court must “articulate[] the compelling countervailing interests” that justify closure and make “specific findings” that closure is necessary. Id. at 194, 198 (internal marks and citation omitted). II. THE DISTRICT COURT’S SEALING OF THE “PLEA DOCUMENT” DID NOT COMPORT WITH THE REQUIREMENTS OF THE FIRST AMENDMENT The District Court’s sealing of the Plea Document met neither the stringent substantive standard nor proper procedural requirements for sealing. Plea agreements and related documents are subject to a First Amendment right of access. See, e.g., Wash. Post v. Robinson, 935 F.2d 282, 288 (D.C. Cir. 1991) (recognizing, “[i]n accord with the rulings of our sister Second, Fourth, and Ninth Circuits,” “a first amendment right of access” to “plea agreements and related documents” (citing Oregonian Publ’g Co. v. Dist. Ct., 920 F.2d 1462, 1465 (9th Cir. 1990); United States v. Haller, 837 F.2d 84, 86 (2d Cir. 1988); In re Wash. Post Co., 807 F.2d 383, 390 (4th Cir. 1986))). As the Court of Appeals for the Sixth Circuit explained last year, “plea agreements are the quintessential judicial record, entitled to the protection of the First Amendment right to public access of judicial records.” United States v. DeJournett, 817 F.3d 479, 485 (6th Cir. 2016), reh’g denied, 820 F.3d 849 (6th Cir. 2016).5 5 The District Court acknowledged that the Plea Document is subject to a right of access under either the First Amendment or the common law. A8-10. The Government conceded the same in the proceedings below. A113. 19 Case: 17-2644 Document: 003112807594 Page: 26 Date Filed: 12/20/2017 The District Court’s treatment of the Plea Document was inconsistent with the First Amendment right of access in three respects: First, the grounds that the District Court identified for sealing the Plea Document were substantively inadequate. The District Court held that the Plea Document – along with the “sealed motion” and “sealed order” – should remain sealed due to potential threats to “national security” and “the safety of numerous individuals.” A10. To be sure, those are the kinds of considerations that could, in theory, overcome a First Amendment right of access. Nonetheless, merely invoking those considerations is insufficient. See, e.g., United States v. Moussaoui, 65 F. App’x 881, 887 (4th Cir. 2003) (“mere assertion of national security concerns by the Government is not sufficient reason to close a hearing or deny access to documents”); In re Providence Journal Co., 293 F.3d 1, 13 (1st Cir. 2002) (“[T]he First Amendment right of public access is too precious to be foreclosed by conclusory assertions or unsupported speculation.”). The “strong presumption” of access that arises under the First Amendment, “may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values.” N. Jersey Media Grp., 836 F.3d at 429 (emphases added) (quoting Press-Enterprise Co., 478 U.S. at 9 (internal marks omitted)). Accordingly, if a court finds closure is warranted, that finding must be “specific” and “individualized.” Antar, 38 F.3d at 1359 (emphases added). 20 Case: 17-2644 Document: 003112807594 Page: 27 Date Filed: 12/20/2017 The District Court did not meet that standard here. Rather, it provided only conclusory statements, and those statements referred, not to the Plea Document specifically, but generally to three filings that the Court simply grouped together. The District Court’s thin justification for sealing seems particularly suspect in this instance, given that two of the three records sealed in the name of “non-public” “law enforcement activities” (the “sealed motion” and “sealed order,” ECF 24 and 26) related to information that was publicly available to any person seeking to enter the courtroom. See supra at 13; see also Phoenix Newspapers, Inc. v. Dist. Ct., 156 F.3d 940, 951 (9th Cir. 1998) (“entry of specific findings allows fair assessment of the trial judge’s reasoning by the public and the appellate courts, enhancing trust in the judicial process and minimizing fear that justice is being administered clandestinely”). Second, even if the District Court had articulated sufficiently specific findings to provide a basis for some sealing, that would not make wholesale sealing of the Plea Document warranted. The law is clear that when a First Amendment right of access attaches, any eventual closure must be “narrowly tailored to serve” the interest found to be sufficient to overcome that right of access, N. Jersey Media Grp., 836 F.3d at 429 (citation omitted), with the court employing “the least restrictive means” available to protect that interest, Antar, 38 F.3d at 1359. Here, while the District Court stated generally that “the sealing of these records was 21 Case: 17-2644 Document: 003112807594 Page: 28 Date Filed: 12/20/2017 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,” A10, there is no indication that the Court considered any alternative measures – such as targeted redactions – let alone that it did so specifically with reference to the Plea Document. That is insufficient. See, e.g., Fair Lab. Practices Assocs. v. Riedel, 666 F. App’x 209, 212-13 (3d Cir. 2016) (remanding to district court to consider possibility of redacting confidential information as less restrictive option to sealing). As one Court of Appeals has explained, “district courts [should] avoid sealing judicial documents in their entirety unless necessary” because “[t]ransparency is pivotal to public perception of the judiciary’s legitimacy and independence.” United States v. Aref, 533 F.3d 72, 83 (2d Cir. 2008). The District Court’s decision to permit sealing of the Plea Document in its entirety was inconsistent with that fundamental principle. Moreover, the wholesale sealing of a Plea Document is a particular