Opinion
CASE NO. 2:14-CR-00330 GEB
03-04-2016
UNITED STATES OF AMERICA, Plaintiff, v. GUO NENG MA, Defendant.
BENJAMIN B. WAGNER United States Attorney CHRISTIAAN H. HIGHSMITH Assistant United States Attorney 501 I Street, Suite 10-100 Sacramento, CA 95814 Telephone: (916) 554-2700 Facsimile: (916) 554-2900 Attorneys for Plaintiff United States of America
BENJAMIN B. WAGNER
United States Attorney
CHRISTIAAN H. HIGHSMITH
Assistant United States Attorney
501 I Street, Suite 10-100
Sacramento, CA 95814
Telephone: (916) 554-2700
Facsimile: (916) 554-2900 Attorneys for Plaintiff
United States of America
SEALING ORDER
The United States has submitted for in camera consideration of an "Amended Request to Seal Government's Two-Page Sentencing Letter," the Government's Two-Page Sentencing Letter, and this proposed sealing order which has been modified by the undersigned judge. The last line of the Two-Page Sentencing Letter contains the following legal argument that should have been made in a filing on the public docket: "The government believes that these considerations present a compelling interest for maintaining this letter under seal, as provided by Oregonian Publishing Co. v. U.S. District Court, 920 F.2d 1462, 1466 (9th Cir. 1990)." As indicated in the Order filed March 3, 2016: "The trial court should only seal that part of its findings that is necessary to protect the [subject] secrecy . . . and it must make every effort to explain as much of its decision as possible on the public record to enable an interested person to intelligently challenge the decision." Wash. Post v. Robinson, 935 F.2d 282, 289 n.9 (D.C. Cir. 1991). That Order also indicated "All too often, parties to the litigation are either indifferent or antipathetic to [this need]. This is to be expected: it is not their charge to represent the rights of others." Phx. Newspapers, Inc. v. U.S. Dist. Court for Dist. of Ariz., 156 F.3d 940, 951 (9th Cir. 1998).
The proponent of a sealing order is expected to propose factual findings consistent with Oregonian, where it states: "The court must not base its decision on conclusory assertions alone, but must make specific factual findings." 920 F.2d at 1466 (emphasis added). In the instant sealing request, the Government's "Amended Request to Seal Government's Two-Page Sentencing Letter" contains legal argument laced with factual assertions. However, the factual portion of this document combined with the Two-Page Sentencing Letter contains sufficient factual justification for the sealing order the Government seeks, and it is evident that the Government desires the referenced factual justifications to be filed under seal.
IT IS HEREBY ORDERED that the Amended Request to Seal Government's Two-Page Sentencing Letter and the Two-Page Sentencing Letter describing the Government's sentencing recommendation based on a downward departure under the United States Sentencing Commission's Guidelines are hereby SEALED until further order of this Court.
Dated: March 4, 2016
/s/_________
GARLAND E. BURRELL, JR.
Senior United States District Judge