7/23/18: No presumption of public access to Rule 17(c) subpoena

In United States v. Sleugh, --- F.3d ---, No. 17-10424 (9th Cir. 2018), the Court held there is no presumption of public access under the First Amendment or common law to Rule 17(c) subpoena applications and their supporting materials. Thus, parties can gain access to sealed or in camera Rule 17(c) subpoenas, subpoena applications, and supporting documents only by demonstrating a “special need.”

In the average case, this rule will be a relief to most defendants, but not so here, where the defendant sought the information to attack the credibility of a government cooperator.

The case contains an interesting and detailed discussion regarding the public's right to access documents in criminal proceedings.

There is also some language worth noting for other appeals:

• "While appellate counsel certainly has an obligation to scour the record for appealable issues, see Jones v. Barnes, 463 U.S. 745, 753 (1983), this duty does not automatically create a right of access to sealed materials containing a co-defendant’s defense theories."

• I also like the simple description of the first prong of the abuse-of-discretion test: "this court must first determine under de novo review whether the district court applied the correct legal rule. United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc). If the district court applied the wrong rule, the district court abused its discretion."

• Finally, for sufficiency challenges, "we [only] look at the evidence actually presented at trial."