affront to the purposes served by the First Amendment right of access. It is axiomatic that “the appearance of justice can best be provided by allowing people to observe it.” Richmond Newspapers, Inc., 448 U.S. at 572. Yet, because Thomas (like many criminal defendants) elected to forgo her constitutional right to a public trial by pleading guilty, the public has been deprived of the opportunity to observe the 22 Case: 17-2644 Document: 003112807594 Page: 29 Date Filed: 12/20/2017 proceedings against Thomas, assess the evidence against her, and fulfill its role as a check on the prosecutorial and judicial process. In this case, as in nearly all criminal cases, the plea agreement and related documents “take[] the place of the criminal trial.” Oregonian Publ’g Co., 920 F.2d at 1465. Denying public access to records filed in connection with guilty pleas would “effectively block the public’s access to a significant segment of our criminal justice system.” Id.; see also DeJournett, 817 F.3d at 485 (“[The public’s] access to plea agreements negotiated by the government and an accused plays a significant role in monitoring the administration of justice by plea.”). When a defendant’s fate is determined without the benefit of a public trial, as it has been in this case, it is critical that the public has the tools to understand the nature of the underlying proceedings, the basis for the defendant’s decision to admit her guilt, and what the Government has agreed to in exchange. Providing access to the Plea Document will enable the public to assess “the basic fairness” of these criminal proceedings and will increase “public confidence in the system.” N. Jersey Media Grp., 836 F.3d at 429 (citation omitted). Finally, the District Court’s decision to seal the Plea Document based on reasons the Government articulated only in a sealed filing deprived The Declaration of its right to meaningfully contest the sealing. This is illustrated by In re Capital Cities, 913 F.2d 89, in which this Court made clear that a media 23 Case: 17-2644 Document: 003112807594 Page: 30 Date Filed: 12/20/2017 entity moving for access to sealed records is entitled to enough information about those records and the basis for sealing them so as to be in a position to adequately challenge the sealing. In Capital Cities, the media intervenor (Capital Cities/ABC, Inc.) appealed from a denial of “access to three sealed documents.” Id. at 90. In its decision vacating that order, this Court observed that “Capital Cities was at a severe disadvantage in trying to show that its First Amendment and common law rights of access to criminal proceedings . . . overcame the government’s interest in preventing the infliction of unnecessary and intensified pain on third parties.” Id. at 95. That is because, inter alia, “at the time of its application to unseal the documents that are the subject of this appeal, Capital Cities had absolutely no information concerning [the document’s] particular subject matter.” Id. As a result, “Capital Cities was unable to advance anything but the most general arguments concerning its First Amendment and common law right to access criminal proceedings,” and “could not directly rebut the reasons that led the district court to seal the three documents.” Id. To remedy those circumstances, the Court remanded with directions that Capital Cities be given an opportunity to make specific objections to the sealing. Id. at 98. The Declaration should have been accorded that same opportunity. In this case, The Declaration knows almost nothing about the Plea Document or the reasons for its sealing. Without some basic information, The Declaration cannot 24 Case: 17-2644 Document: 003112807594 Page: 31 Date Filed: 12/20/2017 meaningfully challenge the continued sealing of that document or seek to vindicate the public’s right to access it. In short, the District Court’s sealing of the Plea Document did not comport with either the substantive or procedural requirements necessary to overcome the First Amendment right of access. The portion of its order sealing the Plea Document in its entirety should, accordingly, be vacated. III. THE DISTRICT COURT’S SEALING OF THE REPLY BRIEF AND EXHIBIT WAS WITHOUT PROPER JUSTIFICATION The District Court held that the sealed portions of the Reply Brief and Exhibit filed by Thomas in support of her motion for a bill of particulars are not subject to a right of access, under either the First Amendment or the common law. A8. The basis for this holding was the Court’s conclusion that those sealed portions contain information subject to grand jury secrecy under Federal Rule of Criminal Procedure 6(e). A6-7. The District Court reasoned that Rule 6(e) places grand jury material outside the scope of any public right of access. It based that analysis on In re Newark Morning Ledger Co., 260 F.3d 217, 220-21 (3d Cir. 2001), where this Court held that “there is no presumptive First Amendment or common law right of access to court documents that involve materials presented before a grand jury, including motions, filings and proceedings alleging contempt under Fed. R. Crim. P. 6(e).” A7. 