Summaries of Selected Opinions, 0520 COBJ, Vol. 49, No. 5 Pg. 70
| Position | Vol. 49, 5 [Page 70] |
FROM THE COURTS U.S. COURT OF APPEALS FOR THE TENTH CIRCUIT
No. 18-4163. United States v. Bacon.
2/21/2020. D.Utah. Judge Briscoe. Plea Agreement Supplement Filed Under Seal—Common Law Right of Access to Judicial Records—Case-Specific Findings—Plain Error.
Defendant pleaded guilty to two counts of bankrobbery and one count of robbing a credit union pursuant to a written plea agreement The plea agreement included a plea supplement describing defendant's lack of cooperation with the government in his case. At his combined plea and sentencing hearing, defendant requested permission to file the plea agreement without the plea supplement, because he was concerned for his personal safety that a sealed document shown in the docket would raise questions and inferences at a correctional facility. The district court ordered the plea supplement filed under seal, relying on a District of Utah local rule providing that all plea agreements be accompanied by a sealed plea supplement and filed under seal. Defendant refused to sign his plea supplement, and his counsel signed it on his behalf. At a subsequent resentencing hearing defendant requested that the court strike the sealed plea supplement. The district court ordered the plea supplement filed under seal.
On appeal, defendant argued that the district court erred in deciding the sealing question by failing to consider the presumptive right of access to judicial records and not basing its conclusion on the facts and circumstances of his case. There is a presumptive common law right of access to judicial records that is not abrogated by the District of Utah's local rule. In exercising its discretion to seal judicial records, the district court must weigh the public interest against those advanced by the parties. Thus, the government has the burden of articulating a sufficiently significant interest to justify overriding the presumption. Here, the district court relied on general information that was not on the record or in the local rules, and it neither applied the presumption nor supported its decision with case-specific findings. Therefore, the district court erred in its sealing decision, and the error was plain.
The decision was vacated and the case was remanded for further proceedings.
No. 18-1468. United States v. Lovato. 2/27/2020.
D.Colo. Judge Carson. 911 Call—Hearsay— Present Sense Exception—Contemporaneous Statements—Special Conditions of Supervised Release.
A man called 911 to report that he saw two men in a car shoot at another car. The caller identified himself to the 911 operator; followed the shooters' car during the approximately 13-minute call; and discussed with t he 911 operator the shooting, his continued observations of the car, and his own safety. A short while after the call, an officer located and pursued the shooters' car. During the pursuit, the car slowed and defendant jumped out of the car's passenger side. Defendant was arrested and found to be in possession of a pistol and ammunition. Defendant told officers that the car's driver gave him the pistol and ammunition, pointed a second gun at him, and threatened to shoot him if he did not jump out of the car. The pistol had a spent shell casing in the chamber, which indicated that someone recently fired die weapon. Defendant was charged with three violations of 18 U.S.C. § 922(g)(1) for being a felon in possession of a firearm or ammunition.
At trial, defendant objected to admission of die 911 call on hearsay grounds. The district court admitted die call into...
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