Pubdate: Sun, 26 May 2013
Source: Sacramento Bee (CA)
Copyright: 2013 The Sacramento Bee
Contact: http://mapinc.org/url/0n4cG7L1
Website: http://www.sacbee.com/
Details: http://www.mapinc.org/media/376
Author: Denny Walsh

FILES ON COOPERATING FEDERAL DEFENDANTS OFTEN SEALED, SACRAMENTO CASE SHOWS

The sentencing Friday of a former operator of a Sacramento marijuana 
dispensary brought into sharp relief the increased secrecy 
surrounding plea bargains and punishment of federal defendants 
willing to help the government in exchange for a shorter prison term.

A prosecutor's attempt to seal a sentencing memorandum in the case of 
Bryan Smith encountered stiff resistance from U.S. District Judge 
Garland E. Burrell Jr., who is known to be more scrupulous than most 
of his colleagues on the Sacramento federal bench when it comes to 
the evaluation of sealing requests and procedures.

Smith, 28, of Elk Grove owned and operated the R&R Wellness 
Collective in south Sacramento. He was sentenced by Burrell to six 
years in prison on his earlier plea of guilty to conspiring to 
distribute marijuana and manufacturing it.

But it is the fallout from Assistant U.S. Attorney Richard Bender's 
request that the government's sentencing memorandum be sealed that 
distinguishes the matter from garden-variety pot cases.

The push to hide identities of cooperating defendants began picking 
up steam approximately three years ago, with judges granting more and 
more requests by prosecutors for sealing documents.

In a prepared statement on the matter, U.S. Attorney Benjamin Wagner 
said his office looks at "whether disclosure of the information would 
compromise an ongoing investigation or potentially lead to the 
destruction of evidence."

"We are also concerned, however, about the safety of defendants in 
custody if the nature of their cooperation becomes known," Wagner said.

"Because court records are online, inmates in federal prisons often 
have access to them via prison library computers or by calling 
friends outside who look it up and relay the information back to them."

"Also," he added, "if those who cooperate are identified publicly, 
others will be reluctant to supply information that would be valuable 
to law enforcement."

Sealings more frequent

However, the Smith case is an unusual instance of a sealing request 
sparking both a judge's ire and public exposure of the practice.

The day after Bender submitted his request, Burrell fired off an 
order denying it because "it did not include the majority of the 
required information."

He pointed out that, under court rules, the request has to "describe 
generally the documents sought to be sealed; the basis for sealing; 
the manner in which (the papers)... were submitted to the court," and 
whether the papers were served on all other parties in the case.

The judge disclosed that Bender's memo sought a reduced term for 
Smith under two sections of federal sentencing guidelines  one 
addressing "circumstances not taken into account by the Sentencing 
Commission" and the other addressing cooperation with the government.

Burrell acknowledged sealing was justified with respect to the 
defendant's cooperation with authorities but, he said, Bender had no 
legitimate reason for sealing the rest of the document.

The material the judge said Bender should not have tried to seal is 
primarily the prosecutor's argument that Smith deserved a sentence 
reduction because he paid $37,000 in fees to secure a city business 
license for the dispensary, he had complied with zoning ordinances 
and other regulations, and he reported marijuana sales and paid taxes 
on them to the state Board of Equalization.

The sentencing guidelines were crafted long before California 
legalized medical marijuana, Bender pointed out, so they do not take 
into account such a development.

This argument by the veteran federal prosecutor  a supervisor in the 
U.S. attorney's office  is unprecedented in Sacramento, where the 
office has taken a very hard-nosed stand on pot sales, contending 
there is no place in the defense of a federal prosecution for medical 
marijuana in view of federal authorities' zero-tolerance policy on marijuana.

But Bender hastened to add in the memorandum that the things Smith 
did right do not excuse his criminal activity. Under California law, 
sales of marijuana for medicinal purposes must be carried on by a 
nonprofit and, Bender said, Smith was in it strictly for the money 
and he had realized huge profits.

In his order denying Bender's request to seal the memo in its 
entirety, Burrell said the prosecutor could either come up with a 
good reason by the next morning for sealing the document all 
together, or he could file it with the part about cooperation redacted.

An unusual stance

Burrell is the only federal district judge in Sacramento who has 
reacted this way. The section of the court's rules he cited is 
consistently ignored by some of his fellow judges.

An exception is U.S. District Judge Kimberly J. Mueller, who has made 
adherence to the rules governing sealing a priority.

As a former media lawyer, U.S. District Judge William B. Shubb is 
mindful of the public's "right to know," and he has historically been 
careful about what he seals. But he appears to have wearied of the 
constant pressure from prosecutors to seal plea agreements of their 
choice and began sealing all of them.

Sealing only those agreements citing a defendant's cooperation fools 
nobody with regard to concealing an informant's identity, he explained.

A request to unseal a particular agreement would be dealt with on its 
merits, the judge promised.

A day-to-day review of seal requests by The Bee, over a period of 
years, shows that some members of the court do nothing but 
rubber-stamp requests for closure, no matter how cryptic and 
unenlightening they are.

A number of criminal defense lawyers interviewed by The Bee said 
cooperation with the government has become a favorite way to ease the 
pain of harsh federal sentences.

"Almost everybody cooperates these days," said Bruce Locke, a 
respected defense attorney. "It's about the only way you can be 
assured of receiving reasonable treatment."

Assistant Federal Defender Timothy Zindel agreed.

"It's a necessary evil," he said of the constant stream of sealing 
orders, "because there is so much gratuitous punishment built into the system."

Once Burrell shut down Bender's effort to seal the Smith memorandum, 
the prosecutor filed an abridged version of the document and gave the 
judge a letter vouching that Smith is cooperating.

Burrell reviewed the letter and gave it back to Bender at Friday's 
hearing, a routine commonly employed by prosecutors to inform the 
judge without putting something in the file.

Bender filed a separate pleading in which he noted the obvious 
conundrum: "Unfortunately, there is no good way, consistent with the 
local rule, to address both the reasons that sealing is needed and 
making the information public.

"It is a compromise addressing competing needs.

"Government counsel knows the court appreciates this and asks for the 
court's patience in sorting out the best way to approach the problem."

In that same pleading, Bender asked Burrell to seal that part of the 
judge's order referencing Smith's cooperation.

This did not sit well with Burrell.

He issued another order Thursday denying the request and cited a 
series of federal appellate opinions that stand for the proposition 
that, under the First Amendment, "the press and the public have a 
presumed right of access to court proceedings and documents," 
including those related to sentencing.

Quoting from a 1990 opinion that is binding in California federal 
courts, Burrell noted that any exception in a criminal case must 
satisfy three requirements:

Closure serves a compelling public interest.

There is a substantial probability that, in the absence of closure, 
this interest would be harmed.

There are no alternatives to closure, such as redaction, that would 
adequately protect the interest.

In ordering closure, the judge wrote, "the court must not base its 
decision on conclusory assertions alone, but must make specific 
factual findings," after the party seeking closure presents facts 
supporting it and demonstrates that alternatives will not satisfy the 
overriding reason for taking such an extraordinary action.
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