25 Case: 17-2644 Document: 003112807594 Page: 32 Date Filed: 12/20/2017 Newark Morning Ledger is not the proper frame of reference for the issue presented by The Declaration’s motion. This case is not a proceeding before the grand jury or a proceeding adjunct to a grand jury, like the contempt proceeding at issue in Newark Morning Ledger. See Newark Morning Ledger, 260 F.3d at 222 (“grand jury proceedings” and “collateral proceedings containing grand jury material” are “not subject to a First Amendment right of access under the test of ‘experience and logic’” (quoting Smith, 123 F.3d at 148)). Rather, this is a standard criminal prosecution. As in all such criminal cases, the records filed in connection with this prosecution are subject to a First Amendment or common law right of access. See supra at 17-19; see also, e.g., Smith, 776 F.2d at 1111 (First Amendment and common law rights of access apply to bills of particulars). Here, while The Declaration contends that right has not been overcome, the Court need not decide that issue because the sole rationale the District Court offered for sealing – grand jury secrecy – was inapplicable in three other respects. First, it appears that the substance of the redacted portion of the Reply Brief and the information contained in the Exhibit were already publicly disclosed. The Reply Brief refers to the Exhibit in the following passage, with black shading showing redactions made ostensibly to omit references to the Exhibit: Ms. Thomas can only assume that this statement alludes to excerpts of certain online communications she exchanged with a purported ISIL fighter, alleged co-conspirator number 2 (CC#2), which took 26 Case: 17-2644 Document: 003112807594 Page: 33 Date Filed: 12/20/2017 place in February 2015. In one of the exchanges that the Government frequently references (see, e.g., Motion in Opposition, Pacer Entry 43 at 3), (attached hereto as Ex. A). Ms. Thomas then answered, “[A] girl can only wish,” to which the CC#2 promised, “I can make that wish come true.” A154-55. The filing that is referenced just prior to the redacted portion – Motion in Opposition, ECF 43 – is available on the public docket. That filing includes the following at Page 3, which appears to be the “online communications” referred to in the Reply immediately prior to the redacted text, as reflected with bold text: Thomas exchanged numerous communications with a known overseas ISIL fighter (CC#2), who advised Thomas that he had arrived in Syria, that his presence there was a blessing, and that he was surrounded by “the future generation of mujahidin [violent jihadi fighters] who love Dawla [ISIL].” In February 2015, CC#2 sent an electronic communication to Thomas stating, “U probably want to do Istishadee [martyrdom operations] with me.” In response, Thomas stated, “that would be amazing. . . . a girl can only wish.” CC#2 responded, “I can make that wish come true.” Thomas also sought help from CC#2 regarding “routes” and her “travel plan.” A60. This same exchange is discussed in the Criminal Complaint, A43, and in other documents filed by the Government that are publicly available, A144 at ¶ 18(z). If, as appears to be the case, the substance of the information contained in the Reply Brief and Exhibit has already been publicly disclosed, then there is no justification for their continued sealing. See, e.g., In re Capital Cities, 913 F.2d at 27 Case: 17-2644 Document: 003112807594 Page: 34 Date Filed: 12/20/2017 98 (documents containing information that has already been made public should be unsealed); Robinson, 935 F.2d at 292 (“Because disclosure of the contents of the plea agreement would only have confirmed to the public what was already validated by an official source . . . it [is not] evident how such disclosure could pose any extra threat.”). When The Declaration made this argument below, the District Court never stated whether the substance of the Reply Brief and Exhibit had already been disclosed. A5 n.2. Rather, it stated only that “[i]f this was more than just a guess, the motion would be moot, as [The Declaration] would already have access to the portion of the document they seek.” Id. That is mistaken. “To say that an appeal is moot means that the court cannot provide the prevailing party with any relief.” Constand v. Cosby, 833 F.3d 405, 409 (3d Cir. 2016) (citing Chafin v. Chafin, 568 U.S. 165, 172 (2013)). Here, the District Court could have provided relief because the portions of the Reply Brief referring to the Exhibit remain sealed. Indeed, given the public’s right to transparency in criminal proceedings, unsealing previously sealed material serves a public interest even if it does not disclose any new information. Second, even if the specific information under seal has not been disclosed previously, the District Court erred in concluding that Rule 6(e)’s secrecy requirements govern the information in the Reply Brief and Exhibit. That material 28 Case: 17-2644 Document: 003112807594 Page: 35 Date Filed: 12/20/2017 was provided to Thomas during the course of discovery pursuant to a protective order, and Thomas filed it with the Court. As the District Court acknowledged, “Thomas, as the individual ultimately indicted by the grand jury, is not among the people who, pursuant to Rule 6(e)(2)(B), ‘must not disclose a matter occurring before the grand jury.’” A6. That should have been dispositive. The secrecy demanded by Rule 6(e) does not apply to material produced in discovery to the defendant. See, e.g., United States v. Salerno, 796 F. Supp. 1099, 1108 (N.D. Ill. 1991) (“Discoverable materials falling within the scope of Brady and the Jencks Act also constitute exceptions to the general rule of grand jury secrecy.”). Accordingly, Rule 6(e) cannot be the basis for keeping the filed material secret. The District Court attempted to reconcile the fact that Thomas was not bound by Rule 6(e) with its legal conclusion that papers Thomas filed were nonetheless subject to Rule 6(e) by emphasizing that Thomas joined the Government in opposing the unsealing of this material. A8. That, according to the District Court, made the situation unlike one in which Thomas “wished to provide these materials” to The Declaration. A8. In that situation, the District Court acknowledged, only the protective order, and not Rule 6(e), would govern public disclosure. A8. That is a distinction without a difference. Thomas – a person not bound by Rule 6(e)’s secrecy requirements – filed materials with the Court in connection with a pretrial motion seeking a bill of particulars. As this Court has 29 Case: 17-2644 Document: 003112807594 Page: 36 Date Filed: 12/20/2017 explained, “by submitting pleadings and motions to the court for decision, one enters the public arena of courtroom proceedings and exposes oneself, as well as the opposing party, to the risk, though by no means the certainty, of public scrutiny.” Leucadia, Inc. v. Applied Extrusion Techs., Inc., 998 F.2d 157, 164 (3d Cir. 1993) (alterations omitted) (quoting Mokhiber v. Davis, 537 A.2d 1100, 1111 (D.C. 1988)). Once Thomas filed the material with the District Court, as she had a right to do after it was provided to her in discovery, then access to those materials became subject to the same principles governing all court filings.6 See Wecht, 484 F.3d at 211-12 (district courts, when faced with information subject to a protective order, must balance the public interest in disclosure against interests protected by the protective order). Finally, it is far from clear that the Reply and the Exhibit even contain material that was ever within the scope of Rule 6(e). This Court has explained that Rule 6(e) only applies to matters “occurring before [a] grand jury.” In re Grand Jury Investigation, 630 F.2d 996, 1000 (3d Cir. 1980). That means that Rule 6(e) does not apply to information presented to the grand jury, but developed outside of the grand jury process, even if that information was “developed with an eye toward ultimate use in a grand jury proceeding.” In re Grand Jury Matter, 682 F.2d 61, 6 Certainly, had this case gone to trial, there could be no serious dispute that if Thomas used that material in her defense it would have been subject to a public right of access, notwithstanding Rule 6(e). 30 Case: 17-2644 Document: 003112807594 Page: 37 Date Filed: 12/20/2017 64 (3d Cir. 1982); see also United States v. Chang, 47 F. App’x 119, 121-22 (3d Cir. 2002) (“information does not become a matter occurring before the grand jury simply by being presented to the grand jury, particularly where it was developed independently of the grand jury [process]”). The Declaration obviously does not know precisely what is in the sealed portions of the Reply Brief and Exhibit. The District Court stated that it was “satisfied . . . that the disputed document contains grand jury material not developed independently of the grand jury process.” A5 n.2. Nonetheless, based on the specific redactions to the Reply Brief, it appears that the Exhibit consists at least in part of communications between Thomas and an alleged co-conspirator that the Government obtained by means of electronic surveillance. See A154 (relevant portions of Reply Brief). To the extent that is true, the information was collected independent of the grand jury, and it would not fall within the scope of Rule 6(e)’s grand jury secrecy requirement. See In re Grand Jury Matter, 682 F.2d at 64 (“materials obtained in the course of” FBI investigation, including tape recordings and transcripts of recorded conversations, were “the fruits of a federal police investigation, not a federal grand jury investigation”). In short, the District Court erred in holding that the grand jury secrecy requirement codified at Rule 6(e) bars disclosure of the Reply Brief and Exhibit. That portion of its order should, accordingly, be vacated. 31 Case: 17-2644 Document: 003112807594 Page: 38 Date Filed: 12/20/2017 CONCLUSION For the reasons set forth above, this Court should vacate the order of the District Court and remand to the District Court either with directions to unseal the records, or directions to consider whether, on the basis of the applicable principles, any sealing of the records is warranted. Dated: December 20, 2017 Respectfully submitted, BALLARD SPAHR LLP By: s/ Michael Berry Michael Berry (PA 86351) Paul Safier (PA 209154) 1735 Market Street, 51st Floor Philadelphia, Pennsylvania 19103 Telephone: (215) 665-8500 berrym@ballardspahr.com safierp@ballardspahr.com Attorneys for Intervenor-Appellants 32 Case: 17-2644 Document: 003112807594 Page: 39 Date Filed: 12/20/2017 CERTIFICATE OF COMPLIANCE Pursuant to Rule 32(a)(7)(C) of the Federal Rules of Appellate Procedure, and Local Appellate Rule 31.1, I hereby certify that: 1. The foregoing Brief of Intervenor-Appellants Austin Nolen and Philly Declaration, LLC, complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B), because, according to the word count of the word-processing system used to prepare the brief, the brief contains 7,038 words, excluding the corporate disclosure statement, table of contents, table of authorities, and certificates of counsel; 2. The foregoing Brief of Intervenor-Appellants Austin Nolen and Philly Declaration, LLC complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Office Word 2010 in 14-point Times New Roman font; 3. The text of the electronic brief and the text of the paper copies filed with the Clerk are identical; and 4 The PDF file of this brief has undergone a virus check using Microsoft System Center Endpoint Protection, and no virus was detected. This 20th day of December, 2017. s/ Michael Berry Michael Berry Case: 17-2644 Document: 003112807594 Page: 40 Date Filed: 12/20/2017 CERTIFICATION OF BAR ADMISSION Pursuant to L.A.R. 46.1, I hereby certify that at least one of the attorneys whose names appear on this brief is a member of the bar of this Court. s/ Michael Berry Michael Berry 34 Case: 17-2644 Document: 003112807594 Page: 41 Date Filed: 12/20/2017 CERTIFICATE OF SERVICE I hereby certify that on this 20th day of December, 2017, I caused a true and correct copy of this Brief of Intervenor-Appellants Austin Nolen and Philly Declaration, LLC and Volumes I and II of the accompanying Appendices to be served via ECF and hand delivery upon the following: Jennifer A. Williams, Esq. Office of United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 jennifer.a.williams@usdoj.gov Attorneys for Appellee United States of America Kathleen M. Gaughen, Esq. Brett G. Sweitzer, Esq. Elizabeth Toplin, Esq. Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106 kathleen_gaughan@fd.org brett_sweitzer@fd.org elizabeth_toplin@fd.org Attorneys for Defendant-Appellee Keonna Thomas s/ Michael Berry Michael Berry Case: 17-2644 Document: 003112807594 Page: 42 Date Filed: 12/20/2017 No. 17-2644 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT UNITED STATES OF AMERICA, Appellee v. KEONNA THOMAS, Defendant-Appellee and AUSTIN NOLEN and PHILLY DECLARATION, LLC, Intervenor-Appellants On Appeal from the United States District Court for the Eastern District of Pennsylvania (No. 15-cr-171) INTERVENOR-APPELLANTS’ APPENDIX VOLUME I [A1-A11] Michael Berry Paul Safier BALLARD SPAHR LLP 1735 Market Street, 51st Floor Philadelphia, Pennsylvania 19103 Telephone: (215) 665-8500 berrym@ballardspahr.com safierp@ballardspahr.com Attorneys for Intervenor-Appellants Case: 17-2644 Document: 003112807594 Page: 43 Date Filed: 12/20/2017 TABLE OF CONTENTS VOLUME I Notice of Appeal (ECF 111) .................................................................................... A1 Memorandum Re: Intervenors’ Motion to Unseal (ECF 108). ............................... A3 Order Re: Intervenors’ Motion to Unseal (ECF 109)............................................ A11 VOLUME II District Court Docket as of November 17, 2016 .................................................. A12 District Court Docket as of December 14, 2017 ................................................... A23 Complaint (ECF 1) ................................................................................................ A39 Government’s Motion for Additional Security Measures Outside the Courtroom (ECF 24) ............................................................... A46 Order re: Government’s Motion for Additional Security Measures Outside the Courtroom (ECF 26). .............................................................. A55 Government’s Response in Opposition to Defendant’s Motion for a Bill of Particulars (ECF 43). ................................................. A58 Memorandum Re Defendant’s Motion For Notice and Discovery of Surveillance (ECF 79) ............................................................................ A70 Motion of Philly Declaration, LLC and Austin Nolen to Intervene and Unseal (ECF 90) .................................................................. A81 Government’s Response in Opposition to Motion of Philly Declaration, LLC and Austin Nolen to Intervene and Unseal (ECF. 94) ..................... A107 Reply in Support of the Motion of Philly Declaration, LLC and Austin Nolen to Intervene and Unseal (ECF 97) ............................... A118 Order re: Motion of Philly Declaration, LLC and Austin Nolen to Intervene and Unseal (ECF 98) ................................................................ A129 Case: 17-2644 Document: 003112807594 Page: 44 Date Filed: 12/20/2017 Unsealed Search and Seizure Warrant (ECF 102-2) .......................................... A131 Unsealed Reply in Support if Defendant’s Motion for a Bill of Particulars (ECF 102-4) ................................................................ A153 Unsealed Sealing Order re: Defendant’s Reply to the Government’s Motion in Opposition to a Bill of Particulars (ECF 102-5) ...................... A160 Unsealed Sealing Order re: Defendant’s Motion for Notice and Discovery of Surveillance Used in Government’s Investigation of the Defendant (ECF. 102-6) ..................................................................... A161 Unsealed Order re: Government’s Unopposed Motion for Extension of Time to Respond (ECF 102-7) ............................................................ A162 Unsealed Sealing Order re: Government’s Response in Opposition to Defendant’s Motion for Notice and Discovery of Surveillance Used in Government’s Investigation of the Defendant (ECF 102-8) ................................................................. A163 Supplemental Memorandum of Philly Declaration, LLC and Austin Nolen in Further Support of Motion to Unseal (ECF 104) ...................... A164 Case: 17-2644 Document: 003112807594 Page: 45 Date Filed: 12/20/2017 Case:Case 17-2644 2:15-cr-00171-MMB Document: 003112689160 Document 111 Page: Filed107/27/17 Date Filed: Page08/01/2017 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, v. KEONNA THOMAS, a/k/a “Fatayat Al Khilafah” a/k/a “YoungLioness” : : : : CRIMINAL NO. 15-171 : : : : : : : : : : NOTICE OF APPEAL Notice is hereby given that Intervenors Philly Declaration, LLC and Austin Nolen (collectively, “Media Intervenors”) appeal to the United States Court of Appeals for the Third Circuit in the above-named proceeding from the collateral order entered on June 29, 2017 (Dkt. No. 109) that denied with prejudice Media Intervenors’ motion to unseal. Respectfully submitted, LEVINE SULLIVAN KOCH & SCHULZ, LLP Date: July 27, 2017 By: /s/ Michael Berry Michael Berry Paul Safier 1760 Market Street, Suite 1001 Philadelphia, PA 19103 Tel: (215) 988-9778 Fax: (215) 988-9750 mberry@lskslaw.com psafier@lskslaw.com Attorneys for Philly Declaration, LLC and Austin Nolen A1 Case: 17-2644 Document: 003112807594 Page: 46 Date Filed: 12/20/2017 Case:Case 17-2644 2:15-cr-00171-MMB Document: 003112689160 Document 111 Page: Filed207/27/17 Date Filed: Page08/01/2017 2 of 2 CERTIFICATE OF SERVICE I hereby certify that on this 27th day of July, 2017, I caused the foregoing NOTICE OF APPEAL to be served via ECF to the following counsel of record: Jennifer A. Williams U.S. Attorney’s Office 615 Chestnut St., Suite 1250 Philadelphia, PA 19106 jennifer.a.williams@usdoj.gov Attorney for the United States Elizabeth Toplin Kathleen M. Gaughan Federal Community Defender Office 601 Walnut St., Suite 540 Philadelphia, PA 19106 kathleen_gaughan@fd.org Attorneys for Defendant /s/ Michael Berry 2 A2 _ Case: 17-2644 Document: 003112807594 Page: 47 Date Filed: 12/20/2017 2:15-cr-00171-MMB Document 108 Page: Filed106/28/17 Page08/01/2017 1 of 8 Case:Case 17-2644 Document: 003112689161 Date Filed: IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v. CRIMINAL ACTION NO. 15-171 KEONNA THOMAS Baylson, J. June 28, 2017 MEMORANDUM RE: INTERVENORS’ MOTION TO UNSEAL I. Introduction Before the Court is the motion of non-party intervenors Philly Declaration, LLC, publisher of The Declaration news website, and Austin Nolen, its Managing Director (collectively, the “Intervenors”), to unseal certain documents (ECF 90, “Intervenor Mot.”). While the number of documents in dispute has been considerably narrowed since the Intervenors initially filed their motion, the continued sealing of portions of ECF 47, as well as ECF 24, 26, and 87 remain in dispute. For the following reasons, Intervenors’ motion as to these documents will be DENIED. II. Background and Procedural History On September 20, 2016, Defendant Keonna Thomas (“Thomas”) plead guilty to one Count of attempting to provide material support and resources to ISIL, in violation of 18 U.S.C. Section 2339B. Thomas is scheduled to be sentenced on September 6, 2017 (ECF 107). On November 16, 2016, Intervenors filed the instant motion to unseal documents and to intervene (ECF 90), arguing that the “extensive sealing” in this matter has hindered their ability to report about it. On February 6, 2017, the Government filed an opposition to the motion, as 1 A3 Case: 17-2644 Document: 003112807594 Page: 48 Date Filed: 12/20/2017 2:15-cr-00171-MMB Document 108 Page: Filed206/28/17 Page08/01/2017 2 of 8 Case:Case 17-2644 Document: 003112689161 Date Filed: well as a sealed addendum, which provides additional explanation of its position. (ECF 94, 95). Intervenors filed a reply on February 21, 2017 (ECF 97, “Intervenors Reply”). The Court held Oral Argument on the Intervenor’s motion on March 2, 2017. On March 7, 2017, the Court issued an Order granting the motion to intervene, and denying in part and granting in part the motion to unseal. (ECF 98). Relevant here, the Court ordered, inter alia, that ECF 24, 26 and 31 would remain under seal, and the Government would file redacted versions of ECF 35, 47 and 48. Additionally, Intervenors were directed to “review the additional materials unsealed by the [G]overnment and file a supplemental memorandum by May 3, 2017,” to the extent they thought the unsealing was insufficient, which the Government was to respond to by May 17, 2017. On May 3, 2017, Intervenors filed a supplemental memorandum (ECF 104, “Supp. Mem.”), in which they argue that, “[h]aving carefully reviewed the records unsealed by [the March 7, 2017] Order,” that ECF 47, 24, 26 and 87 remain under seal improperly. The Government did not file anything in response. On May 25, 2017, the Court held a hearing regarding the documents that remain in dispute. At the hearing, Intervenors reiterated the legal arguments addressed in their briefs, and Thomas and the Government stated that they were unified in their position that the disputed documents should remain under seal. III. Discussion Because the legal issues with respect to the disputed documents are distinct, the Court will analyze the propriety of continued sealing on a document by document basis. 2 A4 Case: 17-2644 Document: 003112807594 Page: 49 Date Filed: 12/20/2017 2:15-cr-00171-MMB Document 108 Page: Filed306/28/17 Page08/01/2017 3 of 8 Case:Case 17-2644 Document: 003112689161 Date Filed: a. ECF 47: Grand Jury Materials which were redacted by the Government, the propriety of which is not disputed by Defendant, in Thomas’ Reply Brief in Support of a Bill of Particulars A redacted portion of Thomas’ Reply brief in support of her motion for a Bill of Particulars, 1 and an exhibit attached to the Reply brief, remain in dispute because they contain grand jury material. 2 In response to the Intervenors’ original motion to unseal the document, the Government previously agreed to unseal a redacted version of the Reply brief, which the Court approved (ECF 98). The redactions preclude Intervenors from access to references and citations to grand jury materials. Intervenors contend that the redaction of text of the Reply brief which contains grand jury materials, and refusal to unseal the grand jury exhibit, is improper. Their legal argument, however, does not withstand scrutiny. Essentially, Intervenors argue that because Thomas was provided with the disputed grand jury material in the course of discovery, Thomas cannot personally be prohibited from disseminating grand jury material pursuant to Federal Rule of Criminal Procedure (“FRCP”) 6. Therefore, Intervenors argue, the grand jury material is no longer subject to Rule 6’s secrecy requirements. Instead, Intervenors argue, because a Protective 1 The original motion and the Government’s opposition were both filed on the public docket. 2 Intervenors make two additional arguments, both of which the Court finds unpersuasive. First, citing In re Grand Jury Matters, 682 F.2d 61 (3d Cir. 1982), they argue that the Government has not proven that the disputed portion of the document was not generated independently of the grand jury process, and then merely used in a grand jury proceedings. (Intervenors’ Reply at 5-6; Supp. Mot at 3-4). The Court is satisfied, however, that the disputed document contains grand jury material not developed independently of the grand jury process. Intervenors also argue that this document should not be redacted because the substance of the redacted text has already been disclosed in a public filing, at ECF 43, page 3. (Supp. Mot. at 2-3 (citing In re Capital Cities, 913 F.2d 89, 98 (3d Cir. 1990)). If this was more than just a guess, this motion would be moot, as the Intervenors would already have access to the portion of the document they seek. However, Intervenors do not know for sure that the substance of the redactions is already on the public docket, which makes the legal analysis regarding sealing necessary. 3 A5 Case: 17-2644 Document: 003112807594 Page: 50 Date Filed: 12/20/2017 2:15-cr-00171-MMB Document 108 Page: Filed406/28/17 Page08/01/2017 4 of 8 Case:Case 17-2644 Document: 003112689161 Date Filed: Order (ECF 25) governs Thomas’ personal ability to disseminate the grand jury material she was provided in discovery, the Court must conduct a balancing test—outside the context of grand jury secrecy rules—to determine whether or not reliance on a protective order is warranted when balanced against the public’s common law or First Amendment right to access. (See Intervenor Reply at 5; Supp. Mem. at 4-5). The Court rejects this argument. FRCP 6 governs grand juries, and 6(e) specifically governs grand jury secrecy. Rule 6(e) states, in pertinent part, that “[n]o obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B).” Thomas, as the individual ultimately indicted by the grand jury, is not among the people who, pursuant to Rule 6(e)(2)(B), “must not disclose a matter occurring before the grand jury.” Accordingly, when the Government provided Thomas with grand jury materials in the course of discovery, Rule 6 alone could not have been the basis for any prohibition on her further dissemination of those materials. The Court did, however, impose a Protective Order on the Defendant’s ability to do so (ECF 25), which, pursuant to Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994), 3 was within its discretion. Intervenors’ reliance on United States v. White, No. 04-cr-370, 2004 WL 2399731 (E.D Pa. Sept. 22, 2004), a previous decision by this Court, is misplaced. There, the issue was whether, pursuant to the test articulated in Pansy, there was good cause to retroactively impose a 3 Pansy, 23 F.3d at 787-90, delineates seven factors to be considered when contemplating the issuance of a protective order, namely: 1. Whether disclosure will violate any privacy interests; 2. Whether the information is sought for a legitimate purpose; 3. Whether disclosure of the information will cause a party embarrassment; 4. Whether confidentiality is being sought over information important to health and safety; 5. Whether the sharing of information among litigants will promote fairness and efficiency; 6. Whether a party benefitting from the order of confidentiality is a public entity or official; 7. Whether the case involves issues important to the public. 4 A6 Case: 17-2644 Document: 003112807594 Page: 51 Date Filed: 12/20/2017 2:15-cr-00171-MMB Document 108 Page: Filed506/28/17 Page08/01/2017 5 of 8 Case:Case 17-2644 Document: 003112689161 Date Filed: protective order on grand jury material that had been provided to the defendant in discovery in the absence of one, in order to prevent its further dissemination. Id., at *5. While Intervenors cite White for the proposition that “a defendant who receives grand jury material as part of the discovery process is not subject to Rule 6(e)’s secrecy requirement,” (Supp. Mem. at 4), Intervenors improperly extrapolate from that (1) that just because Rule 6 cannot prevent Thomas from disseminating grand jury material, the material itself is no longer governed by Rule 6; and (2) that once grand jury material is subject to a protective order, that it becomes outside the realm of any other restriction on its dissemination. Intervenors offer no case law to support their position. While the Supreme Court has recognized a First Amendment right of access to most criminal proceedings, see, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 578 (1980), this right of access is not unlimited. “Among the few limitations to the First Amendment right of access in criminal hearings, none is more important than protecting grand jury secrecy.” Douglas Oil Co. of Cal. v. Petrol Stops N.W., 441 U.S. 211, 218 (1979). The Third Circuit is clear that “there is no presumptive First Amendment or common law right of access to court documents that involve materials presented before a grand jury, including initial motions, filings and proceedings alleging contempt under Fed.R.Crim.P. 6(e).” In re Newark Morning Ledger Co., 260 F.3d 217, 220–21 (3d Cir. 2001) (citing United States v. Smith, 123 F.3d 140, 150 (3d Cir. 1997) (“[I]f the district court seals a proceeding or brief because it would disclose grand jury matters, there is no First Amendment right of access to it even if it also concerns possible improper actions by government officials.”)) (emphasis added). The fact that a protective order personally prevents Thomas from dissemination of the grand jury material does not mean that the protective order becomes the only barrier between grand jury material and public dissemination. While Intervenors point to 5 A7 Case: 17-2644 Document: 003112807594 Page: 52 Date Filed: 12/20/2017 Case:Case 17-2644 2:15-cr-00171-MMB Document: 003112689161 Document 108 Page: Filed606/28/17 Date Filed: Page08/01/2017 6 of 8 United States v. Wecht, 484 F.3d 194, 211-12 (3d Cir. 2007), for the proposition that, “when faced with information subject to a protective order, [courts] must balance the public interest in disclosure against interests protected by the protective order,” (Supp. Mem. at 5), that case has nothing to do with grand jury material that was subject to a protective order, and Intervenors have not pointed to a single case that does. It is important to recognize that the Government and Defendants are aligned with respect to their opposition to the unsealing of ECF 47. If Thomas, for instance, had wished to provide these materials to Intervenors, the Court may have had opportunity to consider the “good cause” factors outlined in Pansy, in the context of whether the protective order was properly imposed. However, that is not the issue before the Court. Accordingly, because Intervenors have no right of access to grand jury material, and Thomas’ individual restrictions, with respect to Rule 6 and pursuant to a protective order, does not change that fact, Intervenors’ motion to unseal is DENIED as to ECF 47. b. ECF 24: Motion for additional security measure; ECF 26: Order Granting Motion for Additional Security Measures; ECF 87: Plea Document Intervenors argue that ECF 24, 26 and 87 all need to be unsealed, or that the Government must provide Intervenors with information sufficient to justify their continued sealing. Specifically, Intervenors argue that “where the First Amendment right of access attaches, as the Government concedes it does here, limiting the public’s right to access documents requires ‘specific, individualized’ findings that the First Amendment standard has been met[.]” (Supp. Mem. at 5). Therefore, they continue, “for the continued sealing of those records to be proper, there needs to be findings as to the necessity of sealing that are tied directly to those documents and the specific information that is being sealed.” (Id. at 6). The Court’s invocation of “considerations of national security,” they argue, are “insufficient.” (Id. at 5). 6 A8 Case: 17-2644 Document: 003112807594 Page: 53 Date Filed: 12/20/2017 Case:Case 17-2644 2:15-cr-00171-MMB Document: 003112689161 Document 108 Page: Filed706/28/17 Date Filed: Page08/01/2017 7 of 8 Under the First Amendment, the public has a “qualified . . . right to attend judicial proceedings and to access certain judicial documents.” Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 91 (2d Cir. 2004); see also Press-Enterprise Co. v. Superior Court of Cal., 478 U.S. 1,9 (1986). Similarly, under common law, the public has a “general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Comms, Inc., 435 U.S. 589, 597 (1978). “The presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice.” United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995). The applicability of the First Amendment, however, is not absolute. See, e.g., United States v. Doe, 14-cr-438, 2014 WL 11515832 (E.D.N.Y. Oct. 30, 2014). “Proceedings may be closed and . . . documents may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve high values and is narrowly tailored to serve that interest.” In re New York Times, 828 F.2d 110, 116 (2d Cir. 1987) (internal quotations omitted). Under common law, judicial documents carry a presumption of access measured by how relevant the document is to the exercise of judicial power “and the resultant value of such information to those monitoring the federal courts.” Amodeo, 71 F.3d at 1049. The presumption of access to the document is balanced against the countervailing interests specific to the facts of the case. See Lugosch v. Pyramid Co., 435 F.3d 110, 120 (2d Cir. 2006). The countervailing factors a court may consider include “the danger of impairing law enforcement, judicial efficiency, and privacy interests.” Id. at 123. 7 A9 Case: 17-2644 Document: 003112807594 Page: 54 Date Filed: 12/20/2017 Case:Case 17-2644 2:15-cr-00171-MMB Document: 003112689161 Document 108 Page: Filed806/28/17 Date Filed: Page08/01/2017 8 of 8 Here, after reviewing the information under seal, the Court concludes that the Government’s pursuit of ongoing law enforcement activities outweighs the public’s right of access to the sealed documents 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. See Haig v. Agee, 453 U.S. 280, 307 (1981) (“It is obvious and unarguable that no Governmental interest is more compelling than the security of the Nation.”) (internal quotation marks omitted). Additionally, unsealing these documents could jeopardize the safety of numerous individuals. See, e.g., United States v. Doe, 63 F.3d 121, 130 (2d Cir. 1995) (“The problem of retaliatory acts against those producing adverse testimony is especially acute in the context of criminal organizations . . .”). 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. IV. Conclusion For the foregoing reasons, Intervenors’ Motion to Unseal ECF 47, 24, 26, and 87 is DENIED, with prejudice. O:\Jessica.2016\U.S. v. Thomas\Memo Re Unsealing.docx 8 A10 Case: 17-2644 Document: 003112807594 Page: 55 Date Filed: 12/20/2017 Case:Case 17-2644 2:15-cr-00171-MMB Document: 003112689162 Document 109 Page: Filed106/28/17 Date Filed: Page08/01/2017 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v. CRIMINAL ACTION NO. 15-171 KEONNA THOMAS ORDER AND NOW, this 28th day of June, 2017, for the reasons stated in the foregoing memorandum, it is hereby ORDERED that Intervenors’ Motion to Unseal ECF Nos. 47, 24, 26, and 87 is DENIED, with prejudice. BY THE COURT: /s/ Michael M. Baylson ___________________________________________ HONORABLE MICHAEL M. BAYLSON United States District Court Judge O:\Jessica.2016\U.S. v. Thomas\Motion to unseal Order.docx A11